Meoli v R

Court of Criminal Appeal (NSW)|2021-08-18|Before: Bathurst CJ, Bellew J

Solicitors: Michael Vaughan & Co (Applicant) Director of Public Prosecutions (Crown) File Number(s): 2019/278823 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: R v Ricky Meoli, unreported, NSWDC Date of Decision: 27 August 2020 Before: Syme DCJ

Judgment

BATHURST CJ: I agree with the orders proposed by Simpson AJA and with her Honour's reasons.
SIMPSON AJA: The applicant seeks leave to appeal against two separate sentences imposed on him in the District Court on 27 August 2020: R v Ricky Meoli, unreported, NSWDC, 27 August 2020.

The circumstances of the offending

The facts of the offences were put before the sentencing judge by way of an agreed statement. They may be summarised briefly.
On three occasions, in about February, April and August 2019, the applicant purchased, from China through the internet, quantities of Gamma-Butyrolactone. Gamma-Butyrolactone is the drug commonly known as "GBL", and is a "border controlled drug" under the Criminal Code, and a prohibited drug pursuant to the DMT Act. The first two importations, which were addressed to the applicant in his own name, were intercepted by Australian Border Force ("ABF") officers and destroyed. The third, which was also addressed to the applicant in his own name at an Australia Post Business Centre address in Caringbah, was also intercepted by ABF officers. Instead of destroying the drug, on this occasion the ABF officers removed the drug from its container and substituted water. On 4 September 2019, notwithstanding that he was disqualified from driving, the applicant drove to the Australia Post Business Centre in Caringbah, took possession of the package, and drove away. The act of driving constituted the offence of driving whilst disqualified.
Thereafter, in a series of telephone conversations that were legally intercepted, the applicant offered to supply quantities of the drug to a co-offender and another person. By s 3 of the DMT Act, for the purposes of s 25(1) and (2), offering to supply a drug constitutes supplying. By these conversations, the applicant committed the two offences of supplying a prohibited drug, the first of an unspecified quantity (s 25(1)), the second of not less than the commercial quantity (s 25(2)).
On 6 September 2019, in the course of the execution of a search warrant of premises in which the applicant was living, a "spring loaded" knife (commonly known as a "flick knife") was located in a bedroom occupied by the applicant. This was the subject of the prohibited weapon charge.
The applicant was arrested on 6 September 2019 when he participated for a time in a recorded interview. He made significant admissions, including that he had purchased the drug from China on the internet. He was then charged with two unrelated offences of aggravated break enter and steal, the circumstance of aggravation being that the offences were committed whilst in company.

The applicant's personal circumstances

The applicant was born in August 1988 and was 30 years of age at the time of the offences. He had a criminal record dating from 2006, which encompassed offences of driving recklessly, furiously or at a speed or in a manner dangerous, drug possession, trespass, aggravated break and enter while being armed with intent to commit an indictable offence, contravention of an apprehended domestic violence order, stalking and intimidating, and driving a vehicle whilst there was present in his blood an illicit drug. In April 2018, in relation to a charge of drug possession, a bond under s 9 of the Sentencing Procedure Act was imposed, requiring the applicant to be of good behaviour for two years; in January 2019, in relation to a charge of driving whilst under the influence of a prohibited drug, a twelve month Capital Community Correction Order was imposed. Each of these was current at the time of the offending the subject of the present application; the breaches constituted by the present offences were the subject of the two charges mentioned above.
In evidence before the sentencing judge was a Sentencing Assessment Report and a psychological report by Mr Sam Borenstein. These disclosed that the applicant had been, for six years, in a stable relationship, and that he has ongoing support from his fiancée and parents. Letters of support from his mother and fiancée amply confirm that this is so.
At the age of 19 the applicant was diagnosed with Crohns disease, an auto-immune disorder with lifelong effects, impacting on gastro-intestinal health, and requiring regular medication. The applicant has long suffered symptoms of anxiety and depression for which he is prescribed medication. He has been a regular user of illicit drugs since his teenage years and has more than once attempted (without success) drug rehabilitation once in a residential facility (South Pacific Private Hospital) for three weeks in 2015. In 2018 he was admitted to a mental health facility with drug induced psychosis.
There was evidence in the Agreed Facts that the applicant regularly changed his telephone number and vehicle, which the sentencing judge interpreted as an indication of the degree of planning and sophistication in the applicant's drug supply business.

The remarks on sentence

The sentencing judge set out, uncontroversially, the facts of the offences and the applicant's personal circumstances, including his medical condition and drug history. She noted his criminal record as "significant", but considered that, while it deprived him of leniency, it did not amount to an aggravating circumstance. She assessed the offences as "towards the low but not the lowest end of objective seriousness", having regard to the quantities of the drug involved and the relatively limited degree of planning. She considered that the importation offences were "not especially well planned and were unsophisticated".
Her Honour allowed a 25% reduction in the sentences she otherwise would have imposed by reference to the applicant's pleas of guilty.
The sentencing judge paid particular attention to the applicant's prospects of rehabilitation. Having regard to the grounds of appeal, I will set out in full her Honour's findings in that respect. She said: "In the past [the applicant] has blamed his medical condition for his drug abuse but he seems not to have properly engaged in any sustained attempt to address the anxiety and depression which he says is a result of his medical condition with any real effort of rehabilitation. I observe his attempts at rehabilitation have been short lived. His counsel's submissions concentrated on his family's desire for him to address his drug problems but nowhere could I find a statement of intent by Mr Meoli or even an acknowledgment that these are issues he will have to face. While I accept that the support provided by his family is a factor very much in his favour, I observe that up until now it seems that his family including his partner seem to be more committed to his rehabilitation than he himself does. I observe that in the notes provided by his solicitors, his mother was the prime motivator to his admission to South Pacific Hospital. I also observe that he has been less than diligent in following up appointments for his physical medical condition. In these circumstances I can only observe that at least up until this time Mr Meoli has failed to accept responsibility for his own physical health and his mental health conditions. Until he does so and until he accepts personal responsibility rather than his current immature response I can only make a guarded finding as to his prospects of rehabilitation. However, I am of the view after considering Mr Borenstein's report that if he were to be released on parole directly into an appropriate and suitable rehabilitation centre, such as Odyssey House, and served a portion of his parole in that quasi custody supervision, then his prospects will improve. … Mr Meoli has been given significant leniency by the Courts in the past. He has not taken advantage of supervision and he has not taken advantage of the support previously offered."
Her Honour then stated the sentences that she would, if sentencing individually, have imposed for each offence. With respect to the Commonwealth offences, the sentences indicated were, respectively, imprisonment for 3 years and 3 months, 3 years and 6 months and 3 years and 9 months. There was little on the known facts to differentiate between the three offences and it appears that the variations in the indicated sentences were referable to the sequence in which they were committed: the earliest offence carried the lowest indicated sentence, and the latest the highest indicated sentence. The aggregate sentence imposed was 4 years and 9 months with a non-parole period of 3 years, representing a significant degree of concurrence.
With respect to the State offences the indicated sentences were: (i) breach of s 9 bond: imprisonment for 3 months; (ii) breach of Community Correction Order: imprisonment for 1 month; (iii) supply not less than commercial quantity of prohibited drug: imprisonment for 4 years, non-parole period 3 years; (iv) supply prohibited drug: imprisonment for 1 year 2 months; (v) weapon possession: imprisonment for 6 months. The aggregate sentence was, as stated above, imprisonment for 5 years, with a non-parole period of 2 years and 6 months.
It will be observed that neither the aggregate sentences nor the effective overall sentence conformed with the statutory ratio stated in s 44(2) of the Sentencing Procedure Act, by which, unless the court finds that special circumstance exist, the non-parole period must be not less than 75% of the total sentence. It is apparent that the sentencing judge found special circumstances, although she did not, as required by s 44(2), make a record of her reasons for that finding. When aggregated with the sentence already being served, the proportion of the non-parole period to the total sentence is 65%, a relatively significant reduction from the 75% otherwise applicable.

The application for leave to appeal

As indicated above, the grounds on which leave to appeal is sought are:

asserted failure to assess the likelihood of the applicant's re-offending;
asserted manifest excess in each aggregate sentence.

Likelihood of re-offending

By s 21A(1) of the Sentencing Procedure Act a sentencing court is required to take into account: "(a) the aggravating factors referred to in subs (2) that are relevant and known to the court, (b) the mitigating factors referred to in subs (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence."
Subsection (2) sets out (non exhaustively) the aggravating factors that are required to be taken into account (where relevant and known). Subsection (3) states (also non exhaustively) mitigating factors that (where relevant and known) are required to be taken into account. Relevantly for the present application, they include: "(g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise."
As can be discerned from the extracts from the Remarks on Sentence above, the sentencing judge paid significant attention to the applicant's prospects of rehabilitation. She did not, however, separately mention the unlikelihood (or otherwise) of the applicant's re-offending. That, it is contended on behalf of the applicant, is indicative of error and calls for resentencing by this Court: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.
The nub of the argument advanced was that the attention paid by the sentencing judge to the applicant's prospects of rehabilitation was insufficient to discharge the duty to take into account the unlikelihood of re-offending. The two concepts, although having much in common, are separate and distinct. Reliance was placed on the observations of Bellew J (with whom Hoeben CJ at CL agreed) in TL v R [2020] NSWCCA 265 at [369] that: "The issues of an offender's prospects of rehabilitation and likelihood of re-offending are separate and distinct."
In this, his Honour was echoing conclusions of Price J (with whom Hoeben CJ at CL and Adamson J agreed) in Zuffo v R [2017] NSWCCA 187. Price J said: "[47] Although commonly linked, the concepts are not the same." Price J went on to refer to the decision of this Court in R v Pogson (2012) 82 NSWLR 60; [2012] NSWCCA 225, to which I will come.
Although, in TL, Adamson J dissented with respect to the application of s 21A(3)(g), she did not, as I understand her Honour's brief reasons, disagree with Bellew J's statement of principle. Rather, her Honour considered that an assessment of the likelihood of re-offending was "insufficiently material" or irrelevant to the sentencing exercise in the particular circumstances of that case to be "relevant and known" for the purposes of s 21A(3)(g).
TL was a case in which the offender was convicted of the murder of a 2½ year old child. It may be calculated that, at the time of the offence, the offender was 21 years of age. The offence resulted in a sentence of imprisonment for 36 years with a non-parole period of 27 years. In those circumstances the approach taken by Adamson J may be readily understood. The likelihood (or unlikelihood) of re-offending after such a lengthy period of incarceration would be difficult to predict. What is important is that her Honour's decision does not take issue with Bellew J's statement that the considerations required by s 21A(3)(g) and (h) (where relevant) are "separate and distinct". Decisions of this Court to which reference was made are therefore unanimous in that conclusion.
That is also in accord with the discussion, in a different context, by McClellan CJ at CL and Johnson J in Pogson. Pogson was a decision of a 5 judge bench of this Court concerning the application of s 7 of the Sentencing Procedure Act which provides for a non-custodial sentencing option known as an Intensive Correction Order. Section 3A of the Sentencing Procedure Act then stated (as it does currently) the purposes of sentencing, one of which is: "(d) to promote the rehabilitation of the offender".
In that context their Honours said: "[115] Although not defined by statute, the term 'rehabilitation' has a well recognised content in the context of sentencing. Rehabilitation as an object of sentencing has not been confined to those who are regarded as being ill or predisposed to crime by environmental factors, including alcohol or drug abuse."
Their Honours then quoted at length from a South Australian decision, Vartzokas v Zanker (1989) 51 SASR 277, where King CJ said: "Rehabilitation as an object of sentencing is aimed at the renunciation by the offender of his wrong-doing and his establishment or re-establishment as an honourable law abiding citizen. It is not confined to those who fall into wrongdoing by reason of physical or mental infirmity or a disadvantaged background. It applies equally to those who, while not suffering such disadvantages, nevertheless lapse into wrongdoing. The object of the courts is to fashion sentencing measures designed to reclaim such individuals wherever such measures are consistent with the primary object of the criminal law which is the protection of the community. Very often a person who is not disadvantaged and whose character has been formed by a good upbringing, but who has lapsed into criminal behaviour, will be a good subject for rehabilitative measure precisely because he possesses the physical and mental qualities and, by reason of his upbringing, the potential moral fibre to provide a sound basis for rehabilitation. It would be a great mistake to put considerations of rehabilitation aside in fashioning a sentence for such a person."
McClellan CJ at CL and Johnson J went on (at [117]-[118]) to refer to the work of a criminologist, R A Duff, who has written: "The offender comes to recognise and repent his crime as a wrong and to realise that he must, and how he can, so reform himself as to refrain from such crimes in the future. He also comes to accept his punishment as a justified response to his crime - as an appropriate means of inducing that repentance and as an appropriate way in which he can express that repentance to others." R A Duff, "Punishment, Communication and Community" 2001, Oxford University Press as 111-12.
McClellan CJ at CL and Johnson J went on to say: "[118] Inherent in Mr Duff's account of punishment is the assumption that rehabilitation addresses the moral sensibilities of the offender, not just his or her propensity to re-offend. Indeed, were it otherwise, there would be little to distinguish rehabilitation from specific deterrence, which is separately provided for by s 3A(b) Sentencing Procedure Act. … 120 Although it is common for judges, when considering the subjective characteristics of an offender, to evaluate the prospects of the person re-offending and to express an opinion as to whether the person is unlikely to re-offend, it could never be said that a person who has once offended would never re-offend. Furthermore, a person who has offended will always be in need of the opportunity to establish themselves as a law abiding and productive member of the community. Rehabilitation is a concept which is broader than merely avoiding re-offending. 121. A finding that an offender is not likely to re-offend may often be made not only because of expressions of remorse, but because the fact that the offender has been caught, convicted and punished (which may include extra curial punishment) will operate to deter the offender from future wrongdoing. … 122. By contrast to deterrence, rehabilitation has as its purpose the remodelling of a person's thinking and behaviour so that they will, notwithstanding their past offending, re-establish themselves in the community with a conscious determination to renounce their wrongdoing and establish or re-establish themselves as an honourable law abiding citizen. … ." (italics added)
This, in my opinion, is a somewhat more sophisticated analysis of rehabilitation than is called for by s 21A(3)(h) (and was made in a very different context). To accept the proposition by Price J and Bellew J that pars (g) and (h) of s 21A(3) call for different enquiries needs no more than recognition that the two concepts appear, sequentially but separately, in the subsection. There could be no clearer indication that the legislature considered the unlikelihood of re-offending (where it is found to exist) to be distinct from rehabilitation (even though the legislature forebore to explain the distinction it perceived).
I will therefore proceed on the basis that adherence to the requirements of s 21A(3) requires, where it is relevant and known to the court, that unlikelihood of re-offending is to be taken into account, separately and distinctly from prospects of rehabilitation. The sentencing judge's detailed assessment of the applicant's prospects of rehabilitation is not a discrete finding with respect to s 21A(3)(g). I pause to observe, and will return to this, that what is required, for the purposes of par (g), to be taken into account is unlikelihood of re-offending.
The Crown's response to the applicant's argument was to point out that, in Zuffo, the issue had been specifically raised by counsel but not addressed by the sentencing judge, and that there was no indication in TL that the question was raised for the first time on appeal. In the Crown's submission there is no error in the absence of reference to a sentencing consideration that is not raised at the sentencing proceedings.
That is this case: the sentencing judge was not asked to make a finding about the likelihood or unlikelihood of the applicant's re-offending, and no such issue was raised before her. In the present application when this was raised, the applicant's legal representative contended that it was not the role of legal representatives to raise issues for the determination of the judge and that it is the role of the judge to address relevant sentencing considerations. This was a somewhat surprising submission and one that, for my part, I reject.
In my opinion the Crown submission should be accepted. It is not every one of the 14 mitigating factors listed in s 21A(3) that calls for a specific finding by the sentencing judge; it is those that arise in the circumstances of the particular case. Judges are called upon to decide issues that arise in the proceedings before them. In that respect the observations of Wilson J in Taylor v R [2018] NSWCCA 255 at [51] - [52] (in which White JA and Walton J concurred) are apposite.
Moreover, while accepting that prospects of rehabilitation and unlikelihood of re-offending are "separate and distinct" issues, in many cases the relevant evidence will be, if not co-extensive, then significantly overlapping, and the conclusions in respect of each paragraph may be expected to be consistent. Inherent in the sentencing judge's expressed doubt about the applicant's prospects of rehabilitation are equivalent doubts that he will be unable to avoid re-offending. I do not read the passages extracted above as being directed to the sophisticated analysis of rehabilitation found in Pogson; rather, they are specifically directed to the applicant's capacity or willingness, on his release from prison, to maintain a law abiding lifestyle. In that sense they may be taken to go to both issues, even though no reference was expressly made to s 21A(3)(g). The absence of any reference to the unlikelihood of re-offending is explained by the absence of any submissions with respect to that subject matter. It is also explained by the evidence, which did not support a finding that the applicant was unlikely to re-offend.
The author of the Sentencing Assessment Report assessed the applicant as at medium risk of re-offending. The tenor of Mr Borenstein's report suggests a similar view. Had the sentencing judge undertaken the exercise it is now contended she ought to have undertaken, there is little prospect that the conclusion could have been favourable to the applicant. A conclusion that the applicant was unlikely to reoffend would have been directly inconsistent with the rehabilitation findings that were made.
Moreover, the manner in which s 21A(3)(g) is framed presupposes the fact of the "unlikelihood of re-offending". Generally, the onus of establishing a mitigating factor lies on the offender; the standard of proof is on the balance of probabilities. There was, in the evidence, no basis on which the sentencing judge could reasonably have found that there was "unlikelihood of re-offending".
I would reject this ground of appeal.

Manifest excess

The written submissions with respect to these grounds were, to say the least, pithy. They were confined to the assertion that the offences: "… manifestly did not warrant a sentence of the severity which her Honour imposed … ."
The submissions continued: "… there is an imbalance or displacement between her Honour's findings as to objective seriousness and the sentences ultimately imposed. These grounds do not challenge the evaluative findings which her Honour made with respect to objective seriousness. They accept those findings and rely upon them to support the proposition that the aggregate sentences imposed in respect of both the State and the Commonwealth offences are unaccountably too severe."
No reference was made to sentences imposed in other cases that might indicate that either of the aggregate sentences was out of step with prevailing sentencing practices: see Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45. In oral submissions, it was put that the sentences do not take account of the applicant's age, or that (except for one sentence of about 6 months) this would be the applicant's first time in custody.
The applicant could gain little comfort from his age. He was 30 years of age at the time of the first offence. He could not be classified as "young offender" and his criminal history shows that, on 29 August 2019, he was sentenced to imprisonment for 12 months commencing on 6 September 2019 (the date of his arrest for the current offences), with a non-parole period of 7 months, for the two offences of aggravated break enter and steal. This was not his first time in custody.
As indicated above, each Commonwealth offence was subject to a maximum penalty of imprisonment for 25 years. The indicative sentences were of 3 years and 3 months, 3 years and 6 months, and 3 years and 9 months respectively.
The principles on which this Court will intervene in the exercise of a sentencing discretion on the asserted basis of manifest excess or manifest inadequacy have been stated on many occasions and are well known: see, eg, Hili; Hughes v R [2018] NSWCCA 2 at [86] and the cases there cited; Kresovic v R [2018] NSWCCA 37 at [41] and the cases there cited.
Boiled down to its simplest, a ground of manifest excess is an assertion that the sentence imposed was "unreasonable or plainly unjust": Hili at [58]. While the assessment of the offences as "at the lower end of objective seriousness" has not been challenged, and has in fact been embraced on behalf of the applicant, the indicative sentences in my opinion are proportionate to the offending and were the basis for the aggregate sentence of 4 years and 9 months with a non-parole period of 3 years (which is the subject of any appeal for which leave might be given) and which is also proportionate to the seriousness of the offending and the assessment of objective gravity. Precisely the same may be said of the aggregate sentence imposed in the State charges.
It is not to be overlooked that, at the time of the offending, the applicant was subject to both a s9 bond, and a Community Correction Order. He had had the benefit of significant leniency, and committed these offences while at conditional liberty.
I would reject these grounds of appeal.
It follows that, although I would grant leave to appeal, I would dismiss the appeal. The orders that I propose are: 1. Leave granted to appeal; 2. Appeal dismissed.
BELLEW J: I have had the advantage of reading, in draft, the judgment of Simpson AJA.
I agree with her Honour's conclusions for the reasons her Honour has given, but wish to add the following observations in respect of ground 1.
Firstly, the proposition advanced in ground 1 is that the sentencing judge erred in failing to assess "whether the applicant was unlikely to reoffend" as provided for in s 21A(3)(g). That proposition tends to assume that the unlikelihood of re-offending was, as required by s 21A(1)(b), a relevant consideration. As Simpson AJA has pointed out, no submission was made to the sentencing judge that her Honour should find that the applicant was unlikely to reoffend. This Court has consistently stated that there is a difficulty in asserting error on the part of a sentencing judge for failing to take a matter into account when no submission about that matter was made: see for example Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 at [75]-[81] per Johnson J (McClellan CJ at CL and Rothman J agreeing); Dicianni v R; Pintabona v R [2015] NSWCCA 201 at [282] per Hoeben CJ at CL (Price and Davies JJ agreeing); Phanekham v R [2015] NSWCCA 295 at [28] per the Court (Ward JA, Adams and Bellew JJ).
To assert error on the part of a sentencing judge for failing to make a mitigatory finding that he or she was never asked to make runs contrary to the expectation that an offender's legal representative will make submissions to a sentencing judge at first instance by reference to those factors which are sought to be taken into account. That expectation explains, at least in part, the reluctance of this Court to entertain arguments that were not put at first instance: Zreika [80]-[81] per Johnson J. Nothing put on behalf of the applicant satisfies me that such reluctance should be modified in this case. Given the manner in which the sentence proceedings were conducted on behalf of the applicant, the sentencing judge was entitled to proceed on the basis that s 21A(3)(g) was not engaged.
Secondly, ground 1 appears to assume that had her Honour considered the matter, she would have made a finding in the applicant's favour that he was unlikely to re-offend. If a factor which has been inadvertently overlooked by counsel appearing at first instance unequivocally operates in favour of an offender, it may be open to the Court to intervene in order to correct a miscarriage of justice, or a severe injustice: Zreika at [82]. The present is not such a case. Given the applicant's criminal history, any assumption that her Honour would have found that he was unlikely to reoffend is, in my view, a somewhat unsafe one.
Thirdly, accepting that an assessment of an offender's prospects of rehabilitation is separate to an assessment of the likelihood of re-offending, the applicant relied upon the decision of this Court in TL in support of a conclusion that the error asserted in ground 1 was established. The applicant in TL had a limited criminal history. Such history as he did have did not include offending of the kind for which he was being sentenced. There was also evidence that he was of prior good character generally: TL at [342]. All of those factors were (using the terminology in s 21A(1)(b)) "relevant and known to the Court", and supported a finding that he was unlikely to reoffend. Further, and unlike the present case, a submission to that effect had been made to the sentencing judge: TL at [349]. It was for those reasons that a majority of the Court concluded that the failure of the sentencing judge to assess the likelihood of re-offending, in circumstances where the evidence supported a finding in that applicant's favour, amounted to error. The circumstances considered in TL are clearly distinguishable from those in the present case.
I agree with the orders proposed by Simpson AJA.

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