Naberezhnov v R

Judgment

1. HARRISON J: I agree with Bellew J and with the orders he proposes. I also agree with the additional remarks of Adamson J.
2. ADAMSON J: I have had the considerable benefit of reading the judgment of Bellew J in draft and agree with the orders his Honour has proposed. Subject to what follows, I agree with his Honour's reasons.

Ground 1

1. The setting in which the offending took place was relevant to the objective seriousness of the offending. Thus, it was, at least potentially, relevant that the offending occurred in the context of a music festival. The potential consequences of an offence in general can be assumed to have been taken into account by the legislature in prescribing the maximum penalty. In the context of offences such as those to which the applicant pleaded guilty, the potential consequences included that one or more of the eventual users of the MDMA capsules in the possession of the applicant would die or suffer catastrophic health consequences. However, the potential consequences of particular offending by reference to what has happened in unrelated instances do not increase the objective seriousness of the particular offending.
2. It is not clear from the sentencing judge's remarks which of the matters of which his Honour had judicial notice affected his Honour's assessment of objective seriousness. However, as the Crown properly accepted, if the unrelated deaths were taken into account, this would amount to an error. His Honour's reasons were insufficiently clear to demonstrate that his Honour had not taken into account the matters of which he took judicial notice, which were irrelevant to objective seriousness.
3. Judges are entitled to make observations which include matters of community concern and topical interest in their remarks on sentence. However, if they do so, they are obliged to make clear whether such matters bear on the sentence imposed on the offender. In the present case, the risk that his Honour took into account in the assessment of objective seriousness, the fatal consequences of unrelated cases was not dispelled by his Honour's reasons. Accordingly, I am persuaded that ground 1 has been made out.

Ground 2

1. The remarks on sentence were delivered on 19 December 2019, the day after the sentence hearing. As Bellew J has outlined in his reasons, his Honour accepted the Crown's submissions concerning the objective seriousness of counts 1 and 2. For the reasons given by Bellew J, the Crown's submissions included as a "fact" a matter which was not part of the agreed facts and was not otherwise established by the evidence. By accepting the Crown's submissions as to objective seriousness, the sentencing judge adopted the proposition which was neither agreed nor proved (which pertained to the price per ounce of the second kilogram of MDMA). In my view, this error affected the assessment of objective seriousness, with the consequence that ground 2 has been made out. In these circumstances, I do not consider it to be necessary to express a view about the extent to which a sentencing judge can incorporate, by reference, a party's submissions into the remarks on sentence or whether the sentencing judge's reasons were otherwise insufficient.

Re-sentence

1. I confirm that I agree with the reasons of Bellew J on sentencing and his Honour's conclusion that no lesser sentence is warranted.
2. BELLEW J: Alexander Naberezhnov (the applicant) pleaded guilty in the Local Court to the following offences: 1. ongoing supply of a prohibited drug (193.8g of cocaine) between 6 August 2018 and 30 August 2018, contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (the DMT Act) (count 1); 2. offering to supply a prohibited drug in a quantity greater than the large commercial quantity (2.2835kg of MDMA) between 30 August 2018 and 10 September 2018, contrary to s 25(2) of the DMT Act (count 2); and 3. supplying a prohibited drug in a quantity greater than the indictable quantity (95.5g of MDMA) on 15 September 2018, contrary to s 25(1) of the DMT Act (count 3).
3. The maximum penalties for each of these offences were as follows: 1. count 1 - 20 years imprisonment, with no prescribed standard non-parole period; 2. count 2 - life imprisonment, with standard a non-parole period of 15 years imprisonment; and 3. count 3 - 15 years imprisonment, with no prescribed standard non- parole period.
4. Count 1 encompassed three discrete instances of the supply of cocaine on 6 August 2018, 13 August 2018 and 30 August 2018. In relation to this count, the applicant asked the sentencing judge to take into account two further offences of supplying a prohibited drug which were contained on a Form 1.
5. The applicant appeared for sentence with two co-accused, Jielun Li (Li) and Man Chun Tsang (Tsang). Another co-offender, Siyi Wu (Wu) was sentenced separately by another judge.
6. Li pleaded guilty to an offence which was in the same terms as count 1 against the applicant, and asked the sentencing judge to take into account the following matters on a Form 1: 1. one count of supplying a prohibited drug; 2. two counts of possessing a prohibited drug; and 3. one count of recklessly dealing with the proceeds of crime.
7. Tsang also pleaded guilty to an offence in terms of count 1 against the applicant, and asked the sentencing judge to take into account the same matters on a Form 1 as those in the case of Li.
8. The sentencing judge gave the following indicative sentences in respect of the applicant: 1. count 1 - 4 years and 6 months imprisonment; 2. count 2 - 9 years imprisonment with a non-parole period of 6 years and 6 months imprisonment; 3. count 3 - 4 years and 10 months imprisonment.
9. His Honour imposed an aggregate sentence of 12 years imprisonment with a non-parole period of 8 years.
10. The applicant now seeks leave to appeal against that sentence upon the grounds more fully considered below. The applicant requires an extension of time in which to bring his application for leave. In light of the conclusions I have reached in relation to grounds 1 and 2 of the application, it is appropriate that leave be granted.

COUNT 1 - Ongoing supply of cocaine (193.8g) between 6 August 2018 and 30 August 2018

1. The agreed facts in respect of count 1, which as I have noted encompassed three individual instances of supply, may be summarised as follows. [1]

The supply of 55.2g of cocaine on 6 August 2018

1. Between 2 August 2018 and 6 August 2018, the applicant negotiated the sale, to an Undercover Operative known as "Ellie", of two ounces of cocaine for $14,000.00.
2. Following those negotiations, the applicant and Li met with Ellie on the evening of 6 August 2018, at which time Ellie confirmed the order. Li then left and walked to Tsang's residence which was nearby. Tsang gave Li a quantity of cocaine secreted in two cigarette packets contained in a larger "H&M" branded bag. Li then returned and gave the drugs to Ellie in exchange for $14,000.00 in cash which Li then passed on to Tsang.
3. Each of the two amounts of cocaine weighed 27.6g, with purities of 74% and 74.5% respectively.

The supply of 55.6g of cocaine on 13 August 2018

1. Between 9 August 2018 and 13 August 2018 the applicant negotiated the sale of two ounces of cocaine to Ellie for $14,000.00.
2. Following those negotiations, the applicant and Li met with Ellie on 13 August 2018. Ellie gave Li $14,000.00 for the purchase of the cocaine that had been the subject of the negotiations. Li left his credit card, house key and mobile phone as security before leaving the applicant and Ellie to go to Tsang's premises. Li gave Tsang the money, in exchange for which Tsang gave Li a quantity of cocaine hidden inside two cigarette packets which Li then placed inside his jacket and gave to Ellie on his return.
3. The cocaine weighed 55.6g and had a purity of 75%.

The supply of 83g of cocaine on 30 August 2018

1. Between 21 August 2018 and 30 August 2018 the applicant negotiated the sale of three ounces of cocaine to Ellie.
2. Following those negotiations, the applicant met with Ellie, Li and Wu on 30 August 2018, at which time a purchase price of $20,100.00 was confirmed. Li then went to Tsang's premises where Tsang gave him a quantity of cocaine contained in three small resealable plastic bags. Li returned and gave Ellie the cocaine in exchange for the sum of $20,100.00 which Li then passed on to Tsang.
3. The cocaine weighed 83g and had a purity of 72%.
4. As previously noted, the applicant asked the sentencing judge to take into account two Form 1 offences when determining the sentence for count 1. The first of those Form 1 offences involved the applicant offering to supply one ounce (approximately 28g) of cocaine for the amount of $6,500.00 on 1 September 2018. [2] The second involved the applicant offering to supply three ounces (approximately 85g) of cocaine for the amount of $21,900.00 on 3 September 2018. [3]

COUNT 2 - Offering to supply more than the large commercial quantity of MDMA (2.2835kg) between 30 August 2018 and 10 September 2018

1. The agreed facts in relation to count 2 may be summarised as follows. [4]
2. On 30 August 2018, on the occasion of the supply of the cocaine referred to in [25] above, the applicant told Ellie that he had 2kg of MDMA arriving in the near future which would have a purity of 80% - 85%, and which he offered to supply to her for $30,000.00 per kg. At that point, Wu intervened and corrected the applicant, advising Ellie that only 1kg of the MDMA would be sold as a whole, with the remaining 1kg being offered for sale in 1 ounce quantities at what was described by Wu as a "really good" price (which was later confirmed to be $1,800.00 per ounce). Ellie advised the applicant and Wu that she would have to "get her money together" and make sure "her guys could move the drugs".
3. On 10 September 2018 the applicant, Li and Wu again met with Ellie. After a short conversation, the applicant told Li and Wu to leave him alone with Ellie. He then told Ellie that the arrival of the MDMA was imminent and confirmed the price which had been previously discussed, which Ellie said was acceptable. The applicant then told Ellie that he would supply her with 10 ounces (approximately 283.5g) of MDMA for $1,200.00 per ounce. The applicant offered to provide Ellie with a sample of that MDMA, telling her that she would be "very happy" with the quality. This proposed supply did not in fact eventuate.

COUNT 3 - Supplying MDMA (95.5g) on 15 September 2018

1. The agreed facts in respect of count 3 may be summarised as follows. [5]
2. At about 4.45pm on 15 September 2018 the applicant entered the "Defqon" dance festival at the Sydney International Regatta Centre in Penrith. Having approached the main gate, he was intercepted by security officers, following which he was searched by police. In the course of that search, two vacuum sealed bags were found secreted inside the front of the applicant's pants. Each bag contained two plastic resealable bags, one with pink capsules, and the other with white capsules. There were approximately 500 capsules in total, amounting to 95.5g of MDMA.
3. The applicant was arrested and cautioned. A further search revealed that he was in possession of two mobile phones which were found to contain a number of messages, the terms of which were generally consistent with drug supply. In one conversation, a person had sent a message to the applicant stating "40 each". The applicant replied "40 while its day light, 50 once its night". Further discussion took place about a meeting spot. Later, whilst the applicant was in custody, a message was received on one of his phones saying "Hey it's Juliana you still got". A chat application known as "Wechat" was also viewed on one of the phones found in the applicant's possession. It contained a conversation in which the applicant had asked a friend how many sniffer dogs were at the dance festival.

GROUND 1 - HIS HONOUR ERRED IN HIS ASSESSMENT OF THE OBJECTIVE SERIOUSNESS OF COUNT 3

The sentence proceedings

1. The Crown's written submissions to the sentencing judge in respect of count 3 included the following: [6] [35] At this very same 'Defqon' dance festival where [the applicant] planned on selling his 500 capsules of MDMA, a 23-year old man from western Sydney and a 21-year-old woman from Victoria died after taking drugs. [7] Thirteen other people attended hospital and received treatment for drug-related issues. General deterrence will be a principal consideration when sentencing for this offence. [36] In this case it is clear that [the applicant] was in possession of the 500 capsules of MDMA for the purpose of supplying festivalgoers and had every intention to carry out the supply when he was stopped by security as he approached the main gate.
2. Notwithstanding the reference to general deterrence in the final sentence in [35] of the Crown's submissions, both [35] and [36] appeared under the heading "Objective Seriousness". The Crown's ultimate submission to the sentencing judge was that the objective seriousness of the offending in count 3 was above the mid-range. [8]
3. In the course of oral submissions, counsel for the applicant (who was not counsel before this Court) submitted that the offending in count 3 fell below the mid-range. [9] The following exchange then took place between his Honour, the Crown, and counsel for the applicant: [10] HIS HONOUR: There was one thing I was going to raise with you, in fact. It's in your written submissions. This is about the Defqon dance festival. CROWN: Yes. HIS HONOUR: This is in relation to [the applicant] and what happened at Penrith. You've said in para 35 that a 21-year-old woman from Victoria died after taking drugs and a 23-year-old man from Western Sydney. To that end, you were referring to a news report from the ABC. CROWN: Yes. HIS HONOUR: Has that gone to a coronial inquest? Were there ever any findings about that? CROWN: I believe within that ABC report there was [a] reference to a coronial inquest taking place as to the distribution of drugs throughout dance festivals, and I think it has continued to flow into media reports now about strip searches of young females, in particular, by police at the dance festivals, whether there should be drug detection kits at the dance festivals. So it's an ongoing issue. But the reason I put it in there was simply you would have been able to take judicial notice of the devastation that drugs have on the community, in any event. HIS HONOUR: Absolutely. You've clarified that, thank you. That was all. COUNSEL FOR THE APPLICANT: There's no evidence that my client's drugs were the cause of those deaths. HIS HONOUR: No-one has suggested that at all … You can put that right out of your mind. COUNSEL FOR THE APPLICANT: Thank you.

The findings of the sentencing judge

1. The sentencing judge recounted the facts of the offending in count 3, before saying the following: [11] When it comes to these so-called music festivals, the court takes judicial notice of the fact that drugs are, on occasions, supplied to participants of those festivals. It is well known in the community that a number of persons over the years have died as a result of the consumption of such substances. These kinds of offences occur, on my taking of judicial notice, on a fairly regular basis. I can take judicial notice of the fact that many of those who commit those offences and, indeed, those who consume such drugs in those so-called festivals, are young people, sometimes with very good educational backgrounds. A number of persons who I have certainly seen in the years I have had the privilege of being a judge on this bench are persons with no previous criminal convictions whatsoever. But it is an ongoing problem in the community and I come back yet again to the purposes of sentencing, namely, to protect the community from the offender. When it comes to that discrete matter for which [the applicant] stands for sentence today, the protection of the community looms very large indeed, given the judicial notice that I have just announced in these proceedings (emphasis added).
2. Having made these observations, his Honour addressed the respective subjective cases of the applicant, Li and Tsang before saying the following: [12] Finally, as far as [the applicant] is concerned, the role of [the applicant], which has been the subject of the Crown submissions and [the applicant's] submissions, clearly is somewhat different from the role of the others in a number of respects. Indeed, [counsel for the applicant] fairly indicated in his opening submissions yesterday that [the applicant] is in a more precarious position than the other two offenders. He indicated that as far as the [count 3] matter is concerned, this was a direct supply in that situation and as far as that matter was concerned he indicated that [the applicant] was not an up-line supplier. When it comes to the objective criminality overall, I note his submissions about that where he submitted, effectively, that in so far as all the offences are concerned that it is slightly below the mid-range. I would respectfully disagree with that and I adopt the submissions made by the Crown to that end, particularly when it comes to [count 3]. That, in my view, was an offence above the mid-range of objective seriousness and indeed involved a high level of moral culpability. 500 capsules is a significant amount and I take the judicial notice that I indicated earlier in these remarks into account (emphasis added).

Submissions of the applicant

1. Counsel for the applicant before this Court expressly accepted that the assessment of objective seriousness of any offence is classically a matter for the determination of the sentencing judge. However, counsel submitted that this did not lead to a conclusion that all findings as to objective seriousness were unimpeachable. Counsel submitted that in the present case, the conclusion of the sentencing judge as to the objective seriousness of count 3 had clearly been influenced by the matters of which his Honour had taken judicial notice, namely that: 1. drugs are supplied to attendees at music festivals, and a number of those persons to whom such drugs had been supplied in the past had died as a result of consuming them; 2. "these kinds of offences" (to be construed as a reference to the supply and consumption of drugs at music festivals) occurred on a fairly regular basis; and 3. many of those who commit such offences, and who consume drugs at music festivals, were young people, sometimes with very good educational backgrounds, and with no criminal convictions whatsoever.
2. Counsel for the applicant submitted that none of those matters were relevant to an assessment of objective seriousness.
3. As to (a), whilst counsel took no issue with the proposition that MDMA was a dangerous drug which had been linked to deaths at music festivals, he submitted that to treat it as a factor elevating the objective seriousness of the applicant's offending, relative to other instances of supplying prohibited drugs, was erroneous.
4. As to (b) and (c), counsel accepted that the prevalence of offending of the kind in count 3 was relevant to general deterrence. However, he submitted that such a factor was irrelevant to a determination of the objective seriousness of such offending because it did not bear upon the applicant's conduct in committing the offence. Further, specifically in relation to (c), counsel submitted that the background of people who supply and consume drugs at music festivals was entirely irrelevant to the determination of the objective seriousness of the offending in count 3. Counsel further submitted that all of these errors were compounded by the risk that the sentencing judge had engaged in double counting by taking such factors into account in considering both the objective seriousness of the offending, as well as general deterrence.
5. Counsel for the applicant further submitted that the fact that the Crown's written submissions to the sentencing judge had dealt with all of these matters under the heading "Objective Seriousness" fortified the conclusion that error had been established. The effect of this submission was that the Crown who appeared on sentence (who was not the Crown before this Court) had led his Honour into error, and that such error was not ameliorated by the reference in the Crown's written submissions [13] to such matters being relevant to general deterrence.
6. In oral submissions, counsel for the applicant further submitted that the issue of whether those who commit offending of the kind fell within a certain demographic was not, at any stage, agitated in the course of the sentence proceedings. That submission, which tended to assert that there had been a denial of procedural fairness on the part of the sentencing judge, went somewhat beyond the ground of appeal as framed, and was not advanced in the written submissions which had been filed. Whilst this has not ultimately had any bearing upon my determination of this ground, it tends to emphasise the care which must be taken when drafting grounds of appeal, and the submissions in support of them.

Submissions of the Crown

1. The Crown submitted that despite the matters of which judicial notice had been taken, his Honour's reasons, when read as a whole, did not disclose error. It was submitted that the matters relied upon by the applicant in support of this ground necessarily had to be viewed in the context of the entirety of Crown's submissions on sentence. Whilst accepting that such matters had been partly addressed by reference to objective seriousness, the Crown submitted that it was evident from the final sentence in [35] of the written submissions on sentence that the Crown's position was that such matters went to the issue of general deterrence. The Crown submitted that the exchange which had taken place in the course of the sentence proceedings [14] fortified that conclusion.
2. The Crown further submitted that the sentencing judge's ultimate finding of the objective seriousness of the offending in count 3, namely that it was "above the mid-range", was clearly open, and did not support a conclusion that any irrelevant consideration(s) had been taken into account. This, it was submitted, was particularly so in circumstances where his Honour had made it clear that he was not sentencing the applicant on the basis that he was responsible for the death of any person who had attended the dance festival.
3. All of that said, the Crown appeared to accept that if the conclusion were reached that any of the three factors relied upon by the applicant had been taken into account by the sentencing judge in determining the objective seriousness of the offending (as opposed to being taken into account in relation to general deterrence), error would be established.

Consideration

1. As previously noted, the reference in the Crown's written submissions on sentence to the subject of deaths at music festivals appeared under the heading "Objective Seriousness". Whilst that reference was somewhat infelicitous it is not necessary, in order to determine this ground, to determine whether that reference led the sentencing judge into error.
2. The objective seriousness of an offence must be assessed wholly by reference to the nature of a person's offending. [15] In the context of the present case, the fact that persons may have died as a consequence of consuming drugs at music festivals, the fact that the supply and consumption of drugs at music festivals occurs on a regular basis, and the fact (if it be the fact) that offending of the kind in count 3 is often committed by persons falling within a certain demographic, although relevant to general deterrence, were not factors referable to the applicant's offending. By taking such matters into account in assessing the objective seriousness of the offending in count 3, the sentencing judge erred.
3. As this ground has been made out, this Court must re-sentence the applicant in the fresh exercise of the sentencing discretion. In those circumstances it will not be necessary to consider ground 3, which makes a complaint of manifest excess. However, as ground 2 was fully argued, it is appropriate that it be considered and determined.

GROUND 2 - HIS HONOUR ERRED IN FAILING TO PROPERLY ASSESS THE OBJECTIVE SERIOUSNESS OF COUNTS 1 AND 2

The sentence proceedings

1. Before the sentencing judge, the Crown submitted that the offending in count 1 fell "at least in the mid-range". [16] In support of that submission, the Crown relied upon (inter alia): [17] 1. the total amount of the cocaine which had been supplied, and its purity; 2. the fact that the cocaine was able to be supplied at short notice; 3. the significant amount paid to the applicant (in excess of $48,000.00); and 4. the applicant's role, reflected in the fact that he was the primary point of contact with Ellie, and had the responsibility for negotiating each supply.
2. The Crown submitted to the sentencing judge that the applicant's offending in count 2 fell at, or slightly above, the mid-range. [18] In support of that submission, the Crown relied upon (inter alia) the fact that: [19] 1. the applicant had put the offer to Ellie in specific terms directed to quantity, price, purity and availability; 2. such offer had been made in the context of the applicant's ongoing supply of prohibited drugs, and was (or at least appeared to be) exclusively or primarily motivated by greed; and 3. the applicant had both the capacity and intention to make good the offer.
3. The Crown's written submissions before the sentencing judge also included the following: [20] On 30 August 2018 [the applicant] told (Ellie) that he had 2kg of MDMA arriving in the next one to two weeks and offered to supply it to her for $30,000 per kilogram. [The applicant] told (Ellie) the MDMA would have a purity of between 80-85%. At this point the [the applicant's] wife, co-offender Siyi Wu, interjected and corrected [the applicant] , stating that only 1 kg of MDMA would be sold as a whole. [The applicant] then confirmed that the second kilogram would be broken down into ounce quantities, at a price of $1,800 per ounce or approximately $63,500 per kilogram. Wu again interjected, confirming that either the quality or the price of the second kilogram of MDMA would be "really good", Following these negotiations [Ellie] said she would have to get her money together and would be in touch (emphasis added).
4. There was no suggestion in the agreed facts [21] that the applicant had said anything to the effect of that which appears in the italicised passage above. On the contrary, the agreed facts specifically asserted that it was Wu who told Ellie that the second kilogram of MDMA would be broken down into one ounce quantities, not the applicant. [22] Counsel who appeared for the applicant on sentence said nothing about the fact that this aspect of the Crown's submissions was unsupported by the evidence. He accepted [23] that the applicant was in what he described as a "slightly difficult and more precarious position" than both Li and Tsang because of the additional charges that he faced, before making the following submissions: [24] In terms of the charges that he's co-accused with the other two, my friend in his written submissions has, I think, fairly put the role of this offender in para 20 of his written submissions. … My client is said to be an intermediary, so to speak, and the level of his offending is said to be - and I adopt the submissions of the Crown - less than the upline supplier, as indicated in that submission at para 20. Can I say this: in respect of the large commercial quantity charge, I'd make a similar submission in the sense that it would appear on any account that this offender was going to get, if he was going to get those drugs, them from somewhere else. Similarly to this operation, presumably, he would have presumably been passing them from one to another. To what extent he, himself, obtained a profit from it is uncertain on the facts. The point I'm making is: in terms of the main offence, the offence that carries the life imprisonment, I don't think it could be fairly proven beyond reasonable doubt that he, himself, was the upline supplier in respect of that offence as opposed to, again, being an intermediary in the same way he was in respect of the matters for which my friends are co-accused. … Having said all that, I only point that out in terms of the objective criminality. Of course, that's a matter that you're going to have to determine as to where it fits within the range. My submission is that, in respect of my client, they all fall slightly below the mid-range. I know the Crown has proffered a different position, but essentially it's a matter for you to determine that at the end of the day and that is my submission.

The findings of the sentencing judge

1. The sentencing judge said the following in terms of the applicant's role in the offending in counts 1 and 2: [25] I now turn to [the applicant], who faces far more serious charges, I must say, in the overall scheme of things, if I can use that terminology. The facts, when it comes to his involvement in the supply [sic] prohibited drugs on an ongoing basis, 193.8 grams of cocaine with three individual supplies, are basically repetitive when it comes to the facts involving the other two offenders. So, I do not intend to repeat all of that but I have taken into account the specific reference to this offender, [the applicant], when it comes to his involvement in all of those matters and it serves no useful purpose to go over those facts again. The specific facts in relation to the most serious offence of all of these offences, namely the supply prohibited drug large commercial quantity [sic], have been detailed on p 4 of the agreed facts. … While Li was away collecting the 3 ounces of cocaine, [the applicant] told Ellie that he had 2 kilos of MDMA arriving in the next one to two weeks and offered to supply it to her for $30,000 per kilogram and he said that the MDMA would have a purity of 80 to 85 per cent. Further in the facts it is indicated that Ellie advised [the applicant] and Wu that she would have to get her money together and make sure her guys would move the drugs and that she would be in touch. At para 34 of the facts it is indicated that at approximately 6 pm on Monday, 10 September 2018, [the applicant] and Li and Wu met with Ellie. There was a short conversation with [the applicant], [sic] told Li and Wu to leave him and Ellie alone. [The applicant] then advised Ellie that the MDMA was due later that week or early the following week. [The applicant] confirmed the price of $30,000 for the first kilogram and $1,800 an ounce for the second kilogram that had previously been discussed at Cheers Bar. [The applicant] asked Ellie whether she was happy with those prices and she confirmed she was. And then he offered to supply 10 ounces, namely 283.5 grams of MDMA, to Ellie for $1,200 per ounce and offered to provide her with a sample of the drug and told her that she would be "very happy" with the quality.
2. Subsequently, his Honour said: [26] Finally, as far as [the applicant] is concerned, the role of [the applicant], which has been the subject of the Crown submissions and [the applicant's] submissions, clearly is somewhat different from the role of the others in a number of respects. Indeed, [counsel for the applicant] fairly indicated in his opening submissions yesterday that [the applicant] is in a more precarious position than the other two offenders.…. When it comes to the objective criminality overall, I note his submissions about that where he submitted, effectively, that in so far as all the offences are concerned that it is slightly below the mid-range. I would respectfully disagree with that and I adopt the submissions made by the Crown to that end …...
3. His Honour did not further articulate why he did not accept the submissions advanced on behalf of the applicant, or why he accepted those put by the Crown. Further, he did not, at least in specific terms, make any finding as to the objective seriousness of counts 1 and 2.

Submissions of the applicant

1. In support of this ground, counsel for the applicant firstly submitted that in simply adopting the position advanced by the Crown, the sentencing judge had failed to engage in the analysis which was essential to the determination of the objective seriousness of count 1 or count 2. Counsel submitted, in particular, that there had been no analysis of the nature of the applicant's role, or his position in the notional hierarchy when compared with the positions of his co-offenders. It was submitted that in all of these respects, the reasons of the sentencing judge were inadequate.
2. Counsel for the applicant further submitted that the sentencing judge had failed to engage with the submission advanced on behalf of the applicant that the applicant's role was that of an intermediary, as well as the submission advanced in respect of count 2 as to the whether the applicant would, in fact, have had the capacity to supply the drugs which were the subject of the offer.
3. Finally, counsel pointed to the fact that one of the submissions made by the Crown in relation to the applicant's role in count 2 was based upon a proposition which was completely at odds with the agreed facts. It was submitted that in circumstances where his Honour had adopted the Crown's position, a further error was made out.

Submissions of the Crown

1. The Crown submitted that the findings reached by the sentencing judge in relation to the objective seriousness of the offending in counts 1 and 2 were properly supported by the evidence, and disclosed no error. It was submitted that, contrary to what had been put on behalf of the applicant in support of this ground, the sentencing judge had specifically considered the role played by the applicant in respect of each count, and that having done so, had accepted the Crown's submission as to the objective seriousness of the offending. The Crown submitted that the only reasonable conclusion was that the sentencing judge reached that conclusion based upon his assessment of the applicant's role.
2. Whilst accepting that there was a discrepancy between the agreed facts in respect of count 2 and the submissions made by the Crown in the Court below, the Crown before this Court submitted that the sentencing judge had not "read out" the error and that, in any event, his conclusion as to the objective seriousness of the offending was in accordance with the remaining evidence.

Consideration

1. In considering this ground, it is necessary to emphasise two matters at the outset.
2. The first, is that the assessment of the objective seriousness of an offence is a critical requirement of the sentencing process. The importance of satisfying that requirement stems from a number of factors. They include the fact that one of the purposes of sentencing is to ensure that the offender is adequately punished for the offending, as well as the fact that a sentence should not exceed, or be less than, what is proportionate to the gravity of the crime. [27] Such a requirement is not satisfied by a bare recitation of the facts constituting the offence(s), and a reference to the objective circumstances. [28]
3. The second, is that the giving of reasons is an incident of the judicial process. [29] In a case where the parties join issue (as they did in this case as to the objective seriousness of the offending) the requirement to give reasons means that the judge must engage with, and analyse, the competing submissions, and explain why those advanced by one party have been accepted over those advanced by the other. In doing so, it is incumbent upon the judge to expose the process of reasoning in which he or she engaged in order to reach that conclusion.
4. I am not persuaded that there was any error in the asserted failure of the sentencing judge to engage with the submission said to have been made respect of count 2 as to the applicant's capacity to supply the drugs which were offered. On a fair reading of the transcript, the submission (such as it was) was advanced very much in passing.
5. I am also not persuaded that his Honour failed to address the applicant's role in the offending in counts 1 and 2. The passages set out above [30] make it clear that his Honour did so. Further, I do not accept the proposition, which appeared to be implicit in the submissions of counsel for the applicant, that an assessment of the objective seriousness of the offending necessitated a comparison between the role of the applicant and those of his co-offenders, or that such assessment necessitated a determination of where the applicant stood in a notional hierarchy.
6. I am, however, of the view that the reasons of the sentencing judge fell short of meeting the two requirements to which I have previously referred. The assessment of objective seriousness of counts 1 and 2 required his Honour to identify the facts, matters and circumstances bearing upon that assessment. [31] Whilst his Honour certainly recited what the applicant had done, he proceeded to simply adopt the Crown's position as to the objective seriousness of the offending in counts 1 and 2. His Honour did so in the absence of engaging in any actual assessment of the objective seriousness of the offending in either count, and without exposing the reasoning process which led him to adopt the Crown's submissions over those which had been advanced on behalf of the offender. Further, although it is evident from his adoption of the Crown's position that his Honour rejected the submission that the applicant was nothing more than an intermediary, he did not engage with that submission and did not explain why he rejected it.
7. Further, and at least in respect of count 2, these errors were compounded by the fact that the Crown's position, which his Honour adopted, was based partly upon a misstatement of the agreed facts, and thus in the absence of any evidence to support it.
8. For all of these reasons, I am satisfied that this ground is made out.

The objective seriousness of the offending

1. Counsel for the applicant provided an aide memoir setting out his submissions as to the objective seriousness of each count in the event that the Court came to re-sentence.
2. In terms of count 1, it was submitted that the following matters were relevant: 1. there were three discrete instances of supply, that being the minimum number required to support a charge of ongoing supply; 2. the applicant: 1. did not control the price; 2. did not take possession of the cocaine, or the money; and 3. was not found in possession of money or drugs when arrested (as opposed to Tsang and Li); 1. the distribution system was neither covert nor complex; 2. the financial gain to the applicant was minimal; 3. the drugs were not disseminated into the community; 4. the applicant was motivated to commit the offences by a drug addiction rather than by greed; and 5. there were no aggravating factors.
3. In terms of count 2, it was submitted that the following matters were relevant: 1. the charge was based upon an offer to supply, as opposed to an actual supply; 2. the amount offered was to be viewed in the context that a charge of this nature does not carry an "upper limit" in terms of quantity, and can encapsulate the supply of hundreds, or even thousands, of kilograms of illicit drugs; 3. the role of the applicant was that of an intermediary, with "the terms of the offer and the price being dictated by Wu"; 4. there remained an issue as to whether the applicant was able to source the drugs, the Crown not having adduced any evidence in that regard; 5. there was no planning, and the offending was entirely opportunistic; 6. the applicant was motivated to commit the offences by a drug addiction rather than by greed; and 7. there were no aggravating factors.
4. In terms of count 3, it was submitted that the following matters were relevant: 1. the amount of the drug was in excess of the indictable quantity but below the commercial quantity, and there was no evidence of the purity of the drug; 2. the applicant was the direct supplier in a "ready market"; 3. the fact that the applicant had indicated an increase in the price at nightfall was to be distinguished from the usual kind of price control, which may be indicative of a particular place in a notional hierarchy; 4. any planning was "amateurish and reckless"; 5. no drugs were actually supplied; 6. the applicant was motivated to commit the offences by a drug addiction rather than by greed; and 7. there were no aggravating factors.
5. In respect of each of the three counts, the Crown pointed to the significant amount of drugs in each case and otherwise relied upon the position put to the sentence judge (with the exception of the erroneous submission which had been advanced in support of the objective seriousness of count 2).

Count 1

1. Count 1 was constituted by the minimum number of individual supplies required by s 25A(1) of the DMT Act. However, that section is directed, in particular, to repeated, systematic and organised drug supply. Accordingly, the objective criminality of any offending under the section is to be determined by reference to (inter alia) those factors, and not merely to the number of individual instances of supply. [32]
2. I am unable to accept the submission that the applicant did not control the price of the cocaine. The applicant was solely responsible for negotiating the supply in each of the three instances relied upon to support count 1. At least in the case of the first two instances, the agreed facts make it clear that the price was settled upon during those negotiations. [33]
3. Further, whilst it may well be that the applicant did not physically handle, and was not found in possession of, money or prohibited drugs, the fact remains that as the person solely responsible for negotiating the sale of the cocaine, he performed an indispensable role in a group engaged in organised and systematic drug supply. The type of organised supply to which s 25A is directed depends upon the preparedness and availability of persons such as the applicant to perform designated roles. [34] Further, the fact that the cocaine was not disseminated within the wider community is largely not to the point, given the clear potential for that to have occurred.
4. Whilst I accept that the network of which the applicant was a part operated by means of a system that was not complex, it remains the case that it was organised, with each person involved having a clearly defined role. That level of organisation is necessarily consistent with a significant level of planning. Such planning is further reflected in the fact that substantial quantities of cocaine were able to be readily supplied.
5. Finally, the quantity of the cocaine which was supplied, which was almost 40 times the indictable quantity remains a relevant consideration. [35] The money which was exchanged was significant. That said, I accept that whatever the applicant's level of financial gain may have been in respect of any of the three counts, it was limited, and was directed towards financing his drug habit. I also accept (as I do in the case of each count) that there are no statutory aggravating factors.
6. In all of the circumstances I would place the offending in count 1 at the mid-range of objective seriousness.

Count 2

1. Mindful of the decision of this Court in Vu v R, [36] there are a series of matters relevant to the assessment of objective seriousness of the offending in count 2.
2. To begin with, the opportunity to make the offer to supply the MDMA was provided to the applicant as a consequence of the fact that he was already engaged, with Ellie, in the business of the ongoing supply of cocaine. It follows that whilst the offending was opportunistic in one sense, it was certainly not isolated.
3. Further, I am unable to accept the submission that the role of the applicant was that of an intermediary, and that the terms of the offer and the price were dictated by Wu. Leaving aside the fact that the role of an offender is not to be determined by the application of a label, the offer was made solely by the applicant, and was specific in terms of quantity, price, purity and availability. The fact that the applicant was responsible for making the offer, and the terms in which it was made, were entirely unaffected by Wu's intervention as to the proposed method of sale of the second of the two kilograms.
4. Moreover, when the applicant met with Ellie 10 days later, he confirmed the offer in terms of price, and provided an update as to availability. He also asked Ellie if she was happy with the price that he had quoted. Importantly, all of this took place after the applicant had specifically asked Li and Wu to leave so that he could speak with Ellie alone.
5. All of these circumstances run entirely contrary to the submission that the applicant was nothing more than an intermediary, and that Wu was responsible for setting the price. They are also inconsistent with a conclusion that the offer was somehow not genuine, or that the applicant did not have the capacity to make it good. A repeated offer in such specific terms would be entirely lacking in utility if the applicant was not in a position to deliver what he had promised. In this regard, it is significant that when they met on 10 September, the applicant told Ellie that the drug was due to arrive later that week or early in the following week. The applicant was arrested in respect of count 3 on 15 September, 5 days later. It is open to infer that the supply did not eventuate as a consequence of the applicant's arrest.
6. In all of these circumstances, I would place the offending in count 2 at the mid-range of objective seriousness.

Count 3

1. The offending in count 3 was obviously planned. The messages found on the applicant's phone make it clear that he had organised a ready group of customers to whom prohibited drugs could be supplied. That, in my view, was far from amateurish, and reflected a significant level of planning and premeditation. Such planning was also reflected in the applicant's enquiry as to the presence of drug detection dogs at the festival.
2. Whilst the level of profit which the applicant stood to derive is not clear, the amount of the drug was some 76 times the indictable quantity. The applicant stood to derive a gross sum of approximately $20,000.00 if all of the drug was sold. The fact that the applicant was the direct supplier does nothing other than highlight the significance of the role he played, and the level of criminality that he demonstrated.
3. In all of these circumstances, I would place the offending in count 3 above the mid-range of objective seriousness.

The offender's subjective case

1. A report of Tim Watson-Munro, Consultant Psychologist, dated 9 October 2019, was tendered to the sentencing judge, from which I draw the following summary. [37]
2. The applicant was born in July 1992 and is now aged 28. He arrived with his family in Australia from Russia when he was about 14 years of age. He said that he had experienced symptoms of an adjustment disorder upon arriving in Australia, as a consequence of cultural and language issues. [38]
3. The applicant undertook an intensive English language course for 12 months following his arrival and left school in Year 10, [39] following which he held various positions of employment in the hospitality and retail sectors before moving into the real estate industry where he worked for a period of about 18 months. He was in the course of attempting to obtain his real estate licence when he was arrested. [40] The applicant has a four and a half year old daughter from a previous relationship. [41]
4. The applicant told Mr Watson-Munro that he had commenced smoking cannabis at the age of 12 and that this had continued until his arrival in Australia. He said that he had then gone through a period in which he was drug free before being resuming cannabis use whilst in high school. [42] At the age of 22 he started using cocaine and said that although his use of that drug was initially occasional and recreational, it escalated to the point of using between 3g and 5g per day. The applicant also said that he would occasionally use crystal methamphetamine, but that his use of that drug did not rise to the level of habitual addiction. [43]
5. Testing administered by Mr Watson-Munro confirmed the existence of symptoms consistent with a depressive disorder. [44] Mr Watson-Munro considered that the applicant would benefit from therapy and the prescription of psychotropic medication. [45]
6. Charlie Bourne, the founder of "Bourne Whole" (an organisation offering assistance and support to people with drug addiction) provided a testimonial. Mr Bourne referred to the applicant having expressed "genuine remorse and regret" for his offending. Mr Bourne confirmed his support for the applicant. [46] In circumstances where the applicant did not give evidence on sentence, I am mindful of untested expressions of remorse made to third parties. However, in circumstances where the applicant pleaded guilty to all three counts, I am satisfied that his remorse is genuine.
7. The applicant's prospects of rehabilitation are dependent, at least in part, upon his willingness to undergo the treatment recommended by Mr Watson-Munro, and his willingness to address his drug addiction. Importantly, he does appear to have the support of his family [47] and the affidavit of Shiranica Tambyrajah which was read on the question of re-sentence supports the conclusion that the applicant is using his time in custody productively by (inter alia) engaging in courses which are available to him. In all of the circumstances I am guardedly optimistic about his prospects of rehabilitation, as I am about his risk of re-offending.
8. The applicant has a criminal history dating back to 2010 which includes offences of common assault, possessing a prohibited weapon, taking and driving a conveyance without the consent of the owner and possessing a prohibited drug. That said, and apart from a conviction in 2017 for behaving in an offensive manner in or near a public place or school, the applicant has not appeared before a Court since 2013. His criminal history is not an aggravating factor, although it disentitles him to leniency.
9. There is no issue that the applicant pleaded guilty to all three counts at the first available opportunity and is therefore entitled to a discount of 25% to reflect the utilitarian value of those pleas.

Remaining sentencing considerations

1. There are a series of other matters which impact upon the determination of an appropriate sentence in this case.
2. Firstly, the significant maximum penalties prescribed for the offences committed by the applicant provide important yardsticks for the determination of an appropriate sentence. This is particularly so in the case of count 2, which carries a maximum penalty of life imprisonment, and a standard non-parole period of 15 years imprisonment.
3. Secondly, and notwithstanding the error identified in ground 1, at least some of the matters of which the sentencing judge took judicial notice remain relevant to general deterrence. Any sentence imposed, particularly in a case such as this where the offending was repeated, must reflect the need for general deterrence, denunciation, and the need to protect the community.
4. Thirdly, the two Form 1 offences which the applicant asked the Court to take into account when determining the sentence in respect of count 1 were, of themselves, serious. In sentencing the applicant, this Court must take those additional offences into account by giving greater weight to the need for personal deterrence and the community's entitlement to extract retribution for serious offending, and with a view to increasing the penalty that would otherwise be appropriate. [48]
5. Fourthly, whilst I have taken into account the applicant's drug addiction when assessing objective seriousness, the need to acquire funds to support a drug habit, even a severe habit, is not a matter which mitigates the offending. [49]
6. Fifthly, whilst I am mindful of principles of parity, the applicant's criminality is substantially greater than that of each of Li and Tsang.
7. Finally, counsel for the applicant referred the Court to the sentences imposed in three other cases. Although those cases were cited in support of a conclusion that the sentence imposed was manifestly excessive, I have considered them on the question of re-sentence. Quite apart from the fact that those three cases do not establish a range, and bearing in mind the limitations placed on the use of outcomes in other cases in determining an appropriate sentence, [50] there are a number of factors which distinguish each of those cases from that of the applicant, to the point where they provide little assistance in determining the appropriate sentence.
8. The first case was Roberts (a pseudonym) v R. [51] a case in which the offender was sentenced to an aggregate term of imprisonment of 6 years and 6 months in respect of two counts of knowingly taking part in the manufacture of not less than the commercial quantity of methylamphetamine, and one count of supplying 1 kg of cocaine. The offender was found to have had a "consultative" role in relation to at least some of the offending. [52] The role of the applicant, in respect of the entirety of his offending, was substantially greater than that of a consultant. Further, the troubled background of the offender in Roberts attracted the application of the principles in Bugmy v The Queen, [53] a circumstance upon which the applicant was unable to rely. Finally, the sentence imposed upon the offender in Roberts incorporated (over and above the discount applied in respect of his early pleas of guilty) a discount of 15% on account of his assistance, a factor which has no role to play in the applicant's case.
9. The second case was Murray v R, [54] in which the offender was sentenced to an effective sentence of 11 years and 6 months imprisonment in respect of two counts of supplying not less than the large commercial quantity of a prohibited drug. The first of those counts concerned the supply of 4.96 kg of methylamphetamine, and the second the supply of 8.66 kg of 3,4 methylenedioxy-methylamphetamine. The offending was assessed as falling below the mid-range of objective seriousness, [55] and thus below my assessment of the offending in each of the counts against the applicant. Consistent with that, the offender's role in Murray was assessed as being limited to what was described as a "go between" or "facilitator". [56] On any view, the role of the applicant in the present case was substantially greater than that. Moreover, the entirety of the offending in Murray arose from the one enterprise. [57] That necessarily affected the level of accumulation and is distinguishable from the applicant's offending which involved three discrete offences.
10. The third case was R v Medd (a pseudonym) [58] in which the offender was sentenced (following an appeal by the Crown) to imprisonment for 9 years and 4 months in respect of two counts of supplying not less than the large commercial quantity of methylamphetamine. The offender's role was described as that of an "intermediary, fielding orders for significant quantities of this drug and contacting one or more of a number of upline suppliers … for the purpose of filling the order". [59] For the reasons I have expressed, the applicant's role in respect of each count was far more substantial than that of an intermediary. Moreover, the sentence imposed on the offender in Medd incorporated a 10% discount on account of assistance to the authorities.

CONCLUSION AND ORDERS

1. Taking all of these factors into account, and in the fresh exercise of the sentencing discretion, I am not persuaded that a lesser sentence than that imposed by the sentencing judge is warranted.
2. I therefore propose the following orders: 1. The time in which to file the application for leave to appeal against sentence is extended to 21 December 2020. 2. Leave to appeal against sentence is granted. 3. The appeal is dismissed.

Endnotes

1. Agreed facts at [4] - [30]; AB 69 - AB 72.
2. Agreed facts at [36]; AB 72.
3. Agreed facts at [37]; AB 72. The Form 1 nominated the date of this offence as 1 September, but the agreed facts state that it occurred on 3 September.
4. Agreed facts at [31] - [35]; AB 72.
5. Agreed facts at [1] - [11]; AB 47- 48.
6. Written submissions at [35]-[36]; AB 110.
7. The reference to these events was linked to an on-line news report. However, the report itself was not tendered in evidence.
8. Written submissions at [40]; AB 111.
9. AB 152.32 - AB 152.44.
10. AB 162.43 - AB 163.25.
11. AB 27 - 28.
12. AB 35 - AB 36.
13. In the last sentence in [35].
14. Set out at [35] above.
15. Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]
16. Written submissions at [23]; AB 108.
17. Written submissions at [16] - [19]; AB 107.
18. Written submissions at [30]; AB 110.
19. Written submissions at [26]; AB 109.
20. Written submissions at 25; AB 108.
21. At [31] - [35]; AB 72.
22. At [32].
23. AB 152.
24. AB 152.
25. AB 25 - 26.
26. AB 35 - 36.
27. R v Van Ryn [2016] NSWCCA 1 at [135] per R A Hulme J, Leeming JA and Johnson J agreeing.
28. R v Cage [2006] NSWCCA 304 at [17] per Latham J (Hunt AJA and Johnson J agreeing); R v Campbell [2014] NSWCCA 102 at [27] per Simpson J (as her Honour then was; Hall J agreeing);
29. See for example Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247.
30. At [50]-[51].
31. FL v R [2020] NSWCCA 114 at [60 per Wilson J (R A Hulme and Hamill JJ agreeing).
32. R v Son Giang [2005] NSWCCA 387 at [18] per Hulme J (Sully and Latham JJ agreeing, citing R v Hoon; R v Pouoa [2000] NSWCCA 137 at [39] per Dunford J.
33. Agreed facts at [4] (AB 69) and [13] (AB 70).
34. R v CBK [2002] NSWCCA 457 at [56]-[57] per Wood CJ at CL.
35. MRN v R [2006] NSWCCA 155 at [142]-[145] per Simpson J (as her Honour then was), McClellan CJ at CL and James J agreeing.
36. [2006] NSWCCA 188 at [89] per Hall J, James and Buddin JJ agreeing.
37. Exh 1; AB 87 - AB 104.
38. AB 89.
39. AB 90.
40. AB 90 - AB 91.
41. AB 91.
42. AB 91.
43. AB 92.
44. AB 93.
45. AB 95.
46. AB 103.
47. See the report of Mr Watson-Munro at AB 89 - AB 90; AB 92 - AB 93.
48. Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No. 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [62]-[65] per Spigelman CJ.
49. R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 at [204]-[206] per Spigelman CJ; at [273] per Wood CJ at CL.
50. Vandeventer v R [2013} NSWCCA 33 at [45] per Adamson J, McClellan CJ at CL and Rothman J agreeing; PO v R [2020] NSWCCA 129 at [37]-[39] per Hoeben CJ at CL, Hamill and Cavanagh JJ agreeing.
51. [2019] NSWCCA 102.
52. At [59].
53. (2013) 249 CLR 571; [2013] HCA 37.
54. [2017] NSWCCA 262.
55. At [70].
56. At [70].
57. At [8].
58. [2018] NSWCCA 36.
59. At [10]. 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: 07 July 2021