R v Dashti

Solicitors: Solicitor for Public Prosecutions (Appellant) Nyman Gibson Miralis (Respondent) File Number(s): 2012/43714 Decision under appeal Court or tribunal: District Court Date of Decision: 4 December 2015 Before: Madgwick QC ADCJ File Number(s): 2012/43714

[This headnote is not to be read as part of the judgment] In November 2011 the NSW Police commenced an investigation under the name Strike Force Taipan in relation to the supply of prohibited drugs by respondent, Mr Dashti, and others. As a consequence of the investigation Mr Dashti was charged with two counts of supplying a large commercial quantity of a prohibited drug and one count of agreement to supply a large commercial quantity of a prohibited drug in contravention of s 25 of the Drugs Misuse and Trafficking Act 1985. Mr Dashti pleaded guilty to all three offences. The maximum penalty for each offence was life imprisonment and/or a fine of $550,000. Pursuant to the Crimes (Sentencing Procedure) Act 1999 (NSW), s 54B(2) the standard non-parole period was 15 years. On 4 December 2015 Madgwick QC ADCJ sentenced Mr Dashti to an aggregate head sentence of 20 years imprisonment with a non-parole period of 12 years to commence from the date of his arrest on 9 February 2012. In the same proceedings the sentencing judge sentences two additional co-offenders of Mr Dashti, AB and RH. In sentencing Mr Dashti the sentencing judge took into account the fact it was Mr Dashti's first period of incarceration, and that he was socially isolated and lonely due to poor English and estrangement from his wife and family. The Crown's appeal against sentence pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) in respect of Mr Dashti was heard concurrently with, inter alia, the appeal of a co-offender, Mr Zolfonoon (see R v Zolfonoon [2016] NSWCCA 250). The principal issues for determination were: (i) Whether the sentencing judge's discretion miscarried by reason of his Honour engaging in sequential reasoning rather than sentencing on the basis of instinctive synthesis; (ii) Whether the sentencing judge had erred by failing to take into account the legislative guideposts of the relevant maximum penalties and standard non-parole periods; (iii) Whether the sentencing judge erred by making a finding of special circumstances that was not open on the evidence; (iv) Whether the aggregate sentence imposed by the sentencing judge was manifestly inadequate

In relation to (i): (1) It is well established that the process to be followed when sentencing an offender is one of "instinctive synthesis". [41]-[42] Markarian v The Queen [2005] HCA 25; 228 CLR 357; Muldrock v The Queen [2011] HCA 39; 244 CLR 120. (2) Despite acceptance that in some simple cases "some indulgence in an arithmetical process" is appropriate in sentencing, this was not such a case. The sentencing judge erred in arriving at a sentence on the basis of a "two-tiered" approach to sentencing. [44]-[46] Markarian v The Queen [2005] HCA 25; 228 CLR 357.

In relation to (ii): (1) The sentencing judge did not outline in a structured and directed way the reasons for his reduction of the non-parole period pursuant to ss 54B(4) and (5) of the Crimes (Sentencing Procedures) Act 1999 (NSW). [70] (2) However, the sentencing judge's remarks (as appeared in the transcript of the sentencing proceedings) in relation to both the respondent and one of his co-offenders disclosed the reasons underlying his Honour's departure from the standard. [71]-[73]

In relation to (iii): (1) A finding of special circumstances is integrally linked with the determination of an appropriate non-parole period. [84] R v Simpson [2001] NSWCCA 534; 53 NSWLR 704. (2) A finding of special circumstances based upon it being the offender's first time in custody will ordinarily bear little, if any, weight unless the finding of special circumstances can be supported by other factors. [92] Collier v R [2012] NSWCCA 213; R v Van Ryn [2016] NSWCCA 1. (3) The sentencing judge did not err in taking into account the fact it was the respondent's first time in prison in circumstances where there were other factors relevant to his imprisonment. [93] (4) The sentencing judge did not err in taking into account the respondent's difficulties with English, notwithstanding a psychological report stating that the respondent was able to express himself in English without obvious difficulty, in circumstances where the sentencing judge had the opportunity to observe the respondent in the witness box. [93]

In relation to (iv): (1) The sentencing judge did not err in applying a 15% discount on the basis of the respondent's guilty plea in circumstances where, notwithstanding a long sentencing hearing, the plea saved a substantial amount of court time. [106] Pearce v The Queen [1998] HCA 57; 194 CLR 610; Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41; R v Nykolyn [2012] NSWCCA 219. (2) The sentence was manifestly inadequate having regard to the limited number of mitigating circumstances and the need to take into account the five Form 1 offences. [118], [122], [135] Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146; Barbaro v The Queen [2014] HCA 2; 253 CLR 58; R v Shepherd [2003] NSWCCA 287; 142 A Crim R 101; Vigo v R [2009] NSWCCA 98.

Judgment

1. THE COURT: In this matter, the Crown appeals, pursuant to the Criminal Appeal Act 1912 (NSW), s 5D, against a sentence imposed on the respondent, Mohammad Dashti. Mr Dashti pleaded guilty to three drug offences: two counts of supplying not less than a large commercial quantity of a prohibited drug contrary to the Drug Misuse and Trafficking Act 1985 (NSW), s 25(2), being the offences of supplying 49.85 kg of opium and 47.56 kg of methylamphetamine respectively; and one count of agreeing to supply 2 kg of heroin.
2. The maximum penalty for each offence was life imprisonment and/or a fine of $550,000, pursuant to the Crimes (Sentencing Procedure) Act 1999 (NSW), s 54B(2). There was a prescribed standard non-parole period of 15 years for each offence.
3. Pursuant to the Crimes (Sentencing Procedure) Act, ss 32 and 33, three further supply offences, contrary to s 25(2), and two offences of dealing with the proceeds of crime, contrary to the Crimes Act 1900 (NSW), s 193B(2), were taken into account (the Form 1 offences).
4. On 4 December 2015, his Honour Madgwick QC ADCJ sentenced Mr Dashti to an aggregate head sentence of 20 years imprisonment with a non-parole period of 12 years, to commence from the date of his arrest on 9 February 2012.
5. The Crown's appeal in respect of Mr Dashti was heard concurrently with Crown appeals against sentences imposed on Kamran Zolfonoon and Haissan Saleh and with an appeal against sentence brought by Kassim Saleh. Mr Dashti was a co-offender with Mr Zolfonoon but not with Mr Haissan Saleh or Mr Kassim Saleh, and their appeals are not relevant to the determination of this appeal.
6. The Crown raised four grounds of appeal in respect of Mr Dashti, as follows: "Ground 1: His Honour's sentencing discretion miscarried by reason of him engaging in sequential reasoning, rather than him sentencing by instinctive synthesis. Ground 2: His Honour erred by failing to take into account the legislative guideposts of the relevant maximum penalties and standard non-parole periods. Ground 3: His Honour erred by making a finding of special circumstances that was not open on the evidence. Ground 4: The aggregate sentence passed by his Honour was manifestly inadequate."
7. For the reasons that follow, the Court has determined that error on the part of the sentencing judge has been made out and that this is not an appropriate case to exercise the residual discretion. Accordingly, it will be necessary to resentence Mr Dashti.

Factual background

1. In November 2011, the NSW Police commenced an investigation under the name Strike Force Taipan in relation to the supply of prohibited drugs by Mr Zolfonoon and others. Two registered informers, a number of undercover police officers and surveillance and electronic intercepts were used in the investigation. As the investigation progressed, it expanded to include the activities of others, including Mr Dashti.
2. Mr Zolfonoon was introduced by an informer to an undercover police officer on 24 November 2011. During that meeting, Mr Zolfonoon indicated that he had access to large quantities of prohibited drugs, including heroin and methylamphetamine. The officer requested samples of the drugs so that she could assess their quality prior to purchasing larger quantities. Mr Zolfonoon supplied to the officer 28.35 g of methylamphetamine and 19.83 g of heroin on 6 January 2012 for a total price of $13,500. Surveillance indicated that the drugs had been sourced from RH, who was subsequently charged with drug offences.
3. On 10 January 2012, an informer placed an order with Mr Zolfonoon for 1 kg of heroin to be purchased by the undercover officer. On 17 January 2012, RH obtained 993 g of heroin from Mr Dashti, which he provided to Mr Zolfonoon, who supplied it to the undercover officer in exchange for $150,000. The supply to the officer occurred at the Wu Shu Academy, a martial arts training facility run by Mr Zolfonoon. The proceeds of sale were then passed back to RH and Mr Dashti. This transaction formed the basis of a supply charge against Mr Dashti which was taken into account on the Form 1 in respect of the opium charge to which he pleaded guilty.
4. On 6 February 2012, Mr Zolfonoon supplied 496.7 g of heroin to the undercover officer at a cost of $75,000. Again, the drug was obtained from Mr Dashti by RH, who passed it to Mr Zolfonoon for sale to the undercover officer. This was the second supply offence taken into account on the Form 1 in respect of the opium charge.
5. Surveillance of the 6 February transaction led police to a Kennards storage unit in Artarmon, Sydney, which was used by Mr Dashti and another offender, AB. The unit was used to store drugs which had been imported from Iran, concealed in pallets of fruit juice. On 7 February, police conducted a partial covert search of the facility and seized 16.886 kg of methylamphetamine and 13.334 kg of opium, together with indicia of supply, including numerous empty resealable plastic bags and electronic scales. Police installed a video camera in the storage unit.

Sentence proceedings

1. Mr Dashti was sentenced at the same time as AB. Madgwick QC ADCJ also sentenced a third co-offender, RH, on a different occasion. The offenders, Mr Zolfonoon, Mr Haissan Saleh and Mr Kassim Saleh were sentenced in separate proceedings before Whitford SC DCJ.
2. Madgwick QC ADCJ found that AB did not have a role involving direct contact with purchasers in the drug supply chain. Rather, AB's role involved the facilitation of drug importation and of delivery to and transport between the storage units and the making of money payments.
3. His Honour considered that AB's preparedness to give evidence against Mr Dashti was likely the key factor in precipitating Mr Dashti's guilty pleas and that the value of his assistance was "pretty high". AB served time in protection as a result, and his Honour commented that that made his incarceration "markedly more difficult".
4. AB was sentenced to 12 years imprisonment with a non-parole period of 7 years and 6 months. In imposing this sentence, Madgwick QC ADCJ took into account in mitigation his difficult background and his addiction to opium. His Honour allowed a total discount of 33 per cent for the plea of guilty and his assistance to authorities. His Honour also made a finding of special circumstances, including on the basis of the difficult time AB would have in custody, part of which would be served on protection. His Honour stated that he took into account the Form 1 offences.
5. There was a dispute in the sentencing proceedings as to which of AB or Mr Dashti was the principal in respect of the opium and methylamphetamine charges, with the Crown and AB contending that Mr Dashti was the driving and effective force in the drug operations and that therefore his culpability was much greater, and Mr Dashti contending to the contrary. His Honour held that, in respect to the opium, he was "ultimately left with a doubt that [Mr Dashti] could even be called a full co-equal with AB". However, his Honour concluded as follows: "[Mr Dashti's] very significant heroin dealing in the kilo and half kilo amounts are to be taken into account in relation to the opium dealing, so that, in the result, the sentence for him for the opium dealing must be of the same order, conceptually, as that for AB, leaving aside other subjective matters …" That is to say, all things taken into account, his Honour concluded Mr Dashti's objective criminality was comparable to that of AB.

Principles relating to Crown sentence appeals generally

1. The primary purpose of Crown appeals against sentence pursuant to s 5D is "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons": Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [1]. Such appeals raise a tension with "the common law's antagonism to double jeopardy": Lacey v Attorney-General (Qld) [2011] HCA 10; 242 CLR 573 at [15], and the High Court has commented a number of times that they should be brought only in "exceptional circumstances": see Lacey at [15]-[20] and the cases cited therein.
2. In order to succeed in an appeal against sentence, the Crown is required to make out error on the part of the sentencing judge of the kind referred to in House v The King [1936] HCA 40; 55 CLR 499 at 505. That test was described in Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25] in the following terms: "… is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as 'manifest excess', or in a prosecution appeal, as 'manifest inadequacy'."

Ground 1: sequential sentencing process

1. In respect of ground 1, the Crown principally relied on the statements of Madgwick QC ADCJ in the passage set out above at [26] as demonstrating that his Honour adopted a sequential and therefore erroneous approach to the sentence to be imposed, contrary to the principles stated in Markarian.
2. The Crown identified four stages of sequential reasoning in that passage: first, coming to a commencing aggregate sentence of 30 years; secondly, the deduction of 10 per cent by reference to subjective factors; thirdly, the reduction by 15 per cent for a guilty plea; and fourthly, a deduction of 3 years for parity with AB.
3. In oral argument, the Crown relied principally upon error in the first two of those stages and accepted that a percentage reduction in respect of a guilty plea was not erroneous. The Crown also contended that his Honour did not take into account the Form 1 matters in his sentencing process. That submission is considered below in dealing with ground 4.
4. The Crown contended that the present case was similar to Greenaway v R [2013] NSWCCA 270. In that case, R A Hulme J, with whom Gleeson JA and Adamson J agreed, held at [31] that: "… [the sentencing judge's] approach was two-staged. He arrived at a sentence of 20 years without regard to subjective matters and then reduced it for the plea and other mitigating features. Such an approach is erroneous in itself." (citations omitted)
5. Mr Dashti's principal contention in respect of ground 1 was that his Honour's remarks on sentence, read fairly and in the context of the exchanges with counsel, demonstrated that his Honour did not engage in sequential reasoning as submitted by the Crown, albeit that his Honour had used some arithmetical quantification to give transparency to his reasoning process. Mr Dashti relied in particular upon the following exchange between counsel and his Honour as indicating that his Honour's attention was expressly drawn to the correct approach: "HIS HONOUR: … it seems to me the intellectual approach is what would your client get after a trial if there was no reason at all to moderate the sentence, what would he get after a trial if there was some reason to moderate the sentence … how much does he get off for the plea of guilty and an effort to assist the police, other special circumstance and what should be the non-parole period. [Counsel for AB] from Victoria was a bit amazed that in New South Wales this might be approached in that explicit way rather than finding shelter in the instinctive synthesis. [COUNSEL FOR MR DASHTI]: Markarian. HIS HONOUR: Everybody's much better off to the extent the sentencing judge exposes his reasoning processes, and so if I'm wrong either way, then it can be fixed up. [COUNSEL FOR MR DASHTI]: Your Honour, clearly when assessing an appropriate sentence your Honour is looking at Markarian instinctive synthesis, your Honour's looking at Muldrock …" It is convenient to observe at this point that the Crown submitted that this passage in fact was indicative of the error in his Honour's ultimate approach.

Consideration of ground 1

1. The relevant principles in relation to the process to be followed in sentencing an offender were stated by McHugh J in Markarian at [51]. McHugh J distinguished between "two-tier" sentencing, which he held was erroneous, and the process of sentencing by "instinctive synthesis", as follows: "By two-tier sentencing, I mean the method of sentencing by which a judge first determines a sentence by reference to the 'objective circumstances' of the case. This is the first tier of the process. The judge then increases or reduces this hypothetical sentence incrementally or decrementally by reference to other factors, usually, but not always, personal to the accused. This is the second tier. By instinctive synthesis, I mean the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. Only at the end of the process does the judge determine the sentence." See also Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [26].
2. The majority in Markarian, at [39], in a passage upon which Mr Dashti placed some emphasis, described the instinctive synthesis approach in the following terms: "Following the decision of this Court in Wong [[2001] HCA 64; 207 CLR 584] it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. An invitation to a sentencing judge to engage in a process of 'instinctive synthesis', as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression 'instinctive synthesis' may then be understood to suggest an arcane process into the mysteries of which only judges can be initiated. The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. This case was not however one of them because of the number and complexity of the considerations which had to be weighed by the trial judge." (Mr Dashti's emphasis)

Ground 2: failure to take into account the maximum sentence and the standard non-parole period for the offences

1. The Crown acknowledged that his Honour, in the course of sentencing AB, referred to "the standard non-parole period as a marker or guide of the seriousness with which Parliament views this matter" but submitted that his Honour's omission to refer to the standard non-parole period when sentencing Mr Dashti was indicative that his Honour had not taken it into account.
2. The Crown also submitted that his Honour failed to indicate non-parole periods in respect of the individual counts on the indictment, when stating the indicative sentence to be imposed in respect of each offence, contrary to the requirements of the Crimes (Sentencing Procedure) Act, s 54B(4). Although acknowledging that that omission did not invalidate the sentence: see s 54B(7), the Crown submitted that it was indicative of his Honour's overall error in failing to take the standard non-parole period into account in dealing with each offence.
3. Mr Dashti made reference to a large number of submissions made to his Honour, both oral and written, by which all parties to the sentencing proceedings referred to both the maximum sentence and the standard non-parole period. Mr Dashti also pointed to two exchanges in the sentence proceedings in relation to AB and RH in which his Honour mentioned the maximum penalty of life imprisonment for the supply offences.

Maximum penalty for the offence

1. There is no dispute that sentencing judges must have regard to the prescribed maximum penalties and standard non-parole periods: Muldrock at [27]. As has already been stated, the maximum penalty for an offence under the Drug Misuse and Trafficking Act, s 25(2) is life imprisonment and/or a fine of $550,000.
2. His Honour made no express reference to the statutory maximum of life imprisonment in his remarks in respect of either Mr Dashti or his co-accused AB, who was sentenced at the same time. Mr Dashti, however, relies upon the comments made by his Honour in the course of the sentencing hearing on behalf of RH. By way of example, his Honour, in response to a submission by counsel for RH that a starting point for the appropriate sentence was less than 18 years, stated: "but this carries life".
3. Later, during the course of submissions being made on behalf of AB, his Honour stated: "The worst case scenario after a trial if it were the worst class of case it would be life or trying to say it in the terms of a discrete sentence, something of the order of 30 years …"
4. Mr Dashti's reliance on such remarks raises the question whether, and, if so, in what circumstances a judge's remarks in the course of argument may be relied upon as being part of or explaining the judge's reasons.
5. The circumstances in which resort may be had to comments made during the course of a hearing to explain a judge's reasoning are limited. An obvious use is to demonstrate bias. That, of course, was not this case. There may be occasions where a reference to the transcript may explain an observation by the judge in the reasons or demonstrate that an apparent mistake is merely typographical or otherwise irrelevant.
6. There may also be occasions where there is such a clear reference to a matter in the course of argument that it may be inferred that notwithstanding an omission in the reasons, the judge was at all times aware of the matter and took it into account. Care needs to be exercised in this last circumstance as it does not necessarily follow that because a matter was adverted to in argument, the judge did not overlook it in the reasons.
7. In the present case, the transcript raises the clear inference that his Honour understood that the maximum sentence in this matter was life imprisonment. His Honour's statement that the offence "carries life" was emphatic and leaves no doubt that he knew that that was the penalty prescribed for an offence contrary to s 25(2).

The standard non-parole period

1. The offences to which Mr Dashti pleaded guilty were subject to a standard non-parole period of 15 years, as also was the case with AB. Standard non-parole periods are governed by Pt 4, Div 1A of the Crimes (Sentencing Procedure) Act. Relevantly, s 54A provides that for the purposes of sentencing, the standard non-parole period represents the non-parole period for a specified offence that, taking into account only the objective factors affecting the relative seriousness of the offence, is in the middle of the range of seriousness.
2. Section 54B(2) provides that the standard non-parole period is a matter to be taken into account in determining the appropriate sentence, without limiting the matters that are otherwise required or permitted to be taken into account. In this regard, s 21A of the Crimes (Sentencing Procedure) Act prescribes the matters to be taken into account in sentencing.
3. Section 54B(3) provides that a court must make a record of its reasons for setting a non-parole period that is longer or shorter than the standard non-parole period and must identify each factor that it took into account in so determining. Section 54B(5) makes like provision in respect of aggregate sentences.
4. In Muldrock, the High Court stated, at [26], that s 54B(2), read with ss 54B(3) and 21A of the Crimes (Sentencing Procedure) Act required an approach to sentencing for offences for which a standard non-parole period was prescribed that is consistent with the approach to sentencing described by McHugh J in Markarian: see above at [41].
5. The Court explained, at [27]: "Section 54B(2) and s 54B(3) oblige the court to take into account the full range of factors in determining the appropriate sentence for the offence. In so doing, the court is mindful of two legislative guideposts: the maximum sentence and the standard non-parole period. The latter requires that content be given to its specification as 'the non-parole period for an offence in the middle of the range of objective seriousness'. Meaningful content cannot be given to the concept by taking into account characteristics of the offender. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending." (citation omitted)

Ground 3: special circumstances

1. By ground 3, the Crown contended that his Honour erred in respect of his finding of special circumstances.
2. In finding special circumstances, his Honour took into account that it was Mr Dashti's first time in prison and that he was socially isolated and lonely, having little English and being estranged from his wife and children.
3. The Crown challenged each aspect of his Honour's finding.
4. As to the first component, the Crown submitted that the fact that it was Mr Dashti's first time in custody was not alone a basis for finding special circumstances: R v Wood [2014] NSWCCA 184; 244 A Crim R 501 at [44]. The Crown further submitted that the evidence did not establish the second component of his Honour's finding of special circumstances, that of social isolation. In respect to the finding as to Mr Dashti's English language skills, in particular, it pointed to a psychological report of Ms Robillard tendered in evidence on the sentence hearing, which stated that Mr Dashti "had no obvious difficulty expressing himself in English".
5. In the alternative, the Crown contended that even if it was open to his Honour to find special circumstances, the circumstances did not warrant the variation of the statutory ratio to the extent that occurred. In this regard, it was contended that an 8 year period of parole was excessive.
6. Mr Dashti contended that the finding of special circumstances was open on the evidence, particularly in circumstances in which the Crown did not respond at trial to his submissions that a finding of special circumstances ought to be made. He contended that this Court on appeal will "not lightly entertain arguments that could have been put, but were not advanced on the plea": Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [81].
7. In further response, Mr Dashti contended that there was no error in a sentencing judge taking into account, along with other matters, the fact that this would be the first occasion he had been sentenced to a term of imprisonment. Mr Dashti also submitted that the primary judge's finding in respect of Mr Dashti's language skills was open, in circumstances where there had had been an extensive opportunity to observe him in the witness box.

Consideration of ground 3

1. The Crimes (Sentencing Procedure) Act, s 44(1) requires the court, unless imposing an aggregate sentence, when sentencing an offender, first to set a non-parole period. Subsection (1) describes the non-parole period as being "the minimum period for which the offender must be kept in detention in relation to the offence".
2. Section 44(2) provides that the balance of the term must not exceed one-third of the non-parole period unless there are special circumstances. If the court makes a finding of special circumstances, it must make a record of its reasons. Subsections (2A), (2B) and (2C) make like provision where the court imposes an aggregate sentence.
3. In R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [73], Spigelman CJ described the process involved in finding special circumstances: "The decision is first one of fact - to identify the circumstances - and, secondly, one of judgment - to determine that those circumstances justify a lower proportionate relationship between the non-parole period and the head sentence."
4. There is no statutory definition of "special circumstances". However, as the authorities explain, a finding of special circumstances is integrally linked with the determination of an appropriate non-parole period, being "the minimum period for which the offender must be kept in detention in relation to the offence". In Simpson, Spigelman CJ stated: "62 The issues of law that may arise are the same as those which arise on appeal from other discretionary decisions, including whether or not, on the facts of a particular case, a specific fact, matter or circumstance is, either alone or in combination with other facts, matters and circumstances, capable of constituting 'special circumstances' of the requisite character, that is, that it is capable of justifying a variation in the statutory proportion which the legislature has enacted. 63 More significantly, there is the ultimate constraint that the non-parole period must itself appropriately reflect the criminality involved in the offence."
5. Earlier, at [57], the Chief Justice had observed: "… the scope of the considerations relevant to the determination of 'special circumstances' must encompass the full range of issues which are relevant to the determination of the minimum period of actual incarceration without hope of release on parole."

Ground 4: manifest inadequacy

1. The Crimes (Sentencing Procedure) Act, s 53A(1) provides that when a court is sentencing an offender for more than one offence, an aggregate sentence of imprisonment with respect to all or any two or more of the offences may be imposed instead of a separate sentence of imprisonment for each offence. The court is required, pursuant to s 53A(2), to record the fact that an aggregate sentence is being imposed and to state the sentence that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence. In common with certain other provisions of the Act, an aggregate sentence is not invalidated by failure to comply with the section: see s 53A(5).
2. As stated above, Madgwick QC ADCJ sentenced Mr Dashti to an aggregate sentence of 20 years imprisonment with a non-parole period of 12 years. His Honour, in his sentencing remarks, as required by s 53A(2)(b), specified the indicative head sentences that he would have imposed had he sentenced Mr Dashti in respect of each offence: see above at [30].
3. His Honour determined that the sentences should be fully concurrent, finding that they reflected Mr Dashti presenting "a composite persona of a go-to man for a number of drugs at wholesale level".
4. His Honour did not specify a non-parole period in respect of each offence.
5. A claim of manifest inadequacy does not depend on the establishment of specific error: Dinsdale v R [2000] HCA 54; 202 CLR 321 at [6], but the identification of error may assist to explain why a sentence is manifestly inadequate: R v Harris [2015] NSWCCA 81 at [46]. In that regard, the Crown pointed to the errors alleged in grounds 1-3, as well as two additional matters in support of its contention that the sentence imposed was manifestly inadequate.
6. The first additional matter was that the 15 per cent discount given for Mr Dashti's guilty plea was excessive in circumstances where Mr Dashti challenged various factual matters for which the Crown had contended on the plea, resulting in a lengthy sentencing hearing of over 10 sitting days. It was submitted that in circumstances where the factual matters were determined adversely to Mr Dashti, the utilitarian value of the plea had effectively dissipated by the time the sentencing hearing was complete.
7. The Crown had submitted to his Honour that an appropriate discount for the plea would be 10 per cent. Mr Dashti had contended that a discount of 25 per cent was appropriate. He also sought a discount for providing assistance to the authorities, which was not accepted by His Honour. On the appeal, Mr Dashti submitted that, in circumstances where his plea saved a 6 week trial and avoided the need to play thousands of telephone calls and other surveillance records, there was a strong utilitarian value in the plea. The Court also notes that there must be factored into the hearing time the fact that AB and RH were sentenced in the same proceedings.

Consideration of ground 4

1. Although we consider that there was error in his Honour's sentencing approach as established by ground 1 and partially in respect of ground 2, it is appropriate to consider the two additional errors upon which the Crown relied in support of ground 4.

The discount for the plea

1. We do not consider there was any error in the discount allowed for the plea of guilty. The extent of any discount is essentially one for the sentencing judge and there was no challenge to the fact that there was a utilitarian benefit in the plea. Although Mr Dashti mounted a significant challenge to many of the facts upon which the Crown sought to have him sentenced, the reality was that there was a saving of approximately four weeks of court time with the consequent saving in time and expenditure of public monies.
2. Furthermore, it is necessary to take into account that, contrary to the Crown's submission, the factual matters disputed before his Honour were not all determined adversely to Mr Dashti. In particular, his Honour did not find that Mr Dashti was the sole principal in respect of the opium supply, as the Crown had alleged.

Concurrence or accumulation

1. The question whether the punishment imposed for two or more offences should be concurrent or cumulative arises in the context where, in accordance with settled principle, a court is required to pass or indicate a sentence in respect of each offence. In Pearce v The Queen [1998] HCA 57; 194 CLR 610, the plurality, McHugh, Hayne and Callinan JJ, observed at [47] that, if proper principle was not applied in fixing the appropriate sentence for each offence, "orders made for cumulation or concurrence will be made on an imperfect foundation". At [48], their Honours held: "… the need to ensure proper sentencing on each count is reinforced when it is recalled that a failure to do so may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences." (citation omitted)
2. The underlying principle is one of totality. In Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41. Howie J, with whom Adams and Price JJ relevantly agreed, explained, at [27]: "[T]here is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."
3. Questions of concurrence or accumulation are relevant to the imposition of an aggregate sentence, notwithstanding that a single sentence is imposed in respect of all charges of which the offender has been convicted. That this is so is apparent from the terms of the Crimes (Sentencing Procedure) Act, s 53A(2) which requires the court to specify the indicative sentence that would have been imposed if the offender were sentenced in respect of each offence. As McClellan CJ at CL observed in R v Nykolyn [2012] NSWCCA 219 at [32], a sentencing judge is accordingly required: "… to give consideration to the criminality involved in each offence and, where appropriate, have regard to any matters on a Form 1 when defining the sentence that would have been imposed for an individual offence."

Manifest inadequacy

1. As we have indicated, it appears that his Honour considered that Mr Dashti's offending conduct was above the mid-range of objective seriousness. In our opinion, no other finding could have been made, having regard to the very large quantities of drugs involved and Mr Dashti's role in the supply of those drugs. In that regard, it is relevant to note that the heroin, opium and methylamphetamine subject of the charged offences were respectively approximately two, twelve and ninety-five times the thresholds for large commercial quantities specified in the Drug Misuse and Trafficking Act, Sch 1. It was in the context of that assessment of objective seriousness that regard was to be had to the maximum sentence for the offences, namely, life imprisonment, and to the standard non-parole period of 15 years.
2. Further, as his Honour observed, there were few mitigating circumstances in Mr Dashti's case. He was found to be an untruthful witness and his Honour did not place weight on his statements of remorse. As his Honour found: "I think the best could be said for him … is that he had a hard life and physical disability that disqualified him for various fields of work that he was fit for in Australia and that he turned to drug dealing."
3. In imposing sentence, his Honour also had to have regard to the fact that in addition to the three principal offences of which he was convicted, it was necessary to take into consideration the five Form 1 offences. His Honour, in his remarks on sentence, made specific reference to each of the offences and expressly stated that he would take those matters into account. However, the sentence imposed is such that it must be concluded that his Honour did not do so adequately, if at all.
4. The proper approach to Form 1 offences in sentencing was considered by Spigelman CJ, with whom Wood CJ at CL and Grove, Sully and James JJ agreed, in the guideline judgment Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146. His Honour summarised the position as follows: "42 The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences which there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s 33(3) [of the Crimes (Sentencing Procedure) Act referring to the maximum penalty for the primary offence is one. The principle of totality is another. 43 … The important point is that the focus throughout must be on sentencing for the primary offence." See also Alrubae v R [2016] NSWCCA 142 at [40]; Abdulrahman v R [2016] NSWCCA 192 at [53].

Comparative cases

1. The Court was provided with a list of cases indicating the range of sentences that have been imposed for offences for the supply of a large commercial quantity of prohibited drugs. In some cases there were additional counts of dealing with the proceeds of crime or receiving stolen property or offences on a Form 1. Most of the cases were assessed as being in the mid-range of objective seriousness or moderately or just above the mid-range.
2. Only one of the cases to which the Court was referred, namely, R v Shepherd [2003] NSWCCA 287; 142 A Crim R 101 involved a quantity of drugs anywhere near the quantities involved in Mr Dashti's offences. The accused in Shepherd was charged with the importation of not less than the commercial quantity of ecstasy, being 34 kg, contrary to s 233B(1)(d) of the Customs Act 1901 (Cth). The offender had been found to be a key figure in facilitating the importation of the drug. This Court resentenced the offender and imposed a sentence of 11 years 6 months with a non-parole period of 7 years and 4 months. The sentence included a reduction of 45 per cent for a plea of guilty and for past and future assistance. The Court stated, as required by the Crimes Act 1914 (Cth), s 21E, that the sentence that would have been imposed but for the undertaking to give future assistance was 16 years and 9 months with a non-parole period of 10 years and 9 months.
3. The extent of Mr Dashti's offending is far in excess of the offending in the case of Shepherd in respect of the quantity of drug involved, if nothing else. Further, it is necessary to keep in mind the 45 per cent reduction in the sentence imposed in Shepherd given for the plea and for past and future assistance.
4. Regard may also be had to two further decisions: Barbaro v The Queen [2014] HCA 2; 253 CLR 58 and Vigo v R [2009] NSWCCA 98.
5. In Barbaro, the appellants were convicted of offences against the Crimes Act 1914 (Cth), being one count relating to 1.4 tonnes of ecstasy, one count relating to a further 50 kg and one count relating to 100 kg of cocaine. The total wholesale value of the drugs was in the hundreds of millions of dollars and the profit value sought from trafficking the drugs was many millions of dollars.
6. A life sentence with a non-parole period of 30 years was imposed on the appellant Barbaro, who was described as being at the "apex", as the trial judge put it, at "the very top of the tree in this country": Barbaro v The Queen [2010] VSCA 288; 226 A Crim R 354 at [44]. The other offender, Zirilli, was found to have less involvement than Barbaro, being described, at [44], as Barbaro's "right-hand man and trusted lieutenant", and was sentenced to a term of imprisonment of 26 years with a non-parole period of 18 years. Both appellants had pleaded guilty, however, having been charged with offences governed by the Crimes Act there was no reference to the extent to which the plea of guilty had been taken into account.

The residual discretion

1. The Court, having found error in the House v The King sense, retains a residual discretion to dismiss the appeal. A primary consideration in the exercise of that discretion is the purpose of s 5D appeals. As noted above, that purpose is to lay down principles for the governance and guidance of sentencing courts. In Green at [36], the majority said that: "That is a limiting purpose. It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion."
2. At [42], the majority further commented that: "A case might arise in which the Court of Criminal Appeal concludes that the inadequacy of the sentence appealed from is so marked that it amounts to 'an affront to the administration of justice' which risks undermining public confidence in the criminal justice system. In such a case the Court would be justified in interfering with the sentence …"
3. The Crown submitted that the errors alleged in ground 1, the use of sequential reasoning, and ground 3, a finding of special circumstances which was not supported on the evidence and an excessive adjustment of the ratio of the non-parole period to the balance of term, raised points on which this Court should lay down guiding principles.
4. Before determining whether this is an appropriate case to resentence, it is necessary to note the Crown's acknowledgement that there was a delay in the lodging of the appeal between the handing down of sentence on 4 December 2015 and the lodging of the appeal on 19 February 2016. However, contrary to Mr Dashti's submission, the Crown contended that, while delay may be taken into account in the exercise of the discretion, the 28 day time limit for bringing an appeal under the Criminal Appeal Act 1912 (NSW), s 10 does not apply to Crown sentence appeals. That submission may be accepted: see R v Ohar [2004] NSWCCA 83; 59 NSWLR 596 at [62].
5. The Crown further submitted that the delay was not prejudicial to the respondent such that it should not lead to Court to exercise the residual discretion to dismiss the appeal: R v Hallocoglu (1992) 29 NSWLR 67 at 80. In particular, the Crown pointed to the circumstance that Mr Dashti's non-parole period was not to expire until February 2024, such that he faces a considerable period in custody regardless of the outcome of the appeal. The Crown also pointed out that the delay did not result in a later hearing date for the appeal than would have otherwise been the case, because it joined the 8 June 2016 hearing date which had already been set down for the other matters heard on that day. These submissions should also be accepted.

Resentencing

1. The circumstances relevant to Mr Dashti's sentence have been set out above and Mr Dashti did not rely on any updating material should this Court decide to resentence him. Accordingly, our reasons for the sentence we consider ought to be imposed may be expressed more briefly than would otherwise be the case.
2. Reference has already been made to the relevance of the sentence imposed on AB in so far as parity considerations are concerned. There is also a question as to whether the sentences imposed on Mr Zolfonoon and RH, which were handed down after the sentence imposed on Mr Dashti, raise questions of parity.
3. There is no bar in principle to the application of parity considerations as between offenders involved in a common criminal enterprise but who have committed different crimes: Jimmy v The Queen [2010] NSWCCA 60; 77 NSWLR 540 at [202] per Campbell JA. However, practical difficulties frequently arise by reason of co-offenders being charged with different offences as the sentencing considerations relating, in particular, to the objective seriousness of the offending, will differ in such cases from one offender to another. Further, the "legislative guide posts" of the maximum sentence and the standard non-parole period, if applicable, may be different.
4. However, it is not necessary to examine the question of parity in any detail, particularly given that the only question of parity to which reference was made on the appeal related to the sentence imposed on AB. We have already expressed our view on that question. To the extent that parity with the sentences imposed on Mr Zolfonoon and RH are relevant, there were substantial differences between the objective criminality of the offences of which Mr Dashti was charged and those with which Mr Zolfonoon and RH were charged, different circumstances in which they were committed and significantly different quantities of drug involved.
5. In determining the appropriate aggregate and indicative sentences, regard has been had to the objective seriousness of the offences to which Mr Dashti pleaded guilty, which as we have stated, was substantially above the mid-range of objective seriousness. The Form 1 offences which are to be taken into account were also serious offences, as his Honour recognised. We have also had regard to the mitigating circumstances in favour of Mr Dashti, although they were not significant. The trial judge placed little weight on his expressions of remorse and nothing was advanced on the appeal to suggest that any other view ought to be taken in this regard. We accept that the 15 per cent discount for his plea of guilty is appropriate.

Conclusion

1. The orders of the Court are as follows: (1) Allow the appeal; (2) Quash the sentence imposed on Mr Dashti on 4 December 2015 and in its place impose an aggregate sentence of imprisonment comprising of a non-parole period of 21 years 6 months to commence on 9 February 2012 and to expire on 8 August 2033, with a balance of term of 7 years and 2 months to commence on 9 August 2033 and expire on 8 October 2040.

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