Ninness v R

Court of Criminal Appeal (NSW)|2014-10-17|Before: Hoeben CJ, Hidden J, Davies J

Judgment 1HOEBEN CJ AT CL: I agree with Davies J. 2HIDDEN J: I agree with Davies J. 3DAVIES J: The Applicant pleaded guilty to three offences as follows: 1. Knowingly deal with the proceeds of crime being an amount of $258,985. The maximum penalty for this offence is 15 years imprisonment; 2. Supplying not less than the commercial quantity of a prohibited drug, namely 365.09g of methylamphetamine. The maximum penalty is 20 years imprisonment and/or 3,500 penalty units. The offence carries a standard non-parole period of 10 years. 3. Supply a prohibited drug being 15.620kg of cannabis. The maximum penalty is 10 years imprisonment and/or 2000 penalty units. 4On 26 June 2013 the Applicant was sentenced by Judge Maiden SC to an aggregate sentence of a non-parole period of 6 years and 9 months commencing 16 October 2012 and expiring 16 July 2019 with an additional term of 2 years and 3 months expiring 15 October 2021. His Honour identified the indicative sentences for each count as follows: 1. Knowingly deal with the proceeds of crime - 4 years imprisonment; 2. Supply a commercial quantity of methylamphetamine - 8 years with a non-parole period of 6 years; 3. Supplying cannabis - 4 years. 5A Notice of Intention to Appeal was filed on 28 June 2013 and extensions were obtained until 28 March 2014. The Notice of Appeal was not filed until 24 April 2014. Accordingly, the Applicant requires an extension of time to appeal.

Facts 6The facts may be briefly stated. 7On 18 October 2011 police attended the Applicant's residence at Belmont North and executed a search warrant. During the search, police located $8,300 cash on a desk in a downstairs study room and an additional $10,000 in a black bag on the floor of the study. Within a black shopping bag under the study desk were six packages containing $50,000, $50,000, $50,020, $49,000, $29,450 and $10,000 respectively. Each package of cash was contained within vacuum sealed plastic. A further $1,315 was located in the offender's wallet. The total of the cash was $258,985. 8The police also located three vacuum sealer machines and an amount of unused plastic for use in the machines. The plastic matched the plastic used to wrap the cash. 9In the storage room underneath the internal staircase police located five packages of cannabis each weighing approximately 450g. A further three packages of cannabis were located each weighing approximately 4.5kg. These packages were made up of ten one pound packages. A ninth package of cannabis was located containing approximately 137g. 10Those packages of cannabis had a total weight of 15.620kg being the indictable quantity of cannabis. 11In other parts of the study police located various plastic resealable bags containing amounts of cocaine and methylamphetamine. The total amount of methylamphetamine was 365.09g, amounting to a commercial quantity. 12Police also located seven packages of white powder vacuum sealed in plastic totalling 13.539kg. This substance was tested and found to contain Dimethyl Sulphone otherwise known as Methylsulfonyl Methane. This substance is commonly used as a cutting agent in the manufacture of amphetamine based prohibited drugs. 13The police also located on a wall shelf beside the study desk a .22 calibre single shot pistol loaded with a .22 calibre round. 14They also located nine ampoules of testosterone. 15The matters relating to the pistol, the steroids, the cutting agent and the cocaine were subsequently dealt with by Judge Maiden pursuant to s 166 of the Crimes (Sentencing Procedure) Act 1999 (NSW). His Honour dismissed some of the charges in relation to those matters and otherwise imposed sentences which were wholly concurrent with the sentences on the three principal counts. No appeal is brought in respect of those sentences.

Grounds of appeal 16The Applicant has used different numbering of the grounds of appeal in his submissions from the numbering in the Notice of Appeal. The Crown has adopted the same approach. I shall therefore refer to the grounds in the manner they are described in the written submissions. 1A. The sentencing judge erred in his finding that the Applicant did not have a mental condition that would fall within any of the "Muldrock v R type situations that would give rise to the consideration of normal sentencing factors" (RoS p.7). The sentencing judge also erred in his finding that the Applicant exaggerated his conditions in a way so as to attract the perceived difficulties he may have in custody in an attempt to attract the sympathy of the Court. 2. The sentencing judge erred by giving the standard non-parole period determinative significance in the sentence of the offence of supply not less than a commercial quantity of methylamphetamine. 3. The sentencing judge erred by failing to properly assess the objective seriousness of the offence. 4. The sentencing judge erred by considering the perceived harm caused by methylamphetamine as a relevant factor in assessing the objective seriousness of the offence. 5. The sentencing judge erred by failing to take into account the relevant objective factors of the quantity of the drugs in the context of the statutory regime and the purity of the drugs. 6. The sentencing judge erred by taking into account the applicant's conduct of the sentencing proceedings as a matter relevant to specific deterrence. 7. The sentencing judge erred by failing to take into account the mitigating factor under s. 21A(3)(e) Crimes (Sentencing Procedure) Act that the applicant does not have a prior record. 8. The aggregate sentence and the individual sentence for the offences of supply prohibited drugs were manifestly excessive.

Subjective features 17The Applicant was born on 5 April 1979. The Sentencing Judge found that he appeared to have been raised in a decent family background. He was able to attend schools although with some difficulties. Those difficulties were effectively related to a diagnosis of Attention Deficit Hyperactivity Disorder [ADHD] when he was approximately 13 years of age by a psychiatrist, Dr Gordon Serfontein, now deceased. The Applicant was treated in his early years with a number of medications but Dexamphetamine proved the most useful for him. 18For a number of years after leaving school the Applicant successfully ran a baking business initially in partnership but ultimately on his own account. 19He apparently worked long hours in his business, sometimes working 18 hour days. This appears to have been a contributing factor to the breakdown of his marriage. He commenced using amphetamines and ultimately sold the business at the end of 2008. This left him financially independent without the need to work. The Sentencing Judge related that fact to the time when the Applicant became involved in the supply of drugs, chiefly methylamphetamine. 20The Applicant had a minimal criminal record. On 20 July 2009 he had two counts of possess prohibited drug and an attempt to possess a prescribed restricted substance dismissed under s 10, and on 19 October 2010 he was fined $1,740 and disqualified from driving for six months for exceeding the speed limit by more than 45km per hour.

Extension of time 21The Crown in written submissions opposed the extension of time because there was no explanation for the delay and because the appeal was said to be without merit. The principles are dealt with partly in Kentwell v The Queen [2014] HCA 37 at [13], [29], [32]-[33] and [44]-[45] and Golossian v R [2013] NSWCCA 311 at [22]-[31]. 22An affidavit was then prepared by the solicitor for the Applicant purporting to explain the delay. The explanation in the affidavit is inadequate but the period of the delay was small and would ordinarily not stand in the way of an extension being granted. In those circumstances I would extend the time for the bringing of the appeal.

Ground 1: The sentencing judge erred in his finding that the Applicant did not have a mental condition that would fall within any of the "Muldrock v R type situations that would give rise to the consideration of normal sentencing factors" (RoS p.7). The sentencing judge also erred in his finding that the Applicant exaggerated his conditions in a way so as to attract the perceived difficulties he may have in custody in an attempt to attract the sympathy of the Court. 23This ground was concerned with the Applicant's assertion that he suffered from ADHD and that the most effective treatment for this disorder, the use of the drug Dexamphetamine, was not available to him within the prison system. Whilst it was suggested in submissions initially made to the Sentencing Judge that this ought to result in a non-custodial sentence, the submissions before this Court were to the effect that the Applicant's custody would be more onerous for him by reason of his not being appropriately medicated. 24In his Remarks on Sentence the Sentencing Judge relevantly said this: In the original submissions of Mr Korn, Mr Korn submitted that the offender's mental condition is a relevant matter to be considered, and it is. However, having considered the reports and having had the opportunity of seeing the offender on two occasions give evidence, I am of the view that he does not have a mental condition that would fall within any of the Muldrock v R type situations that would give rise to the consideration of the normal sentencing factors. Indeed, in my submission, and based upon the report of Dr Chen (scil. Dr Chew), I am of the view that the offender, has exaggerated his conditions in a way so as to advance the perceived difficulties he may have in custody in an attempt to attract the sympathy of the Court. What is clear from his time in custody is that three consultant psychiatrists who have seen him in situ have not diagnosed ADHD. In respect of the other psychiatrists, their opinions have been largely based upon a history given by this offender. ... Submissions were also made which involved the diagnosis under the Statistical Manual of Mental Health Disorders, DSM-4, fourth edition, as submitted, and in my mind there is no mental condition or what might be described as mental disorder that avails itself to this offender to seek any ameliorating circumstance in respect of his offending. It is my view that in respect of the subject matters that the offender cannot have any benefit for his time in custody because of what he has stated as his ADHD or condition. 25The Applicant submitted that the evidence did not enable the Sentencing Judge to come rationally to the view that the Applicant did not have ADHD and/or that the Applicant did not require medication, in particular, Dexamphetamine medication. The Applicant further submitted that it was not open to the Sentencing Judge to find that the Applicant did not have a mental condition that would fall within any of the Muldrock v R type situations (as so described). 26The Applicant was critical of the Sentencing Judge's acceptance of Dr Chew and submitted that the Sentencing Judge had no proper basis to disregard the clear and informed opinions of Dr Hampshire, Dr Pickering and Dr Kneebone. 27The Applicant submitted that because the Sentencing Judge accepted Dr Chew's evidence that had significant flow-on effects including a finding that the Applicant exaggerated his conditions, and a rejection by his Honour of Dr Hampshire's evidence that Dexamphetamine was not available within the prison system. 28Finally, the Applicant submitted that it was not open to the Sentencing Judge to conclude that the Applicant had exaggerated his conditions in a way so as to advance perceived difficulties he might have in custody in an attempt to attract the sympathy of the Court. 29The evidence that the Sentencing Judge had before him on this issue consisted of the following: (a) The oral evidence on two separate occasions of the Applicant; (b) The oral evidence of the Applicant's mother; (c) The oral evidence of Roslyn Pavey, the nurse manager of the Hunter Cluster for Justice Health; (d) A report of Dr Gerald Chew, a consultant psychiatrist for Justice Health, dated 16 May 2013 and his oral evidence; (e) A report from Dr John Pickering, a psychiatrist, dated 15 October 2012; (f) A report from Dr Robert Hampshire, a psychiatrist, dated 4 December 2012; (g) A letter from Gary Forrest, Executive Director Clinical Operations (Custodial Health) dated 14 January 2013; and (h) A letter from Paul Grimmond, Service Director Operations & Nursing at Justice Health. 30Both the evidence of the Applicant and his mother was to the effect that the Applicant had suffered from and been diagnosed with ADHD since he was a relatively young child, and that he had been treated by Dr Gordon Serfontein, subsequently by a psychiatrist Dr Miller, and thereafter by Dr Hampshire since the Applicant's arrest. 31The evidence in the reports of Dr Pickering and Dr Hampshire was that there was clear evidence of the Applicant suffering from ADHD both as a child and in his adult life. Both of those doctors supported the Applicant's evidence that the only medication that assisted that condition was Dexamphetamine. 32In his report Dr Chew diagnosed the Applicant as suffering from an adjustment disorder with depressed mood. He said that the disorder was predominantly in remission because he was being treated with Zoloft. 33Dr Chew said that the Applicant had a fairly clear diagnosis of childhood/adolescent ADHD. He added this: It should be noted that the while (sic) the diagnosis of Juvenile ADHD is very well established and accepted, there is some controversy around the diagnosis of Adult ADHD. Most psychiatrists now agree that there is a proportion of patients who would meet the criteria for Adult ADHD but however this is certainly smaller than the proportion that could be diagnosed with a Juvenile ADHD. ... On presentation today Mr Ninness did not present objectively with any gross signs of ADHD. ... I also note that the two other psychiatrists have seen him in custody, Dr Bench and Dr Herps had not specifically recommended Dexamphetamine or other stimulant treatment for his ADHD. 34Dr Chew also referred to the difficulties of prescribing stimulants in custody because they were regarded like currency by inmates, and standover tactics were employed that posed a safety risk to the patient. He also noted that the treatment of ADHD was not solely based around medications. He said there were well accepted psychosocial principles including a highly structured environment with regular routines to help manage ADHD symptoms. 35Dr Chew said that he did not believe Dexamphetamine treatment was currently indicated. He thought that the symptoms reported by the Applicant since stopping Dexamphetamine were more consistent with a long term mild withdrawal-type syndrome which is seen clinically post withdrawal of long term amphetamine use. He did not believe his functioning would be significantly impaired without Dexamphetamine in custody. 36Dr Chew's oral evidence was to similar effect. He accepted that the Applicant may still have Adult ADHD but he thought it was unlikely. He did not doubt that Dr Pickering, Dr Hampshire and Dr Kneebone (a third psychiatrist referred to in Dr Hampshire's report) had formed the opinion that the Applicant did suffer from lifelong ADHD and he accepted that if those Doctors had been regularly seeing the Applicant for 12 months whilst he was in the community on bail their opportunity to make a fuller diagnosis might be better than Dr Chew's. It should be noted, however, that the evidence strongly suggested that Dr Pickering had only seen the Applicant on one occasion and it was unclear from Dr Hampshire's report how often or over what period of time Dr Kneebone had seen the Applicant. 37The evidence from Ms Pavey concerning the policy of Corrective Services in relation to the provision of Dexamphetamine was that a patient had to be seen by two psychiatrists who formed the view that Dexamphetamine should be prescribed. If they found that it was clinically appropriate it would be prescribed. At the time Ms Pavey gave her evidence the Applicant had been seen only by Dr Chris Bench. Dr Bench had diagnosed the Applicant with depression and poly-substance dependence. He did not indicate that Dexamphetamine was indicated. It was anticipated that the Applicant would be seen by a second psychiatrist, perhaps Dr Chew. 38In cross-examination, Ms Pavey also identified as a policy consideration for the provision of Dexamphetamine the case of a prisoner coming into custody in respect of drug charges who had a history of illicit drug use. She said that questions about that matter would need to be asked of Dr Chew. The issue was not taken up with Dr Chew. 39Ms Pavey's evidence was generally consistent with the letter from Gary Forrest, Executive Director Clinical Operations (Custodial Health) dated 14 January 2013. His letter said this: Generally there is a specific authorisation required to commence stimulant medication for ADHD and this applies both in the community and in custody. If a person enters custody and is already subject to specific authorisation for ADHD medication by the community prescriber, JH & FMHN will continue this treatment. In circumstances where there is no current specific authorisation for such medication and a person comes into custody, JH & FMHN will commence such medication if it is deemed to be clinically appropriate. 40To similar effect was a letter from Paul Grimmond, Service Director Operations and Nursing for Justice Health. His letter of 30 January 2013 noted, however, that JH&MHN required confirmation from the prescribing psychiatrist, Dr Miller, of all the medications that the Applicant was currently prescribed. It was not clear if that confirmation was provided. There was evidence, however, that Dr Miller had been uncooperative in providing material requested by the Applicant's lawyers for the sentencing hearing. Significantly, Dr Miller was not called to give evidence.

Consideration 41There is no evidence in the present case, even accepting that the Applicant has suffered and continues to suffer from lifelong ADHD, that this condition had anything to do with his offending so that sentencing factors such as specific and general deterrence and retribution would not be relevant in the way discussed in R v Muldrock [2012] NSWCCA 108. The relevance of ascertaining if the Applicant suffered from ADHD at the time of sentence and at the present time concerned whether, if he did, he could access Dexamphetamine in custody. 42There were three considerations associated with this matter. The first was whether or not the Applicant suffered from ADHD as an adult and continued to do so at the time of the sentencing hearing. The second consideration was, if he did suffer from ADHD, what impact that condition had on him in custody. The third consideration was whether it could be said that in no circumstances would Dexamphetamine be provided for the Applicant or any other person suffering from ADHD in custody. 43As far as the first consideration is concerned, it was a question of fact whether the Applicant suffered from ADHD. The Sentencing Judge had available to him considerable evidence about the matter but, significantly, no evidence from Dr Miller who had been the Applicant's long term treating psychiatrist. In this regard, the Applicant complained that the Sentencing Judge said that he was not prepared to hear from Dr Miller. 44It is necessary to set out the whole of the exchange between the Sentencing Judge and the Applicant's counsel which occurred on 15 February 2013. At this stage of the sentencing proceedings, evidence had been given by the Applicant (for the first time) and his mother. The reports from Dr Hampshire and Dr Pickering, and the letters from Gary Forrest and Paul Grimmond had been tendered. Neither Ms Pavey nor Dr Chew had given evidence. 45The Applicant's counsel informed his Honour that the Applicant had been visited by Dr Christopher Bench, a psychiatrist who told the Applicant that he could not prescribe Dexamphetamine. The transcript then discloses the following: ... those are precisely what he was told, so our understanding your Honour is that despite what is being said at the top, it is not in fact happening. I know your Honour, we all want to finalise the matter. But my position your Honour is that we are -practically speaking as a result of what has happened, we are practically giving the Corrective Services every opportunity to show that this man will be properly medicated. That's not happening. If it finally becomes clear that in fact it isn't going to happen, then I am going to ask your Honour whether your Honour will allow me to re-open the sentence proceedings and address you on the fact that it doesn't appear that he will be medicated and either ask your Honour to find exceptional circumstances, with a view to either non-custody or what would otherwise be an absurdly low amount of custody. HIS HONOUR: Mr Korn, I don't want to waste your client's time and perhaps his parents' money, thinking that he will not be serving a lengthy custodial sentence. This is not a matter for exceptional circumstances. I have looked at the psychiatric reports and I am concerned about the lack of history given in them. The treating doctor here in Newcastle, I have no evidence from. None. And I have a history that initially from not Dr Pickering, Dr Hampshire, that was wrong. Frankly, it's not going to alter what I do as I see it as being a matter which will change the outcome, as I sit her. If I'm wrong about that well someone will correct me. KORN: Your Honour asked me the position, I've indicated, your Honour's responded, so I'm in your Honour's hands. The simple reality is, can I just say this your Honour, the simple reality is that gaol is never intended to be pleasant, but for this man in his circumstances, every day is- HIS HONOUR: Mr Korn I have to make a finding to his credit whether I accept what he has said on oath and frankly, at the moment without, as I've said, what would have been the best evidence, which is his treating doctor in Newcastle here, I haven't got the best evidence because all the other opinions are based upon information given by him. Simple as that. KORN: Would your Honour allow me the- HIS HONOUR: Beg your pardon? KORN: Would your Honour allow me, in those circumstances, to in fact seek to call Dr Miller? HIS HONOUR: Look this man had his chance. KORN: I'm just asking your Honour. HIS HONOUR: You have had more than enough chances. In terms of the preparation, I've never seen a case where so much time has been prepared on matters that ultimately weren't there. Where Dr Miller was available. He was available at that time. In terms of reopening, why wasn't he called then? He was available before, he's available now. I'm not - I'll hear form the crown but my preliminary view is that I'm not prepared to hear from him. From him or anyone else, frankly. KORN: As I say I'm in your Honour's hands. HIS HONOUR: Mr Crown do you wish to say anything at this stage? WATSFORD: Your Honour I'm of the same view as yourself. The matter has some age to it and there's been plenty of opportunity to address these issues along the way and really the boat's left your Honour. HIS HONOUR: And indeed the evidence that Dr Miller was approached before Dr Hampshire went and saw the prisoner in Kempsey it's all been there so I'm going to put it in for judgment. I don't have any days that are clear at the moment until 4 or 5 April. KORN: Until? HIS HONOUR: 4 or 5 April. I'll make it 5 April. I'll stand the matter over for sentence to 5 April. Court will adjourn, thank you. Sorry, and bail is formally refused. (emphasis added) 46Two things can be said about that exchange. The first is that the Sentencing Judge expressed a preliminary view only. It was always open to counsel for the defence to have pressed the matter. Secondly, and far more significantly, although the matter was stood over to 5 April for sentence, Mr Korn sought, and was given, leave to call the Applicant for a second time to give evidence about the fact that he had not been able to access Dexamphetamine whilst in custody. 47The result of that evidence and submissions that followed was that the matter was again adjourned in an endeavour to get notes from Justice Health and Dr Bench. 48The matter was then mentioned again on 11 April 2013 when the Crown indicated that they might issue a subpoena for someone from Justice Health to attend. It was then mentioned again on 2 and 6 May 2013. On 15 May 2013 the hearing resumed with evidence taken from Ms Pavey. Ms Pavey's evidence was that the second psychiatrist was to examine the Applicant. That led to the sentence hearing again being adjourned so that a report from that doctor could be made available. The matter was then mentioned on 30 and 31 May 2013 and came back before the Sentencing Judge on 17 June 2013 when Dr Chew's evidence was taken and submissions were completed. 49No attempt was made by the Defendant in all of that time to obtain evidence from Dr Miller whether documentary or in person. The Sentencing Judge's preliminary view expressed on 15 February 2013 was clearly one of frustration due to the delays in the case (the matter had already been before him on 14 December 2012, 30 January 2013, 31 January 2013, 1 February and 8 February). It is clear that his Honour expected to sentence the Applicant on 5 April. The Sentencing Judge did not adhere to his preliminary view that no-one else could be called because further evidence was taken from the Applicant as well as evidence from Ms Pavey and Dr Chew. 50Any complaint that the Sentencing Judge acted unfairly in relation to Dr Miller is rejected. 51The Sentencing Judge had the considerable advantage of hearing from Dr Chew and receiving his detailed report. A reading of Dr Chew's evidence showed that he was prepared to make appropriate concessions and, particularly, to accept that other professionals might have a different view from him about the existence and/or prevalence of Adult ADHD. 52There was no challenge to Dr Chew's evidence about Dr Bench's and Dr Herps' assessment of the Applicant and their view that he did not need Dexamphetamine. 53The evidence of Dr Chew was open to be accepted by the Sentencing Judge in contradiction of the Applicant's own evidence about the difficulties that he had in motivation and focussing when in custody. 54This was not a case where there was no evidence capable of supporting the Sentencing Judge's conclusion that Dr Chew's evidence was to be accepted despite evidence to the contrary from Dr Pickering, Dr Hampshire and the Applicant. The Applicant's mother's evidence was fairly peripheral to the issue of the condition of the Applicant when in custody. 55Nor did the Applicant advance his own credibility by his assertion, noted by the Sentencing Judge, that Dr Chew only saw him for five minutes. Quite apart from Dr Chew's evidence to the contrary, a fair reading of his report would inevitably lead to the conclusion that the Applicant's evidence in that regard was unreliable. 56A factor influencing the judge's decision was Dr Hampshire's unqualified statement that Justice Health did not prescribe psycho-stimulants to inmates as a matter of policy and that his psychiatric illness would go untreated in custody. Dr Hampshire provided no basis for that conclusion which is likely to have been outside his expertise in any event. The statement was contrary to the evidence of Ms Pavey, Mr Forrest and Mr Grimmond. 57The complaint involved in this ground of appeal is a complaint about the fact-finding of the Sentencing Judge. In McBeth v R [2009] NSWCCA 235 McCallum J (McClellan CJ at CL and Hidden J agreeing) said at [30]: Many of the applicant's grounds concern the sentencing Judge's findings of fact. It must be recalled, however, that the task of this court is confined to determining whether there was error in the sentencing of the applicant on the principles stated in House v R [1936] HCA 40 ; 55 CLR 499 at 504-505. This court's power to substitute its own findings of fact for those of the trial judge arises only if the Judge "mistakes the facts" in the sense there understood. It is necessary to establish that there is no evidence to support the finding, or that the evidence is "all one way", or that the Judge has misdirected himself: R v O'Donoghue (1988) 34 A Crim R 397 at 401 per Hunt J, Carruthers and Wood JJ agreeing. 58There is no occasion for this Court to substitute its own findings of fact in this case where there was evidence led upon which the judge based his findings. 59I would reject this ground of appeal.

Ground 2: The sentencing judge erred by giving the standard non-parole period determinative significance in the sentence of the offence of supply not less than a commercial quantity of methylamphetamine 60In his Remarks on Sentence his Honour made the following references to the standard non-parole period (SNPP). First, when referring to each of the offences charged and the maximum penalties he noted that the supply of a commercial quantity of methylamphetamine had a SNPP of ten years. His Honour added this: It will be seen from the three matters to which the offender has pleaded guilty that the second matter, that is the supply of methamphetamine, carries the most serious sanction, and it has a standard non-parole period of ten years. I will refer to this matter later. 61His Honour next mentioned the SNPP when dealing with general deterrence as follows: Secondly, in respect of the question of general deterrence, in respect of the second matter of the supply of methamphetamine, Parliament has prescribed that this particular matter have a standard non-parole period of ten years. That particular matter requires the Court to consider what is an appropriate sentence, and I do take that into account in the orders that I am about to make. 62Finally, when his Honour was dealing with the indicative sentences he said this: In respect of the second offence, that is the methamphetamine supply, and taking into account that Parliament has prescribed the ten year standard non-parole period, that would be a sentence which would have imposed an eight year term with a non-parole period of six years. 63The Applicant submitted that the Sentencing Judge made no reference to the SNPP as a legislative guidepost. Rather, he gave it determinative significance in assessing general deterrence and in considering the appropriate sentence. 64Nothing in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 requires a sentencing judge to refer to the SNPP as a legislative guidepost. Nor can it be inferred from any omission to mention the SNPP as a legislative guidepost that determinative significance has been given to it. His Honour was, however, required to have regard to the SNPP as well as the maximum penalty. The Remarks that he made, and which are quoted above, do no more than make appropriate reference to the SNPP as a consideration. Nothing in the Remarks suggest his Honour applied a two stage process: Muldrock at [28]. 65The Applicant submitted further that his Honour's approach to the indicative sentences indicates that the SNPP played a determinative role in the sentencing process. The Applicant submitted that if the Sentencing Judge correctly complied with s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 the notional starting point for the commercial supply offence would have been 10 years and 8 months with a non-parole period of 8 years. That, it was submitted, shows that the SNPP was given determinative significance. 66The Applicant's submission is misconceived. It seems to start from, and finish at, the premise that if the indicative non-parole period is similar to the SNPP then determinative significance must have been given to the SNPP. In the light of the Sentencing Judge's assessment that the matter was most serious (see [69] below) and where the quantity of the drug exceeded the minimum weight for a commercial quantity by a not insignificant amount, it cannot be said that the indicative sentence was unduly influenced by the SNPP. 67I would reject this ground of appeal.

Ground 3: The sentencing judge erred by failing to properly assess the objective seriousness of the offence

Ground 4: The sentencing judge erred by considering the perceived harm caused by methylamphetamine as a relevant factor in assessing the objective seriousness of the offence

Ground 5: The sentencing judge erred by failing to take into account the relevant objective factors of the quantity of the drugs in the context of the statutory regime and the purity of the drugs. 68It is convenient to deal with these grounds together. 69In the course of his Remarks on Sentence his Honour said this: In respect of the objective seriousness of this matter, it must be considered one, the weight of the drugs, 360 grams approximately of methamphetamine, 15 and a half kilos of cannabis and $260,000 in cash, most of it packaged, ready not for banking certainly in a deposit book, as his mother may have done for him in his baking business, but for secreting. In that regard these matters are most serious, and the Court of Criminal Appeal is clear as to what is to occur to persons who deal in drugs in our community in this way. As is well known in the Hunter area, serious crimes are committed by persons on methamphetamine and, to a lesser extent, in this Court's experience, amphetamine, and if persons are going to hold, deal or use such quantities as 360 grams, they should understand clearly the terror and destruction that can cause not only to the users but also to members of the community, who feel the consequences of the persons who use this material in criminal enterprises. (emphasis added) 70The Applicant submits that those Remarks fail to make any proper assessment of the objective seriousness of the offence. In particular, the collective reference to "the matters are most serious" provides no insight as to how the Sentencing Judge assessed the commercial supply matter. It was submitted that what was said in this passage, particularly the reference to the Court of Criminal Appeal, indicates that the statement was not an articulation of the objective seriousness of the offences. 71In Delaney v R; R v Delaney [2013] NSWCCA 150 Hoeben CJ at CL (with whom Harrison and Beech-Jones JJ agreed) said at [56]: [56] While it is true that his Honour did not in terms assess the objective gravity of the offending, he did specifically refer to the factors which bore upon its objective seriousness. His Honour took account of the amount involved, the role of the appellant, the nature of the conduct and the period over which it took place. While it may have been preferable for his Honour to have made a specific assessment of the objective seriousness of the offending, he did implicitly do so. I am satisfied that the factors to which his Honour referred were relevant and important and were given proper weight in the sentencing process. While his Honour may not have expressly determined the objective criminality of the offences, he clearly took that into account. 72In Simpson v R [2014] NSWCCA 23 the sentencing judge was dealing with a count of assault occasioning actual bodily harm and a count of sexual intercourse without consent. The judge said this in his remarks on sentence: Having regard to the degree of violence, the physical hurt inflicted, the form of forced intercourse and the circumstances of humiliation I am more than satisfied that these are objectively very serious offences. That was the extent of the judge's remarks concerning the objective seriousness of the offences. 73The applicant in that case submitted that the sentencing judge erred in not making a more precise assessment of where in the range of objective seriousness the offence lay. Hoeben CJ at CL (with whom Adams and R A Hulme JJ agreed) said at [27]: His Honour did all that was required of him by assessing both offences as being "objectively very serious offences". 74It seems clear to me in the present case that his Honour was assessing the objective seriousness of the offending when he said "these matters are most serious". He introduced that section of his Remarks with the words "in respect of the objective seriousness of this matter". He then went on to consider matters which could only be described as the objective offending. 75Whilst it would have been clearer if his Honour had considered the three offences separately in assessing objective seriousness, I do not consider that his Honour fell into error in approaching the matter in the way he did. 76The Applicant submitted that the Sentencing Judge failed to consider the relevance of the quantity and purity of the drugs particularly because his Honour did not relate the quantities to the categories in Schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW). However, weight and purity of drugs are not the only consideration in fixing a sentence for supply or importing: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [67] - [69]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [33]. His Honour had limited evidence of the purity of what was seized and that varied between 12% and 52.5%. 77As noted earlier, the amount of the methylamphetamine was not insignificantly greater than the commercial quantity threshold, and the amount of cannabis was, as the Applicant acknowledged, above the midrange for an indictable quantity. His Honour's reference to the weight of each drug demonstrates that he did not overlook the quantity of the drug in assessing the objective seriousness of the offending in each case. 78The Applicant further submitted that the Sentencing Judge's reference to the perceived harm of the supply of the drug methylamphetamine introduced into the assessment of objective seriousness a matter which was already inherent in the objective seriousness of the crime. Reference was made to the statement of Howie J in R v Dang [2005] NSWCCA 430 where his Honour said at [29]: This Court no longer approaches the evaluation of the seriousness of a particular supply offence by distinguishing between different types of drugs according to the perceived dangerousness of the drug being supplied. Rather the Court has stressed that the appropriate consideration is the relevant statutory regime and the maximum penalty prescribed for the offence. 79I do not read his Honour's statement about the harm caused by methylamphetamine and amphetamine as forming part of his assessment of the objective seriousness of the offence. The submission that his Honour fell into error by comparing the relative danger of different drugs should be rejected. To criticise his Honour for the inclusion in passing of the phrase "and, to a lesser extent" in the passage set out in [69] above is to engage in an unhelpful armchair analysis of remarks, no doubt delivered in the course of a busy list, with a view to finding error. 80I do not consider that error has been demonstrated in this regard. 81I would reject these grounds of appeal.

Ground 6: The sentencing judge erred by taking into account the applicant's conduct of the sentencing proceedings as a matter relevant to specific deterrence 82In his Remarks on Sentence the Sentencing Judge said this: The second matter is this, in respect of this offender there is a need for specific deterrence, that is a person who has used his skills and abilities to deflect his attention and his criminality must be warned that if he wishes to rely upon the sympathy of courts, then the Court upon finding that the basis of that sympathy is non-existent that he should be warned that it will not be tolerated. 83The Applicant submitted that it was an error to take into account the manner in which the Applicant conducted himself at the sentence proceedings. Reference was made to what Johnson J said in R v Wilkinson (No 5) [2009] NSWSC 432 at [62] where he cautioned against post-offence conduct being taken into account in the assessment of objective seriousness of the crimes themselves. The Applicant accepted that the Applicant's conduct at the sentence might be relevant to a lack of remorse and prospects of rehabilitation but submitted that the Sentencing Judge took into account his conduct as a punitive factor relevant to specific deterrence. 84The Sentencing Judge appears to have been referring to his earlier expressed view in the Remarks: that the offender has exaggerated his conditions in a way so as to advance the perceived difficulties he may have in custody in an attempt to attract the sympathy of the Court. 85The Remarks might also be thought to relate to the question of remorse or its absence, although that was dealt with in the following paragraph by the Sentencing Judge who described it as "the next matter". What, however, does seem clear is that the Remarks complained of were not being used in the consideration of the objective seriousness of the offending. 86His Honour was, in any event, quite correct to say that for the present Applicant specific deterrence was an important consideration. I do not read his Honour's Remarks as suggesting the Applicant's conduct during the sentencing proceedings was taken into account as a punitive factor relevant to specific deterrence. 87I would reject this ground of appeal.

Ground 7: The sentencing judge erred by failing to take into account the mitigating factor under s 21A(3)(e) Crimes (Sentencing Procedure) Act that the applicant does not have a prior record 88The Applicant submitted that the Sentencing Judge made no express reference to aggravating or mitigating factors under s 21A Crimes (Sentencing Procedure) Act and, in particular, that the Applicant had no prior criminal history. The Applicant submitted that he was thus entitled to be treated more leniently and that the failure to make reference to his lack of criminal history was a significant error. 89Whilst it is true that the Sentencing Judge made no mention of the Applicant's criminal record, in fact the Applicant had received two s 10 dismissals in 2009 for two counts of possessing a prohibited drug and attempting to possess a prescribed restricted substance. In addition, he was fined $1,740 for exceeding the speed limit by greater than 45 km per hour in September 2010. Whilst this was by no means a significant criminal history, three of the offences involved drugs or prescribed prohibited substances, a matter of some relevance to a number of the present offences. 90This Court has said more than once that prior good character and lack of a criminal record are of reduced significance in drug offences: Redfern v R [2012] NSWCCA 178 at [23]; R v Cheikh [2004] NSWCCA 448 at [50]; R v Leroy (1984) 13 A Crim R 469 and R v Nemes (Court of Criminal Appeal (NSW), 28 August 1997, unrep). 91Although his Honour did not mention s 21A or the factors listed by reference to the section, his Remarks show that he did not overlook relevant factors such as the Applicant's plea of guilty, his prospects of rehabilitation and the matter of remorse. 92I do not consider that this ground has been made out.

Ground 8: The aggregate sentence and the individual sentence for the offences of supply prohibited drugs were manifestly excessive 93The Applicant submitted that the indicative sentence for the offence of commercial supply dominated the sentencing exercise and resulted in a sentence that exceeded the criminality of the individual offences and the totality of the criminality. The Applicant submitted that the Sentencing Judge should have found that the objective seriousness of the offence fell at the lower end of the range. The Applicant further submitted that whilst it was open to the Sentencing Judge to reject the Applicant's evidence as to the role he played, there was limited evidence as to the role to justify a sentence of the order imposed. 94The Applicant pointed to the fact that the Remarks on Sentence made no reference to comparative cases or statistics. 95The Applicant pointed to the following factors that should have resulted in a lesser sentence: (a) He was 32 at the time of sentence; (b) The quantity of the prohibited drug (365.09g) was at the lower end of the commercial range; (c) The purity of the drug was relatively low with most of it being approximately 12%); (d) The sentencing judge found that his role was 'packaging and distributing drugs'; (e) The sentencing judge did not make a finding of any aggravating factors prescribed in s 21A of the Crimes (Sentencing Procedure) Act; (f) He had no prior convictions; (g) He had undertaken rehabilitation whilst on bail to overcome his amphetamine addiction; and (h) He pleaded guilty in the Local Court. 96The Applicant pointed to three cases in particular which it was said provided assistance in showing that the sentence in the present case is manifestly excessive. 97In R v Blair [2005] NSWCCA 78 the Appellant was convicted of supplying not less than the commercial quantity of methylamphetamine. The weight of the drug was 371.3g. The purity of the drug in three separate containers was 14.5%, 14% and 6% which was described by Grove J as being of extremely low purity. He had been sentenced to a non-parole period of 10 years with a total term of 13 years and 4 months. There was no discount for any plea or assistance. The sentence was reduced on appeal to a non-parole period of 5 years and 3 months with a total term of 7 years. The appellant claimed that the drugs were not his and that he was simply asked to collect a parcel and keep it at his house until it was collected. He claimed not to know what the substance was but suspected it may have been heroin. 98This Court said that the evidence was such that he could not be shown to be the owner of drugs and he had to be sentenced on the basis that he was not a principal in any transaction or intended transaction but only as a courier or storeman. 99In Cao v R [2013] NSWCCA 321 the Applicant was charged with supplying methylamphetamine on an ongoing basis, supplying not less than a commercial quantity of methylamphetamine and four firearms offences. In addition, there was, on a Form 1, a charge of possession of ammunition without authority and two charges of having goods in custody reasonably suspected of having been stolen. The total effective sentence was 8 years 6 months imprisonment with a non-parole period of 5 years 6 months. The notional starting point was 11 years and 4 months from which a deduction of 25% was made for the early plea. The amount of methylamphetamine was 749.6g with a purity of 79%. The Applicant's prior criminal record was regarded as relatively insignificant. The offence of supplying not less than a commercial quantity of the drug was regarded by the Sentencing Judge as above midrange. The Court held that the sentence could not be said to be manifestly excessive. 100In Jeffrey v R [2012] NSWCCA 36 the Applicant pleaded guilty to knowingly taking part in the supply of not less than a commercial quantity of methylamphetamine and to a charge of knowingly dealing with the proceeds of crime. On the first count of supply he was sentenced to a non-parole period of 5 years with a balance of term of 3 years. On the second count he was sentenced to a non-parole period of 1 year and 10 months with a balance of term of 1 year and 2 months. The total effective sentence was a non-parole period of 5 years with a balance of term of 3 years. 101The amount of the drug was 513.9 grams of liquid methylamphetamine. The proceeds of crime was $46,700 in cash. The Applicant had a criminal history that did not entitle him to any leniency. He had served a sentence of 2 years imprisonment for some of those offences. At the time of the subject offences he was on a s 9 bond for driving whilst disqualified. This Court rejected the submission that the sentence was manifestly excessive. 102A review of those and other cases confirm the view I hold that the sentence imposed in the present case was within the range of appropriate sentences, albeit in the upper part of that range. It cannot be said, however, that the sentence is "unreasonably or plainly unjust": Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [6]. 103A number of factors justify the sentence imposed. First, unlike in Blair, the Applicant in the present case cannot be regarded as a mere courier or storeman, and the Sentencing Judge did not so regard him. Secondly, as the photographs show, the Applicant was involved in a significant drugs supply enterprise. The amounts of money located, the vacuum sealer machines, the cutting agent, the variety of drugs and prohibited substances, and the way the drugs were packed all attest to the extent of the Applicant's involvement. 104Thirdly, the fact that a firearm was found is a significant matter aggravating the criminality. In Cao Hoeben CJ at CL (with whom Simpson and Hall JJ agreed) said: [35] This Court has said on a number of occasions that an offender's criminality is more serious where he or she possesses a firearm as part of their involvement in crimes, such as trading in illegal drugs. In R v Amurao [2005] NSWCCA 32 at [69] RS Hulme J said: [69] ... It behoves the Courts to discourage any tendency for such objects to become just tools of trade for those whose activities are outside the law." This is particularly so in relation to the possession of a concealed weapon such as the key-ring pistol which was not capable of lawful use. 105Fourthly, there were two different kinds of drugs involved. Possession of two different types of drugs cannot be regarded as one episode of criminality. In Luu v R [2008] NSWCCA 285 a joint judgment of this Court (Giles JA, Latham J and Matthews AJ) said: [32] Possession of the two different kinds of drugs giving rise to the "deemed supply" offences is not properly regarded as one episode of criminality. There were two deemed supplies, as there would be two (or more) actual supplies were the different drugs to be sold to two (or more) purchasers in the course of the applicant's drug dealing. Nor is the criminality in the possession of the pistols, and two pistols one of which was a prohibited pistol involves greater criminality than one, to any substantial degree reflected in the sentences for the drug offences. The drug dealing could be carried on without firearms; that the applicant had them in his possession in connection with his drug dealing was significant additional criminality, and there was no double counting. The Firearms Act gives effect to the significant legislative policy of strict control upon the possession of firearms, and offences against it inimical to that policy called for substantial recognition in their own right: see R v Cromarty [2004] NSWCCA 54; R v Tolley [2004] NSWCCA 165. 106Finally, the indicative sentences show that the supply of cannabis offence and the proceeds of crime offence were effectively only accumulated by 9 months non-parole with a 1 year additional term on the supply methamphetamine charge. The penalties for the s 166 offences were also made entirely concurrent with sentence for the three offences the subject of the appeal. 107Most of the matters to which the Applicant pointed to as justifying a lower sentence (in [95] above) have been discussed elsewhere in this judgment. None of those matters, individually or collectively, justifies a lesser sentence.

Conclusion 108I propose the following orders:

Leave to appeal granted.
Appeal dismissed.

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: 03 December 2014

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