Lowe v R

Sentence Proceedings

1. The sentence proceedings were heard on 2 February 2022.
2. The Crown tendered a bundle (Ex A) which included the Statement of Agreed Facts and the applicant's criminal history and custodial history. The Crown also provided written submissions together with a copy of the sentencing judgment of 30 September 2021 of Mahony DCJ in respect of Mr Lin (see R v Lin [2021] NSWDC 523). (At that stage neither of the other co-offenders (Mr Dang and Ms Li) had been sentenced.) No issue of parity has been raised.
3. The applicant tendered a bundle (Ex 1) which included: a written outline of submissions; Judicial Commission (JIRS) Statistics (depicting the penalty type imposed for commercial drug supply offences); a report dated 21 December 2021 of a forensic psychiatrist, Dr Richard Furst (the Furst Report); a letter from the applicant; various testimonial letters; a letter dated 22 December 2021 from the Pharmacy Council of NSW, notifying the applicant of the suspension of his pharmacy registration; and a letter from the applicant's general practitioner. No objection was raised by the Crown to that evidence. The applicant did not give oral evidence at the sentence proceedings.
4. In his report, Dr Furst noted that the applicant had two adult children and had been married until he separated from his wife about four to five years earlier; and that the applicant was going through a financial settlement with his wife. Dr Furst recorded that the applicant had reported that he began to use methylamphetamine shortly before he and his wife separated and that he was using drugs two to three times per week, but not such as to affect the running of his business. Dr Furst's opinion was that the applicant was not dependent on methylamphetamine. Dr Furst reported that the applicant did not meet the criteria for the diagnosis of a mental disorder or mental illness; and that there was no apparent psychological or psychiatric explanation for his offending.
5. In his letter to the Court, the applicant stated that, following his divorce, he developed a need for human contact which then exposed him to methylamphetamine use. Relevantly (in the context of ground 1) the applicant stated in that letter that "there was no profit motive, no real financial gain but a friendship and feeling of camaraderie that came as a result of my association with [Ms Li], similar in a way to my involvement with customers at my pharmacies where I would always be prepared to resolve whatever issues they were faced with". The applicant wrote that "[t]he major component of the supply charge occurred at a time when it difficult to procure methamphetamine [sic] and I acted as the "go between" to obtain product. With no profit to be had it was simply assisting two parties one a seller and the other a buyer". The applicant claimed that he assisted Ms Li, who supplied him with drugs, to engage in drug supply at a time when his judgment "was clouded by [his] own drug use and familiarity with [Ms Li]".
6. In the written submissions on sentence on behalf of the applicant, at [4], it was submitted that: … the Court would find that the role of the offender to be more akin to that of a street level user/dealer and allowing an associate to store illegal drugs and money in a safe at his premises in return for small quantities of drugs for his own use. It is submitted that the Court would assess the objective seriousness of the offender's involvement at a lower level of objective seriousness. There is no evidence that the offender was making any large amount of money from his involvement in what took place. Further, the quantity of [methylamphetamine] that was the subject the drug supply charge (257.7 grams) is just above the minimum quantity for a commercial supply charge (250 grams).
7. And at [14] of the written submissions it was submitted that: … the Court would accept the offender's stated motive for his commission of the offences (feeding his own drug addiction and allowing an associate to store drugs and money at his premises in return for small amounts of [methylamphetamine] for his own use). In R v Tulloh (unrep, 16/9/93, NSWCCA) Hunt CL at CL held that a heavy user who sells primarily to feed his own habit is at a lower level of criminality than a trafficker motivated by greed. Similarly, for someone helping out an associate in return for drugs to feed his own addiction.
8. In the Crown's written submissions on sentence, it was submitted that the applicant played a "central role in the enterprise" ([10]), that the applicant was "integral to the success of the business" ([13]) and the applicant and the principal of the enterprise Ms Li "discussed stock levels of drugs and prices" (13]). The Crown further submitted that the case of the co-offender Mr Lin should be distinguished from the applicant on the ground, inter alia, that "[t]he motivation for [Lin's] conduct was payment of a drug debt".
9. In oral submissions, Senior Counsel for the applicant submitted that: I submit your Honour would find that the objective seriousness of his involvement in what took place was at the lower end of objective seriousness. There's no evidence that my client was making any large amounts of money from his involvement in what took place. Of course, in the facts there are mentions of purchase prices, but these purchase prices have to be paid to get the drugs. They don't reflect any profit margin involved, any profit margin here is unknown. Your Honour has the statement in my client's letter to the Court, and I'll come to that, that there was no profit in this for him.
10. In oral submissions the solicitor advocate for the Crown submitted, relevantly, that the applicant's role was greater than that of the co-offender Mr Lin that the applicant's role included obtaining quantities of methamphetamine for supply (T 10:35; 4.2.2022) and that the amounts involved were "significant amounts above and beyond a street level user/dealer" (T 11.28; 4.2.2022). Contrary to the applicant's submission that his involvement in the offending was in exchange for drugs to support his own drug habit, the Crown did not accept that the applicant was a street level/user dealer.
11. After oral submissions, judgment was reserved. Judgment was later delivered on 17 March 2022.

Sentencing reasons

1. In his reasons for sentence, the sentencing judge found that the applicant was a "willing and active participant" in the supply of methylamphetamine and "was fully aware of what was going on". His Honour said that "[i]n that regard I would not consider him to be akin to a street level user/dealer" (see at 10.9-11.1). His Honour later reiterated that he was not satisfied that the applicant's role was "that of a street user/dealer allowing an associate to store illegal drugs and money at his premises" and said that the applicant's involvement was "substantially more than that". His Honour noted that, whilst the applicant may have been a user of methylamphetamine, it was not suggested that his use drove him to behave in the way that he did.
2. As to the applicant's subjective case, the sentencing judge: noted that the applicant was entitled to a discount of 25% for his pleas of guilty (reasons at 2.2); quoted from a number of the character references and appears to have accepted that the offending was out of character and that the applicant was a person of prior good character (reasons at 8.4); and found that the applicant had "expressed remorse" (reasons at 10.3).
3. His Honour noted that he had been asked to find special circumstances having regard to the applicant's "strict bail conditions, his progress towards rehabilitation, the loss of his pharmacy practice as an extra curial punishment, and the hardships in custody relevant to COVID-19" (see reasons at 1.8; 10.8-9), which his Honour was satisfied did exist; and his Honour noted that this was the applicant's first time in custody.
4. The Crown submits that it is apparent from the ratio of the non-parole period for the aggregate sentence (2 years and 9 months) to the head sentence (3 years and 9 months) was 60%, compared the standard ratio of 75% that his Honour found special circumstances (see s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Crimes (Sentencing Procedure) Act)).
5. His Honour found that the applicant was unlikely to reoffend and his prospects of rehabilitation were positive (reasons at 11.3).
6. In respect of parity with the co-offender Mr Lin, his Honour referred to the differences in the offences to which each of Mr Lin and the applicant had pleaded guilty, and to the lower amount of 17.5g of methylamphetamine which Mr Lin supplied, in which his role was limited to disseminating the drug on Ms Li's behalf. His Honour referred to the fact that the motivation for Mr Lin's offending was payment of a drug debt, and said that "[o]ther than his employment [Lin] did not derive a direct monetary benefit from the sales". His Honour noted that Mr Lin had experienced social disadvantage and early exposure to drug abuse which reduced his moral culpability for the offending; and that Mr Lin had a low position in the hierarchy of the drug supply operation. His Honour concluded that these matters were significantly different to the situation of the applicant.
7. His Honour referred to a number of cases but considered them to be not necessarily comparable. His Honour also referred to the submission made by Senior Counsel for the applicant that approximately a quarter of all offenders received either an ICO or CCO for such offending. His Honour said that he did not see anything particularly helpful to the applicant in the available District Court sentencing decisions for that statistic.
8. His Honour also referred to the purposes of sentencing and the need for general deterrence in regard to drug supply offending.

Ground 1 Ground 1: The sentencing Judge erred in failing to make a finding as to whether or not he accepted the applicant's claim that the offences were not motivated to obtain financial profit and that he did not make any financial profit.

1. The complaint made by the applicant in relation to this ground is that the sentencing judge, although referring to the applicant's letter (in which the applicant said that there was "no profit motive, no real financial gain", and that his judgment "was somewhat clouded by [his] own drug use"), did not make any finding as to the applicant's claim that the offences were not motivated by financial gain. The applicant notes that there was evidence of prior consistent statements in the character references as to this issue; and points to the written submissions at trial at [13]-[14] and oral submissions (at T 4.8, 5.35; 4.2.2022) of Senior Counsel on this issue. It is noted that the solicitor advocate appearing for the Crown made no submission regarding the evidence other than to place some reliance on the applicant's "admission" that he "had a significant problem with drug use, which on his case led him to commencing the offending" (T 11.12; 4.2.2022).
2. The applicant says that the statement by the sentencing judge (in his reasons at 11.2) that "whilst Mr Lowe may have been a user of methylamphetamine it is not suggested that his use drove him to behave in the way he did" did not resolve the factual issue before the sentencing judge (as to whether the offences were motivated by financial gain). The applicant says that it was plainly a matter relevant to sentence for both offences whether the applicant's claims were accepted. Indeed, in oral submissions Senior Counsel for the applicant identifies it as a significant factor that the applicant was not motivated by greed (T 2.6; 5.5.23) and it is submitted that the failure to make findings in that regard was, notwithstanding the absence of any contrary submission by the solicitor advocate appearing for the Crown, erroneous (the applicant citing Thomas v R [2006] NSWCCA 313 at [16] per Barr J (with whom Sully and Adams JJ agreed); Jackson v R [2011] NSWCCA 124 at [26] per R S Hulme J (with whom Giles JA agreed); Chong v R [2020] NSWCCA 235 at [21], [25]-[26], [31] per Macfarlan JA, Fagan and Cavanagh JJ; Elzein v R [2021] NSWCCA 246 (Elzein) at [232] per Bellew J (with whom Bell P, as his Honour then was, and Walton J agreed).

Crown submissions

1. The Crown notes that the extent of the duty to provide reasons will depend on the particular circumstances of the case (Elzein at [230]-[231]) and that, where an issue is not the subject of a specific submission made to the judge which calls for a reasoned consideration of that issue, it is not open to a party to complain on appeal that the reasons did not adequately address that issue (Elzein at [231]-[232]).
2. The Crown says that, overall, the applicant's submission was that the sentencing judge should find that his role was akin to that of a street level user and dealer; and find that the applicant did not make a profit but rather received small amounts of drugs in exchange for his involvement.
3. The Crown argues that, implicit in his Honour's rejection of the argument that the applicant was a user/dealer involved in exchange for small amounts of drugs, was a rejection of the suggestion that the applicant did not have a profit motive; and the Crown submits that his Honour's finding in this regard was well open. The Crown argues that the suggestion that the applicant's involvement was not motivated by profit (but was in exchange for small quantities of methylamphetamine) was at odds with the applicant's central role in the enterprise, the significant quantities involved in the supplies and the large quantity of cash ($200,750) in the safe. Further, it is noted that neither the applicant's own letter to the Court nor the Furst Report suggested that the applicant's involvement was in order to obtain small quantities of methylamphetamine (that suggestion only appearing in the written submissions for the applicant).
4. Insofar as the applicant suggested in his letter that he was motivated by "friendship and a feeling of camaraderie", the Crown notes that this was never specifically put forward by Senior Counsel for the applicant as the applicant's motivation and no mention of such a motivation in the Furst Report. It is noted that Dr Furst found that there was "no apparent psychological or psychiatric explanation for his offending".
5. The Crown submits that, this submission never having been specifically advanced, the applicant's complaint on appeal that the sentencing judges' reasons are inadequate for not having made a specific finding about this matter should be rejected and that ground 1 is not established.

Reply submissions

1. In response to the Crown's submission that no submission was specifically made "about this matter", the applicant argues that this conflates a submission that the applicant was motivated by "friendship" (which it is accepted was not relied upon by Senior Counsel for the applicant in the sentencing proceeding) with a submission that the applicant was not motivated to obtain financial profit and did not make any financial profit (which it is noted was a submission made by Senior Counsel for the applicant, in particular in the written submissions at [14] referred to above and the submission at T 4.8 that there was "no profit in this for him").
2. As to the Crown's submission that neither the applicant's letter nor the Furst Report suggested that the applicant's involvement was in order to obtain drugs for himself, the applicant points to the statement in his letter that "there was no profit motive, no real financial gain" and ''no profit to be had" and the reference to his judgment being clouded "by [his] own drug use". The applicant also points to the fact that the applicant told Dr Furst that he was using "ice" about 2-3 occasions per week over the four years leading up to his arrest (Furst Report at 3.7). The applicant submits that the fact that Dr Furst did not find that he was "dependent" on drugs does not undermine the claim to significant drug use. Further, it is noted that there was reference in the Agreed Facts to the applicant receiving drugs from the principal for his personal use (see Agreed Facts at [45]).
3. The applicant emphasises that what the sentencing judge rejected was the submission that the applicant was "a street level user/dealer". The applicant says that the solicitor advocate appearing for the Crown did not make a submission that the applicant had a profit motive; and argues that the submission made on behalf of the applicant that the applicant did not have a profit motive was therefore not contested. It is said that there was no dispute in the sentencing proceedings that the applicant was using drugs at the time of his offending and was receiving drugs from the principal for his use; and that no evidence was pointed to (at the sentencing hearing or on this application) in order to demonstrate that the applicant did have a profit motive.
4. The applicant says that the solicitor advocate appearing for the Crown actually placed some reliance on the applicant's "admission" that he "had a significant problem with drug use, which on his case led him to commencing the offending" (T 11.12; 4.2.2022). It is submitted that the sentencing judge's acceptance of the Crown submission that the applicant was more than a street level user/dealer did not, even implicitly, reject the submission that the applicant did not have a profit motive.
5. The applicant submits that, in re-sentencing the applicant, this Court should proceed on the basis that, while the applicant was not dependent or addicted to drugs, he had a significant problem with drug use which led him to commence the offending (a proposition that the applicant says was not contested by the Crown before the sentencing judge). It is submitted that it should also be accepted, in the absence of evidence to the contrary, that the applicant did not have a profit motive in committing his offending and did not make any profit from his offending. The applicant says that this is a significant factor bearing on determination of an appropriate sentence (citing R v Pickett [2010] NSWCCA 273 at [52] per Simpson J, as her Honour then was, with whom Fullerton and R A Hulme JJ agreed; Farkas v R [2014] NSWCCA 141; (2014) 243 A Crim R 388 at [23] per Basten JA; Chiang v R [2016] NSWCCA 45 at [32] per Beazley P, as Her Excellency then was, Harrison and R A Hulme JJ).

Determination

1. In oral submissions at the hearing before this Court, Senior Counsel for the applicant conceded that there was some "understandable confusion" about precisely what was being put, and what evidence was relied upon, in the sentencing proceedings in relation to the motivation by the applicant (see T 2.2; 5.5.23) but submitted that a fair reading of the applicant's letter was that he was motivated to commit his offending not for greed or the pursuit of profit but in order to obtain drugs for himself and that he obtained no profit from that process.
2. However, insofar as the applicant in his letter said that there was "no profit to be had", the statement that he was simply assisting two parties, one a seller and the other a buyer, seems to be suggesting that the applicant was acting as a "go-between" in order to obtain product for other parties or purposes. I do not accept that the subsequent reference to the applicant's personal drug use means that the applicant's statement that there was "no profit to be had" can sensibly be read as referring to him simply obtaining drugs for himself.
3. Further, the words "no real financial gain" of themselves suggest that the applicant accepted that there was some financial gain. However, Senior Counsel for the applicant submitted that it could be constituted as the applicant there saying that he obtained a financial gain because he obtained drugs for free (at a time when it was difficult to obtain the drugs).
4. The difficulty in this regard is that we are left to debate what the applicant meant in his letter to the Court, in the absence of direct evidence from the applicant as to his motivation for the offending.
5. Senior Counsel for the applicant quite fairly conceded that the fact that the applicant did not testify has a bearing on what weight can be given to the hearsay evidence and that the applicant's letter did not spell out "in the clearest possible language" that the applicant was asserting that he was not motivated by financial gain (see at T 2.10; 5.5.2023).
6. Nor was it entirely clear what the funds in the applicant's safe represented, although the Agreed Facts make reference to the applicant facilitating the storage of cash and drugs for Ms Li. Senior Counsel for the applicant emphasised that in the letter the applicant said that there was "no real financial gain" (which Senior Counsel suggested meant "for no" financial profit").
7. Given the conclusion reached on grounds 2 and 5, it is not strictly necessary to reach a concluded view as to whether the sentencing judge erred as contended for by ground 1. Had it been necessary to do so, I would have concluded that the submissions put to the sentencing judge did not clearly identify as an issue that the applicant's motivation for the offending was not for profit or greed (but, rather, for his personal drug use) and that, insofar as the applicant's letter referred to "no real financial gain", this was consistent with there being "some" financial gain. In circumstances where the issue was not squarely raised (rather, the emphasis was on portraying the applicant as a street level user/dealer), I see no error in the fact that the sentencing judge did not make a clear determination of that issue in the reasons.
8. That said, the significance of this issue now goes to the weight to be attached, on re-sentencing, to the suggestion that the applicant's offending was in order to obtain drugs for his own personal use. In that regard, I am not persuaded that the evidence establishes that the applicant's motivation was to obtain drugs for his own use, although the applicant's explanation for involvement in the offending suggests a connection between the two. Nor am I persuaded that on re-sentencing this warrants a lesser sentence although I bear in mind that personal drug use was a factor that the applicant claims clouded his judgment in relation to his offending.

Ground 2 Ground 2: The sentencing judge erred in failing to take into account the assistance provided by the applicant in respect of the s 193C(1) Crimes Act 1900 offence.

1. As noted above, in the Agreed Facts it was agreed that, when the police searched the relevant address in Oatley on 18 June 2020, the applicant advised them of the location of a safe concealed underneath the floor boards in the dining room which the police had not been able to find prior to being given that information and he also provided the combination code and directions on how to open the safe.
2. The applicant points out that a submission was made by Senior Counsel for the applicant at the sentencing proceeding that this "cooperation" justified a "significant discount" pursuant to s 23 of the Crimes (Sentencing Procedure) Act on the sentence to be imposed for the s 193C Offence (see the applicant's written submission at [12]; oral submissions at T 5.3-5.34; 4.2.2022). Reference was made to R v Ellis (1986) 6 NSWLR 603 (Ellis) in that context (the applicant here also referring to Ahmad v R [2021] NSWCCA 30 (Ahmad) at [33] per Leeming JA, Harrison J and Adamson J, as her Honour then was). The applicant notes that these submissions were accepted by the solicitor advocate appearing for the Crown, who nonetheless emphasised that any lesser penalty imposed as a result of assistance must not be unreasonably disproportionate to the objective seriousness of the offence (T 11.16-18; 4.2.2022).
3. Complaint is made that the sentencing judge failed to refer to this issue in the sentencing judgment. The applicant argues that it should be inferred that this material consideration bearing on sentence was not properly taken into account (referring to Dunshea v R [2016] NSWCCA 244 at [29] per Hidden AJ, with whom Beazley P, as Her Excellency then was, and Garling J agreed; Masters v R [2019] NSWCCA 233 at [28]-[32] per Hamill J, with whom Bathurst CJ and Macfarlan JA agreed; Ahmad at [41]).

Crown submissions

1. As noted above, the Crown concedes that it is open to this Court to find that ground 2 (relating only to the s 193C Offence) is established. In summary, the Crown's concession is for the reasons that: the assistance provided by the applicant concerned the offence for which the applicant was being sentenced (rather than an unrelated offence) (see s 23(2)(i) of the Crimes (Sentencing Procedure) Act; Ahmad at [33]); the Crown accepts that the terms of the Agreed Facts make it clear that the assistance that the applicant provided was truthful and of significant value to the investigating officers in enabling them to locate and then open the safe containing the $200,750 cash the subject of the s 193C Offence, which they had at that point not yet located (engaging the principles in Ellis); it is accepted by the Crown that it would be open for this Court to find that the assistance was not so slight that no discount was warranted (cf Ahmad at [42]); and this matter was raised in the respective submissions but not referred to in the sentencing judge's reasons.

Determination

1. As the Crown accepts, the applicant made written and oral submissions specifically to the effect that a significant discount on sentence was warranted pursuant to s 23 of the Crimes (Sentencing Procedure) Act and the solicitor advocate for the Crown did not dispute that s 23 was engaged (simply drawing the Court's attention to the terms of s 23(3) that any lesser penalty imposed as a result of assistance must not be unreasonably disproportionate to the objective seriousness).
2. Given that the issue was not addressed in the reasons, it cannot be concluded that the sentencing judge took into consideration whether there should be a discount (or, indeed, a substantial discount as the applicant had contended) for assistance; and this ground is established.

Ground 3 Ground 3: The sentencing Judge erred in failing to take into account the "extra-curial punishment" in determining the terms of the indicative sentences or the term of the aggregate sentence.

1. The applicant notes that there was evidence that, as a result of the offences, the applicant would not be permitted to continue his pharmacy practice and, as a result, had sold his practice and that a submission was made by Senior Counsel for the applicant that this was a form of "extra-curial punishment" which should be taken into account as a "substantial mitigating factor" in determining the appropriate sentence (see the applicant's written submissions at [17]-[18]; T 6.15-6.46; 4.2.2022). It is noted that a discrete submission was made with respect to "special circumstances" (see the applicant's written submissions at [21]). The solicitor advocate appearing for the Crown made no submission regarding this issue.
2. It is noted that the sentencing judge referred to this consideration as a matter relied upon by the applicant as supporting a finding of "special circumstances" (reasons at 10.8). The applicant says that it may be assumed that the sentencing judge did take it into account on this basis. Complaint is, however, made that no reference was made by the sentencing judge to the relevance of this consideration to the determination of the terms of the indicative sentences or the term of the aggregate sentence and it is submitted that the sentencing judge erroneously failed to take it into account in that way (the applicant here citing R v Ibrahim [2021] NSWCCA 296 (Ibrahim) at [66] per Dhanji J, with whom Johnson and Lonergan JJ agreed).

Crown submissions

1. The Crown notes that the following material was before the sentencing judge in relation to the applicant's practice as a pharmacist and his ownership of pharmacy businesses: the Furst Report, which included that the applicant "is making plans to retire as a pharmacist, given he will now have a criminal conviction/ criminal record and will lose his registration. He is also making plans to sell his businesses in order to repay bank loans/ mortgages"; the applicant's letter to the Court, which included the statement that "[s]adly, as a result of these charges I will no longer be able to operate the pharmacies that have been a significant part of my life over the last 37 years"; and the letter dated 22 December 2021 from the Pharmacy Council of New South Wales which notified the applicant that the Council had decided to suspend his registration and requiring him to stop practicing immediately. It is noted that, during the proceedings on sentence the sentencing judge enquired of Senior Counsel for the applicant whether the suspension prevented the applicant from owning a pharmacy and, in response, the applicant indicated that he could not own a pharmacy.
2. To the extent that the loss of the applicant's pharmacy licence and the financial consequences flowing from this was a relevant matter that his Honour was obliged to take into account in sentence, the Crown says that it was ultimately a factor of very limited relevance because it was the inevitable consequence of the applicant's actions (referring here to R v Zerafa [2013] NSWCCA 222; (2013) 235 A Crim R 265 per Hoeben CJ at CL at [92]).
3. The Crown says that his Honour took into account ''the loss of his pharmacy practice as an extra curial punishment" and made specific reference to it in the context of making a finding of special circumstances and a generous reduction from the usual ratio. The Crown maintains that, given the very limited relevance of this factor it was not necessary for his Honour to have gone further, and to have made specific reference to it in relation to the determination of the indicative sentences and head sentences.
4. In this regard, the Crown distinguishes Ibrahim, on the basis that in that case (a Crown appeal on the basis of manifest inadequacy in relation to a sentence for sexual intercourse without consent (s 61 Crimes Act), the suspension of the 45 year old offender's licence to practice as a pharmacist, ending his career as a pharmacist, was found to have had a catastrophic effect on the applicant's self-esteem and finances (and in those circumstances the loss of the applicant's ability to practice was held to be "relevant to his punishment"). The Crown says that in the present case the financial effect upon the 61-year old applicant flowing from the loss of his licence to practice pharmacy was that he was required to sell his pharmacy businesses; and the Crown notes that there was no specific evidence that this caused financial hardship to the applicant.

Reply submissions

1. The applicant argues that it is a fundamental error to take a mitigating factor into account only in determination of the non-parole period, unless it is only relevant to the determination of the non-parole period; and that extra-curial punishment is not relevant only to the determination of the non-parole period. In those circumstances, it is submitted that, if it is appropriate to take it into account as a "special circumstance", this factor should have first been taken into account in determining the term of the sentence (the applicant noting that the non-parole period only determines when the offender is eligible for parole, it does not mandate release on parole and no assumption should be made that the offender will be released on parole (citing R v Shrestha (1991) 173 CLR 48; [1991] HCA 26 at 72-3 per Brennan and McHugh JJ)). The applicant accepts that double counting should be avoided but says that this does not justify a failure to take into account this mitigating factor when determining an appropriate term.
2. The applicant argues that, in re-sentencing the applicant, the loss of the applicant's pharmacy practice should be treated as a form of extra-curial punishment bearing on the determination of an appropriate term, and given "some" weight, notwithstanding the absence of specific evidence as to financial consequences and notwithstanding that the loss may be regarded as an inevitable consequence of his actions.

Determination

1. Again, given the conclusion reached in relation to grounds 2 and 5, it is not necessary to reach a concluded view on this issue. I consider below this factor in balancing all the factors relevant on re-sentence.

Ground 4 Ground 4: The sentencing judge erred in failing properly to take into account the applicant's bail conditions.

1. The applicant was on bail between 24 July 2020 and 17 March 2022, a period of almost 20 months. A submission was made by Senior Counsel for the applicant that the applicant had "been on bail with strict bail conditions" and this should be taken into account "as a penal consequence that can be taken onto [sic] account in assessing the appropriate sentence" (see the applicant's written submissions at [14]; T 5.35; 4.2.22). A discrete submission was made with respect to "special circumstances" (see the written submissions at [21]). The solicitor advocate appearing for the Crown made no submission regarding this issue.
2. The applicant notes that the sentencing judge referred to this consideration as a matter relied upon by the applicant as a matter supporting a finding of "special circumstances" (reasons at 10.8) and the applicant accepts that it may be assumed the sentencing judge did take it into account on this basis. Again, however, the applicant complains that no reference was made by the sentencing judge to the relevance of this consideration to the determination of the terms of the indicative sentences or the term of the aggregate sentence (and it is submitted that the sentencing judge erroneously failed to take it into account in that way, reference being made to R v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166 (Fowler) at [242] per Tobias JA, James and Howie JJ; R v Connell [2013] NSWCCA 155 (Connell) at [52] per Hoeben CJ at CL, with whom Harrison J and Beech-Jones J, as his Honour then was, agreed; R v Tonari [2014] NSWCCA 232 (Tonari) at [124] per Garling J, with whom Johnson and Harrison JJ agreed).

Crown submissions

1. It is noted that the written submissions on behalf of the applicant included, under the heading "Strict Bail Conditions", that the applicant had been "on bail with strict bail conditions over 18 months (including daily reporting to police)" and the applicant relied upon R v Keyte (Court of Criminal Appeal (NSW), 26 March 1986, unrep) (Keyte). The Crown says that there was nothing of substance added on the issue of the applicant's bail conditions in oral submissions and there was no evidence before the Court as to the applicant's bail conditions (other than the mere fact of daily reporting).
2. In particular, the Crown points out that there was no evidence, nor submission made, that the strict bail conditions included any sort of curfew; nor that the daily reporting (in relation to what the Crown notes were serious charges - particularly the Supply Offence) gave rise to a particularly onerous burden upon the applicant other than the inconvenience inherently associated with reporting conditions, arising from employment or other responsibilities. The Crown notes that the evidence was that the applicant was no longer practicing as a pharmacist because his licence was suspended. The Crown says that there was no evidence that the applicant had any other practical difficulty in reporting owing to immobility or lack of transport.
3. The Crown argues that the mere fact that the applicant (who was charged with serious offences, in particular, a commercial supply carrying a 20 year maximum penalty) was subject to bail conditions which included daily reporting was not a matter which the sentencing judge was obliged to take into account (citing R v Khamas [1999] NSWCCA 436 at [24]-[27] per Hulme J (with whom Sully and Hidden JJ agreed), in turn citing Hunt CL in R v Herbert (unreported NSWCCA, 4 November 1993); and referring to R v Jajou; R v Jebara; R v Lafta [2009] NSWCCA 167 per Harrison J (Campbell JA and Latham J agreeing) at [48]). It is submitted that this principle is further borne out by an analysis of the authorities cited by the applicant in his submissions (at [15]) and the case of Keyte cited by the applicant's Senior Counsel in the sentencing proceedings.
4. In that regard, the Crown notes that Keyte was a Crown appeal and the applicant had been on bail for a period of two and a half years between the date of arrest and sentence; and that it was said in that case that the conditional liberty, albeit under bail, was a matter which "can be properly weighed in representing a penal consequence that the appellant has already undergone"; that in Fowler, in circumstances of a lengthy period of time on bail together with onerous bail conditions which included twice daily reporting, the Court said (at [242]-[243]) that "in an appropriate case the length and terms of an offender's period on bail awaiting trial or sentence is a matter relevant to the determination"; in Connell (a Crown appeal involving a ground of appeal contending that the sentencing judge erred in backdating the commencement date of the sentence due to the applicant having reported to the police on over 500 occasions while on bail for a period of 18 months) the Court noted that the commencement date was a discretionary matter and was not persuaded that the sentencing judge's discretion had miscarried by taking into account the reporting on bail (at [51]-[52]); and in Tonari (a Crown appeal against sentence where the respondent's time on bail awaiting the final determination of the offences was said to be "a particularly difficult one" - see at [122]), the conditions differed from the state of the evidence in the present matter.
5. The Crown submits that the sentencing judge (to the applicant's favour) took into account the applicant's "strict bail conditions" as one of the matters supporting a finding of special circumstances; and that, in circumstances where the only information put before the Court about the bail conditions was that they involved daily reporting, the sentencing judge was not required to take into account the applicant's bail conditions in determining the indicative or aggregate sentences.

Reply submissions

1. The applicant again submits that it is a fundamental error to take a mitigating factor into account only in determination of the non-parole period, unless it is only relevant to the determination of the non-parole period; and that the issue of strict bail conditions was not relevant only to the determination of the non-parole period and should have been taken into account in determining the term of the sentence (not simply in consideration of the issue of special circumstances).
2. The applicant submits that, in re-sentencing, his applicant's bail conditions over a period of almost 20 months should be given "some" weight in determining the appropriate term, notwithstanding that the relevant conditions did not extend beyond daily reporting. It is said that over 20 months, that is a significant constraint on the liberty of the applicant. It is noted that in Connell, where the respondent was on bail over 18 months and required to report to police "in excess of five hundred occasions", it was held at [52] that it was open to adjust the commencement date for the sentence by one month.

Determination

1. Again, it is not necessary to reach a concluded view on this ground given the conclusion on grounds 2 and 5. The complaint as to bail conditions will be taken into account on the re-sentence, though noting that there is no evidence to suggest that these were particularly onerous to the applicant (who was facing a serious Supply Offence).

Ground 5 Ground 5: The sentencing judge erred in determining the aggregate sentence.

1. The applicant submits that the sentencing judge erroneously applied the sentencing discount for the pleas of guilty to the aggregate sentence and not to the indicative sentences (relying on Ibbotson (a pseudonym) v R [2020] NSWCCA 92 (Ibbotson) at [7] per Leeming JA, [138] per N Adams J; Weiss v R [2020] NSWCCA 188 (Weiss) at [69]-[71] per N Adams J, with whom Macfarlan JA and Lonergan J agreed); TS v R [2022] NSWCCA 222 (TS) at [306] per Fullerton and Garling JJ). It is noted that in Park v The Queen (2021) 273 CLR 303; [2021] HCA 37 the High Court at [27] said that s 53A applies once the sentencing judge has determined appropriate sentences for each of multiple offences.

Crown submissions

1. As noted above, the Crown concedes that it is open to this Court to find that the sentencing judge erred by applying the discount for the applicant's plea of guilty to the aggregate (rather than the indicative) sentence and that, accordingly, ground 5 is established.
2. The Crown points out that the sentencing judge referred to the discount twice in the reasons for sentence: first, early in the reasons, when his Honour noted that the applicant was entitled to a discount of 25% for his pleas of guilty; and, second, when pronouncing the sentence where his Honour said: I propose to deal with the totality of the offending by way of an aggregate sentence and single non-parole period. But for the plea of guilty that sentence would have been five years. I reduce that to three years and nine months to date from 10 March 2022, and I specify a minimum term of two years and three months. He will thus be eligible for release to parole on 9 June 2024. The total term will expire on 9 December 2025. The indicative sentences are: for count 1,12 months with a six month non­parole period; for count 2, four and a half years with a three year non-parole period.
3. The Crown accepts that, given that the reference to the reduction to three years and nine months came immediately after the reference to the aggregate term and that three years and nine months is precisely 75% of five years, on a fair reading of the sentencing judge's reasons it would be open to this Court to find that the sentencing judge applied the discount for the applicant's pleas of guilty to the aggregate term rather than to the indicative sentences as required by s 53A(2)(b) Crimes (Sentencing Procedure) Act and that accordingly the sentencing exercise miscarried as a result (Ibbotson at [7] per Leeming JA; TS at [306] per Fullerton and Garling JJ).

Determination

1. For the reasons indicated by the Crown, it must be concluded that the sentencing judge erroneously applied the discount to the aggregate sentence, rather than to the indicative sentences, and that ground 5 is established.

Re-sentence

1. Grounds 2 and 5 having been upheld, there must be a separate and independent exercise of the sentencing discretion (see Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (Kentwell) at [35]; [42] per French CJ, Hayne, Bell and Keane JJ).
2. The Crown submits that, taking into account the full range of factors, this Court would not find that a less severe sentence is warranted in law for the following reasons.
3. First, ground 2 (which the Crown submits is the only ground that could make a conceivable difference to the sentence) relates to the sentencing judge's failure to take account, in relation to the s 193C Offence, the assistance the applicant provided to the police in informing them of the location of the safe and providing them with the combination code and directions as to how to open it. The Crown accepts that this warrants a discount upon the notional indicative sentence that would otherwise be arrived at. However, the Crown argues that, in circumstances where the s 193C Offence was a less serious offence (with a maximum penalty of five years imprisonment and where the indicative head sentence indicated by the sentencing judge was 12 months compared with an indicative head sentence of four and a half years for the Supply Offence), combined with the overall aggregate sentence to reflect a degree of concurrency between the two offences, the incremental effect of this error on the aggregate sentence in the re-sentencing exercise was slight.
4. Second, the Crown says that (as to ground 5) while an error in applying the 25% discount for the plea of guilty to the aggregate sentence rather than the indicative sentences is conceded, this error is not such that it would necessarily lead to this Court, when applying the correct approach, arriving at a less severe head sentence.
5. Third, having regard to the relevant legislative guide posts, and in particular, for the Supply Offence, a maximum penalty of 20 years and a standard non-parole period of 10 years; and the importance of general deterrence as a sentencing purpose, the Crown submits that the aggregate head sentence arrived at by the sentencing judge for both offences (three years and nine months) was, notwithstanding the applicant's prior good character and good prospects of rehabilitation, lenient and that no lesser sentence is warranted.
6. Fourth, as to the non-parole period, the Crown notes that the sentence imposed by the sentencing judge involved a very substantial variation to the standard non-parole period (from 75% to 60%).

Applicant's submissions

1. The applicant contends that a less severe sentence than that imposed is warranted, particularly bearing in mind: what is identified as the applicant's motivation for his offending, the assistance he provided the authorities and the considerations noted in the applicant's original written submissions at [3]. The applicant maintains his submission made to the sentencing judge that an appropriate overall term would be three years imprisonment. It is submitted that the ratio adopted by the sentencing judge should be maintained, primarily to ensure an appropriate period of release on parole to facilitate rehabilitation, resulting in a non-parole period of 21 months.
2. Senior Counsel for the applicant points out that if the sentence were reduced to three years then the Court would be required to consider the possibility of an ICO (referring in oral submissions to Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3).

Determination

1. Kentwell requires that, on re-sentencing, the discretion is to be exercised afresh in accordance with relevant directions in the Crimes (Sentencing Procedure) Act, and that the Court is to take into account the purposes of sentencing (s 3A) and the factors that the Crimes (Sentencing Procedure) Act (s 21A) or any other Act or rule of law requires or permits (Kentwell at [42]).
2. The approach approved in DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 is that this Court is required to form its own view of the appropriate sentence, rather than confining itself to the determination of whether the identified error(s) infected the sentence imposed below; and that, exceptional cases apart, the appropriate sentence is to be determined on the material that was before the sentencing judge, the sentencing judge's unchallenged factual findings and any relevant evidence of the offender's post-sentence conduct.
3. It is relevant to note that, as was the case in Newman (a pseudonym) v R [2019] NSWCCA 157 (Newman), in the present case the sentencing judge had sentenced on a plea of guilty and was not required to assess the credibility of the applicant as he had not made a sworn statement or given oral evidence in the sentencing proceedings.
4. As to the objective seriousness of the offending, the circumstances of the offending have been summarised earlier in these reasons. The most serious offence was the Supply Offence, which occurred over a period of three months and eighteen days and involved just over the minimum threshold for a commercial quantity of methylamphetamine. The maximum penalty for this offence is 20 years imprisonment (as noted above) which indicates the seriousness of the offence.
5. The applicant's involvement was not, as the sentencing judge correctly found, that of a mere street level user/dealer; rather the applicant was involved in sourcing the supply of drugs and negotiation of the terms of supply. The applicant also was involved in storing the drugs and cash as made clear in the Agreed Facts.
6. As to the motivation for the offending, while much weight was placed by the applicant on the statement in his letter to the Court in which he said that there was no profit to be had and no "real financial gain" (coupled with the evidence of his own drug use), the applicant's letter itself appears to accept that there was some financial gain involved (insofar as the applicant states that there was "no real financial gain" - my emphasis). Moreover, as noted by Basten JA in Newman at [53], the Court is entitled to be sceptical of self-serving statements by an offender tendered through secondary sources and without the offender being willing to give evidence on oath. That said, I take into account that the applicant's offending seems likely to have been motivated at least in part by his personal drug use and a result of his connection (or "familiarity" as the applicant said in his letter to the Court) with Ms Li. The extent of his financial gain therefrom remains unclear.
7. The objective seriousness of the offending was in my opinion approaching but slightly below the mid-range as the Crown submitted to the sentencing judge.
8. As to the assessment of the applicant's personal circumstances, the applicant was found to have exhibited remorse and was assessed as unlikely to reoffend with positive prospects of rehabilitation. The applicant had no previous criminal convictions and had previously been of good character.
9. I take into account that the applicant was required to report for bail on a daily basis (and that this would have caused, at the very least, personal inconvenience) and that the applicant suffered, as a consequence of the offending, the suspension of his right to practise as a pharmacist (although there is no evidence that he suffered any financial loss on the sale of his pharmacy business(es)). Ultimately, it is not established that these factors caused any serious financial or other hardship to the applicant.
10. The applicant is entitled to a 25% discount for the utilitarian value of the pleas of guilty. The applicant is also entitled to a discount to reflect the assistance provided in relation to the s 193C Offence (the lesser offence), although the discount for such assistance (which I would assess as no more than 5%) would, as the Crown anticipates, have a minimal impact on the re-sentencing in light of the more serious Supply Offence.
11. As required by s 53A(2)(b) of the Crimes (Sentencing Procedure) Act, I would specify the following indicative sentences as the starting point before the discount for the pleas of guilty and for assistance: for count 1, 12 months with a six month non-parole period; and for count 2, four and a half years with a three year non-parole period. No complaint is made as to the application of a discount of 25% for the plea of guilty as noted and I would apply an additional discount of 5% in respect of the s 193C Offence, which would result in the following indicative sentences: for count 1, applying a 30% discount (and rounding down from 8.4 and 4.2 months respectively) eight months with a four month non-parole period; and for count 2, applying a 25% discount, three years and four months (rounding down from 40.5 months) with a two year and two month non-parole period. Without allowance for totality, the total indicative sentences would therefore amount to a head sentence of forty-eight months (four years) and applying the generous ratio for special circumstances for which the applicant contends would produce a non-parole period of 28.8 months. No consideration of an ICO or CCO is necessary.
12. I, too, would impose an aggregate sentence. Taking into account all the circumstances referred to above, I agree with the Crown's submission as to the overall leniency of the aggregate sentence imposed by the sentencing judge. Allowing for the assistance on the s 193C Offence and even taking into account the principle of totality (see R v Holder [1983] 3 NSWLR 245 at 259 per Street CJ; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [18] per Gleeson CJ), I consider that no lesser sentence than that imposed by the sentencing judge is warranted.
13. Accordingly, leave should be given to appeal against sentence and the appeal dismissed.
14. WALTON J: I agree with Ward P.
15. IERACE J: I have had the considerable benefit of reading the draft judgment of the President, with which I agree.
16. I would only add that, in relation to Ground 2, while it cannot be concluded that the sentencing judge took into consideration whether there should be a discount for assistance, which was clearly warranted, once an allowance is made for the utilitarian benefit of the plea of guilty, the indicative sentence for that offence by the sentencing judge was remarkably lenient. On the resentence of the applicant, the indicative sentence for the s 193 Offence of eight months with a four month non-parole period takes into account the applicant's level of assistance to the authorities and the aggregate sentence properly reflects considerations of totality, so that no lesser sentence is warranted.

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: 05 July 2023