Lowe v R

Court of Criminal Appeal (NSW)|2013-04-22|Before: Price J, Davies J, Barr AJ

The facts 13The following is the summary of the agreed facts by the Sentencing Judge:

Ongoing supply (methylamphetamine) - s 25A (CAN Sequence 16) 14In May 2008 Operation Fiesta was formed to investigate the supply of methylamphetamine in the Minto and Claymore area. As part of this a controlled operation was authorised on 5 June 2008. 15On 12 June 2008 a police undercover operative ("UCO") known as "Peter" attended Swettenham Road, Minto carrying $2,700 in cash. He wore a listening device. The Applicant was driven to this location by the co-offender Frank Sinkovich. Whilst Sinkovich waited by the car the Applicant went to the undercover operative's vehicle and supplied him with one ounce (31.8 grams gross weight) of methylamphetamine in exchange for the $2,700. That was later analysed and weighed showing a net total of 27.2 grams. 16There was then conversation about a further supply. In this conversation the Applicant referred to "Jack" (co-offender Tutton) as a person who would chase money for him and that the UCO would meet him in the next week. The Applicant told the UCO that Jack was "like my uncle...'cause my father's who we work for in this". The Applicant told the UCO to bring an Esky or cooler next time to keep the methylamphetamine from drying out. The Applicant also gave the UCO a mobile number for future contact. 17On 18 June 2008 the UCO called the Applicant to arrange the purchase of two ounces. He was told the price would be "five four". 18On 20 June 2008 the UCO again drove to the Swettenham Road location and met with both the Applicant and Tutton. They supplied the UCO with 65.7 grams of methylamphetamine for $5,400. Later weighing indicated a net total of 53.3 grams. 19Discussion then took place about the possible future purchase of "an elbow". The UCO asked for a rough price. The Applicant said it would be about "thirty". Tutton stated that several weeks ago the prices were running between "thirty and thirty-five". 20Arrangements were later made for another meeting on 26 June 2008. On that day the UCO attended the same location. He called the Applicant's mobile phone and was told that he had organised for Tutton to attend. A short time later Tutton arrived and supplied the UCO with three ounces (98.5 grams) of methylamphetamine for $8,100. Later weighed it showed a net total of 81.8 grams. Discussion then turned to the price of an elbow. Tutton said he thought it would be "thirty-two". They agreed no one other than the Applicant and Tutton would attend for the big deal and that the money would be counted in the car. 21On 30 June 2008 the Applicant spoke to the UCO over the phone. The UCO told him that the deal could probably be organised early next week. Shortly after that conversation the Applicant called Sinkovich and asked if he could postpone the delivery for another week. Sinkovich said he would "get it anyway as it didn't matter". The Applicant said "Okay but he said "definitely next week". 22On 2 July 2008 the UCO again attended Swettenham Road and met with the Applicant and Tutton. They supplied 66 grams of methylamphetamine for $5,400. The net weight indicated 53.9 grams. The Applicant then told the UCO that "that thing" (the elbow) was getting delivered to his house that day. He said, "The boss has dropped it off at my house". On 3 July 2008 the meeting in respect of the elbow was confirmed for 12 noon on 4 July 2008.

Supply prohibited drug (methylamphetamine), being not less than the commercial quantity 4 July 2008 (CAN Sequence 5) 23On 4 July 2008 the UCO met with the Applicant and Tutton just before midday at Swettenham Road for the supply of one pound (16 ounces) of methylamphetamine for $32,000. They entered the UCO 's car with the Applicant in the front passenger seat and Tutton in the rear. The Applicant removed three packages from a backpack. Tutton passed him an Esky from which the Applicant removed an ice-pack to keep the drugs cool. The total gross weight supplied to the UCO during this transaction was 512.8 grams. It was later analysed and weighed showing a net total of 443.8 grams. The UCO then handed over the money to the Applicant and as he began to count it other police officers moved in and all were arrested. The drugs were seized, as was the $32,000 in cash. The Applicant and Tutton were then taken back to the Macquarie Fields Police Station where they declined to be interviewed.

Count one: Supply prohibited drug (methylamphetamine) being not less than the commercial quantity - 4 July 2008. 24At 12.20pm on that same day being 4 July 2008 search warrants were executed at premises at 11 Bernardo Street, Rosemeadow and 12 Longstaff Way, Claymore. The Applicant had been leasing the Bernardo Street address from his sister Samantha Edmonds. When the search warrant was executed Sinkovich was sitting on the lounge watching "Underbelly" on television. Sinkovich told the police that the house was not his but he had stayed there overnight. Police noticed that the bonnet of his car was still hot. 25In a freezer in the kitchen police located a large resealable bag containing 18.4 grams (net) and two resealable bags containing 6.5 grams (net) of the same drug (methylamphetamine). In the laundry freezer they found a pink plastic case containing 395.7 grams (net); a specimen jar with 31.7 grams (net) of methylamphetamine; one resealable plastic bag containing 26.6 grams (net); eighteen small resealable plastic bags containing white residue (0.7 grams of methylamphetamine). All items were later analysed and found to be methylamphetamine and the net total weight was 479.6 grams.

Count two: Cultivate prohibited plant. 26During a search of the premises at 11 Bernardo Street police found in a room within the house eighteen cannabis plants grown by enhanced indoor means.

Counts three, four and five - possess unauthorised prohibited firearm, possess unregistered firearm, and possess a prohibited weapon without a permit. 27During a search of the main bedroom police located in the wardrobe one .22 calibre Phoenix self-loading pistol with ID erased (the first matter on the Form 1 relating to Count 5) with two magazines in bubble wrap (count three). They also found a .22 calibre BSA Sportsman single shot rifle JB31077, (count four) and two Taser like devices (count five). 28The eight further matters on that Form 1 relate to other firearms and ammunition located within the premises at 11 Bernardo Street on that same day. 29The two further matters on the other Form 1 (relating to CAN Sequence 16) relate to $30,335 in cash found within those premises and 1,650.4 grams of packaged and loose cannabis leaf found in the same room where the cannabis plants were growing.

Subjective factors 30The Sentencing Judge summarised the Applicant's subjective circumstances as follows. The Applicant did not give evidence at the sentencing hearing so that the detail of his background and circumstances came from reports which were tendered and from his sister who gave evidence. 31The Applicant was 37 years of age when sentenced and is now aged 41. While his criminal record was not an extensive one, and he had no prior drug related matters, it was nevertheless not one that would entitle him to leniency. 32The Applicant was the eldest of four children. He was apparently raised in a caring and supportive family environment and there were no significant issues during his childhood. He has apparently always been protective of his three sisters and when his parents were called upon to work long hours the Applicant felt he had a responsibility to care for them. 33He completed year ten at high school, achieving average results. After leaving the school he completed 12 months of a carpentry apprenticeship. He then worked building air conditioners for three months before commencing and completing a four year motor mechanics apprenticeship. He remained employed in that field for a further four years. Since that time he has been variously employed as a storeman, a truck driver, and most recently between 2005 and 2007 has conducted his own landscaping/home maintenance business. 34He informed the probation officer that he used cannabis between the ages of 14 and 24, and would use amphetamines and ecstasy on weekends approximately once a month throughout his life. However, he maintained that his use of illicit drugs was not a factor in respect of the commission of the present offences. 35He commenced a 14 year relationship when he was about 20 years of age and he has three children now aged 17, 11 and 10 from that relationship. He said he went through a difficult separation with his ex-partner around Christmas 2006. However, he remained on friendly terms with her and had been assisting with the care of his children while she in fact studied full time at TAFE from about mid 2007 until he was arrested in respect of the present offences. Since his incarceration that relationship had become strained and his ex-partner refused to allow him any contact with his children. It seems that the Applicant did not necessarily want his children seeing him in a custodial environment. The Applicant also informed the probation officer that he entered a new relationship about six months prior to his arrest but that that had also ended. He apparently remained unemployed since about 2007 and was not in receipt of Centrelink benefits. 36He advised the probation officer that he is a member of the Rebels Outlaws motorcycle gang, joining in 1999. He was the sergeant at arms of the Wollongong chapter between 2004 and 2006 and was the secretary of the chapter from 2006 up until his arrest in July 2008. He adamantly denied that this association was a factor in the commission of the present offences. 37The Applicant's parents and sisters all resided in Queensland. His mother indicated that whilst the family was disappointed in respect of his involvement in the offences the family would continue to support him. 38Ms Crystal Slack, the Applicant's sister, confirmed that the Applicant had indeed provided much comfort and support to all of his sisters both growing up and in their adult lives. She said he was a person that was always there for them. 39In both the pre-sentence report and the report of the psychologist Mr Diment the Applicant sought to provide a reason for his involvement in these offences. To the probation officer he indicated in part, that a friend owed a large drug debt and that he (the Applicant) had agreed to be that person's bodyguard/security and that he was attempting to assist his friend work off that drug debt by supplying drugs. A similar explanation appeared in the psychologist's report. In accordance with the principle in R v Quatami [2001] NSWCCA 353; (2001) 127 A Crim R 369 at [58]-[59] the Sentencing Judge correctly placed little weight on those untested assertions. 40In his report the psychologist, Mr Diment, stated that the Applicant was suffering from anxiety and depression. He said: While some of this is reasonably due to his current circumstances and pre-sentence, he is genuinely concerned about his children and family's welfare. He appears to have had a tough upbringing and he has always considered himself responsible for protecting his family. A role which he takes seriously. 41The Applicant informed the psychologist that he regretted his actions: big time, like you wouldn't believe...now will not be involved in anything like this that is in my power to do so...upset over the implications for others, not just me...family, kids...issues of drugs and all that for those into that rubbish. 42Mr Diment stated: In regards to his favourable prognosis and rehabilitation prospects, in his favour is a basically well-adjusted "core" personality and he has a good work ethic. His main passion in life involves cars and motorbikes and he told me that people in his motorcycle club 'Are on my back big time about my stupidity in all this...I reckon I have learned the hard way...I won't get another chance from them. The Sentencing Judge said that that statement might qualify for an expression of regret but it could not be put any higher than that. 43The Sentencing Judge said that the fact that at thirty-seven years of age the Applicant did not have any extensive criminal record and that he had had a continuous working history gave him some hope that the Applicant had reasonable prospects of rehabilitation.

Extension of time 44The Applicant was sentenced on 23 October 2009. 45On 12 November 2009 the Applicant's then solicitor filed a notice of intention to Appeal. At or about the same time an application was made to Legal Aid for the Appeal. 46The Applicant's present solicitor first received instructions on 21 October 2010 to act on behalf of the Applicant under a grant of legal aid for the purpose of obtaining an advice from counsel as to the merits of the proposed appeal. An advice was received from counsel dated 5 July 2011. Thereafter, the solicitor ceased to act for the Applicant. 47In the meantime, the co-offender Sinkovich applied for leave to appeal against the sentences imposed on him by Judge Conlon on 6 November 2009. The appeal was heard on 5 April 2011 and was dismissed on 15 April 2011. 48On about 18 June 2012 the Applicant's present solicitor was contacted by Legal Aid to inform him that in the light of the High Court's decision in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 the Applicant's grant of Legal Aid had been extended to obtain a further opinion of counsel regarding an appeal against the severity of sentence. 49On specific instructions of the Applicant the solicitor sent a brief to advise to Mr Hament Dhanji SC. Mr Dhanji had warned the solicitor that he was unable to attend to the matter immediately because of other commitments. The solicitor received Mr Dhanji's advice on about 16 November 2012. A further extension of time was then sought on 11 December 2012. The Notice of Application for Leave to Appeal was filed on 18 December 2012. 50In his affidavit in support of the application for extension the solicitor for the Applicant said that it had always been the intention of the Applicant to lodge an appeal against the severity of the sentence. There was no affidavit from the Applicant. 51The Crown opposed the extension of time because, it was submitted, there was no explanation as to why there was no application for an extension until the Notice of Application for Leave to Appeal was filed. 52It must be said at the outset that the explanation for the delay in appealing is sparse and unsatisfactory. There is no real explanation for the period from 12 November 2009 until 21 October 2010 (it is not said, for example, that the delay was the fault of Legal Aid) and there is no explanation at all for the period from 5 July 2011 until June 2012 when the solicitor was contacted by Legal Aid as a result of the review of decisions affected by Muldrock. 53Moreover, although the submissions concerning Ground 2 suggested a Muldrock error (because it was said the Sentencing Judge focused on objective gravity and altered the non-parole period accordingly) in oral submissions Senior Counsel for the Applicant disavowed specific reliance on a Muldrock error. Accordingly, the delay from July 2011 until June 2012 and beyond cannot be explained by a desire to take advantage of the position brought about by Muldrock in relation to convictions where no appeal had been brought at an earlier time and by reason of the case falling within the purview of the Standard Non-Parole Review Team of Legal Aid. 54The need for a satisfactory explanation has been emphasised in a number of cases: R v Sunderland (1927) 28 SR (NSW) 26 at 27 ("substantial reasons to be advanced"); R v Lawrence [1980] 1 NSWLR 122 at 148 and McCall v R [2010] NSWCCA 174 at [7] ("exceptional circumstances" need to be shown, especially where there has been considerable delay). 55In Edwards v R [2009] NSWCCA 199 Johnson J (with whom Allsop P and Kirby J agreed) said: [8] The court has a discretion with respect to extension of time under s 10(1)(b) Criminal Appeal Act 1912. In exercising that discretion, the court has regard to the prospects of success on the application for leave to appeal itself: R v Young [1999] NSWCCA 275 at [30]ff. The court will usually require some satisfactory explanation as to why an appeal was not brought within the time allowed, especially if the delay is considerable: R v Beattie [2000] NSWCCA 201 at [17]. 56Similarly in Flack v R [2011] NSWCCA 167; (2011) 205 A Crim R 138 Johnson J (with whom McClellan CJ at CL and Hidden J agreed) said: [7] This Court has emphasised the clear public interest in the avoidance of delay in bringing appeals to this Court and the demanding test to be applied where an extension of time is sought: McCall v R [2010] NSWCCA 174 at [5]-[7]; Darwiche v R [2011] NSWCCA 62 at [38]-[39]. It is appropriate to assess the merits of the Applicant's ground of appeal for the purpose of determining whether an extension of time ought be granted in this case. 57In Etchell v R [2010] NSWCCA 262; (2010) 205 A Crim R 138 Campbell JA (with Latham and Price JJ agreed) made reference to a number of decisions including what was said by Johnson J in Edwards and continued: [24] Even so, the "powerful considerations supporting the finality of judicial decisions", to which Hodgson JA referred [in R v Gregory [2002] NSWCCA 199 at [38]-[41]], apply to applications to extend the time for appeal against sentence. As well, when a time limit has been laid down through legislation, it would be subverting the intention of the legislation for this court to consider the matter as though it were an application for leave to appeal against sentence brought within time, and if such an application would succeed, regard that as a sufficient reason for extending the time. I recognise that "exceptional circumstances" are not, in so many words, expressly made part of the statutory scheme for granting an extension of time to appeal (Arja v R [2010] NSWCCA 190 at [4]-[5], cf McCall v R [2010] NSWCCA 174 at [5]-[7]). Even so, it seems to me that the need to give weight to the factors I have just mentioned in operating the statutory scheme must call for something beyond the presence of factors that would be sufficient to result in a sentence being varied if an application for leave to appeal against sentence were brought within time. 58It is appropriate, therefore, to examine the merits of the application for leave to appeal against the sentence before reaching a final view about whether an extension of time should be allowed.

Ground 1: Parity with Frank Sinkovich 59Sinkovich pleaded not guilty. On 6 July 2009 following trial a jury returned verdicts of guilty in respect of two counts as follows: Count 1: On 12 June 2008 he knowingly took part in the supply of a prohibited drug namely methylamphetamine; Count 2: That between 29 June 2008 and 5 July 2008 he did supply a prohibited drug being not less than the commercial quantity of methylamphetamine. 60Count 2 concerned the same transaction charged as CAN Sequence 5 against the Applicant. Count 1 was concerned with the same acts as constituted the on-going supply against the Applicant (CAN Sequence 16). Count 2 is relevant because it is necessary to consider the total effective sentences imposed on each of the Applicant and Sinkovich. 61Judge Conlon sentenced Sinkovich on 6 November 2009 as follows: Count 1: A non-parole period of two years commencing 4 July 2008 and expiring 3 July 2010 with an additional term of two years to expire 3 July 2012; Count 2: A non-parole period of nine years commencing 4 July 2009 and expiring 3 July 2018. 62The total effective sentence was a non-parole period of 10 years with a balance of term of 4 years. 63An appeal to this Court by Sinkovich was unsuccessful: Sinkovich v R [2011] NSWCCA 90. In that appeal Sinkovich argued a parity ground based on the sentence the Applicant received in respect of CAN Sequence 5 and argued that the sentences were manifestly excessive. 64There was nothing in particular in Sinkovich's subjective circumstances to distinguish him from the Applicant apart from the fact that he was aged 54 at the time of sentence. He had only a minor criminal record. The Sentencing Judge thought that he had reasonable prospects of rehabilitation. However, he showed no remorse, maintaining his innocence in the face of what the Sentencing Judge described as an overwhelming prosecution case. Like the Applicant he belonged to the Wollongong Chapter of the Rebels Motor Cycle Club, having previously been its president. 65When sentencing the Applicant in relation to the supply of not less than the commercial quantity of the prohibited drug the Sentencing Judge said that it involved a considerable degree of planning being negotiations in respect of price and the timeframe when delivery could be made. It involved the Applicant contacting Sinkovich who would organise for the collection of the commercial quantity and bring it to a location where the Applicant could collect it and then on supply it to the UCO. His Honour assessed the objective seriousness as far as the Applicant was concerned as falling above the mid range but not at the upper end of the range. 66When sentencing Sinkovich for the same offence his Honour again said that it indicated a considerable degree of planning involving negotiations in respect of the price and the timeframe for delivery. He said Sinkovich was the "go to" man for the supply and it involved Sinkovich organising for the supply and collection of the drug and then organising its supply to the Applicant so he could on supply it to the UCO. This involved a driver being organised to take the Applicant and the co-offender Tutton to the Swettenham Road location. Sinkovich then waited at the Applicant's premises while the transaction was taking place. 67The Sentencing Judge assessed Sinkovich as being slightly above the Applicant in the hierarchy. He assessed the objective seriousness of the offence as far as Sinkovich was concerned as falling slightly above the mid range. 68The Applicant's principal complaint at the hearing of this appeal concerning parity was that, taking into account the 25% discount that he received for an early plea, that notional starting point for his sentence was 16 years with a non-parole period of ten years and eight months. That was a starting point three years longer than the sentence imposed upon Sinkovich despite the fact that the Sentencing Judge had found the Applicant being in a lower position in the hierarchy than Sinkovich. It was submitted by the Applicant that there were no other factors present subjective or otherwise to justify the higher starting point. Further, a starting point of 16 years was closer to the maximum sentence available and included a non-parole period that was higher than the standard non-parole period. 69The Crown submitted that this argument should be determined to be academic. This was because the overall sentence was lenient. Interference with the sentence in respect of this count would result in a manifestly inadequate overall sentence. 70The Crown also submitted that even if disparity is found that does not, of itself, mean that the appeal must be allowed. The disparity must be marked. Further, reference was made to Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [33] and [105] which approved Simpson J's statement in R v Steele (Court of Criminal Appeal, 17 April 1997, Unreported), that the existence of a discretion to reduce a co-offender's sentence where unjustified disparity is shown does not amount to an obligation to do so. 71It should first be said that the proper enquiry is not whether the overall sentence was appropriate or lenient but whether, when the sentences for two identical counts (one charged against each of the Applicant and Mr Sinkovich) are compared, the Applicant has a justifiable sense of grievance by reason of the disparity of the sentences: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [48]; Sinkovich at [66]. 72Further, the statement of Simpson J was made in the context of the reduction of a sentence to one which would have been inadequate. In such a case, it would be an appropriate exercise of the discretion not to reduce the sentence. In the present case it cannot be said that a reduction of the sentence for parity reasons would result in a manifestly inadequate sentence for that offence. 73In my opinion, viewed overall, the findings of objective seriousness in relation to the same offence charged against each of the Applicant and Sinkovich are relatively equal and the distinction the Sentencing Judge made that Sinkovich was slightly above the Applicant in the hierarchy would of itself require no different sentence to be given to each of the offenders. There was no real difference in their subjective circumstances and the difference in relation to any remorse was minimal particularly bearing in mind that the Applicant did not give evidence at the sentencing hearing. 74The significant matter is that, all other things being relatively equal, the notional starting point for the Applicant was three years above that of Sinkovich. Although the two offenders were sentenced by the same judge only weeks apart and the judge made reference to their comparative roles in the offence no reasons are provided by the judge for the difference in the starting point in the sentences. The difference was not insignificant (23%) and it had the effect of denying to the Applicant almost the entirety of the discount he was otherwise given for an early plea. 75Whilst the difference in their roles as found by the judge was such that the same sentence for each would not have resulted in a justifiable sense of grievance on the Applicant's part, the imposition of a higher sentence to the extent of three years (before the discount for the early plea) on the Applicant with the lesser role and in the absence of other aggravating factors results in a justifiable sense of grievance. 76This ground is made out. Nothing in the evidence suggests otherwise than that the notional starting point for each offender should be the same. Subject to other matters which I shall mention later, with a discount of 25% for the early plea, and maintaining the ratio employed by the Sentencing Judge the Applicant should be sentenced to a non-parole period of 6 years and 6 months with an additional term of 3 years and 3 months.

Ground 2: The offence in CAN Sequence 5 - manifestly excessive 77In the light of the conclusion regarding ground 1 this ground can be dealt with briefly. 78The Applicant's submissions point to two matters said to result in the sentence being manifestly excessive. The first is a Muldrock type error on the basis that the Sentencing Judge has placed too much significance on his assessment of the objective seriousness of the offence. This is because he found that the offence was above the mid range and the undiscounted non-parole period, if s 44 Crimes (Sentencing Procedure) Act 1999 was applied without special circumstances being found, would result in a non-parole period two years higher than the standard non-parole period. Secondly, it was submitted that the determination of objective seriousness involved error based on comparative cases and sentencing statistics. 79Since Ground 1 is made out, it is no longer necessary to determine this ground. I adopt, however, the remarks of Johnson J in Shortland v R [2013] NSWCCA 4 where a similar issue arose: [147] It is sufficient to observe that a substantial sentence was imposed, which was partly cumulative. However, where an offender is sentenced for several offences so that the principles of concurrency, accumulation and totality are brought into play, it is necessary for this Court to take care where challenge is made to one particular sentence of those which are imposed, so as to guard against an element of artificiality being introduced: R v Thalari [2009] NSWCCA 170; 75 NSWLR 307 at 320 [82]. The Court must keep in mind the obligation of a sentencing court to fix an appropriate sentence for each offence in accordance with the principles in Pearce v The Queen [1998] HCA 57; 194 CLR 610. However, the selection of one sentence for challenge as being manifestly excessive, from a range of several partly accumulated sentences, requires particular caution on the part of this Court.

Ground 3: Sentence for ongoing supply - manifestly excessive 80The Applicant submitted that the sentence was manifestly excessive for these reasons: (a) The Applicant's system and methods of supply were not particularly sophisticated and he made little effort to conceal his offending conduct; (b) The Applicant was not at the top of the supply chain and was the one exposing himself to risk by attending the occasions of supply; (c) The drugs were of an extremely low purity and the Sentencing Judge failed to have regard to that; (d) The Sentencing Judge failed to take account of the fact that the supplies occurred as part of a controlled operation and were made to an undercover police officer with the result that the drugs were not actually disseminated into the community. 81Whilst some matters such as the purity of the drugs might have been factors which would suggest a lesser degree of objective seriousness there were sufficient matters associated with the ongoing supply that meant that his Honour's assessment was entirely appropriate. Such matters included the fact that there were four supplies within the specified period, that each of the amounts of drugs supplied well exceeded the indictable quantity and that the four supplies were not isolated events because of the ongoing conversation with the UCO to supply what was described the "elbow". Moreover, the number of weapons and ammunition found in the house entirely justified the Sentencing Judge's conclusion that the operation was a sophisticated one. 82Nor can it be overlooked that the first of the offences on the Form 1 (taken into account on this offence) was a serious offence carrying a maximum penalty of 10 years imprisonment. The amount of cannabis leaf was within the range of being an indictable quantity. Finally, assessing the measure of objective seriousness is within the domain of the Sentencing Judge subject only to error of the House v The King type being established: Aldous v R [2012] NSWCCA 153 at [38]. No such error is demonstrated. 83Whilst the Applicant might be able to point to other cases that suggested the sentence for this count was high, his counsel acknowledged that care must be taken when comparing sentences imposed in ongoing supply cases: R v Cheikh; R v Hoete [2004] NSWCCA 448 at [64]. There are numerous references in other cases to the care which needs to be taken in comparing sentences generally in other cases: R v Gidaro [2005] NSWCCA 18 at [26]-[28]; Lorraway v R [2010] NSWCCA 46 at [37]-[38], and R v Araya [2005] NSWCCA 283;(2005) 155 A Crim R 555 where Johnson J with whom Simpson and Rothman JJ agreed said at [70] that a number of cases in this Court had emphasised that far greater assistance was derived from references to general sentencing policy than with comparing sentences in individual cases. 84As the Applicant acknowledges general deterrence is an important factor in sentencing for this offence: R v CBK [2002] NSWCCA 457; (2002) 135 A Crim R 260 at [56]-[57]. 85This ground is not made out.

Ground 4: Sentence for count 1 - manifestly excessive 86The Applicant relied on submissions in relation to Grounds 2 and 3. Additionally the Applicant submitted that it was significant that no drugs were actually disseminated into the community: R v DW [2012] NSWCCA 66 at [117]. 87His Honour said that it did not matter that the drugs were not actually supplied - they were going to be supplied. In that regard his Honour assessed the objective seriousness in the mid-range. The starting point for the sentence was a little below 9.5 years. It cannot be said that the sentence, though certainly not a light one, was not within the range of sentences in all the circumstances. 88This ground is not made out.

Outcome of the appeal 89If time was extended in the present case the result would be that it would be necessary to re-sentence the Applicant because of his success in relation to Ground 1 based on parity. It would then be necessary to consider the Crown's appeal which would involve a consideration of the proposed new sentence in respect of CAN Sequence 5 (referred to in paragraph [76] above. 90In my opinion the matter can be approached this way. If the Applicant was to be re-sentenced for CAN Sequence 5 it would then be necessary to consider principles of concurrency, accumulation and totality: Shortland v R at [147]. A consideration of those matters leads me to the conclusion that, from the perspective of totality, an effective sentence for all matters is precisely the effective overall sentence which was imposed. 91The overall sentence covered three serious drug supply offences and a number of serious firearm offences before the lesser offences are considered. The co-offender Sinkovich was charged and sentenced as set out in paragraphs [59] to [62] above for the two offences referred to, one of which (Count 2) was identical to CAN Sequence 5 charged against the Applicant and the other of which arose out of the same facts as CAN Sequence 16 charged against the Applicant. 92He appealed to this Court, arguing that the sentences were manifestly excessive. This Court dismissed the appeal saying: [62] It follows that the sentence passed, both in total and in relation to the individual offences, was well open to his Honour and albeit towards the top of the range of sentences for offences of this kind, was well within the range of the permissible exercise of his Honour's sentencing discretion. Error has not been demonstrated. Accordingly, grounds of appeal 1 and 2 have not been made out. (emphasis added) 93Any overall sentence less than the Sentencing Judge imposed upon the Applicant would not be warranted. This is not to enter upon the debate concerning whether s 6(3) refers only to individual sentences or extends to the totality of sentences imposed upon an appellant (see the differing views in Arnaout v R [2008] NSWCCA 278; (2008) 191 A Crim R 149). It is simply to recognise that regard must be had to the total effective sentence to see that it represents a proper period of incarceration for the totality of the criminality involved: R v AEM Snr [2002] NSWCCA 58 at [70]. 94There is power by virtue of s 7(1) and/or (1A) Criminal Appeal Act 1912 to have regard to the overall sentence imposed and to correct anomalies that may result from the alteration to one particular sentence: Ryan v The Queen (1982) 149 CLR 1 at 22-23 and 25; R H McL v R [2000] HCA 46; (2000) 203 CLR 452 at [32]-[33]. So, in R v Knight [2005] NSWCCA 253; (2005) 155 A Crim R 252 Johnson J (with whom Mason P & Barr J agreed) restructured a large number of sentences to comply with proper sentencing principles resulting in the same overall sentence and the same non-parole period that had been imposed by the judge at first instance. 95If this Court was to re-sentence the Applicant the sentences would be structured in a manner that would adjust the concurrency and accumulation to produce the same overall sentence. In those circumstances, although the Applicant has demonstrated error in regard to parity in respect of CAN Sequence 5 there is ultimately no merit in the appeal. That lack of merit assists in informing the result of the extension application for the reasons given in paragraphs [55] to [58] above. 96As referred to earlier, the explanation (such as it is) for the period from November 2009 to June 2012 is entirely unsatisfactory. The delay extends from 23 October 2009 until 18 December 2012. 97In McCall the delay concerned a period of two years and the appeal was a conviction appeal on a charge of murder. Notwithstanding the seriousness of the issue this Court held that exceptional circumstances had not been shown and that there was no merit in the ground of appeal. 98In Edwards the delay was two and half years, no merit was found in the grounds of appeal and even if there had been no lesser sentence was found to be warranted. An extension of time was refused - see at [60]-[61]. In Flack the delay was 20 months and in Etchell it was 3 years. In each case no merit was found in the appeal grounds and an extension of time was refused. 99In my opinion where this Court determined the co-offender's appeal also based partly on parity on 15 April 2011, where there is no satisfactory explanation for the delay for most of the period, where the appeal has apparently only been triggered by contact from Legal Aid because the case was thought to involve a Muldrock point but where there was a disavowal of reliance on Muldrock at the hearing of the appeal, where the outcome of the appeal will not result in an alteration to the overall sentence, and having regard to the public interest in the avoidance of delay in bringing appeals to this Court, the application for the extension of time to appeal should be refused. 100It is not necessary, therefore, to consider the Crown appeal. 101In my opinion the following orders should be made: (1)Leave to appeal refused. (2)Dismiss the appeal by the Crown. 102BARR AJ: I agree with Davies J.

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: 27 June 2013

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Catchwords

Judgment (15 paragraphs)

Parties

Cases Cited (32)

Cited By (5)