Naberezhnov v R

Naberezhnov v R - [2021] NSWCCA 142 - NSWCCA 2021 case summary — Zoe

[6]

Re-sentence

I confirm that I agree with the reasons of Bellew J on sentencing and his Honour's conclusion that no lesser sentence is warranted.
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).
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.
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.
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.
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.
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.
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.
His Honour imposed an aggregate sentence of 12 years imprisonment with a non-parole period of 8 years.
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.

[14]

The sentence proceedings

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.
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]
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.

[15]

The findings of the sentencing judge

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).
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).

[16]

Submissions of the applicant

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.
Counsel for the applicant submitted that none of those matters were relevant to an assessment of objective seriousness.
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.
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.
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.
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.

[20]

The sentence proceedings

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.
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.
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).
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.

[21]

The findings of the sentencing judge

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.
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 …...
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.

[24]

Consideration

In considering this ground, it is necessary to emphasise two matters at the outset.
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]
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.
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.
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.
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.
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.
For all of these reasons, I am satisfied that this ground is made out.

[25]

The objective seriousness of the offending

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.
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.
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.
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.
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).

[26]

Count 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]
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]
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.
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.
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.
In all of the circumstances I would place the offending in count 1 at the mid-range of objective seriousness.

[27]

Count 2

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.
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.
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.
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.
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.
In all of these circumstances, I would place the offending in count 2 at the mid-range of objective seriousness.

[29]

The offender's subjective case

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]
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]
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]
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]
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]
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.
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.
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.
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.

[30]

Remaining sentencing considerations

There are a series of other matters which impact upon the determination of an appropriate sentence in this case.
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.
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.
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]
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]
Fifthly, whilst I am mindful of principles of parity, the applicant's criminality is substantially greater than that of each of Li and Tsang.
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.
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.
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.
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.

[32]

Endnotes

Agreed facts at [4] - [30]; AB 69 - AB 72.
Agreed facts at [36]; AB 72.
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.
Agreed facts at [31] - [35]; AB 72.
Agreed facts at [1] - [11]; AB 47- 48.
Written submissions at [35]-[36]; AB 110.
The reference to these events was linked to an on-line news report. However, the report itself was not tendered in evidence.
Written submissions at [40]; AB 111.
AB 152.32 - AB 152.44.
AB 162.43 - AB 163.25.
AB 27 - 28.
AB 35 - AB 36.
In the last sentence in [35].
Set out at [35] above.
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]
Written submissions at [23]; AB 108.
Written submissions at [16] - [19]; AB 107.
Written submissions at [30]; AB 110.
Written submissions at [26]; AB 109.
Written submissions at 25; AB 108.
At [31] - [35]; AB 72.
At [32].
AB 152.
AB 152.
AB 25 - 26.
AB 35 - 36.
R v Van Ryn [2016] NSWCCA 1 at [135] per R A Hulme J, Leeming JA and Johnson J agreeing.
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);
See for example Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247.
At [50]-[51].
FL v R [2020] NSWCCA 114 at [60 per Wilson J (R A Hulme and Hamill JJ agreeing).
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.
Agreed facts at [4] (AB 69) and [13] (AB 70).
R v CBK [2002] NSWCCA 457 at [56]-[57] per Wood CJ at CL.
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.
[2006] NSWCCA 188 at [89] per Hall J, James and Buddin JJ agreeing.
Exh 1; AB 87 - AB 104.
AB 89.
AB 90.
AB 90 - AB 91.
AB 91.
AB 91.
AB 92.
AB 93.
AB 95.
AB 103.
See the report of Mr Watson-Munro at AB 89 - AB 90; AB 92 - AB 93.
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.
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 at [204]-[206] per Spigelman CJ; at [273] per Wood CJ at CL.
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.
[2019] NSWCCA 102.
At [59].
(2013) 249 CLR 571; [2013] HCA 37.
[2017] NSWCCA 262.
At [70].
At [70].
At [8].
[2018] NSWCCA 36.
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

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