McBETH v R

(b) that the overall sentence is manifestly excessive as a result of the erroneous disregard of the applicant's subjective case (this ground is specifically articulated in grounds B and 12).

General ground A: objective seriousness of the commercial quantity offence (grounds 1, 3, 4, 10, and 11) 32 The Judge said (at ROS 20): "I assess the objective seriousness of the supply of a commercial quantity of ecstasy charge as being just above the mid-range of objective seriousness for an offence of that kind. In making that assessment I take into account the role played by the offender in the distribution network and the very substantial quantity of drug involved which was almost 3 and half (sic) times the commercial quantity." 33 The applicant submitted that his Honour should have assessed the objective criminality of the offence as being just below mid-range. Counsel for the applicant submitted: "The unbiased inference from the available evidence was that [the applicant] was an inexperienced 'middleman', if that." 34 The test to be applied in considering a sentencing Judge's assessment of the objective seriousness of an offence is the same as the test to be applied in respect of a challenge to a finding of fact. The question is whether the assessment made was open to his Honour: Mulato [2006] NSWCCA 282 at [27] per Spigelman CJ; at [46] per Simpson J. In my view, it plainly was. 35 A specific complaint in respect of the Judge's consideration of the objective seriousness of the offence is expressed in ground 1 of the thirteen specific grounds relied upon by the applicant, which is "That the sentencing Judge wrongly interpreted and/or misapplied subjective and explanatory matters to increase the objective level of seriousness of the offences and their commission." 36 The gist of the complaint under this ground appears to be that, when assessing the seriousness of the applicant's role, the Judge wrongly relied on "unwarranted findings" as to the applicant's knowledge of the drug supply business. 37 This submission was supported by reference to the Judge's remarks on sentence at pages 7, 13, 15 and 18. At page 7, the Judge stated that the covertly recorded conversations between the applicant and Scott clearly disclosed that the offender was "deeply entrenched" in supplying and offering to supply large quantities of ecstasy and cocaine. His Honour stated that the transcripts demonstrated the applicant's detailed knowledge of the relative quality of ecstasy tablets and the pricing of ecstasy and cocaine when supplied in substantial quantities. His Honour stated: "[The transcripts] also demonstrate the offender's close knowledge of the manufacturing process with respect to ecstasy. I should make it clear however that I do not suggest that the offender was in any way involved in the manufacture of ecstasy but that his knowledge of the manufacturing process is indicative of his close knowledge of the drug supply business." 38 A close consideration of the transcripts of the covertly recorded conversations between the applicant and Scott discloses that there can be no criticism whatsoever of his Honour's findings. The unguarded comments made by the applicant to the undercover police officer, whom he believed was a customer, betray confidence, experience and familiarity with the sale of drugs. For example, their first meeting included the following conversation: "Applic … and after that, I'll tell you what I do, like what I do with everyone else … pay 17. Scott Yeah. Applic What do you think about that? Scott Um. Applic That's what I, that's what the other boys pay 17… Scott Yeah. Applic … everyone's 17" 39 Later during the same meeting, the conversation turned to the fact that some of the tablets were crumbling: "Scott It's a binder. Applic Yeah they don't round it up properly, yeah. It, the bulking agents, like they haven't got enough binding. Scott Yeah. Applic If you, if you keep them in your pocket and like move around with them, they're going to be in bits. Scott Yeah, I know. Applic And the, I think those one's I gave you was just, some rubbish I had lying around. Scott No they're all right. Yeah I got the jist of it. Applic Yeah, yeah, they're the … Scott Yeah. Applic … they're the, like these one's are all proper one's … Scott I see. Applic … they're all, they're good, they're all good, they're all good." 40 In the passages of the remarks on sentence about which the applicant complains, the Judge referred to those and other parts of the conversations, and concluded (at ROS 18-19): "I am satisfied that the offender's role was that of at least a middleman in the drug supply hierarchy, weighing, packaging and distributing substantial quantities of drugs which were provided to him by a principal. He was clearly not a mere courier or a street level dealer nor was he at the top of the distribution chain. I am further satisfied that his only motive for committing these offences was sheer financial greed." 41 I do not think his Honour's findings as to the applicant's knowledge of the drug supply business were "unwarranted". There is no substance in ground 1. 42 Ground 4 is "That the sentencing Judge failed to take into account any aspect of entrapment in the particular circumstances of this matter." 43 This ground is based on a theory posited by Mr Bonnici on behalf of the applicant that the woman named Joanne knew that Scott was an undercover police officer. Mr Bonnici submitted that, if that was the case, her encouragement to the applicant to trade drugs so as to enable her to repay her debt to him amounted to entrapment. 44 The Crown acknowledged that, if entrapment had in fact occurred, it would have to have been taken into account as a mitigating factor: R v Taouk (1992) 65 A Crim R 387 at 403. The Crown noted, however, that in the present case, there was no finding that the applicant was induced to commit the crime by police conduct and nor did his counsel at the sentence hearing suggest that this was the case. 45 Mr Bonnici relied on the fact that the applicant was introduced to Scott by Joanne. That is confirmed by the transcripts of the covertly recorded conversations. However, there is nothing in the material relied upon to suggest that Joanne knew Scott was an undercover police officer. Since the matter was not even raised for consideration by the sentencing Judge, in my view, no error is established. In any event, the evidence establishes no basis for this Court to revisit that issue. 46 Ground 10 is "That his Honour erred in making adverse findings of fact against the applicant on the balance of probabilities instead of beyond reasonable doubt." 47 The premise of this ground appears to be that the Judge relied on his view as to the applicant's credibility as a matter of aggravation. It is well established that the sentencing Court must not take into account matters adverse to an accused unless they are proved beyond reasonable doubt, while matters in favour of an accused need only be proved on the balance of probabilities: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270. However, not all matters to be taken into account can be fitted into the category of either mitigation or aggravation and regard must be had to the fact that sentencing is a synthesis of competing factors: Weininger v R [2003] HCA 14; (2003) 196 ALR 451. 48 As already noted, the sentencing Judge unequivocally rejected the evidence given by the applicant on sentence. There is, however, nothing in the remarks on sentence to suggest that his Honour misconceived the fundamental principles applicable to the fact-finding exercise. His Honour's ultimate finding as to the applicant's role in the offences was based not on his rejection of the applicant's evidence, but on the statements made by the applicant during the negotiation of the drug transactions, when he did not know that he was being recorded and did not know that he was speaking to a police officer. 49 In making a finding on the basis of that material, his Honour expressly stated that he was satisfied beyond reasonable doubt (at ROS 17.9). No error is disclosed. 50 Ground 11 is "That his Honour misdirected himself in not making the charge in relation to the intent to supply cocaine totally concurrent with the ecstasy matter". 51 As already noted, charge 2 related to an agreement to supply 2 ounces of cocaine. When the applicant sent an SMS message to Scott indicating, in effect, that he was unable to provide the cocaine that day, Scott asked him to supply additional ecstasy tablets. The applicant contends that, in those circumstances, the partial accumulation of the sentences imposed in respect of the agreement to supply cocaine and the actual supply of ecstasy tablets exposed him to "double jeopardy". 52 As noted in the Crown's submissions, the sentencing Judge specifically dealt with that issue and found that the contents of the text messages clearly disclosed that the offender had a continuing intention to supply the 2 ounces of cocaine when it became available the following week. 53 I accept, as submitted by the Crown, that having made that finding, it was open to the Judge to partially accumulate the individual sentences. Application of the standard non-parole period (ground 2) 54 Separate consideration must be given to ground 2, which is "That the sentencing Judge placed too much emphasis on and/or misused the standard non-parole period in the particular circumstances of this case." 55 Counsel for the applicant submitted that the Judge used the standard non-parole period as more than a guide and in fact took it as the starting point of his assessment. He submitted that this was reflected in the remarks on sentence when the Judge made "emphatic reference to the standard non-parole period, even though this was not a conviction after trial." 56 This ground is without substance. The so-called "emphatic reference" to the standard non-parole period was in the following terms "That offence also attracts a standard non-parole period of 10 years imprisonment" (at ROS 1). The Judge repeated that information when he came to consider the standard non-parole period, as his Honour was required to do. His Honour correctly recorded (at ROS 19) that the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness. His Honour referred to the principles in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168. His Honour also referred to the fact that the standard non-parole periods were framed upon the assumption that the case was determined at trial and that s 22 of the Crimes (Sentencing Procedure) Act contemplates that a plea will attract a discount. I see no error whatsoever in his Honour's approach. 57 Further, as observed in the Crown's submissions, the sentence ultimately imposed included a non-parole period on charge 3 of 6 years, notwithstanding the fact that the Judge in fact assessed the objective criminality of the offence as being above the middle of the range. In my view, there is no substance in ground 2.

General ground B: whether the sentence was manifestly excessive (grounds 5, 6, 7, 9 and 12) 58 Leaving aside grounds 8 and 13, the remaining grounds of appeal relate to the second broad proposition put by the applicant (in grounds B and 12), that the overall sentence is manifestly excessive as a result of the erroneous disregard of the applicant's subjective case. 59 The appeal against sentence focussed on the sentence imposed on the third charge. The sentences imposed on the first and second charges were plainly within the permissible range and the applicant did not contend otherwise. The effective total sentence of 11½ years with a total non-parole period of 7 years included accumulation of 12 months between the sentences and in my view, the degree of accumulation was appropriate. 60 As to the sentence imposed in respect of the third charge, it is appropriate to consider grounds 5, 6, 7 and 9 together. By those grounds, the applicant contends that the sentencing Judge erred in finding that the applicant had no remorse, erred in finding that the applicant had no prospects of rehabilitation, erred in rejecting the evidence in the report of the forensic psychologist and failed to give full and adequate weight to the subjective factors in favour of the applicant. 61 As to remorse and prospects of rehabilitation, the Judge accepted that the applicant had pleaded guilty to all charges at the first reasonable opportunity and was entitled to a reduction of 25% on that account. His Honour continued (at ROS 23): "However because I have found that the offender gave an untruthful account in evidence before me as to how he came to commit these offences, I am unable to find that his expressions of remorse are genuine, nor am I able to find that he has favourable prospects of rehabilitation. One would expect an offender who is genuinely contrite and remorseful and on the road to rehabilitation, at the very least to acknowledge the full extent of his or her offending behaviour and take full responsibility for it." 62 The question to be determined is not whether this Court would have reached the same conclusions, but whether those findings were open to the sentencing Judge on the evidence before him. It is clear that the Judge's findings rested heavily on the unfavourable view his Honour formed of the applicant's credibility. His Honour had the advantage, as this Court has not, of hearing and seeing the applicant in the witness box. It cannot be said that it was not open to his Honour to make the findings that he did. The same reasoning applies in respect of the Judge's rejection of the report of the psychologist. 63 As to whether his Honour gave adequate weight to subjective factors, for my own part, I think that the sentence imposed was severe having regard to the generally favourable subjective case presented on behalf of the applicant. That view is reinforced by the sentence statistics maintained by the Judicial Commission, which disclose that the sentence imposed on the third charge in the present case was more severe than any of the cases recorded in the period from February 2003 to June 2008 (51 cases). 64 However, the limits on the use of such statistics are well settled. The relevant principles are stated in the judgment of Spigelman CJ in R v Bloomfield (1998) 44 NSWLR 734 at 739. In particular, I accept that the upper limit of the sentencing discretion in any case is the maximum penalty, not the highest penalty revealed in the statistics kept by the Judicial Commission: Van Cuong Nguyen v R [2008] NSWCCA 322 at [24]. In the absence of specific error, it is not the role of this Court to impose its own view.

Ground 8 - DPP submissions 65 Ground 8 is "That the sentencing Judge misdirected himself by placing too much emphasis and/or allowing questions and/or commentary by the solicitor/advocate for the DPP in this matter, inappropriately adverse to the applicant." 66 This ground is manifestly untenable. In my view, it amounts to no more that a complaint that the Judge accepted the submissions put on behalf of the Crown and rejected the submissions put on behalf of the applicant. The assessment of the credibility of the applicant was quintessentially a matter for the sentencing Judge, and it would be inappropriate for this Court to intervene in that assessment.

Ground 13 - claim for reversal of the forfeiture of $29,000 67 The final ground of appeal is ground 13, which is "That in relation to the actual amount of moneys in dispute in the goods in custody charge on the Form 1, his Honour erred in deciding against the applicant in that it was contrary to the weight of the evidence before him." 68 The applicant contends that the forfeiture of the $29,000 was in error and should be reversed. It is doubtful whether this aspect of the applicant's case is properly to be regarded as an appeal "against the sentence passed on [the applicant's] conviction" within the meaning of s 5 of the Criminal Appeal Act. 69 In any event, as submitted by the Crown, the issue of the $29,000 was dealt with comprehensively by the sentencing Judge. His Honour's reasons for rejecting the applicant's explanation for keeping $29,000 in cash secreted behind a false wall in the cupboard underneath his kitchen sink are cogent and are based on the evidence that was before his Honour. The finding was plainly open. This ground should be dismissed. 70 The order I propose is that leave to appeal against sentence be granted but that the appeal be dismissed. **********

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