Masters-Whitehouse v R

Court of Criminal Appeal (NSW)|2024-11-27|Before: Hamill J, Adams J, Sweeney J, Gaudron JJ, McHugh J, Kirby J

Agreed Facts

The applicant was sentenced on the basis of lengthy Agreed Facts which extended to 37 pages. Her Honour summarised those agreed facts in her remarks on sentence and I have extracted that summary below almost verbatim.
On 16 March 2020, police were granted authority to conduct a controlled operation. During the controlled operation, police utilised a known male to communicate with the applicant via an encrypted Ciphr phone to arrange the supply of prohibited drugs and firearms.
Between 31 March 2020 and 25 June 2020, the applicant supplied prohibited drugs to the known male on nine different occasions as follows:
On 31 March 2020, the applicant supplied 7.08 grams of cocaine, the amount of money received was $2,000 (sequence 1, supply prohibited drug to be taken into account on the Form 1).
On 31 May 2020, the applicant supplied 9.009 kilograms of cannabis for an amount of $62,000 (sequence 36, supply cannabis, pursuant to s 25(1) of the Drug Misuse and Trafficking Act).
On 8 May 2020, the applicant supplied 8.967 kilograms of cannabis for an amount of $64,000 (sequence 37, supply cannabis, pursuant to s 25(1) of the Drug Misuse and Trafficking Act).
On 14 May 2020, the applicant supplied 278.6 grams of cocaine for an amount of $76,500 (part of count 2, sequence 24 amended, supply prohibited drug, commercial quantity, s 25(2) of the Drug Misuse and Trafficking Act).
On 21 May 2020, the applicant supplied one kilogram of MDMA for an amount of $26,000 (count 3, supply large commercial quantity of a prohibited drug pursuant to s 25(2) of the Drug Misuse and Trafficking Act).
On 28 May 2020 the applicant supplied 998.5 grams of MDMA for $26,000 (count 3, supply large commercial quantity of a prohibited drug pursuant to s 25(2) of the Drug Misuse and Trafficking Act).
On 8 and 9 June 2020, the applicant supplied 997.8 grams of MDMA for an amount of $26,000 (count 3, supply large commercial quantity of a prohibited drug pursuant to s 25(2) of the Drug Misuse and Trafficking Act).
On 19 June 2020, the applicant supplied 264.2 grams of cocaine (part of count 2, sequence 24 amended, supply prohibited drug greater than commercial quantity pursuant to s 25(2) of the Drug Misuse and Trafficking Act).
On 25 June 2020, the applicant supplied 17.62 kilograms of cannabis. The cannabis was to be supplied for $144,000. This amount of money was to be paid, but was not received by the applicant, because he was arrested before he received it (sequence 38, supply cannabis pursuant to s 25(1) of the Drug Misuse and Trafficking Act).
On that same date, 25 June 2020, the applicant had agreed to supply 500 grams of cocaine, which ultimately was dextrose (sequence 26, conspiracy to supply prohibited drug, greater than the commercial quantity, s 25(2) of the Drug Misuse and Trafficking Act).
On each occasion that the applicant supplied drugs to the known male, they would communicate via messages and then meet in person for the exchange of money for the drugs. The full exchange of messages between the applicant and the known male is extracted in the Agreed Facts. I do not propose to recount those messages in my sentencing remarks.

Count 1: Supplying firearms on an ongoing basis

Between 21 May 2020 and 9 June 2020, the applicant supplied the known male with seven firearms on four occasions overlapping the three occasions when prohibited drugs were also supplied.
On 21 May 2020, the supply of a 1911 A1 Norinco ACP .45 calibre pistol. The amount of money paid was $35,000. This pistol is a prohibited pistol. It was in working condition and it was supplied with a bag of ammunition.
On 19 May 2020, the applicant and the known male exchanged messages in relation to the supply of a firearm, the applicant sent a photo of a pistol, described as a "Desert Eagle 9 millimetre". Later the same day, the applicant told the known male that the pistol in the photo had been sold and he sent a photo of another pistol, being the 1911A1 Norinco ACP .45 calibre pistol that was ultimately supplied for $35,000. After the known male agreed to buy the pistol, the applicant sent the following message: "My other mate has a skin nose revolver he wants 30k for and a shotty he wants 16k. I'll get pics of those soon."
On 20 and 21 May 2020, the known male used Ciphr to finalise the meeting arrangements with the applicant. They met at Jilliby on the Central Coast. The pistol and a plastic bag containing ammunition was provided together with one kilogram of MDMA (count 3). The .45 automatic calibre Norinco model 1911A1C self-loading pistol is a prohibited pistol as described in s 4C of the Firearms Act. It was test fired and found to be in working order. The ammunition supplied was suitable for use in the pistol that had been supplied. Contained within the Agreed Facts is a photograph of the pistol.
On 28 May 2020, the applicant supplied a Smith & Wesson .38 calibre revolver for $30,000. That revolver is a prohibited pistol. It was in working condition and it was supplied with ammunition (13 bullets).
On 22 May 2020, the applicant and the known male exchanged messages in relation to the supply of this firearm. The applicant sent a photo of a firearm, but by 25 May 2020, it had been sold. The known male asked about any other available handguns and also noted he had a friend that wanted a "pumpy".
On 27 May 2020, the applicant sent a photo of another firearm to the known person, but it also became unavailable.
On 27 May 2020, the applicant offered a .38 pistol to the known person for $30,000. This was the pistol that was ultimately supplied on 28 May 2020. Later that same day, the applicant sent the following message, "Brother my mate has got a shotty who I get them off. Said 15k." The applicant then sent the known male a photo of a rifle with the message, "4 30r pound clips, 500 bullets."
On 28 May 2020, the applicant and the known male met at Jilliby on the Central Coast. The applicant gave the known male a Smith & Wesson .38 calibre revolver and 13 bullets, together with 998.5 grams of MDMA (34% pure) (count 3). The Smith & Wesson .38 calibre revolver with the serial number obliterated was test fired and in working order. It is a prohibited pistol as described in s 4C of the Firearms Act.
On 29 May 2020, the applicant supplied two firearms, being a Mod KS-30 calibre 7.62 x 30 millimetre semi-automatic assault rifle for $50,000. That weapon is a prohibited firearm. It was in working condition and it was supplied with ammunition. The second weapon was an Astra Falcon 4000 .380 calibre pistol, supplied for $28,000. It was a prohibited pistol in intermittent working condition due to a fault.
On 28 May 2020, the applicant and the known male discussed the purchase of two further firearms via Ciphr. They agreed to meet in Sydney, because the applicant did not want to drive the firearms back to the Central Coast.
On 29 May 2020, the applicant and the known male initially met at Granville. The applicant was concerned by the presence of cameras, so they then drove to Birrong. The known male understood the applicant then went and collected the firearms that he was to on-sell to the known male.
They then both drove to Guildford where the known male gave the applicant $78,000 in return for a semi-automatic rifle, four large black rifle magazines, a rifle bag, a pistol and 20 rifle cartridges and four .380 calibre bullets. The .380 automatic calibre ASTRA model 4000 self-loading pistol is a prohibited pistol, as described in s 4C of the Firearms Act. This firearm was received in intermittent working order to a fault with the disconnector. Once the disconnector was replaced in the correct orientation, the firearm functioned normally. The detachable box magazine had the capacity to hold seven .380 automatic calibre cartridges.
The 762 x 39 millimetre calibre SIXCOPR Model SK-30 self-loading rifle is a prohibited firearm as defined in Schedule 1 of the Firearms Act. It was test fired and found to be in working order. It is a self-loading centre fire rifle, designed or adapted for military purposes. It is fitted with a stock that operates on a telescopic basis. There is a photo of each of these firearms in the Agreed Facts.
On 9 June 2020, the supply of three firearms as follows: a 12-gauge Bentley (Squires Bingham) Model 30R pump action repeating shotgun for $15,000. This is a prohibited firearm, and it was supplied with ammunition. A .32 calibre Browning model 1910 pistol and a .32 automatic calibre Arizmendi pistol, both supplied for $55,000. They are each prohibited pistols and they were supplied with ammunition.
On 1 June 2020, the applicant messaged the known male and offered to sell him an M16 for $32,000. He sent a photo of the firearm to the known male. The known male did not purchase this firearm. Later that same day the applicant offered to sell the known male two fully automatic rifles for $55,000 each. He sent a photo of the firearms to the known male. The known male did not purchase these firearms.
On 4 June 2020, the applicant offered to sell the known male a "full auto Glock 40" with 150 rounds of ammunition for $42,000. He sent a photo of the firearm to the known male. The known male did not purchase this firearm.
On 5 June 2020 the applicant offered to sell the known male two pistols for $55,000. He sent a photo of the firearms to the known male. These were the two pistols that were ultimately purchased by the known male on 9 June 2020. Later that same day, the applicant offered to sell the known male a "11-shot sks" rifle for $30,000. The known male did not purchase this firearm. The known male told the applicant that he wanted to be told if a "pumpy" became available.
On 8 June 2020, the applicant sent a photo to the known male of a sawn-off pump action shotgun that he offered to sell for $15,000. The known male agreed to buy it the following day. The known male and the applicant met in Sydney and the applicant supplied him with the three firearms for $70,000 together with ammunition (126 bullets). The applicant also supplied the known male with 997.8 grams of MDMA with a purity of 34.5% for $26,000 (count 3).
The shortened 12-gauge Bentley Squires Bingham model 30R pump action repeating shotgun is a shortened firearm, as defined in the Firearms Act. It also meets the definition of a prohibited firearm for the purposes of the Firearms Act. It was in working order. The .32 automatic calibre Browning model 1910 self-loading pistol, (serial number obliterated) is a prohibited pistol as described in s 4C of the Firearms Act. It has a barrel length of less than 120 millimetres. It was in working order.
The .32 automatic calibre Arizmendi model Ideal self-loading pistol is a prohibited pistol as described in s 4C of the Firearms Act. It also has a barrel length of less than 120 millimetres. This firearm was test fired. It had a fault that hindered the cartridges from the magazine feeding into the pistol to be fired. The fault was due to the grip plate being in contact with the magazine. The grip plate was not integral to the functioning of the firearm and was capable of being removed with a screw driver to return the firearm to working order.
The exchange of messages between the applicant and the known male in relation to the supply of firearms is also extracted in the Agreed Facts.
The applicant was arrested on 25 June 2020, after he had supplied the known male with 17.62 kilograms of cannabis for $144,000. As I indicated, the applicant did not receive the $144,000 because of his arrest.
The applicant had also agreed with the co-offenders Ihab Obeid and Zachariah Obeid to supply 500 grams of cocaine to the known male (sequence 26, supply prohibited drub commercial quantity).
On 25 June 2020, police searched the vehicle of Zachariah Obeid and found five sealed packages of white powder, being dextrose. This was the substance which was represented to the known male to be the 500 grams of cocaine. The 500 grams of cocaine was to be supplied for an amount of $130,000.

The search warrant executed at a storage shed in Warren Road, Warnervale

The following items were seized by police from a storage shed at Warnervale: 1. One large bag containing 2 grams of cocaine (sequence 29, to be taken into account on a Form 1. 2. Two bags containing 1.4 grams of cocaine (sequence 30, to be taken into account on a Form 1). 3. $2,500 in cash (sequence 31, to be taken into account on a Form 1) and $9,000 in cash (sequence 31, to be taken into account on a Form 1). 4. Two knuckle dusters (sequence 32 and 33, to be taken into account on a Form 1.) 5. One bag containing 0.458 grams of heroin (sequence 34, to be taken into account on a Form 1).

The search warrant executed at the applicant's home address at Wadalba

The following item was found by police at the applicant's address, $8,350 (sequence 35, to be taken into account on a Form 1.)

Proceedings on sentence

The proceedings on sentence took place on 28 October and 11 November 2022.
During the proceedings, the Crown tendered the Crown sentence bundle comprising the Crown sentence summary, the notice of committal, the amended charge certificate, the indictment, Form 1, s 166 Certificate, the Agreed Facts, the applicant's criminal and custodial history, the remarks on sentence in relation to the co-offenders Ihab Obeid, Zachariah Obeid and Mervyn Hughes, the Agreed Facts in relation to Mervyn Hughes, and the statement of Senior Constable Steven Greening dated 28 October 2022.
The applicant relied on the report of Oliver Brecht, psychologist, dated 12 October 2022, an email from Oliver Brecht dated 28 October 2022, the affidavit of the applicant's father, Steven Masters Whitehouse, dated 28 October 2022, a ten-page extract from transcripts of interview between Constable Shellton and the applicant (as a juvenile), and the affidavit of Tayla Merriman dated 1 December 2022.
The applicant did not give evidence.

Objective seriousness

After setting out the agreed facts, her Honour turned to assess the objective seriousness of the offending. She commenced by observing that the facts disclosed "very serious objective criminality" and that the drug offending was "extremely serious". Her Honour noted that the applicant was in the business of disseminating large quantities of prohibited drugs for financial reward, with the total proceeds paid to the applicant by the known male for the prohibited drugs and firearms being $359,000 and $213,000 respectively. She observed that although the fact that none of the drugs or firearms were disseminated into the community reduced the objective seriousness of the offending, it did not reduce the applicant's moral culpability.
The sentencing judge noted that principles of general and specific deterrence were important considerations to be reflected in the sentences for both the drug and firearm offences. She observed that drug offending has "very significant detrimental effects to the community" and that the supply of drugs generates a significant cost to the community, both socially and financially. She went on to observe that the community expects that persons who commit this type of drug offending will face punishment and that the community would expect "very significant punishment" for the firearms offences.
Her Honour then made the following assessments of the objective criminality of each of the seven offences. None of these findings are challenged in this appeal.

Count 1 - Ongoing supply of firearms

Her Honour assessed the objective seriousness of count 1 to be below the middle of the range having regard to the following features: the supplies occurred on four separate occasions (the minimum number of supplies to establish the offence is three); the applicant supplied seven firearms in total, five being prohibited pistols and two being prohibited firearms; ammunition was provided with each of the firearms supplied; six of the firearms were in working order and the total proceeds of sale received by the applicant was $213,000, although he would not have received the full amount because he was on-supplying the firearms.

Count 2 - Supply prohibited drug commercial quantity (542.8 grams of cocaine)

Her Honour assessed the objective seriousness of count 2 to be in the middle of the range having regard to the following features: the quantity of the drug (542.8 grams); the applicant's role as a sole trader who had ready access to large quantities of prohibited drugs; that the applicant was not a drug user and was supplying for commercial gain; and that the financial reward received by the applicant was $152,000, although he would not have retained the entire profit.

Count 3 - Supply prohibited drug large commercial quantity (2996.3 grams of MDMA)

Her Honour assessed the objective seriousness of count 3 to be "just below the middle of the range" having regard to the following features: the quantity of the drug (2996.3 grams) being almost six times the prescribed large commercial quantity (500 grams); that the drugs were distributed over eight days; the applicant's role; that the operation was not highly sophisticated, but an encrypted phone was used to avoid detection; and that the financial reward received by the applicant was $78,000, although his profit would have been a small portion of that amount.

Sequence 26 - Conspiracy to supply prohibited drug, commercial quantity (500 grams of cocaine)

Her Honour assessed the objective seriousness of sequence 26 to be below the middle of the range having regard to the following features: the quantity of the drug; that the substance to be supplied was dextrose; that the supply was to take place immediately before the arrest of the applicant; and that the applicant's role was to obtain the prohibited drugs from his co-offenders, Ihab and Zachariah Obeid, and on-supply the prohibited drugs to the known male.

Sequences 36, 37 and 38 - Supply prohibited drug (cannabis)

Her Honour assessed the objective seriousness of sequences 36 and 37 to be below the middle of the range of objective seriousness and sequence 38 as being "in the middle of the range". The following factors were taken into account: the quantity of cannabis supplied as against the commercial quantity of 25 kilograms; that the financial reward received on each occasion was $62,000, $64,000 and $144,000, although the $144,000 was not actually received because it was recovered by police at the time of the applicant's arrest; and the applicant's role.

Parity

In relation to sequences 26 and 36, the sentencing judge had regard to the sentences received by the co-offenders. Ihab Obeid, after receiving a 25% discount, was sentenced to indicative terms of 1 year and 1 month (sequence 36) and 2 years and 9 months (sequence 36). Zachariah Obeid, after receiving a 25% discount, was sentenced to indicative terms of 11 months (sequence 36) and 2 years and 7 months (sequence 36).
In each case, the co-offenders were sentenced to an aggregate sentence to be served by way of an intensive correction order. Her Honour found that the co-offenders had stronger subjective cases than the applicant, in circumstances where each had mental health issues that were found to be causally connected to the offending.
As for Mervyn Hughes, he was also a related offender, but her Honour noted that the parties agreed that there was no relevant parity issue in relation to him.
The applicant's counsel accepted at the hearing of this appeal that no complaint is made in relation to parity and that these sentences are of limited relevance to the appeal.

Aggravating factors

Her Honour did not identify any aggravating factors. The Crown had submitted that planning was an aggravating factor, but her Honour found the level of planning to be that expected in this type of offending.

Subjective factors

The applicant was 36 years at the time of sentence. Her Honour noted the evidence tendered on his behalf and in particular the report by Oliver Brecht, psychologist.
The applicant is the second eldest of four children. He was subject to an unstable childhood. His parents grew and sold drugs at the family home and there were occasions when armed individuals raided the house, damaged property and intimidated and assaulted his family. The applicant reported having seen his father subject to police brutality on multiple occasions. His father was absent for several years due to being in custody.
The applicant's parents separated when he was 16 years old. He then lived with his father and reported experiencing physical abuse by him. His father's mental health deteriorated, and he became suicidal. The applicant felt obliged to care for his father.
The applicant's schooling was disrupted, and he was the subject of bullying and assaults. He missed a significant portion of Year 10 following the separation of his parents. He left school and commenced a mechanic apprenticeship but left that when his cousin died of a drug overdose. He reported an inconsistent employment history that consisted of physical labouring jobs intermixed with periods of receiving Centrelink benefits.
The applicant reported being sexually assaulted when he was 14 years old by an "uncle" of his neighbour. He reported that after the assault, he disengaged socially and became reclusive.
The applicant was diagnosed with attention deficit hyperactivity disorder ("ADHD") at the age of 5. He was prescribed medication to help manage his ADHD which he took until the age of 16. He reported a previous diagnosis of post-traumatic stress disorder ("PTSD") following the sexual assault. He was prescribed antidepressants after his parents' separation.
The applicant had a daughter when he was 21 years of age, but he has not had contact with her for 16 years, which makes him sad and angry.
The applicant reported that he currently and previously has not had a problem with alcohol. In his early twenties, on rare occasions, he used "party drugs", but was otherwise "quite scared" of drugs, given his childhood exposure to drugs.
The applicant reported that at the time of the offending he was operating his own lawnmowing and gardening maintenance business. COVID-19 caused a significant reduction in his business, which resulted in financial difficulties. He said he felt significant pressure and stress to continue to provide for his family. At the time, his then partner was pregnant but had a miscarriage 11 weeks into the pregnancy. They have since separated.
The applicant reported that a client pressured him into participating in the offending behaviour, but he took responsibility for his actions, reporting that the offending was his own decision.
Mr Brecht opined that the applicant did not present with symptoms of ADHD at the time of the assessment and therefore it was unlikely that any symptoms of ADHD influenced his offending behaviour. The sentencing judge did not find that any mental health issues faced by the applicant, including PTSD, were causally connected to the offending. In Mr Brecht's opinion, the applicant has good prospects of rehabilitation, and his chances of reoffending could be significantly reduced through psychological counselling and education.
Her Honour was satisfied that the applicant's moral culpability was reduced due to his dysfunctional childhood. In this respect, she observed the following: "Having regard to the offender's background as outlined in the report of Mr Brecht, I am satisfied that he has had a childhood characterised by trauma and dysfunction. There was an early normalisation of drugs in the household in circumstances where they were sold from the family home. In my view, those childhood experiences warrant a reduction in his moral culpability for the reasons set out in Bugmy v The Queen [2015] HCA 37 at [42]-[44]."
Although the applicant presented with a "very limited" criminal history, her Honour found he was disentitled to leniency as he did not come before the court as a person of good character. Further, the current offences signalled an escalation of the applicant's offending.

Remorse and rehabilitation

The applicant expressed remorse to Mr Brecht and his father. The sentencing judge gave some limited weight to those expressions in circumstances where they were not on oath, citing Imbornone v R [2017] NSWCCA 144 per Wilson J at [57].
Her Honour found that there were "reasonably good prospects of rehabilitation in circumstances where he does have a very limited criminal history, he has previously been in employment and he also has family support". She was also satisfied that the applicant is unlikely to reoffend.

Totality

The sentencing judge then had regard to the totality principle and observed the following: "In circumstances where I am dealing with the offender for seven offences, I am required to consider the question of totality. The relevant sentencing principle to consider is whether the sentence for one offence can comprehend and reflect the criminality of all offences, if so, the sentences should be served at the same time, but if not, should be some accumulation between the sentences (see Cahyadi v R [2007] NSWCCA 1). I am satisfied that there should be some partial accumulation between each of the offences in order to reflect the totality of the criminality. The accumulation will be notional in circumstances where I propose to impose one aggregate sentence."

Other relevant findings

The sentencing judge increased the sentence for count 3 to account for the offences on the Form 1, noting, however, that the possess prohibited drug matters listed on the Form 1 did not impact the sentence because the possess offences would not have resulted in a sentence of imprisonment.
The sentencing judge noted the legislative guideposts of the SNPPs and the maximum penalties.
The sentencing judge found that the measures that were adopted to address COVID-19 made custody more onerous for the applicant and took that factor into account in determining the appropriate sentences.
The sentencing judge found special circumstances, resulting in a 50% ratio between the aggregate head sentence and the non-parole period, on account of the applicant's positive prospects of rehabilitation and because it was the applicant's first time in custody.

Ground 1: The sentence imposed is manifestly excessive and a different sentence is warranted in law

Applicant's submissions

It was accepted that the offending was serious and there was a role for "some accumulation", but it was contended that her Honour imposed an aggregate sentence that does not properly reflect the question of totality and that the aggregate sentence is manifestly excessive. The relevant sentencing principle was whether the sentence for one offence could comprehend and reflect the criminality of all offences: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41.
It was submitted that the offending occurred over less than three months. Neither the drugs nor the firearms were supplied to the community, and thus there was no actual harm to the community. The applicant had a limited criminal history and a strong significant subjective case including his prior sexual assault and Bugmy factors: Bugmy v The Queen (2013)249 CLR 571; [2015] HCA 37.
It was submitted that an aggregate sentence of 15 years is "crushing". Reliance was placed on the principles in Regina v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481 at [14] and R v MAK, R v MSK [2006] NSWCCA 381; (2006) A Crim R 159 esp at [15]-[17].
At the hearing of the appeal, the applicant's counsel conceded that the indicative sentences were all within range and do not suggest error, although it was later submitted that they were at the "very, very top of the range" and not commensurate with the findings of objective criminality which were all either at or below mid-range.
The applicant accepted that the variation to the statutory ratio was generous but that the sentence was "still significant" for someone with limited criminal history and favourable findings as to rehabilitation, prosocial factors, Bugmy factors and mental health issues. In response to a question from the bench concerning the generous finding of special circumstances, it was submitted that an aggregate sentence of 10 years' imprisonment with a non-parole period of 7 years and 6 months would also be manifestly excessive.
It was clarified during the hearing of the appeal that the complaint is confined to an argument that there has been a misapplication of the totality principle. It was submitted that there should have been greater notional concurrence. Although there was separate criminality, it was all part of a "mixed business". The police operation was over a relatively limited period and the various drugs and weapons did not get into the community. Those factors should have "excited more concurrence than the sentences did". It was also accepted that there were really two mixed businesses rather than one given the variety of both drugs and firearms which were being sold.

Crown submissions

It was submitted that the aggregate sentence was not manifestly excessive. The applicant was sentenced for seven different offences, with eight offences taken into account on a Form 1 when imposing sentence in respect of count 3.
The Crown relied on the fact that over a period of approximately two months, the applicant received $572,000 for supplying, with very short notice, seven firearms and wholesale quantities of three different types of prohibited drugs, with one supply being almost six times the prescribed threshold for the large commercial quantity of that drug. The firearm offending was not isolated. In each supply, the applicant used an encrypted service to avoid detection.
The offending was motivated by financial gain and was not out of a need to fund a drug addiction (as is often the case in drug supply matters).
It was submitted that the finding of special circumstances was generous. The extent of the variation might suggest that disproportionate weight was given to subjective circumstances, particularly when the finding of special circumstances was limited to this being the applicant's first time in custody and the finding that the applicant's rehabilitation would be assisted by a lengthy period on parole.
It was submitted that although the drug supply was foiled, the applicant fully intended that the drugs would be disseminated, and it was not his actions that stood in the way of the dissemination of the drugs into the community: Taysavang v R [2017] NSWCCA 146 at [50]. Further, the fact that this was a controlled police operation was appropriately reflected in the sentencing judge's unchallenged findings of objective seriousness for each offence.
It is accepted that the transactions took place in close proximity and were with the same police source. Despite this, it was submitted that the sentence warranted significant notional accumulation because it involved the supply of three different types of drugs and firearms, each with its own criminality.
It was submitted that the total term adequately reflects the objective seriousness of the offending and the importance of general and specific deterrence and denunciation in sentencing for offences of this kind. The total term also appropriately reflects the legislative guideposts for each offence, which demonstrate that offences of this type are of utmost seriousness. It was submitted that the non-parole period was lenient in the circumstances.

Consideration

The principles applicable to a ground contending that a sentence, in this case an aggregate sentence, is manifestly excessive are well settled. They have been conveniently summarised in numerous decisions of this court. In Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221, they were summarised by R A Hulme J, with whom Bathurst CJ, Leeming JA, Hamill J and I agreed at [443] as follows: "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]: • Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. • Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. • It is not to the point that this Court might have exercised the sentencing discretion differently. • There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. • It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
The complaint made by the applicant is a confined one. He does not rely on any error in the indicative sentences in support of this ground. Rather, it is contended that the aggregate sentence is "unreasonable" or "plainly unjust" because of a misapplication of the totality principle.
The totality principle is an important sentencing principle that falls for consideration when sentencing for multiple criminal acts. It requires the sentencing court in such cases to do more than simply add all of the separate sentences together. Instead, questions of accumulation and concurrence must be considered. The totality principle was described by the High Court (Wilson, Deane, Dawson, Toohey and Gaudron JJ) in Mill v The Queen (1988) 166 CLR 59 at 63; [1988] HCA 70 as follows: "The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; 'when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'."
Similarly, in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, the principle was expressed in this way by McHugh, Hayne and Callinan JJ at [45]: "A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality."
Although the applicant received an aggregate sentence pursuant to s 53A of the Sentencing Act, the sentencing judge was still required to apply the totality principle, as R A Hulme J (with whom Hoeben CJ at CL and Adamson J (as her Honour then was) agreed) noted in JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528. Some of the relevant principles stated by R A Hulme J in JM v R at [39] include the following (citations removed): "It is still necessary in assessing the indicative sentences to have regard to the requirements of Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57. The criminality involved in each offence needs to be assessed individually. To adopt an approach of making a 'blanket assessment' by simply indicating the same sentence for a number of offences is erroneous; Section 53A(2) is 'clearly directed to ensuring transparency in the process of imposing an aggregate sentence and in that connection, imposing a discipline on sentencing judges'; One reason why it is important to assess individually the indicative sentences is that it assists in the application of the principle of totality. Another is that it allows victims of crime and the public at large to understand the level of seriousness with which a court has regarded an individual offence."
As for the degree of concurrence and accumulation, in Cahyadi v R Howie J (with whom Adams and Price JJ agreed) stated the relevant principles at [27] as follows: "… [T]here is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both." (Emphasis added.)
The extent of accumulation and concurrence is very much a matter of discretion for the sentencing judge. As Bell and Keane JJ observed in Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [37] (footnotes omitted): "Just as a sentencing judge is accorded as much flexibility as is consonant with the statutory sentencing regime in determining the appropriate sentence, so, too, the judge is to be accorded the same flexibility in determining the structure of two or more sentences. The Sentencing Act does not confine the approach to be taken to the structure of two or more sentences. It assumes concurrency in the absence of a direction to the contrary."
Further, as I observed in GG v R [2023] NSWCCA 102 at [84]: "When an applicant contends that an aggregate sentence is manifestly excessive based on a misapplication of the totality principle, this court is not in a position to analyse issues of concurrence and accumulation in the same way that it can analyse traditional sentencing structures: JM v R at 40. Although it is still possible to ascertain the question of notional accumulation and concurrence to a limited extent when comparing the indicative sentences with the aggregate sentence imposed, such an inquiry is directed at the principal question as to whether the aggregate sentence reflects the totality of the criminality involved: JM v R at 40."
Turning to consider the complaint that the sentencing judge misapplied the totality principle, the starting point is that her Honour correctly stated the relevant principle, including citing Cahyadi v R. She was satisfied that in the applicant's case the sentence for one of the seven offences could not reflect the criminality of all of them. This meant that some notional accumulation between the sentences was required in order to reflect the totality of the criminality. The applicant accepted that it was necessary for there to be some notional cumulation but contended, in effect, that there had been insufficient concurrence (or excessive cumulation).
It is to be accepted that the sentencing judge made a number of positive findings in relation to the applicant. Her Honour was satisfied he had expressed some remorse and had good prospects of rehabilitation. She was also satisfied that his moral culpability was reduced due to Bugmy principles. His sentence was also ameliorated due to the onerousness of his custody during the COVID-19 pandemic, and he received a 25% discount for his early pleas of guilty.
Significantly, the applicant was the subject of a very favourable finding of special circumstances: s 44(2A) of the Sentencing Act. In practical terms, the effect of the variation to the statutory ratio was to reduce the non-parole period from 11 years and 3 months (75% of the total term of 15 years) to 7 years and 6 months (50% of the total term of 15 years): a reduction of 3 years and 9 months.
The relevant principles to be applied when setting a non-parole period are well known. They were set out by Spigelman CJ in R v Simpson [2001] NSWCCA 297. In R v Hall [2017] NSWCCA 313 at [89], R A Hulme J (with whom Simpson JA and Wilson J agreed) summarised these principles and they can be further summarised as follows: 1. The non-parole period must itself appropriately reflect the criminality involved in the offence: R v Simpson at [63]; 2. Considerations of general deterrence are at least equally significant to the setting of the head sentence and the non-parole period. The High Court's decision in Power v The Queen (1974) 131 CLR 623; [1974] HCA 26 rejected a proposition that considerations of punishment and deterrence were of lesser relevance to the specification of the non-parole period: R v Simpson at [64]; and 3. The need to ensure that the time an offender must spend in prison reflects all of the circumstances of the offence and the offender - including the objective gravity of the offence and the need for general deterrence - operates to confine the proper range for the exercise of the discretion: R v Simpson at [65].
The difficulty for the applicant's argument that an aggregate sentence comprising an aggregate non-parole period of 7 years and 6 months is manifestly excessive is that he stood to be sentenced for extensive serious criminality involving different types of firearms and different types of prohibited drugs. The sentence warranted significant notional accumulation in relation to the seven separate offences because the supplies were of different types of drugs and firearms.
As for the firearms offences, the applicant was able to supply on four separate occasions, at short notice, seven firearms that were either working, or could be easily adapted to work, including shortened firearms and a self-loading rifle designed or adapted for military purposes. As for the drug offences, the applicant was able to supply, at short notice, wholesale quantities of three different types of prohibited drugs, with one supply being almost six times the prescribed threshold for the large commercial quantity of that drug.
All of the offending was motivated by financial gain rather than a need to fund a drug addiction. The applicant was almost 35 years of age when he made the decision to illegally supply drugs and guns for profit. Although the offending took place in the context of a controlled police operation, the sentencing judge took this into account in her findings of objective seriousness for each offence.
It was necessary for the sentencing judge to give substantial weight to the principles of specific and general deterrence in relation to both the firearms offences (see R v Howard [2004] NSWCCA 348 at [66]) and the drug offences (see Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 at [107]-[111]).
The applicant submitted that the aggregate sentence, including the non-parole period of 7 years and 6 months, was "crushing". In support of that submission, he relied on the well-known passages in Regina v MMK at [14] and R v MAK, R v MSK at [15]-[18]. As the court (Spigelman CJ, Whealy and Howie JJ) observed in R v MAK, R v MSK (at [15]-[16]), the total sentence must be a "just and appropriate measure of the total criminality involved", and the severity of a sentence is not simply the product of a "linear relationship". The court then went on to observe the following at [17]-[18]: "[17] The second matter that is considered under the totality principle is the proposition that an extremely long total sentence may be 'crushing' upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there may be of rehabilitation and reform. Of course, in many cases of multiple offending, the offender may not be entitled to the element of mercy entailed in adopting such a constraint. [18] A sentencing court must, however, take care when applying the totality principle. Public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]. For similar reasons in a case such as the present where an offender who is already serving other sentences comes to be sentenced for additional offences, the impression must not be given that no, or little, penalty is imposed for the additional offences."
That a sentence may be "crushing", is merely one of a number of factors a sentencing judge has to consider in arriving at an appropriate sentence. In Hraichie v R [2022] NSWCCA 155, Beech-Jones CJ at CL (as his Honour then was) (with whom R A Hulme J and I agreed) observed the following at [72]-[73] in this regard. "[72] The notion of avoiding a 'crushing sentence' is often referred to in discussions of the totality principle (see for example Postiglione at 304, 308, 340‑341). Sometimes it is referenced as a description of the outcome of the application of the totality principle in the sense that the 'principle of totality … enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention by the court' (R v Rossi, Court of Criminal Appeal of South Australia, 20 April 1988, unrep cited by McHugh J in Postiglione at 308). Sometimes the necessity to avoid a crushing sentence 'in light of the offender's record and prospects' is referred to as a second 'instance' or 'aspect' of totality (see Australian Building and Construction Commissioner v Pattinson (2022) 96 ALJR 426; [2022] HCA 13 at [94] per Edelman J). [73] It is not necessary to address that further including whether there is any practical difference between the two approaches. Instead, it suffices to state that the totality principle, including any necessity to avoid the imposition of a 'crushing sentence', is not a basis to avoid the imposition of a sentence that is 'just and appropriate' (Atai v R [2020] NSWCCA 302 at [132]). That a sentence may be 'crushing' in the sense of 'induc[ing] a feeling of hopelessness and destroy[ing] any expectation of a useful life after release' (MAK at [17]), is 'but one of the matters that is taken into account in determining whether [a particular sentence] is beyond the range of sentences properly available to the sentencing judge' (GS v R [2016] NSWCCA 266 at [51])."
The ultimate question for determination under this ground is whether the aggregate sentence imposed is manifestly excessive when viewed against the total criminality. No error has been identified in the exercise of the sentencing judge's discretion. Given the extent of the criminality, the applicant has not established that the sentence imposed is "unreasonable" or "plainly unjust".
Although I would not allow this appeal, I would grant an extension of time and grant leave to appeal.

Orders

I would propose the following orders: 1. Grant an extension of time to bring the appeal. 2. Grant leave to appeal. 3. Dismiss the appeal.
SWEENEY J: I agree with N Adams J.

Amendments 14 February 2025 - [117] "Beech-Jones CJ at CL" instead of "R A Hulme 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: 14 February 2025

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (24 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (43)