Grounds 1 and 2 - Grounds Asserting Errors in Characterisation or Identification of Objective Seriousness of Drug Supply Offences Which Attracted Standard Non-Parole Periods (Counts 1-3)
96It is convenient to deal with Grounds 1 and 2 together, as those grounds concern the characterisation or proper identification of the objective seriousness of the drug supply offences which carried standard non-parole periods.
Submissions for the Applicant
97Mr Boulten SC, for the Applicant, submitted that, in finding that the first count lay in the "upper range of objective seriousness of offences of that type" , the quantity of the drug was treated as the prime, if not the only, consideration grounding the finding. He submitted that a similar approach had been taken with respect to the third count which was found objectively to be "above the mid range" .
98Mr Boulten SC submitted that reliance on quantity of a drug as the prime factor in fixing sentence involved error, relying upon Wong v The Queen [2001] HCA 64; 207 CLR 584 at 609 [70] and Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 373 [33].
99Senior counsel for the Applicant developed this submission, contending that error was demonstrated by the sentencing Judge's treatment (in ROS [2], [31] at [89] and [93] above) of the decisions in R v Kalache [2000] NSWCCA 2; 111 A Crim R 152 and R v Walsh and Little [2005] NSWSC 125. He submitted that both R v Kalache and R v Walsh and Little involved a significantly higher level of criminality than the case of the Applicant. Mr Kalache was found to be the principal and co-ordinator of a drug supply operation (unlike the Applicant) and his offences involved quantities which, in total, were more than double those involved in the Applicant's case. Further, Mr Kalache was not, at any relevant time, a user of drugs and he had previous convictions for supplying a prohibited drug and was, as well, in breach of parole.
100It was submitted that the offences of Mr Walsh involved larger quantities of drugs and also offences involving weapons and the destruction of property, so that the circumstances of his case were different from those of the Applicant.
101It was observed that the sentencing Judge had found (in ROS [26] at [91] above) that the Applicant was a drug dealer, and not simply a drug minder, and that no finding had been made that he was a principal or higher ranking operator in a drug-dealing enterprise.
102It was submitted that, in any event, the evidence could not justify a finding that the Applicant was a higher-ranking operator. No evidence of wealth commensurate with someone enjoying the proceeds of large-scale drug dealing was presented. The sentencing Judge accepted the Applicant's indebtedness, together with the finding that dealing was his job, rather than him being a principal of a dealing operation. It was submitted that this suggested that the Applicant was not high in the hierarchy of suppliers, notwithstanding the amount of drugs he held on his premises.
103Mr Boulten SC submitted that it was not apparent in the remarks on sentence as to what his Honour considered a mid-range offence to be. Senior counsel contended that any mid-range large commercial quantity supply offence will involve a large amount of drugs, and that there is no upper limit on the amount of drugs which can constitute a large commercial quantity. Accordingly, he submitted that the utility in assessing the objective seriousness of the offence in terms of multiples of the threshold of the offence was limited.
104Mr Boulten SC submitted that the usual mid-range large commercial quantity supply will involve some evidence of involvement in a syndicate, or the possession of tools to process drugs, or some other like matter simply by virtue of the amounts involved. It was only at the lower end of objective seriousness (for example, couriers), where such evidence would not be present.
105Putting aside the quantities, Mr Boulten SC submitted that there was little that takes the Applicant's circumstances beyond the middle range. He was found to be a drug dealer, but this was an inevitable finding. He submitted that there must be further identified factors to establish a finding above that range and that quantity alone, particularly when considering offences which necessarily involve large quantities, cannot be enough to raise an offence above the mid-range.
106With respect to the second count, Mr Boulten SC submitted that his Honour had fallen into error in finding that the offence was "at the mid range" without revealing any analysis for this conclusion.
107When regard was had to the Applicant's role, the quantities of drugs and the purity of the drugs, Mr Boulten SC submitted that the sentencing Judge had erroneously overstated the objective seriousness of each of the offences contained in the first, second and third counts.
108In support of the second ground of appeal, Mr Boulten SC submitted that his Honour had erred in finding that the offence contained in the third count lay objectively "above the mid range" , without specifying where in the range the offence fell. Reliance was placed upon R v Sellars [2010] NSWCCA 133 at [11]. In any event, Mr Boulten SC submitted that this offence did not fall above the mid-range at all or, alternatively, the offence was not high in the range of objective seriousness.
Crown Submissions
109With respect to the first ground of appeal, the Crown emphasised the caution adopted by this Court when asked to overturn a discretionary finding characterising the degree of objective seriousness of an offence: R Mulato [2006] NSWCCA 282 at [37].
110The Crown submitted that it was pertinent to observe that no submission had been made on behalf of the Applicant in the District Court concerning the objective seriousness of these offences.
111The Crown accepted that an offender's role in a drug syndicate, and the level of criminality involved, is more important in determining the sentence than the quantity of drugs involved, the latter being neither the sole or even principal determinant: R v MacDonnell [2002] NSWCCA 34; 128 A Crim R 44 at 50 [33]; Melikian v R [2008] NSWCCA 156 at [42]. However, the quantity of the drug remains material, given that the size of the profit and the harm inflicted are likely to be proportional to the weight of the drug: R v Stanbouli [2003] NSWCCA 355; 141 A Crim R 531 at 550 [102].
112The Crown submitted as well, that while a non-principal will normally be dealt with as being less objectively culpable than a principal in a drug supply offence, it does not follow that a non-principal will receive, as of course, a dramatically more lenient sentence: R v Giammaria [2006] NSWCCA 63 at [15].
113The Crown submitted that his Honour's findings that the first count was in the upper range, the second count at the mid-range and the third count above the mid-range were well open to the sentencing Judge.
114The Crown contended that the following features of the Applicant's conduct were common to each count, and supported a finding of at least mid-range objective seriousness for each offence.
115Firstly, the Applicant was engaged in the regular and reliable supply of drugs. This was a sophisticated operation where the Applicant could access virtually any type of drug, in any quantity, at very short notice.
116Secondly, the Applicant was dealing for financial gain. The sentencing Judge expressly rejected the Applicant's suggestion that he was supplying drugs only to pay off his debt. The Crown submitted that, when the insignificant size of the debt is compared to the scale of the dealing, the Applicant's evidence seems ludicrous.
117Thirdly, the Applicant had a wide range of drugs for sale, and the greater the range of drugs a dealer offers for sale, the greater the criminality: R v Fisher [2008] NSWCCA 102 at [31].
118Fourthly, the Applicant was involved in the cutting, bulking and packaging of the drugs and the negotiation of prices. The presence of the hydraulic press indicated that the Applicant prepared the drugs for sale.
119Fifthly, the Applicant was more than a mere warehouser or even salesman. He negotiated discounts for bulk sales and was a proactive participant in organising sales. Given the huge quantity of drugs which he had, and the ease and speed with which he could obtain them, the Crown contended that the Applicant was very close to the principals in the syndicate.
120In addition to the features of the offending common to all three supply charges, the Crown submitted that the feature of the first count that takes it to the upper range of objective criminality is the quantity of the drugs (17 times the large commercial quantity of MDMA), with the quantity and range of drugs made available for supply being clearly relevant to the assessment of objective criminality.
121The Crown submitted that the features of the third count which took it above the mid-range of objective seriousness are the amount of drugs involved (two-and-a-half times the large commercial quantity for methylamphetamine) and the number of separate instances of supply that constitute this offence: Kwon v R [2011] NSWCCA 58 at [32].
122Further, the Crown submitted that the fact that most of the drugs were seized by police before being distributed did not reduce the Applicant's objective criminality: R v Gao and Lim [2007] NSWCCA 343 at [18]ff; Kwon v R at [34]-[35].
123The Crown did not make any separate submission concerning the Applicant's argument that error was disclosed in the conclusion, without analysis, that the second count lay at the mid-range.
124The Crown submitted that the sentencing Judge's findings on objective seriousness were open to him and should not be disturbed.
Decision Concerning Grounds 1 and 2
125In approaching these grounds of appeal, it is necessary to read fairly the entirety of his Honour's remarks on sentence. A practical approach should be taken by this Court in assessing remarks on sentence, with an emphasis upon substance (and the resulting sentence) and not just matters of form: Corby v R [2010] NSWCCA 146 at [51]. An assessment of objective seriousness is appropriate, although this does not require an elaborate verbal formula: Corby v R at [50].
126In addition, it is necessary to keep in mind that the characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing Judge in performing the task of finding facts, and drawing inferences from those facts, so that this Court is very slow to determine such matters for itself or to set aside the judgment made by a first-instance Judge exercising a broadly based discretion: R v Mulato at [37]. The question is whether the particular characterisation of the objective seriousness of an offence was open to the sentencing Judge.
127The DMT Act adopts a type of quantity-based penalty regime by fixing quantities (including commercial and large commercial quantities) of certain drugs, distinguishing between those drugs in setting such quantities, but otherwise making no distinction between them in terms of maximum penalties. The position is broadly analogous to that taken with importation and possession offences contained in the Criminal Code 1995 (Cth) : Adams v The Queen [2008] HCA 15, 234 CLR 143 at 146 [2].
128However, there are at least two significant distinguishing features as between the Commonwealth and New South Wales statutory schemes. Firstly, the New South Wales statutory scheme incorporates standard non-parole periods for offences of supplying a commercial or large commercial quantity of a prohibited drug. There is no corresponding provision in Commonwealth law.
129Secondly, Division 314 of the Criminal Code 1995 (Cth) lists the applicable trafficable, marketable and commercial quantities for each type of drug, with the specified quantities based on the pure amount of the drug. However, s.4 DMT Act provides that "a reference to a prohibited drug includes a reference to any preparation, admixture, extract or other substance containing any proportion of the prohibited drug" . Accordingly, under New South Wales law, it is the total quantity of the substance (containing any proportion of a prohibited drug) which is pertinent for the purpose of classification of the offence. Nevertheless, purity of the drug is one of the factors to be considered when determining where an offence falls in the range of objective seriousness: R v Blair [2005] NSWCCA 78; 152 A Crim R 462 at 472 [56].
130In relation to Commonwealth drug importation offences, it has been said that, although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported: Wong v The Queen at 607-608 [64]; R v Lee [2007] NSWCCA 234 at [23]-[24].
131Further, the statements by the High Court in Wong v The Queen do not suggest that, in an appropriate case, the amount of the drug involved in an importation is not a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type. In many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved, where otherwise the circumstances of the importation were the same or very similar: R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80 at 102 [110]; R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R at 237 72.
132Although the propositions referred to at [130] and [131] relate to Commonwealth importation offences, the reasoning is readily applicable to New South Wales drug supply offences as well. Where the structure of the Act involves a quantity-based penalty regime, with maximum penalties and standard non-parole periods escalating as the quantity of the relevant drug crosses from one quantum-based category into another, it is understandable that the quantity of drugs remains a very material consideration in assessing the objective seriousness of an offence. The decisions of this Court in R v MacDonnell , R v Stanbouli and Melikian v R are consistent with these propositions.
133I do not interpret the statements of the sentencing Judge at ROS [28]-[29] (see [93] above) as confining attention solely to the quantities of the drugs for the purpose of making findings concerning the objective seriousness of the first and third counts. His Honour made findings elsewhere in the remarks on sentence concerning the role of the Applicant in the supply of drugs, incorporating the conduct falling within the first and third counts. As mentioned, it is necessary to read fairly the entirety of the remarks on sentence in considering this ground.
134I accept the submissions of the Crown (at [114]-[119] above) concerning the overlapping conduct of the Applicant, which is common to all three counts. It would be artificial to narrowly consider the facts which relate exclusively to each of the three counts in determining the role of the Applicant in these drug supply offences. The overlapping conduct of the Applicant ought be considered, in conjunction with the evidence concerning the quantities of each of the three types of drugs in question. Of course, it is necessary to guard against any impermissible aggravating finding as a result of consideration of factors common to the three offences.
135An assessment of the Applicant's role is not to be determined by the selection of a label which might properly attach to him. As with a person to be sentenced for a Commonwealth importation offence, the criminality of a New South Wales drug supply offender ought be assessed by consideration of the involvement of the offender in the steps taken to effect the drug supply offences. Problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise as, in many cases, the full nature and extent of the enterprise is unlikely to be known to the Court: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at 279 [19].
136In the present case, although the Applicant gave evidence at the sentencing hearing, he sought to distance himself from the multitude of drugs, and the items of stolen jewellery, located in his house. He declined to give any meaningful evidence concerning the identity and roles of others involved in the drug supply enterprise (T15, 6 November 2009). It is understandable that the sentencing Judge took a circumspect approach in assessing the Applicant's evidence. He made few concessions against interest and, in significant areas, sought to deny (or at least not accept) the undeniable.
137In my view, the Agreed Statement of Facts disclosed a state of affairs which permitted the following conclusions.
138The Applicant was the sole occupant of the Balmain premises in the relevant period between March and May 2008. As the detailed description set out above reveals, located at various points throughout the house were different drugs, packaged mainly in quantities designed for supply to other suppliers, including sample bags. The Applicant negotiated with Burnett concerning price, and took opportunities (when Burnett was present in the house) to offer other drugs, and stolen jewellery, for sale.
139Also located in the premises were items of equipment which ought be concluded were the paraphernalia of a substantial drug supplier. There is no credible evidence of other persons attending the premises for the purpose of using this equipment to cut drugs. Further, cutting agents were located in different cupboards in the house occupied by the Applicant, and used by him as a residence. The appropriate inference is that the Applicant utilised the cutting agents and the equipment as part of his multipurpose activity in the preparation, negotiation and sale of prohibited drugs.
140Although the Applicant contended in evidence that he was working off a debt (in the order of $5,000.00-$6,000.00) in performing drug supply duties from the Balmain house, that assertion did not line up credibly with all the known facts. As with all drug suppliers, it was necessary for the Applicant to source prohibited drugs from others. The nature of the operation revealed in the evidence, as conducted from the Balmain premises, did not suggest that he was a mere functionary on behalf of others. As the Crown submitted, he was no mere warehouseman or salesman. Rather, the Applicant acted in an entrepreneurial way, conducting a type of drug convenience store or supermarket, where a range of drugs were available for sale. The Applicant was prepared to offer other types of drugs for sale, no doubt secure in the knowledge that he had ready supplies of the range of drugs. The packaging and labelling of bags containing drugs pointed to a systematic operation, with the Applicant, at one point, utilising a form of ledger in recording a drug debt.
141There were variations in the purity of the drugs, an issue relevant to an assessment of objective seriousness (see [129] above). Some care is required in drawing conclusions by reference to evidence of purity: R v Attallah [2005] NSWCCA 277 at [221]; Ma v R [2007] NSWCCA 240 at [50]-[55].
142The first count involved 38,700 tablets of MDMA (ecstasy). It might be expected that the tablets would be on-sold to end users in that tablet form, so that purity levels were not as significant. To the extent that it is known, the purity levels of these tablets appeared to be in a range of 31%-33% (see [49]-[52] above).
143The second count involved bagged cocaine, with one portion having a purity of 48.5% (see [64] above).
144The third count reveals the supply of methylamphetamine with purity levels between 3.5% (at [43] above) and 71% (at [36] above).
145The commercial heroin supply Form 1 offence involved an admixture with a heroin purity of 4.5%, a low purity level which contributed to the offence being dealt with on a Form 1 (see [40] above).
146I have kept in mind Mr Boulten SC's submission that particular care is required in the assessment of objective seriousness of a large commercial quantity supply offence. The presence of cutting and binding agents and equipment such as the hydraulic compressor and ram may be more likely in a large commercial quantity case, because of the quantity of drugs involved and the intermediate stage of supply, usually at the wholesale level. There may be evidence of substantial wealth, and trappings of wealth, on the part of principals engaged in large-scale drug supply.
147Here, the sentencing Judge accepted that the Applicant was a drug user. His Honour left open the question whether a relatively small drug debt led the Applicant into this activity, finding that he adopted his drug-dealing role "enthusiastically" and that he was not going to stop when the debt was paid off (at ROS [35] at [94] above). These findings were open to the sentencing Judge.
148Having considered the submissions of the parties, I am persuaded that it was not open to the sentencing Judge to find that the first count lay in the upper range of seriousness for offences of this type. In reaching this conclusion, I have had particular regard to the quantity of the drug and the role of the Applicant. The quantity was some 17 times the large commercial quantity. However, the relevant large commercial quantity commences at 500 grams and has no upper limit. This is pertinent to an assessment of objective gravity. The Applicant operated the drug supply business from the Balmain premises. The evidence did not indicate that he employed others as part of the business. The evidence did not indicate a limited financial return to the Applicant, but it did not point either to the trappings of wealth frequently associated with drug syndicate principals. In my view, the evidence did not permit a finding that the offence lay more than moderately above the middle range of objective seriousness, at a point clearly below the upper range.
149It was open to the sentencing Judge to find that the second count lay at the mid-range.
150With respect to the second ground of appeal concerning the third count, the finding that the offence lay above the mid-range lacks precision. However, I am satisfied that the appropriate finding was that the offence lay slightly above the mid-range and that this is the way in which his Honour approached sentence on this count.
151I am not persuaded that the sentencing Judge's reference to the decisions in R v Kalache and R v Walsh and Little (see [89] and [93] above) demonstrates error. I take his Honour's comments to mean that these earlier cases were examples of large-scale drug supply offenders at a time before the commencement of the standard non-parole period system. His Honour was not utilising the sentences imposed in those cases as representing a comparable benchmark, which was to be moved upwards because of the introduction of the standard non-parole period system, in their application to the Applicant's case. His Honour was alive to the differences in quantity of drugs involved in those decisions to the quantities which applied to the Applicant's case.
152The sentencing Judge's point was that the Applicant's case represented a very serious example of a person involved in the supply of prohibited drugs, in various forms and substantial quantities. It was clear that the Applicant was to be sentenced for his offences after an assessment of all relevant factors, including the standard non-parole periods which applied as guideposts on sentence. I do not think that the Applicant gains support for his grounds of appeal from the sentencing Judge's references to these earlier sentencing decisions.
153The Applicant has demonstrated error concerning the first count, but not the second count, under the first ground of appeal. The third count is the subject of complaint under the first and second grounds. It is apparent that his Honour approached the matter upon the basis that the third count lay slightly above the mid-range, a view that was clearly open.
154The consequences of these findings will be considered later in this judgment.