(1984) 54 ALR 765
Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
(2017) 270 A Crim R 556
Dunning v Tasmania [2018] TasCCA 21
El-Ghourani v R [2009] NSWCCA 140
Source
Original judgment source is linked above.
Catchwords
226 A Crim R 354
Bugmy v R (1990) 169 CLR 525[1990] HCA 18
Deakin v R [1984] HCA 31(1984) 54 ALR 765
Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301(2017) 270 A Crim R 556
Dunning v Tasmania [2018] TasCCA 21
El-Ghourani v R [2009] NSWCCA 140195 A Crim R 208
Eriyo v R [2015] NSWCCA 16
Hili v RJones v R (2010) 242 CLR 520[2010] HCA 45272 ALR 465[2014] HCA 37
Matthews v R [2014] VSCA 29144 VR 280246 A Crim R 193
Mourtada v R [2021] NSWCCA 211290 A Crim R 514(2021) 361 FLR 96
Omorogbe v R [2013] NSWCCA 201234 A Crim R 556
Onourah v R (2009) 76 NSWLR 1197 A Crim R 430234 FLR 377260 ALR 126[2009] NSWCCA 238
Pearce v The Queen (1998) 194 CLR 610[1998] HCA 57
Power v R (1974) 131 CLR 623
48 ALJR 297
3 ALR 553
[1974] HCA 26
Putland v R (2014) 218 CLR 174
[2014] HCA 8
R v Faber [2020] SASCFC 49
(2020) 283 A Crim R 219
R v Nguyen
R v Pham [2010] NSWCCA 238
Judgment (15 paragraphs)
[1]
es: Dominic Bryce Patel (Applicant)
Crown (Respondent)
Representation: Counsel:
Mr T Edwards (Applicant)
Mr R Ranken (Crown)
[2]
Solicitors:
Universal Law (Applicant)
Commonwealth Director of Public Prosecutions (Crown)
File Number(s): 2019/273655
Publication restriction: None
Decision under appeal Court or tribunal: District Court at Lismore
Jurisdiction: Criminal
Citation: N/A
Date of Decision: 8 March 2021
Before: McLennan SC DCJ
File Number(s): 2019/273655
[3]
HEADNOTE
[This headnote is not to be read as part of the judgment]
On 8 March 2021 the applicant Dominic Patel, having adhered to his earlier plea of guilty in the Local Court on 16 September 2020, was sentenced in the District Court at Lismore to an aggregate term of four years and six months imprisonment, with a non-parole period of two years and eight months. This sentence was imposed in respect of one count of attempting to possess a marketable quantity of an unlawfully imported border-controlled drug, namely MDMA (75.45g pure), contrary to s 307.6(1) and 11.1(1) of the Criminal Code Act 1995 (Cth) and one count of trafficking a controlled drug, also MDMA (9.31g pure) contrary to s 302.4(1) of the Criminal Code. Also taken into account, under Crimes Act 1914 (Cth), s 16BA, were two additional matters admitted by the applicant, each of which resembled the first count but involved around half the quantity of MDMA. The applicant sought leave to appeal against the severity of his sentence.
Held (Per Brereton JA, N Adams J and Lonergan J agreeing), allowing the appeal [78] (Brereton JA), [79] (N Adams J) and [87] (Lonergan J).
Per Brereton JA, N Adams J and Lonergan J agreeing: When sentencing for Commonwealth offences, the Court is required by Crimes Act 1914 (Cth), s 16A(2)(f) to take into account the degree to which the person has shown contrition for the offence. An offender's contrition is a distinct (although related) concept from their prospects of rehabilitation, and must be considered as such: [40] (Brereton JA), [79]-[80] (N Adams J); [87] (Lonergan J).
Barbaro v The Queen (2012) 226 A Crim R 354; [2012] VSCA 288 at [36]-[38], considered.
Per Brereton JA, N Adams J and Lonergan J agreeing: Contrition does not require the abandonment of legitimate attempts to point to mitigating factors, nor does it require self-flagellation in every domain. The offender demonstrated contrition by his assumption of responsibility for his conduct; his guilty pleas; his engagement in extensive rehabilitation; and, most significantly, his influencing his peers to make similar changes to their lifestyles. The sentencing judge did not duly consider the offender's contrition: [51]-[54] (Brereton JA); [79]-[82] (N Adams J); [87] (Lonergan J).
[4]
Judgment
BRERETON JA: On 8 March 2021 the applicant Dominic Patel, having adhered to his earlier plea of guilty in the Local Court on 16 September 2020, was sentenced in the District Court at Lismore to an aggregate term of four years and six months imprisonment, with a non-parole period of two years and eight months, for offences that:
1. on 2 September 2019 he did attempt to possess a marketable quantity of an unlawfully imported border-controlled drug, namely MDMA [1] (75.45g pure), contrary to s 307.6(1) and 11.1(1) of the Criminal Code Act 1995 (Cth) - for which the maximum penalty was 25 years imprisonment and/or a fine of 5,000 penalty units; and
2. on 2 September 2019 he did traffic a substance, being a controlled drug namely MDMA (9.31g pure), contrary to s 302.4(1) of the Criminal Code - for which the maximum penalty was ten years imprisonment and/or a fine of 2,000 penalty units.
Also taken into account, under Crimes Act 1914 (Cth), s 16BA, were two additional matters admitted by the applicant, namely that:
1. on 2 September 2019 he did attempt to possess a marketable quantity of MDMA (36.58g pure), contrary to s 307.6(1) and 11.1(1) of the Criminal Code; and
2. on 2 September 2019 he did attempt to possess a marketable quantity of MDMA (37.57g pure), contrary to s 307.6(1) and 11.1(1) of the Criminal Code.
The sentence was backdated by eight months to 8 July 2020, to account for presentence custody between 2 September 2019 and 24 October 2019, and quasi-custody by way of the applicant's participation in a full-time residential rehabilitation programme between 24 October 2019 and 23 June 2020. The sentencing judge, McLennan SC DCJ, indicated that were he imposing a sentence for Count 1 alone (including the two s 16BA matters) it would have been four years imprisonment, and for Count 2 alone, eighteen months imprisonment.
The applicant seeks leave, under Criminal Appeal Act 1912 (NSW), s 5(1), to appeal against the severity of his sentence.
[5]
The offending
The applicant was 26 years of age at the time of the offending. He was sentenced on agreed facts which were summarised by the sentencing judge, upon whose remarks the following account is substantially based.
On 7 June 2019, a white padded envelope (containing the consignment referred to in Count 1) arrived in Australia, addressed to D Bryce, PO Box 391, Mullumbimby. The envelope contained no label or return address to identify the sender. The applicant, whose middle name was Bryce, had been the registered lessee of PO Box 391, Mullumbimby since 1 April 2019; prior to that date, it had been leased in the name of his mother since August 2008.
An officer of the Australian Border Force ("ABF") X-rayed the envelope at the Sydney Gateway Facility and noted inconsistencies in the image. The envelope was then physically examined and found to contain a small clear vacuum-sealed bag containing a brown crystal-like substance. This was tested by the ABF officer and returned a presumptive positive result for MDMA. The substance, which was approximately 100.6g in weight, was seized and transferred to the NSW Police and sent for further testing, which confirmed that it was MDMA, with a purity of 75%, yielding 75.45g of pure ecstasy. A marketable quantity of MDMA is 0.5g.
On 28 August 2019, police officers substituted an inert substance, being sand of similar weight, and repacked and resealed the envelope. On 2 September 2019, police officers attended the Mullumbimby post office and delivered the consignment to the postal manager, who placed a "waiting collection" card inside Box 391 and caused an SMS message to be sent to the applicant's mobile phone recorded on the lease. Police then commenced surveillance in the vicinity of the post office. At about 1:45 pm, the applicant arrived at the post office and collected the collection card from his post office box. He then attended the customer service counter and collected the envelope. After exiting the post office, he was apprehended by police and cautioned. He told police that he had attended the post office to "collect a piece of my motor bike which I've just realised is going to the house", and that he did not recognise the envelope. He said that he did not know what was inside the envelope. He agreed that the post office box to which it was addressed belonged to him, and that no-one else other than his mother had access to it.
[6]
The sentencing proceedings
The applicant gave evidence in the sentencing proceedings by affidavit, and was cross-examined. His evidence, including via an expert psychological report of Dr Lennings, was to the effect that he was a drug user and was addicted to MDMA and cocaine, and was using two to three grams per week of MDMA. He said that he sold to a group of some ten to fifteen friends who were "into drug use and partying", which to him seemed common and normal everyday behaviour in the Byron Bay area. He said the purchase price of a gram of MDMA on the street was between $100 and $200, whereas if he sold to his friends, it would be at a price of $10 to $15 per gram. He deposed:
"To purchase 50 grams of MDMA on the street costs about $6,000 to $7,000. The costs of the drugs I attempted to possess were about $400 for 50 grams. I have only ever supplied drugs to close friends with whom I had been using drugs with for many years. It was done only to make the use of drugs cheaper for us by purchasing larger quantities. I didn't do it to make money."
The sentencing judge observed that there was some evidence which would permit a conclusion that from time to time he would sell beyond his group of friends. His Honour also noted that when asked how he knew the cost of purchasing 50g of MDMA on the street, it was apparent from the applicant's answer that he had made enquiries to that effect, and that there were still significant profits to be made by the applicant if he were to sell at even $10 a gram for 100 grams.
His Honour observed:
"There are a number of observations to be made about this evidence and the facts. First of all, on the face of things, this is what might be described as an unsophisticated example of importation and an attempt to possess that which is imported. I make reference to importation because as I have said, that is unequivocally the context in which these offences occurred. There is no difference in maximum penalty between that offence and the offence of attempting to possess these drugs and as I have said, on Mr Patel's own evidence, that is what he was doing. Although the method was unsophisticated and required no sophisticated organisation in order to perpetrate his criminal offending, the ease with which he was able to engage in this entire process suggests that the purchasing of drugs on the internet in itself is the social problem which requires at least the same level of deterrence as does more sophisticated importations and all attempts to possess drugs imported in a more sophisticated manner.
The decision of Mr Patel to become involved in this criminal activity was a clearly well thought out, economic decision to access cheaper drugs in bulk of some considerable purity having made some enquiries as to the cost of attempting to obtain like amounts on the street. The quantity of the drug is important although of course, not decisive when one is seeking to assess the criminality of Mr Patel's conduct, but it has to be said he appears to have been the sole organiser who struck out on this venture, he was the principal and he had taken it upon himself to obtain these drugs from this source. I note that there were three consignments of the drug which were destined for his possession. The submission is that if the first package had [not] been intercepted then the inference could be that the second and third package would not have been sent by mail to the offender's post box… There are two things that can be said about that submission; first of all, the fact that he continued to involve himself in attempts to possess consignments of drugs when the first package was obviously intercepted and from his perspective, delayed, simply shows a determination and persistence on the part of Mr Patel. Secondly, there is nothing about Mr Patel's evidence, his drug addiction, his motivation for these activities which at all persuades me that if the first consignment had arrived safely in his hands that there would not in the future have been a second or third consignment."
[7]
Grounds of Appeal
There were six grounds of appeal, as follows:
1. The Court did not consider whether the applicant's lack of previous convictions and good character generally entitled him to leniency.
2. The Court did not take into account the lack of sophistication involved in the offences as a factor reducing the objective seriousness of the offending.
3. The Court took into account the requirement for there to be "a particular need" for general deterrence because the offences occurred in the Northern Rivers area without a sound and transparent reason for doing so.
4. The Court's finding that the applicant's use of MDMA was a choice made "for nothing more complex than the lifestyle that he enjoyed", was not available given the psychological material tendered on behalf of the applicant.
5. The Court did not take into account the remorse of the applicant.
6. The sentence was manifestly excessive.
[8]
Ground 1 - Character
For the applicant it was submitted that, although acknowledging that he had only a limited and unrelated criminal history which did not result in a finding that he was of bad character, his Honour did not deal with the submission made on his behalf that his general good character warranted the extension of significant leniency. In particular, it was submitted that his Honour did not refer to five character references tendered on his behalf.
As has been noted, his Honour referred to the applicant's antecedent driving offences, which included two of driving recklessly or furiously in a dangerous manner, but said that he would not proceed on the basis that this demonstrated him to be a person of bad character. Later, his Honour stated that he had "had regard to the applicant's character, antecedents, cultural background, age et cetera as set out in [s 16A(2)(m)]". Moreover, his Honour expressly referred to the principle that the prior good character of a person involved in drug importation is generally to be given less weight as a mitigating factor, as prior good character is a not unusual companion of involvement in drug importation.
Further, the offending here involved the repeated planned importation of prohibited substances in an ongoing course of conduct. It was not a case in which the applicant's criminal conduct could be passed off as a spontaneous out-of-character aberration. There was also evidence, including in the "chats", of his involvement in other dealings in prohibited substances. In those circumstances, while his Honour did not proceed on the basis that the applicant was of bad character, there was little scope for a finding of good character such as to operate as a material mitigating factor.
His Honour took the applicant's character into account. The weight to be given to it was very much in the judge's province, and no circumstance has been identified such as to justify appellate intervention. This ground fails.
[9]
Ground 2 - Lack of sophistication
It was uncontroversial that the applicant's method was unsophisticated. The sentencing judge observed that this was so, and commented that the ease with which the applicant was able to engage in the process suggested that the availability of drugs for purchase on the internet was a social problem requiring deterrence equivalent to more sophisticated importations. For the applicant, it was submitted that the result was that the lack of sophistication was not taken into account as a mitigating factor.
It may be accepted that the presence of sophistication in a criminal enterprise may sometimes operate as an aggravating factor. [3] That is essentially because it is demonstrative of premeditation and deception. But it does not follow that a lack of sophistication is a mitigating factor; it is no more than the absence of a feature that would otherwise be aggravating. It cannot be said that the applicant's conduct was not premeditated (indeed, it was repeated); nor that it did not involve deception (the use of names other than his own). And the sentencing judge's observation that the ease with which the applicant was able to engage in these importations accentuated the need for general deterrence was well open. This ground fails.
[10]
Ground 3 - Local deterrence
As has been mentioned, his Honour referred to the applicant's evidence that the consumption of drugs of this kind was regarded as "normative, everyday behaviour" within his social group, and observed that this accorded with his own impression, formed from experience as a prosecutor and judge in the Northern Rivers. His Honour then added that this might be thought to indicate a particular need for general deterrence in the local community. [4]
The applicant submitted that there was no sound basis for concluding that a harsher sentence was required to meet the need for general deterrence because of the offence having occurred in the Northern Rivers region, there being no evidence as to the frequency of the importation of drugs by that means in that area, and that his Honour's experience in that area was not contrasted to experience elsewhere.
In the course of argument, his Honour had raised with counsel the proposition that "if we take what he says concerning there being a culture in this part of the world where drug use is normalised, hasn't the Court got an obligation to send a message to the Northern Rivers that if you import drugs you'll go to gaol", and later:
"It's what message the Court and Courts say I need to send out to the community at large, given I sit here regularly, given I see young men like your client engage in this kind of behaviour regularly, I think there's a significant amount of truth in what your client says about drug use in the Northern Rivers being regarded as being normal in a significant portion of the population. That's not parliament's view, that's not the Court of Criminal Appeal's view and hence I come back to the sometimes melancholy task that I am faced with which is sending out a message of general deterrence which can only operate at the margins to young people who enjoy a party lifestyle in places like, inter alia, Byron Bay."
His Honour's observations and reasoning in this respect were not confined to the specific offences with which the applicant was charged, but to drug offending generally. They were founded on evidence tendered for the applicant in a psychological report of Dr Lennings, which included:
"Dominic tells me that he hung out with a group of friends who were into drug use and partying. It is a common theme in the Byron Bay area and seemed to him normative every-day behaviour."
[11]
Ground 4 - Lifestyle choice
In relation to the applicant's drug use history, his Honour said:
"What is summarised there is a ten year history of drug abuse. Although he started using cannabis in his early to mid-teens, it was not until he was twenty-four that he started to go to parties where cocaine and MDMA became cheap and easy to come by and he became involved in that kind of lifestyle. Contrary to the submissions made by Mr Barrow, I do not consider that his addiction to drugs was something which is mitigating, I do not consider it is something that he did not choose. I am satisfied that particularly as far as his MDMA and cocaine use is concerned but more particularly the MDMA with which he is charged, they were choices made by an adult as I have said for nothing more complex than the lifestyle that he enjoyed."
The applicant submits, in substance, that in treating his drug use as a "lifestyle choice", his Honour overlooked that the applicant had a long-standing drug habit, noting that the report of Dr Lennings, from which the "history of drug abuse" is derived, records that the applicant used alcohol from his early teens, cannabis from his early to mid-teens, and was a daily user of cannabis from 16 years of age:
"By the age of 16 he was a regular heavy user and remained in that pattern until arrested in September, 2019."
Dr Lennings also reported that the applicant had used MDMA, and other substances, from years of age, and had a "ten year history of significant drug abuse", with a diagnosis of severe substance abuse disorder, "but in recent remission". His "early adult years were impacted by both drug dependency and social media addiction", and he had a childhood and adolescence in which:
"… he appeared to struggle, a function of attachment disruption with his mother, being a child of a single parent who moved around a lot at first, and seemingly had difficulty in exerting boundaries. He describes a pattern of moderately oppositional and attention deficit like behaviours as a child, but reportedly his mother was not supportive of conventional mental health interventions and no diagnosis was ever made. As a consequence when he did emerge into his adult years he was immature and immersed himself in a party scene of drugs, and social media and became dependent on both… In the context of his drug addiction Dominic began to purchase large amounts of drugs… "
[12]
Ground 5 - Remorse
Although the sentencing judge referred to Crimes Act, s 16A(2), and to many of the specific relevant considerations listed in it, occasionally with reference to the relevant subparagraph, nowhere in that process does his Honour explicitly refer to subparagraph (f), which required his Honour to take into account, as a mandatory consideration, the degree to which the applicant had shown contrition for the offence by taking action to make reparation or in any other manner. Nor did his Honour refer in terms to remorse or contrition. As has already been noted, [5] his Honour observed that while having undertaken great steps towards rehabilitation, the applicant was nonetheless still trying to downplay the extent of his criminal conduct. His Honour undoubtedly gave weight to the applicant's prospects of rehabilitation, but though there is a relationship, remorse and rehabilitation are distinct concepts and considerations.
Contrition - or remorse - is concerned with the attitude of an offender after the event to his or her offending. It involves genuine regret. It was explained by the Victorian Court of Appeal in Barbaro v The Queen, in the following terms: [6]
"[36] A distinction must be drawn between the anguish of being caught and punished, on the one hand, and - on the other - the determination to change one's behaviour and, to the extent possible, make amends. The first is not remorse at all. The second is. This is clear when one goes to dictionary definitions of the word 'remorse' and words associated with it. 'Remorse' is defined in, respectively, the New Shorter Oxford Dictionary and the Macquarie Dictionary as 'deep regret and repentance for a wrong committed' and 'deep and painful regret for wrongdoing; compunction'. The word 'compunction' in turn is defined in those two works, again respectively, as 'pricking or stinging of conscience or the heart; uneasiness of mind after wrongdoing; remorse' and 'uneasiness of conscience or feelings; regret for wrongdoing or giving pain to another; contrition'.
[37] For its part, 'contrition' bears the following respective definitions: 'The condition of being distressed in mind for some fault or injury done' and 'sincere penitence'; while 'contrite' is defined, again respectively, as 'crushed or broken in spirit by a sense of wrongdoing; sincerely penitent' and 'broken in spirit by a sense of guilt; penitent'. Finally, 'penitence' and 'penitent' are defined, respectively, as 'the fact or state of being penitent' and 'that repents, with serious desire and intention to amend the sin or wrongdoing; repentant, contrite (New Shorter Oxford Dictionary) and 'the state of being penitent; repentance; contrition and 'repentant; contrite; sorry for sin and fault and disposed to atonement and amendment (Macquarie Dictionary).
[38] It follows, in our view, that a person wishing to rely on remorse as a mitigating factor needs to satisfy the court that there is genuine penitence and contrition and a desire to atone. In many instances, the most compelling evidence of this will come from testimony by the offender. A judge is certainly not bound to accept second-hand evidence of what the offender said to a psychiatrist or psychologist or other professional, let alone testimonials from family or friends, or statements from the Bar table."
[13]
Ground 6 - manifest excess
As the appeal succeeds on Ground 5, this Court must resentence the applicant, [8] and it is unnecessary to address Ground 6. However, some of the submissions made in that respect are relevant to resentencing, to which I now proceed.
[14]
Resentencing
The relevant maximum penalties have already been noted: twenty-five years for Count 1 and ten years for Count 2.
In respect of Count 1, the quantity of 75g pure, though 150 times a marketable quantity, was very much closer to the bottom end of the range (0.5g) than to the top end of the range (500g, being the commercial threshold). It was predominantly intended for personal use, and to some extent for resale to a relatively small circle; although some profit was potentially available, the activity was engaged in not for that purpose, but to meet and fund his own lifestyle and supply his social circle. In my view, standing alone, though not at the bottom of the scale of objective gravity, it was towards the low end of that scale, albeit a scale for a serious offence (as indicated by the maximum penalty of 25 years) in respect of which the need for general deterrence has repeatedly been stressed. Moreover, regard must be had to the two further offences on the s 16BA certificate, each of which involved quantities 75 times the threshold for a marketable quantity, which import an increased element of denunciation and retribution, while noting that they appear to have been an attempt to replace the first consignment which had apparently gone astray (having unbeknownst to the applicant been intercepted).
In respect of Count 2, the quantity of 9.31g pure significantly exceeded the trafficable quantity of 0.5g but was less than 10% of the threshold marketable quantity of 100g. The plea necessarily admits that the applicant had the requisite intention of selling at least some of it. Nonetheless the quantity involved places the offence in the low end of the scale of objective seriousness.
As to subjective considerations, for reasons already explained I do not agree that prior good character entitles the applicant to leniency; but his contrition, the substantial steps he has already undertaken by way of rehabilitation, and his excellent prospects of furthering his already well advanced rehabilitation, do so.
In that context, it is an important consideration that ongoing incarceration is likely to have a negative impact on his rehabilitation. Evidence was adduced on the appeal, on the usual basis in the event that the Court were to proceed to resentence, which established that, by reason of his lack of prior offending and low risk of reoffending, he was unable to access rehabilitative programmes. Records of the Department of Corrective Services evidence that the applicant requested admission to such a programme, and that he was adamant that he needed some support, but that he was ineligible. Moreover, his custody will be rendered more arduous by restrictions associated with the pandemic, in circumstances where he was sentenced in February 2021 before the onset of the Delta variant.
[15]
Endnotes
The full name of the compound is 3,4-Methylenedioxymethamphetamine, also known as ecstasy.
(2010) 205 A Crim R 106 at [72]; [2010] NSWCCA 238.
R v Wat [2017] NSWCCA 62; Jaafar v R [2017] NSWCCA 223.
See above at [19].
See above at [17].
(2012) 226 A Crim R 354; [2012] VSCA 288 at [36]-[38] (Maxwell P, Harper JA and T Forrest AJA).
See the passage set out above at [20].
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.
Dunning v Tasmania [2018] TasCCA 21; Matthews v R [2014] VSCA 291; (2014) 44 VR 280; 246 A Crim R 193; Eriyo v R [2015] NSWCCA 16; Omorogbe v R [2013] NSWCCA 201; (2013) 234 A Crim R 556; R v Faber [2020] SASCFC 49; (2020) 283 A Crim R 219; Onourah v R (2009) 76 NSWLR 1; 197 A Crim R 430; 234 FLR 377; 260 ALR 126; [2009] NSWCCA 238; Woods v R [2020] NSWCCA 219; and El-Ghourani v R [2009] NSWCCA 140; (2009) 195 A Crim R 208.
Omorogbe v R [2013] NSWCCA 201; (2013) 234 A Crim R 556.
R v Faber [2020] SASCFC 49; (2020) 283 A Crim R 219.
Matthews v R [2014] VSCA 291; (2014) 44 VR 280; 246 A Crim R 193
[2018] TasCCA 21.
[2018] TasCCA 21 at [21].
[2015] NSWCCA 16.
[2020] NSWCCA 219.
(2009) 76 NSWLR 1; 197 A Crim R 430; 234 FLR 377; 260 ALR 126; [2009] NSWCCA 238.
[2009] 195 A Crim R 208.
[2021] NSWCCA 308.
[2022] NSWCCA 1.
Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301 at [141]-[146]; Mourtada v R [2021] NSWCCA 211; Putland v R (2014) 218 CLR 174; [2014] HCA 8.
Hili v R; Jones v R (2010) 242 CLR 520; 272 ALR 465; 85 ALJR 195; [2010] HCA 45.
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Decision last updated: 11 May 2022
Police took the applicant to his residence to execute a search warrant. When asked if he wanted to declare anything he said that he had capsules in his possession, and when asked how many he said, "there could be up to 50, it's in a little container". He said that he put MDMA in the capsules for personal use, and denied supplying capsules of MDMA to others. During the search of his bedroom, police discovered a loose panel in the bedhead, concealing a glass jar containing 12.5g of MDMA in a powder crystal form. A second glass jar was also concealed in the bedhead, containing a number of empty gold-coloured capsules. The applicant maintained that the MDMA was for his personal use. Analysis confirmed that the substance in the glass jar was MDMA with a purity of 74.5%, producing 9.3125g pure. This became the subject of Count 2.
During the search, a set of electronic scales was found in a nearby shed. The applicant's iPhone was seized, on which were located a number of chats indicative of the applicant supplying MDMA to friends and mutual acquaintances. Examples set out in the agreed facts satisfied the sentencing judge beyond reasonable doubt that the applicant was supplying MDMA as part of a process whereby he charged people for the MDMA he supplied, and that while he may have been supplying to a group of friends, he would on occasion supply to friends of friends if they were put in contact with him.
On 14 July 2019 - after the consignment referred to in Count 1 was intercepted, but before the applicant received it and was arrested - a second package arrived from the Netherlands via international mail, again addressed to D Bryce at the applicant's post office box. Again, there was no label nor return address to identify the sender. This consignment also was intercepted and examined by an ABF officer, and found to contain approximately 49.1g of MDMA. It was analysed to have a purity of 74.5%, yielding 36.57g pure.
A third package arrived in Australia from the Netherlands on 16 August 2019, this time addressed to Krissy Stratton at the applicant's post office box. Again, no label or return address identified the sender. It was X-rayed and determined to contain 50.1g of MDMA with a purity of 75%, yielding 37.58g pure.
The second and third consignments were transferred to the police who substituted the MDMA with sand and conducted a controlled delivery with the result that they too were collected by the applicant on 2 September 2019 along with the first consignment. When questioned, the applicant said that he had no clue who Krissy Stratton was, and that he had never met such a person. The second and third consignments were the subject of the matters referred to in the s 16BA certificate.
Of Mr Patel, his Honour said:
"I was left with the impression of someone who, whilst having undertaken great steps towards his personal rehabilitation which I will come to in due course, is nonetheless still trying to downplay the extent of his criminal conduct that was involved in this particular series of activities. The position I come to is this; I have no doubt that Mr Patel had a drug problem, I have no doubt he was interested in seeking a cheap source of supply for himself, I have no doubt he was interested in obtaining a cheap source of supply to his friends, I have no doubt some of the drug was for his personal use, some of it was to be sold to his friends. I am unpersuaded that he was not selling what he was selling to his friends simply at a basic level to recover costs; it is impossible for me to quantify the extent of his profit but in any event, I have no doubt that it was being done for his personal benefit, an aspect of which was to find large quantities of good quality, cheap drugs."
His Honour said that while the observations made in R v Nguyen; R v Pham [2] related to the offence of importation, they were directly relevant to the present case, where the offence involved attempting to possess a marketable quantity of unlawfully imported drugs in which he was the sole prime mover. No issue has been taken with his Honour's summary of the relevant principles, nor with their applicability to the current circumstances, as follows:
"1. As a matter of common sense it should be inferred unless there is evidence to the contrary that a person who is importing drugs is doing so for profit. …
2. The difficulty of detecting importation offences and the great social consequences that follow suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case.
3. Involvement at any level in a drug importation offence must necessarily attract a significant sentence otherwise the interests of general deterrence are not served. Likewise in this particular case where the offence is to attempt to possess a marketable quantity of unlawfully imported drugs where Mr Patel is the principal.
4. Finally, the prior good character of a person involved in drug importation is generally to be given less weight as a mitigating factor on sentence. Good character is not an unusual characteristic of persons involved in drug importation."
His Honour referred to the importance of general deterrence in this context, and continued:
"One of the relevant matters here is that Mr Patel expressed his opinion in evidence that the consumption of these kinds of drugs was regarded as normal within his social group in the Byron Bay area. Having been the resident judge in Lismore since the beginning of 2020 but having worked in this particular area from the period 2002 through to 2016 before my appointment I have a particular perspective about the attitude in the Northern Rivers to drug consumption. My impression conforms with Mr Patel's understanding of what were the prevailing attitudes in his social group. Apart from there being the need for a sentence that generally deters others, it might be thought that there is a particular need to send that message out to the local community here in the Northern Rivers. That at least is the message that the parliament wishes to be sent, I infer, by imposing the maximum penalty of twenty-five years imprisonment and it is the consistent message delivered by the Court of Criminal Appeal and it is my job as a sentencing judge to adhere to those principles."
Noting that the applicant had previously been before the courts in relation to driving offences and thus that he did not come before the court with an unblemished record, his Honour nonetheless did not proceed on the basis that his criminal history demonstrated him to be of bad character. His Honour also referred to "an impressive body of evidence" of significant efforts undertaken by the applicant for his own personal rehabilitation, and accepted that he "has made great strides in terms of his personal rehabilitation", much advanced by his time in the residential programme. His Honour also had regard to the impact of returning him to gaol, but was not satisfied that a term of imprisonment would negate his rehabilitation, concluding:
"This is a difficult sentencing exercise principally because of the two major competing considerations each pulling in completely opposite directions, that is, rehabilitation and the weight to be given to it against the well understood need to generally deter others. Looking at the nature and the circumstances of the offence as s 16A(2) of the Crimes Act indicates that I must, I have come to the conclusion that in respect of the counts on the indictment they fall somewhere between the low end of the range of objective seriousness and the mid-range of objective seriousness. It is clear as a result of para (b) that I ought to take into account the matters on the s 16BA form and I take them into account in this way, not because they demonstrate a greater need for personal deterrence in respect of the offender (because I regard specific deterrence as not being of great significance at all in this case) but rather there is a greater requirement for retribution in respect of the offence. Looking further towards s 16A(2), I note the fact of the plea of guilty, the timing of the plea and the fact that that plea has resulted in great savings to the administration of justice and I have already indicated the benefit that will flow to Mr Patel as a result of that cooperation. Paragraph (j) makes explicit reference to the deterrent effect that any sentence or order under consideration may have on other persons.
Mr Patel gave evidence that his circle of friends at the time were significantly impacted upon by his own arrest and it seems that it has served as a wakeup call to those particular people. The submission was made that in effect, general deterrence has already had a role to play and that it has impacted upon those who were otherwise Mr Patel's friends and customers. That is obviously the case however there is a broader community to be considered, a broader group of people who need to be deterred and that is not limited to the ten or fifteen friends that Mr Patel was trafficking these drugs to.
The prospects of rehabilitation as I have indicated are very good and as a matter of fact, it is my opinion that it is unlikely that we will see Mr Patel before the Courts again. I have had regard to his character, antecedents, cultural background, age et cetera as set out in para (n) [sic].
One of the other matters that needs to be considered is this; Mr Patel was engaged in serious criminal activity. It is serious criminal activity that the legislature has imposed significant penalties for. The Courts have resolutely stood against drug trafficking in any of its myriad ways in which that might manifest itself. Mr Patel needs to be adequately punished for offending against society in the way that he did."
That, his Honour concluded, required a further term of imprisonment.
To his Honour's mind, with respect entirely reasonably, that reinforced the requirement for general deterrence, particularly in the local context. It provided a sufficient basis for the conclusion that there was a prevalent attitude to drug use in the region which required deterrence. Although it seems to me that his Honour did no more than use his local experience to confirm the effect of the evidence adduced by the applicant in that respect, there is no reason why a magistrate or judge who sits regularly in a particular locality or region cannot draw on general observations derived from that experience to inform decision-making in this way. But in any event, founded on the applicant's own evidence, his Honour was entitled to conclude that there was an accentuated need for general deterrence because of the prevalence of drug offending in the region. This ground fails.
The source of the reference to age 24 in his Honour's remarks is obscure; his Honour may have misread Dr Lennings' report, paragraph 11 of which identified age 24 as when the applicant commenced using cocaine, as follows:
"Dominic told me he began to use MDMA also around the age of 16, starting with going to parties but was more recreational in his use. He says at the time it was cheap and easy to come by, but at some point he began using cocaine, he thinks about age 24. He says he made the move to cocaine because he found the come down off MDMA getting heavy, and impacting on him working. He found the cocaine high more pleasant and it impacted him less, for instance MDMA made him feel hung-over the next day but cocaine did not. He said in his community cocaine had become a popular social drug and he progressed to its use as part of following the trend."
However, as it seems to me, his Honour's point was that, contrary to the submission made by the applicant that his addiction should be regarded as a mitigating factor, his drug use was an adult lifestyle choice, and not the result of a childhood addiction. That does not deny that it had become a dependency, but it does detract from the mitigating effect that an addiction acquired in an underprivileged childhood might have had. Dr Lennings noted that the applicant reported "a life not marked by trauma or abuse" and "thought his childhood was happy and said that he is typically a very happy person". His Honour was not unaware that he had "started using cannabis in his early to mid-teens". Dr Lennings' report was that his early use of MDMA was "recreational", and that "when he did emerge into his adult years he was immature and immersed himself in a party scene of drugs, and social media and became dependent on both". That is consistent with his Honour's finding that it was an adult lifestyle choice. Moreover, there was evidence that, when he travelled with his father, the applicant had been able to abstain for protracted periods. Indeed, in cross-examination, the applicant conceded:
Q. So by at least four years before you committed these offences you had made a decision as a grown up to recommence taking drugs, that's correct?
A. Correct, I was aware.
The evidence supported his Honour's conclusion that insofar as the offences were attributable to the applicant's use of MDMA and cocaine, such use was associated with going to parties and other social gatherings, was influenced by what was socially acceptable and popular, and was essentially a lifestyle choice made as an adult. This ground fails.
In his affidavit, the applicant deposed (emphasis added):
"(h) … since I was released from custody and completed the rehab programme, the relationship with my mum is the best it has ever been. I realise that actions speak louder than words. I feel I am not the same person I used to be. For example, I used to live in "reaction", with a very short fuse; this had a lot to do with the effects of my drug use. Now I live in "response". I just don't react to stuff and I am much more understanding of my mum, and we are much more of a team. I continue to feel so bad about putting her through this, and take full responsibility for the added stress on her health.
(i) … my arrest had a positive impact on my general circle of friends and others in the community who know me. It hit home that the way we were living and the things we were doing through drug use involved serious criminal behaviour that had many negative effects on our lives and relationships. In particular, it is seeing the way that a life immersed in drug use affects myself, those close to me and others that makes me so very sorry for what I have done, and glad that I have had the opportunity to acquire this insight and share it with others. Living the changes in me has been the biggest shift; I notice that I am leading by example and people are asking questions and implementing the recovery measures that I have put into effect. This event has shaken us all into becoming adults. It is not just limited to my close friends; I grew up in a community where I am well known. A lot of people have been asking questions and making changes."
In his oral evidence, he said:
"Q. Well what do you think about your conduct now?
A. I think it was probably the single stupidest decision in my life to rationalise it in a way like that.
Q. Why?
A. After being through rehab and understanding how much it affects myself, my family, my friends and the community I have a completely different outlook on it."
Dr Lennings recorded that the applicant "said he found it difficult to say 'sorry' to his mum and to his friends as to what he put them through, with them having to support him through the justice process. He felt low and guilty about how much he was hurting his mother". He also reported:
"He tells me that a lot of his friends were shocked by what happened to him and that sobered many of them up. He still has some friends who continue to use cannabis, but he says they push nothing on to him, and he is able to manage well."
There was other evidence of the applicant's remorse. The applicant's mother deposed:
"Since being in rehab, I have found Dom to be much more open, caring and attentive. Our relationship is the best it has ever been. I am proud of the manner in which Dom has taken full responsibility for his actions, and not blaming anyone else. He has expressed his remorse for what he has done many times, and discussed the impact that his drug lifestyle had on me, his friends and himself."
In addition, she said:
"I am also aware of the impact that Dominic's arrest and his change in behaviour through rehabilitation has had on friends and those who know him in the community. I know what has happened to Dominic was a wake-up call for his group of friends and people in the community have gone out of their way to let me know how remarkable the changes are that they can see and experience in Dominic now."
Mr Zahar Martin provided a reference which included the following:
"When Dominic committed the offences, he spoke to me about the regret he had for not following me straight into university straight after completing his HSC. He expressed the regret he had, the bad influences and addiction that led to his arrest. Since going through rehab Dominic has demonstrated remorse for his actions and has focussed on turning his life around".
Mr Cross stated:
"Since engaging and sincerely participating in rehabilitation programmes, Dominic has demonstrated genuine remorse for his actions and has expressed a deep understanding for the consequences not only affecting himself but also those closest with him".
Mr Coy stated:
"I have noticed some very positive changes in Dominic since his time in addiction rehabilitation, although Dom has always been a very well presented, hard-working, enthusiastic young man, he now seems much healthier and extremely focussed on making a better future for himself. Dominic has spoken with me about the remorse he has surrounding his actions and has shown great insight into the impact it has had not only on himself but our community as well as his family and friends".
The applicant's written submissions to the sentencing judge specifically referred to s 16A(2)(f), asserting that he had taken responsibility for his offending and engaged in a substantial period of rehabilitation to address the underlying causes of his offending, and that his impressive steps towards rehabilitation demonstrated real contrition. Reference was also made to his guilty plea, not only for its utilitarian value but also as a manifestation of remorse. The Crown submissions also specifically referred to s 16A(2)(f) and contrition, accepting that contrition was demonstrated by the guilty plea, and that he had expressed contrition since his arrest, though arguing that it should be viewed in light of his criminal conduct ceasing only because of his arrest.
In this Court, the respondent Crown submitted that the applicant's expressions of remorse were tempered by evidence that he had not told his employer about the charges, his contention that he had only ever supplied drugs to close friends and only to make the use of drugs cheaper and not to make money, and his inclination to down-play the extent to which he sold drugs to his friends and others. However, remorse does not require the abandonment of legitimate attempts to point to mitigating factors; nor does it require self-flagellation in every domain. The most powerful evidence of the applicant's contrition is not his expressions of remorse which after all are mere words, but the steps he has actually taken, and the influence those steps have had on others. In this case, the best way he could atone or make amends was to turn his back on his previous lifestyle, and to influence his peers to do so as well. His assumption of responsibility for his conduct, his guilty pleas, and his engagement in an extensive process of rehabilitation, are strong evidence of genuine remorse. But most significant is the impact his response has had on his peers, which the evidence indicates has been significant in serving as a "wake-up call". This was, therefore, a case in which remorse was well-established.
I accept that the absence of specific reference to contrition in his Honour's remarks does not of itself show that it was not taken into account. However, in this case it was a significant matter, which was specifically addressed in the submissions of both parties, yet his Honour - while broadly canvassing the list of relevant factors referred to in s 16A(2) - did not refer to it. [7] Moreover, although his Honour allowed a discount of 25% for the pleas of guilty, he did not state whether that was for anything other than its utilitarian value, and his Honour's remarks suggest that it reflected no more than the applicant's "co-operation". In those circumstances, the proper conclusion is that contrition was not duly considered. If in stating that while having undertaken great steps towards rehabilitation the applicant was "nonetheless still trying to downplay the extent of his criminal conduct" his Honour was finding that he had demonstrated only limited remorse or contrition so that it was not a significant consideration, such a conclusion would in my view have been contrary to the evidence.
In my view, therefore, Ground 5 succeeds.
At first instance, the Crown provided a schedule of eight comparative cases, to which reference was also made in the appeal. Those eight cases, [9] all of them involving pleas of guilty, cover a range of offences under Criminal Code, s 307 (including s 307.2, s 307.4 and s 307.6) involving importations of marketable quantities of various border-controlled drugs, by means not dissimilar to those employed by the applicant. The aggregate sentences imposed ranged from four years to nine years, and the non-parole periods from sixteen months (which was said on appeal to be manifestly inadequate) to six years.
The only case which resulted in a sentence of less than about four years and three months was Omorogbe, [10] which involved a single offence contrary to s 307.6 of attempting to possess a marketable quantity of 106g cocaine in a package sent from China to a private mailbox at a newsagency. The judge characterised the role of the offender as "collector" and was not satisfied that his purpose was other than to collect the drug for persons unknown, for which he would receive a payment. He had no prior convictions, no history of drug use, and expressed contrition. On appeal, it was held that the judge erred in not treating the offence as an isolated incident, and a sentence of four years imprisonment with a non-parole period of two years and six months was substituted. The quantity was relatively smaller than in the present case (a marketable quantity of cocaine being 2g, as opposed to 0.5g for MDMA).
In the only other two other cases in which the sentence was less than six years, effective sentences of four years and three months approximately were imposed. Faber [11] involved an importation of 390g MDMA, and possession of 45g ketamine. The 22-year-old offender had no prior history of drug offending, and his only antecedent was a driving offence. His intention was to provide some of the drug to an associate and keep the remainder for himself. Text messages on his phone implicated him in the sale of illicit drugs in a minor way. He had used drugs in his teenage years to cope with an unhappy childhood, and had engaged successfully in rehabilitation since his arrest. On a Crown appeal, a total effective sentence of just under 4 years and 3 months was held to be at the lower end of the range but not manifestly inadequate, and while the non-parole period of sixteen months was manifestly inadequate the Court declined to exercise the residual discretion to interfere. This case involved a greater quantity of MDMA, but a somewhat stronger subjective case (in the sense that the offender's childhood experience to some extent mitigated his moral culpability), than the present case.
In Matthews, [12] the offender pleaded guilty to an offence of importing a marketable quantity of a border-controlled drug (135g MDMA, 6g amphetamine and 4g cocaine) contrary to s 307.2(1), and of trafficking in a controlled drug contrary to Criminal Code, s 302.4(1) (20g MDMA, 5g cocaine, 1g methamphetamine and 1g amphetamine). He imported 21 packages containing the drugs which he had purchased on an internet site using virtual currency, some for personal consumption and some for sale. Aged 32, he had no prior convictions, pleaded guilty at the first opportunity and demonstrated genuine remorse. There was evidence that treatment had resulted in his becoming completely abstinent. His moral culpability was found to be somewhat reduced by reason of a persistent depressive disorder and his drug use having increased following the deaths of his father and brother. On appeal it was held that the total effective sentence of four years and three months with a non-parole period of two years and six months was not manifestly excessive. The quantities involved were broadly comparable to the present case, but there were many more individual importations; on the other hand, the offender's subjective case, involving a modest reduction in moral culpability, and no antecedents whatsoever, was stronger.
The other cases referred to by the Crown involved sentences of six years or more. In Dunning v Tasmania, [13] the offender pleaded guilty to three offences of attempting to import a marketable quantity of a border-controlled drug (398g amphetamine, 9g MDMA and 3g cocaine) contrary to ss 307.2(1) and 11.1(1), and one count of trafficking in a controlled substance contrary to s 12(1) of the Misuse of Drugs Act 2001 (Tas). The drugs were purchased on the internet using computer software to mask the offender's IP address and sent from the Netherlands via international post, declared as "car parts" addressed to the offender, for the purpose of resale. It appeared that the offender was selling MDMA and amphetamine in relatively small quantities to individual end users. On the Commonwealth offences he was sentenced to six years imprisonment with a non-parole period of three years and six months, and on the State offence to a term of 18 months imprisonment concurrent with the Commonwealth offences. On appeal, the sentence was held to be not manifestly excessive, the Court observing "the non-parole period set on the Commonwealth sentence could have been less but it cannot be said to have rendered the overall sentence manifestly excessive. [14]
In Enriyo, [15] a sentence of six years and ten months imprisonment with a non-parole period of four years and ten months was held to be not manifestly excessive for an attempt to possess 130g of heroin contrary to s 307.1 and possessing 118g of heroin contrary to s 307.9. The first count arose from a consignment by an international package delivery service from Tanzania. The offender, who had no prior convictions, was characterised as a trusted middleman in an organised distribution chain, with a financial motivation. He had limited insight into his offending. In Woods, [16] an aggregate sentence of six years imprisonment with a non-parole period of four years was substituted on appeal, for two offences contrary to s 307.2 of importing (1) 25g MDMA and 14g cocaine, and (2) 257g MDMA, involving a total of seven importations via the "dark net", to post office boxes. The offender was 20 years of age, with no criminal antecedents and of general prior good character. He had a substance use disorder (MDMA) in remission and accepted full responsibility but had limited insight into the serious nature of his offending. The importations were to support his habit, to maintain his supply of cocaine, and to supplement the family income.
In Onourah, [17] a sentence of seven years and ten months with a non-parole period of four years and ten months was upheld on appeal for a single offence of attempting to possess 107g of cocaine sent to the offender from Venezuela, notwithstanding his youth, prior good character and lack of prior convictions. Finally, in El-Ghourani, [18] a sentence of nine years imprisonment with a non-parole period of six years was upheld on appeal for a single offence of attempting to possess 181g of heroin contrary to s 307.6. The offender was involved in a drug smuggling syndicate and played a central role in the transaction. He was found to have acted as a principal in Australia, and to have a high degree of culpability.
On appeal, the applicant referred to two additional cases, both decisions of this Court, which had not been referred to below. In Spinks v Director of Public Prosecutions (Cth), [19] the offender pleaded guilty to a single offence contrary to s 307.2 of importing a marketable quantity of a border-controlled drug, namely 124.3g of MDMA of 75% purity giving a quantity of 90.74g pure. The method of importation was very similar to that employed by the applicant. While an occasional casual sale to a social acquaintance was likely anticipated, the importation was not for the purpose of profit by resale but predominately for personal consumption. The offender was aged 18 at the time of the offence, and engaged in a similar lifestyle associated with drug use as the applicant. He had no prior criminal convictions and was of good character with excellent prospects of rehabilitation, and had taken steps towards personal rehabilitation. His association with drugs though a matter of choice had commenced during his school years when he had suffered social anxiety and had been the subject of significant levels of bullying, such that his youth and immaturity played a role in the offence. He was sentenced (by McLennan DCJ) to three years imprisonment, to be released on recognisance after eighteen months. An appeal succeeded on grounds of failure to treat evidence of limited expectation of sale of any of the imported drugs as mitigating the objective seriousness of the offence, and failing to give proper weight to the youthfulness and immaturity of the offender at the time of the offending and when he began taking drugs, which led to his substance abuse disorder. With a 25% discount for the plea of guilty, he was resentenced to imprisonment for two years and three months, to be released on recognisance after fifteen months.
In Robson-Bolan v R, [20] the offender was sentenced, for an offence of supplying 182g of cocaine, to a fixed term of imprisonment of one year, and for an offence of attempting to import a marketable quantity of cocaine (300g) to a further two and a half years, to be released on recognisance after eighteen months. Two additional offences of dealing with proceeds of crime and being in possession of cannabis were taken into account pursuant to s 16BA. The attempt to import cocaine from an overseas supplier was described as "unsophisticated", being completed over minutes with the press of a few buttons on the 'dark web'. He was 21 years of age, with no previous convictions apart from two minor driving offences, and pleaded guilty at the earliest opportunity, receiving a 25% discount. He was found to be contrite and remorseful and of prior good character. He had a difficult and distressing personal history, including difficulties concentrating at school and self-harming behaviours, with a major depressive illness during his adolescence. He had started using cannabis by the age of 11, ecstasy at 15 or 16, and cocaine by the time he was 18. On appeal, it was observed that on the one hand the quantities of drugs were such that the sentencing court was required to give significant weight to both personal and general deterrence, but on the other his personal case, experiences on remand, remorse and good prospects of rehabilitation demanded a significant degree of leniency. The offending was described as "at the low end range" having regard to the lack of sophistication. Upon resentencing, significance was given to the offender's personal circumstances and "his awful experiences in custody", and the impact of the pandemic on his experience in custody. He was resentenced to an aggregate sentence of two years and nine months, with a minimum period of two years in custody.
I have had regard to the comparable cases referred to by the Crown, and the two cases referred to by the applicant. It can fairly be said that the last five of the cases mentioned by the Crown, involving sentences of six years or more, generally had features which made them more serious than the present case - greater quantities of drugs, multiple importations, or greater moral culpability arising from the role of the offender and the purpose of the importation, and less powerful subjective considerations. However, the first three - involving sentences of between four years and four years and three months - are broadly comparable. When one has regard to the objective and subjective considerations, the present case does not have the same constellation and extent of mitigating factors as were present in Spinx and Robson-Bolan. In the present case, it is necessary to bear in mind that there were two offences, and a further two to be taken into account pursuant to s 16BA; that while the applicant is not sentenced on the basis that he was of bad character, the nature of the offences, his persistence in them, and his prior driving record (which was not only for minor offences) disentitled him to leniency on the ground of prior good character; and that this was not a case in which his moral culpability was mitigated by an addiction arising from childhood adversity. The nature and gravity of the offence was such that there must be a significant period of full-time custody, notwithstanding its potential adverse impact on the progress of his rehabilitation.
Like the sentencing judge, I take into account the particular need for deterrence identified by his Honour in the Northern Rivers. However, that need is somewhat mitigated by the circumstance that its objects have to some extent already been served, not only by the time spent by the applicant in custody and quasi-custody and his substantial rehabilitation, but also as revealed by the evidence that what had happened to him was a "wake up call for his group of friends" (as his mother deposed), and that "a lot of his friends were shocked by what happened to him and that sobered many of them up" (as Dr Lennings reported) - sentiments which are also reflected in a number of the character references.
As has been noted, the sentencing judge imposed an aggregate sentence. Crimes Act 1914 (Cth), s 19(2), provides that where a person is convicted of two or more federal offences at the same sitting and is sentenced to imprisonment for more than one of them, the court must direct when each sentence commences, but so that no sentence commences later than the end of the sentences the commencement of which has already been fixed or of the last to end of those sentences. Section 19AB provides that a court must fix a single non-parole period in respect of a Federal sentence or Federal sentences if a person is convicted of such an offence or two or more such offences at the same sitting and the sentences in the aggregate exceed three years.
I am conscious that it has been held that Judiciary Act (Cth), s 68 "picks up" Sentencing Act (NSW), s 53, so as to permit the imposition of an aggregate sentence when sentencing for multiple Commonwealth offences. [21] The cases which so hold do not refer to, nor explain how this is to be reconciled with, s 19(2). In Mourtada v R, Basten JA said: [22]
"Indeed, no point was taken as to the powers of the sentencing judge to fix an aggregate sentence in respect of two Commonwealth offences. Although there have been significant changes to Pt 1B of the Crimes Act since 2003, it is assumed that the reasoning in Putland v R [(2004) 218 CLR 174; [2004] HCA 8] continues to govern that issue [See, eg, Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301 at [141]-[146] (Price J)]."
In the same case, Adamson J said: [23]
"I would prefer not to express a view as to the wider topic of the extent to which State laws are picked up when State Courts are imposing sentences for Federal offences since, as Basten JA has noted, specific provision is made for intensive correction orders (ICOs) in s 20AB(1AA)(a)(ix) of the Crimes Act 1914 (Cth)."
Although the authorities to which I have referred suggest that an aggregate sentence is permissible, I am in those circumstances more comfortable proceeding on the basis prescribed by s 19(2). In any event, it has not been suggested that s 68 "picks up" the provisions of the Sentencing Act in respect of the fixing of non-parole periods. That is perhaps unsurprising, given that s 19AB, s 19AD, s 19AF, and in particular s 19AG - which makes provision for "minimum non-parole offences", requiring the non-parole period to be not less than 75% of the head sentence in the case of certain offences, in which it is implicit that that constraint does not apply to other offences - contain provisions indicative of an intention that they operate rather than any State law. The present case does not concern any "minimum non-parole offence". In respect of Commonwealth offences, a sentencing judge should not begin from some norm or assumed starting point, but determine the minimum term to be served in accordance with part 1B, applying the principles identified in Power v R, [24] Deakin v R, [25] and Bugmy v R, [26] so that the Court must set a minimum time that justice requires the person serve, having regard to all the circumstances of the offence. [27]
For the offence in Count 1 (and taking into account the s 16BA matters) I would impose a sentence of imprisonment for three years and six months. For the offence in Count 2, I would impose a sentence of imprisonment for fifteen months. Given the contemporaneity of the offences and their apparent relationship (the judge observed the consistency in the purity of the various quantities), a substantial degree of concurrency is appropriate. I would structure the sentences to produce a total effective term of four years.
In fixing the applicable non-parole period, regard should be had to the circumstance that this is the applicant's first custodial sentence - and that, as the sentencing judge found, it is likely to be his last - and in particular to considerations of rehabilitation, including the considerable progress made by the applicant in that respect to date, and that it will be better supported under supervision in the community than in custody where he is unable to access appropriate programmes (as evidenced in the attachments to his "usual basis" affidavit and not disputed by the Crown). Having regard to those considerations, in my judgment the appropriate non-parole period is two years.
For the reasons given by the sentencing judge, the sentence should be backdated to 8 July 2020 on account of the applicant's pre-sentence periods of custody and quasi-custody.
In my opinion, therefore, the following orders should be made:
1. Grant leave to appeal;
2. Allow the appeal;
3. Quash the sentence imposed in the District Court on 8 March 2021 and in lieu thereof sentence the applicant as follows:
1. On Count 1, to a term of imprisonment of three years and six months commencing on 8 July 2020 and expiring on 7 January 2024;
2. On Count 2, to a term of imprisonment of fifteen months commencing on 8 January 2023 and expiring on 7 April 2024;
3. Pursuant to Crimes Act 1914 (Cth) s 19AB(2), fix a non-parole period of two years dating from 8 July 2020, so that he is eligible for release to parole on 7 July 2022.
N ADAMS J: I have had the advantage of reading the draft judgment of Brereton JA. I agree with the orders proposed by his Honour for the reasons provided. I wish to provide some additional reasons on two discrete issues: as to why I agree with Brereton JA that ground 5 should be upheld and as to whether the sentencing judge had the power to impose an aggregate sentence on the offender given he was being sentenced for Commonwealth offences.
Section 16A(2)(f) of the Crimes Act 1914 (Cth) provides that the sentencing court must take into account (if relevant and known to the court) the degree to which the person has shown contrition for the offence by either (i) taking action to make reparation for any injury, loss or damage resulting from the offence; or (ii) "in any other manner". It was common ground that both the applicant and the Crown specifically addressed factors relevant to s 16A(2)(f) before the sentencing judge and that the applicant adduced and relied upon the evidence summarised by Brereton JA above at [42]-[49] to establish contrition. Despite this, the sentencing judge made no finding as to whether or not he found the applicant to be remorseful nor whether it was a relevant factor in the sentence imposed.
The Crown conceded that the sentencing judge did not use the words "contrition" or "remorse" in the course of his remarks on sentence nor expressly refer to s 16A(2)(f) but relied upon his Honour's observation that in his view, the applicant tried to "downplay" the extent of his criminal conduct when giving evidence (see above at [17]). I am not satisfied that this could be said to be a finding in relation to the applicant's contrition in light of the evidence of contrition put to the sentencing judge.
In considering whether this ground should be upheld I have had regard to the fact that his Honour delivered his reasons ex tempore. I have also had regard to the fact that no doubt there is pressure on District Court judges to deliver reasons ex tempore given the substantial number of matters listed before them in busy regional courts such as Lismore. But even allowing for those factors, I am satisfied, for the reasons provided by Brereton JA, that the sentencing judge overlooked a mandatory consideration in sentencing the applicant and it is necessary for this Court to intervene to re-sentence him.
As for the doubt expressed by Brereton JA at [71]-[74] as to whether s 68(1) of the Judiciary Act 1903 (Cth) picks up and applies s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) in this context, I note that neither the Crown nor the respondent made any submission to the contrary and the hearing proceeded on the basis that it is a permissible approach. As I observed in Waterstone v R [2020] NSWCCA 117 at [123], the position of the Commonwealth DPP is that this Court can do so based on the decision in Putland v The Queen (2014) 218 CLR 174; [2014] HCA 8.
Beech-Jones J (as his Honour then was), with whom Bathurst CJ and I agreed, recently observed the following in Huynh v R [2021] NSWCCA 148 regarding the meaning of the words "so far as they are applicable" in s 68(1) (at [39]):
"In relation to the exercise of powers conferred by State law, although s 68(1) and s 79(1) of the Judiciary Act 1903 contain different phrases concerning what State laws are picked up and applied in that s 68(1) refers to such laws 'so far as they are applicable' and s 79 refers to such laws as 'are applicable' but 'except as otherwise provided', in Putland at [7], it was observed that there exists 'little, if any, functional difference' between these two forms of qualification."
It seems to me that the question of whether s 68(1) of the Judiciary Act picks up and applies s 53A of the Crimes (Sentencing Procedure) Act turns on whether the option of imposing an aggregate sentence is otherwise provided for in the Crimes Act 1914. Although the Crimes Act 1914 does not expressly provide for a scheme of aggregate sentencing, s 19AB provides that a court must fix a single non-parole period if, inter alia, an offender is being sentenced for two or more Federal offences.
As RA Hulme J explained in JM v R [2014] NSWCCA 297 at 39, s 53A was enacted for the specific purpose of ameliorating the difficulties of applying the decision in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 in sentencing for multiple offences. It was enacted to obviate the need to engage in the "laborious and sometimes complicated task of creating a 'cascading or stairway' sentencing structure" when the principle of totality requires some accumulation of sentences. Although s 19AB of the Crimes Act 1914 does not alleviate the sentencing judge of the task of complying with Pearce v The Queen by imposing separate sentences for each offence, it does alleviate the sentencing judge of the task of fixing non-parole periods on each individual offence which, albeit to a lesser extent than s 53A, does make the task of structuring multiple sentences easier. In that sense, and contrary to the approach I took in Waterstone v R, it is at least arguable that the question arises as to whether a process analogous to s 53A has in fact been provided for in s 19AB of the Crimes Act 1914. Given that Brereton JA does not propose that an aggregate sentence be imposed in this matter in re-sentencing the applicant, it is unnecessary to say anything further on this question.