R v Ferguson - [2022] NSWCCA 147 - NSWCCA 2022 case summary — Zoe

NSWNSWCCA

R v Ferguson

[2022] NSWCCA 147

Court of Criminal Appeal (NSW)|2022-06-10|Before: Ward P, Hulme J, Bellew J, Mr J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2022-06-10

Before

Ward P, Hulme J, Bellew J, Mr J

Catchwords

[2015] HCA 9 DAB v R
NJB v R [2010] NSWCCA 275 Daher v R [2018] NSWCCA 287 Hili v The Queen
Jones v The Queen (2014) 242 CLR 520
[2010] HCA 45 Hurmz v R [2017] NSWCCA 235 Kay v R [2019] NSWCCA 275 Khorami v R

Source

Original judgment source is linked above.

Catchwords

[2015] HCA 9 DAB v RNJB v R [2010] NSWCCA 275 Daher v R [2018] NSWCCA 287 Hili v The QueenJones v The Queen (2014) 242 CLR 520[2010] HCA 45 Hurmz v R [2017] NSWCCA 235 Kay v R [2019] NSWCCA 275 Khorami v RR v Khorami [2021] NSWCCA 228 Mirza v R [2007] NSWCCA 248 Mulato v R [2006] NSWCCA 282 Parente v R (2017) 96 NSWLR 633[2017] NSWCCA 284 Pham v R [2013] NSWCCA 217 R v FakhreddineR v Doudar [2004] NSWCCA 354(2004) 147 A Crim R 422 R v HoonR v Pouoa [2000] NSWCCA 137 R v Le Cerf (1975) 13 SASR 237 R v McNaughton (2006) 66 NSWLR 566[2006] NSWCCA 242 R v Pavlou [2014] NSWCCA 337 R v Paxton [2011] NSWCCA 242(2011) 219 A Crim R 104 R v Shi [2004] NSWCCA 135 R v Simpson (2001) 53 NSWLR 704[2001] NSWCCA 534 R v Wright (1997) 93 A Crim R 48 Wong v The Queen (2001) 207 CLR 584

Judgment (36 paragraphs)

[1]

[2]

HEADNOTE [This headnote is not part of the judgment] On 12 November 2021 Ryan George Ferguson received an aggregate sentence of imprisonment for 6 years and 6 months with a non-parole period of 3 years and 3 months. The sentence was imposed in respect of a number of serious drug supply and possession charges under the Drug Misuse and Trafficking Act 1985 (NSW) to which Mr Ferguson pleaded guilty. The offences were the ongoing supply of a prohibited drug, two charges of supplying an indictable quantity of a prohibited drug (cocaine) with a further four charges taken into account, two charges of supplying a large commercial quantity of a drug (MDMA and methylamphetamine), possessing a prohibited drug, and dealing with suspected proceeds of crime. The sentencing judge found one of the large commercial supply offences was "well below" the middle of the range of objective seriousness and the other was "even lower". He was impressed with the offender's subjective case, finding that it was a "crossroads case" and a "truly quite rare case" for extending leniency. The Crown appealed on grounds raising the following issues: (i) whether his Honour erred in his assessment of the objective seriousness of supplying the large commercial quantity of MDMA and Methylamphetamine (ii) whether the sentence imposed was manifestly inadequate Held (per R A Hulme J; Ward P and Bellew J agreeing), allowing the appeal, quashing the sentence imposed in the District Court, and imposing an aggregate sentence of 10 years 6 months imprisonment, with a non-parole period of 6 years. As to issue (i), per R A Hulme J (Ward P and Bellew J agreeing): 1. The sentencing judge erred in finding that the objective seriousness of the large commercial supply of 11.24 kilograms of MDMA and of 782.3 grams of methylamphetamine were "well below the midrange" and "even lower" respectively. The prescribed large commercial quantities for both MDMA and methylamphetamine are 500 grams. The respondent had possessed for the purpose of supply over 22 times that quantity of MDMA, and although the quantity involved in a drug supply case is not determinative of the sentence to be imposed, the large quantity of drugs along with the context of the other supply offending meant that these offences should have been characterised as falling in the midrange of objective seriousness. While the sentencing judge characterised the respondent's role as that of a street dealer with no real authority in the drug dealing enterprise, his involvement was not insubstantial as he was in an entrusted position and was significantly engaged in the venture. The storage of drugs in a property used for that purpose (agreed to be a "safehouse"), a hidden compartment in his car, and the use of an encrypted "Cipher" communications device indicated a level of sophistication in his supply activity. Khorami v R; R v Khorami [2021] NSWCCA 228, considered. R v Paxton [2011] NSWCCA 242, considered. Pham v R [2013] NSWCCA 217, applied. As to issue (ii), per R A Hulme J (Ward P and Bellew J agreeing): 2. The sentence imposed in the District Court was manifestly inadequate. The sentence failed to adequately reflect the objective gravity of the offending and the need for deterrence and community protection. In addition to the large commercial supply offences, there was serious offending involved in the ongoing supply and indictable quantity supply offences. Although the respondent had a strong subjective case, the aggregate sentence failed to proportionately reflect the totality of the offending. R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534, applied. R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242, applied. Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284, applied. The Court considered whether to exercise the discretion to intervene and impose an alternative sentence under section 5D of the Criminal Appeal Act 1912 (NSW). It determined that it should in order to maintain adequate standards of punishment for serious drug supply offences of this kind, and so as not to betray public confidence in the administration of justice. Having regard to the strong subjective case for the respondent, and the special circumstances of the need to continue the respondent's rehabilitation through treatment programs and courses under an extended period of parole, the respondent was sentenced to an aggregate term of imprisonment for 10 years and 6 months with a non-parole period of 6 years.

[3]

Judgment

WARD P: For the reasons given by R A Hulme J, I agree that the Crown has established error and that the sentences imposed were manifestly inadequate. I agree with the orders R A Hulme J proposes.
R A HULME J: The Crown has appealed against a sentence imposed upon Ryan George Ferguson by his Honour Judge Whitford SC in the District Court at Sydney on 12 November 2021.
The sentence was imposed in respect of the respondent's involvement in serious drug supply activity in various suburbs of Sydney between October 2019 and February 2020. He pleaded guilty and was sentenced in respect of six offences with a further five offences listed on Form 1 documents being taken into account.
The judge imposed an aggregate sentence of imprisonment for 6 years and 6 months with a non-parole period of 3 years and 3 months.
The offences were: Offence Statutory provision Maximum penalty of imprisonment Standard non-parole period Supply large commercial quantity of prohibited drug Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) Life imprisonment 15 years (x 2) Supply indictable quantity of prohibited drug (x 2 with a further 4 taken into account) Ditto, s 25(1) 15 years - Supply prohibited drug on 3 or more occasions during a 30-day period for financial or material reward (ongoing supply) Ditto, s 25A 20 years - Possess prohibited drug Ditto, s 10(1) 2 years - Deal with suspected proceeds of crime Crimes Act 1900 (NSW), s 193C(2) 3 years -

[4]

In compliance with the requirement of s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the judge indicated the sentence he would have imposed for each offence if not for the imposition of an aggregate sentence. The indicative sentences were the result of a 25% deduction from the assessed sentence on account of the respondent's pleas of guilty. (Non-parole periods specified in respect of Sequence 1 and Sequence 4 are not material and have been omitted.) Seq Offence Assessed sentence Indicative sentence 1 Supply large commercial quantity of MDMA (11.24kg) 7 years 5 years 3 months Seq 6 on Form 1 for Seq 1: Possess prohibited drug (2.43g Oxandrolone) - - 4 Supply large commercial quantity of methylamphetamine (782.3g) 5 years 3 years 9 months Seq 9 on Form 1 for Seq 4: Supply indictable quantity of cocaine (27.3g) - - Seq 14 on Form 1 for Seq 4: Supply indictable quantity of cocaine (28.4g) - - 10 Ongoing supply of prohibited drug (24 supplies, 22 of unknown quantity; 2 each of 85.2g cocaine) 4 years 3 years 15 Supply indictable quantity of cocaine (141.7g) 3 years 2 years 3 months 18 Deal with suspected proceeds of crime ($3100) 8 months 6 months 19 Supply indictable quantity of cocaine (168g) 3 years 2 years 3 months Seq 2 on Form 1 for Seq 19: Supply indictable quantity of cocaine (91.2g) - - Seq 17 on Form 1 for Seq 19: Supply indictable quantity of cocaine (56.8g) - -

[6]

Principles in relation to a Crown appeal against sentence

Counsel for the respondent helpfully provided the following summary of the principles applicable to a Crown appeal against sentence: "The assertion that a sentence is manifestly inadequate is an assertion that the sentence was "unreasonable or plainly unjust", as that expression is used in House v The King: see Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25] (Markarian). In other words, the Court must be satisfied that the non-parole periods and total sentences imposed were outside the range of sentences that could have been imposed: see R v Mereb; R v Younan [2014] NSWCCA 149 at [32]. However, appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences imposed in other cases. The Court must be driven to conclude that there must have been some misapplication of principle: Wong v R at [58]; Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [58]-[59]; [75]-[76] (Hili); The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 at [28]. In assessing whether the sentence imposed was "unreasonable or plainly unjust", the following principles apply: (a) It must be recalled that sentencing is a discretionary judgment and there is no single correct sentence: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 at [24] (Bugmy). (b) The Court of Criminal Appeal must not substitute its own opinion merely because it would have exercised the sentencing discretion differently to the sentencing judge: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15]. (c) Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [6]; Markarian at [25]; Hili at [58]. (d) The weight to be given to the various factors to be taken into account (including the evidence and various purposes of sentencing) is a matter for the sentencing judge: Bugmy at [24], [99]. (e) The Court of Criminal Appeal will be slow to substitute its own assessment for the objective seriousness of the offending. … (f) Whether or not manifest error has occurred is not "fundamentally intuitive". What reveals manifest inadequacy is a consideration of all of the matters that are relevant to fixing the sentence: Hili at [60]. (g) Reviewing a history of sentencing can establish a range of sentences that have in fact been imposed. However, that history does not establish either that (i) that range is the correct range; or (ii) that the upper or lower limits to the range are the correct limits. They are only a yardstick against which to examine a proposed sentence: Hili at [54] approving Director of Public Prosecutions (Cth) v De La Rosa (2010) 205 A Crim R 1 at [303] to [304] (Simpson J)."

[21]

The respondent's subjective case

The judge noted that the respondent was aged 31 at the time of sentencing. He came from an "extremely supportive family". He had no children but had plans to marry.
He had a "very limited criminal history" and was of good character.
The respondent had experienced a number of traumatic incidents in his teens which the judge accepted had profound consequences on his development, psychological makeup, and capability.
These incidents were described in detail in a report by Dr Kala Ram, clinical psychologist, dated 25 October 2021: [4] "Psychological assessment of Mr Ferguson revealed an unremarkable childhood until his teenage years at which time he experiences significant stressors including: being bullied while at school for being 'a little smaller' followed by his sister becoming involved in an abusive relationship with Rikki (when he was 15 years of age); at age 17, Mr Ferguson has five friends who bash a man which results in his death and consequently, he feels ostracised for providing information and assisting police. It appears the abovementioned predisposed Mr Ferguson to the misuse of steroids in order to feel bigger and stronger so as to protect himself and those he loves. As an adult, Mr Ferguson also reports experiencing several distressing life events which include: at age 18, his close friend, Mario is stabbed and subsequently, dies in hospital; Rebecca (a longstanding friend from school and housemate at the time), suffers a brain aneurysm; his mother contracts meningococcal disease and subsequently, is in a coma and placed on life support for several days. Additionally from ages 17-22, he described having an unhealthy relationship with his first partner, Crystal who he discovers is unfaithful to him on multiple occasions. These experiences would have likely precipitated his reliance on drugs (mainly cocaine which appears to have substituted his former use of steroids)."
The respondent told Dr Ram that he commenced drinking alcohol at the age of 16-17 and started experimenting with drugs at the age of 19. Initially he was drinking and snorting cocaine on a mostly social basis. By age 21 his cocaine use increased and by age 22-23 he was snorting every weekend in addition to mid-week. He was also using MDMA. His father, with whom he worked in his early 20s, had no knowledge of his drug use. His fiancée knew of it, but not the extent. By 2018-2019, 6-12 months before the offences, his cocaine use was "spiralling out of control". He previously had small debts that he was able to pay because he was working but at the time of the offences, he owed approximately $30,000. [5]
The respondent maintained to Dr Ram that he had not used alcohol or any illicit substances since his arrest on 6 February 2020. He actively sought out rehabilitation courses and programs, engaging in and completing all those available within the limits of the custodial environment.
Dr Ram suggested that during the commission of the offences, the respondent satisfied the DSM-5 criteria for "Other Specific Trauma-and-Stress Related Disorder" and "Cocaine Use Disorder (currently in sustained remission)". [6]
The sentencing judge found that if the respondent "continued with the treatment and assistance he had been undertaking voluntarily and enthusiastically while in custody, and be suitably assisted and supervised in doing so, the risk of [his] reoffending is negligible". [7]
The respondent had "shown remorse by his timely plea and a letter to the court demonstrating that he has accepted responsibility for his offending". This was supported in the documentary material including affidavits by his father and his partner as well as the report of Dr Ram. [8]
The judge proceeded to describe the "delicate balance between offending which is objectively relatively serious and a powerful subjective case". It is evident that his Honour was overwhelmingly impressed by the respondent's subjective case which he described, with occasional descriptive flourish, as follows: "Mr Ferguson is a man who as a teenager was exposed to extraordinary trauma. It was extraordinary not only in its nature but also in its extent. The cumulative effect of that successive trauma had profound consequences for his psychological wellbeing. In spite of that trauma and its profound consequences, Mr Ferguson successfully completed an apprenticeship and energetically, enthusiastically and successfully set up his own business with two friends. Apart from the matters now before the Court he is a person who has demonstrated no inclination or disposition toward criminal or antisocial conduct generally, indeed the contrary is the case. To manage the consequences of the trauma he experienced, he turned to the use of illicit substances. His use of those substances escalated to the point of substantial addiction. To a significant extent he managed to hide from those closest to him, his family, his business associates, his partner and her family, the extent of his addiction. He otherwise appeared to them to function relatively normally, maintaining his standing among them as a loving, caring, hardworking and energetic prosocial young man. The addiction resulted in escalating debt which like the addiction itself became increasingly difficult for him to manage. He had no professional assistance either to deal with the addiction or more significantly perhaps the consequences of the underlying trauma. As a consequence of his escalating drug debt, he was prevailed upon by those to whom he was indebted to undertake the risky tasks of storing and distributing their drugs at their direction and for their profit. He succumbed to that "opportunity" in order to reduce his debt and sustain his addiction. In my assessment he profoundly lost his way in a manner that was completely out of character to the man and he did not know where to turn. Unsurprisingly, particularly having regard to the general lack of sophistication in the method of his offending, he was eventually caught and charged with the matters for which he must be sentenced today. There is an essentially direct connection between his psychological compromises and the offending. Mr Ferguson's offending behaviour is directly linked to his mental health conditions and drug use which in combination have intimate connection with the traumatic events to which he was exposed as a teenager. This, together with the enduring nature of that developmental trauma, diminishes his moral culpability and diminishes, in this exercise, the significance of general deterrence which would otherwise be regarded as having a substantial claim to predominance. From the time he was taken into custody, Mr Ferguson has addressed head on the consequences for him, his loved ones and the community of his offending. He has accepted responsibility for his conduct. He has demonstrated profound remorse accompanied by insight into the personal and social harms of his offending. He has come for the first time to obtain assistance for the factors which contributed to his offending. He has done so energetically and successfully consistently with the character that he has always demonstrated to those who know him best. When the resources of the corrective services department were exhausted in terms of his access to them as a remand prisoner, he sought and obtained further assistance through private funding. He intends to continue with that assistance upon his release. It will be important to do so to ensure the sole risk factor in terms of any potential recidivism is addressed. He has remained abstinent in an environment which experience shows contains substantial temptation otherwise. He has conducted himself as a prisoner impeccably, taking on difficult work and receiving substantial commendation for the nature and extent of his efforts. He has done so through the difficult experience of the pandemic which has caused deprivations and complications within the custodial environment, far more acute even than were experienced by the community generally. That work involved volunteering to undertake some difficult work for the prison community particularly in relation to mitigation of the consequences of the pandemic as corrective services case notes reveal. Indeed Mr Ferguson has maintained continuous employment since his incarceration working in ground maintenance and as a member of the Covid 19 response team. The corrective services Covid-19 liaison officer notes that Mr Ferguson's efforts and work ethic have been nothing short of exemplary and that his dedication and attention to detail has helped minimise the risk of transmission and reduced the cost associated with outsourcing the work to an external professional cleaning contractor. Mr Ferguson and his partner intend to marry and desire to have a family. They have the enthusiastic support of both their families in this desire, in spite of Mr Ferguson's current situation. The business which Mr Ferguson started with his friends continues to operate. He is no longer a director of the company through which the business is conducted but he has the opportunity and I understand is welcome to return to work there when he is released from custody. He has other opportunities for employment as well so substantial is the support for him within the community. The combination of quite a catalogue of these and other factors admit of a conclusion that Mr Ferguson's prospects of rehabilitation are excellent. Properly assisted and supervised I consider, as I have already expressed, that the likelihood of him ever reoffending is negligible. The factors that underpin those conclusions include the following. First his character generally. He has always been hard working, generous and community minded. Second, the absence of substantial risk factors, apart from the risk of relapse into drug use through its connection in his experience with dealing with the underlying trauma. Third, the continuing genuine and successful efforts he has made to address that sole risk factor and its psychological underpinning. Fourth, the remorse and insight that he has consistently demonstrated. Fifth, the extent of family support that he enjoys, not only from his immediate family but also from his partner and her family. Sixth and related to the fifth, the incentive and motivation that he has to marry and start a family will provide a focus for his continued treatment and abstinence and a return to the productive life he enjoyed before it spiralled out of his control through addiction and the attendant debt. Seventh, the broader community support that he enjoys and the opportunities to which it gives rise in terms of employment and support generally in his reintegration into the community. I accept the defence submission that extended exposure to imprisonment at his age and stage in life has the potential to further entrench criminal behaviour rather than promote the ideal outcome from the point of view of the community's best interests of his reintegration to a law abiding prosocial life in the community which he has demonstrated he is well capable of maintaining. A sentence that would be crushing would be one that runs the risk of diminishing the opportunities and incentives that presently exist in support of a successful return to a law abiding existence in the community. The community generally will benefit most and its best interests ultimately served by returning Mr Ferguson to a productive existence free from offending. There is genuinely scope to describe this as a crossroads case in the way that expression is understood in this context. I sense that Mr Ferguson is at an age and stage in his life where he is highly motivated and that this powerful combination of protective factors I have outlined will ensure a successful return to the community provided it is not delayed too long at risk of some loss of incentive and opportunity. For all these reasons I have tried to encapsulate in this summary I consider that this matter demands extension to the offender of some leniency that might not otherwise be appropriate. That is not overwhelming the objective gravity of the offending with subjective considerations, it is to my mind doing individualised justice having regard to all the circumstances both of the offender and the offending and determining a penalty that does justice both to the individual and the community, serving ultimately the best interests of the latter through the rehabilitation of one of its members who is more uniquely placed than many that come before the courts to successfully achieve that outcome. It seems to me that this is one of those truly quite rare cases where it can be said with a degree of comfort that by extending leniency now there is real possibility that Mr Ferguson will never again reoffend and all the objects of sentencing will nonetheless have appropriate recognition."

[22]

Ground 1 - error in assessment of objective seriousness of the large commercial supply offences (Seq 1 and Seq 4)

The learned sentencing judge found that the objective seriousness of the offence in sequence 1 was "well below the midrange but … not at the lowest level" and the objective seriousness of the offence in sequence 4 was "even lower". [9]
It is necessary to set out the following rather lengthy extract from the remarks on sentence which led to the announcement of those findings. It is evident that the judge first spoke in global terms about the respondent's offending before referring to factors relevant to each offence. The overall description appears intended to provide a context for the specific. "The facts of and surrounding the offending are set out in a detailed statement of agreed facts tendered with the prosecution materials. I accept the following six factual propositions relied upon in submissions on behalf of the offender can be drawn from those agreed facts. They, among other matters, are relevant to the assessment of the objective gravity of the offending for each of the offences. Firstly that Mr Ferguson was a runner of drugs for others. Secondly that he also stored drugs for others, presumably the same others. Thirdly he would take directions from those others on a cipher device and carry out the supply activities as directed by those others. Fourthly he is not shown to be in possession of any drug legers [sic] or other indicia consistent with him having a personal stake in the drugs stored or distributed or consistent with him being in any way personally involved either in the planning or the organisation of or the receipt of the profit from this illicit commercial enterprise. Fifthly, Mr Ferguson's conduct of holding and storing the drugs for others exposed him to greater risk of being caught than those by whom he was directed and is consistent with having a role at a lower level within a hierarchy that the agreed facts plainly accept existed. Finally, Mr Ferguson was not found to have large amounts of cash at his premises and the money received for the drugs he supplied was passed on to those others higher in the hierarchy. This too is consistent with him being removed from involvement in the organisation, planning and profit of the enterprise. Without being necessarily exhaustive, factors that may affect the assessment of objective gravity of drug supply offending include the following which were highlighted by the submissions on each side in this matter. Firstly the role of the offender and the level of participation in the offence. One of the hallmarks of the position of a person within any hierarchy or their role is their exposure to the danger of apprehension. Those people that have possession or store illicit items such as drugs always expose themselves to apprehension and are considered to be lower in any hierarchy. Secondly, the quantity and purity of the prohibited drugs, although these may not be the principal determinative factors, the role of an offender and the level of criminality such as their position within a hierarchy are more important in determining the sentence than the quantity of a drug. Thirdly, other factors such as the number of occasions on which the drug was supplied and the planning involved. I am satisfied that it is more likely than not there was a connectedness here between all the offending conduct in the sense that it all formed part of the offender's lower level participation in a broader enterprise which the quantity of drugs involved suggest was likely of some scale and which at a level beyond the offender probably required significant organisation, planning and financial support. Here the prosecution submission that the entire drug supply operation was run by the offender runs entirely counter to the facts agreed between the parties and the conclusions that inevitably flow from them. My assessment is that the offender's role here involved him in the relatively menial and certainly higher risk tasks that enabled those actually concerned in the planning, organisation and profit of the enterprise to be protected from detection. Mr Ferguson's role was to physically store drugs on behalf of others and be a runner of the drugs for those others. He was not the owner of the drugs and did not distribute drugs on his own account. On delivery of the drugs he would receive money and pass that money on to the individuals who were organising the operation and directing his activities. The mechanisms employed by Mr Ferguson to complete the tasks he was directed to undertake of storage and running were hardly sophisticated or highly organised with the possible limited exception of the employment of the device of a hidden storage compartment in his vehicle. The gravity of the offending insofar as it might be considered globally as a serious [sic] of connected acts is heightened by the quantity and variety of the drugs involved and the number of transactions they represent. In his submissions the offender recognised the quantity of drugs supplied was substantial, that is particularly so when one considers sequence 1 in isolation. However, and it is important to recognise as the High Court has confirmed, the weight of drugs would not dictate how the sentencing discretion might be exercised but rather be one factor to be taken into account. The characterisation of offending conduct being in the midrange or above the midrange is generally applicable to people involved as the organisers of the drug distribution enterprise or those who at least generally have a stake in planning in the organisation and the profit from the drugs supplied and reap the commensurately larger financial rewards. Mr Ferguson's role, properly characterised, does not attract such a description. Some relevant objective features as they apply to the individual offences when considered separately but also in light of and in the context of the preceding observations which apply generally to all the offending, can be summarised in the following way extracted from the submissions. Sequence 1 involved 11.242 kilograms of MDMA. It was located during the search of the Wentworth Point residence on 6 February 2020 and it is an offence of deemed supply. The purity of the product ranged between 11% to 78% with the median purity being 77 and a half percent. Whilst no one sensibly could suggest that 11 kilograms of MDMA is an insignificant quantity, it is many, many orders of magnitude less than is too frequently seen in offending that comes before this Court. That combined with the conclusions I have reached concerning Mr Ferguson's role of someone well removed from any responsibility for planning or organisation of the activity and removed from any participation in the profit to be derived from his endeavours, then I think that the conclusion is inevitable that his offending in respect of sequence 1 falls well below the midrange but for reasons obvious from what I have already said, not at the lowest level. Sequence 4 involved 782.3 grams of methylamphetamine also located during a search of the Wentworth Point premises on 6 February last year. It too is an offence of deemed supply. The purity of the product is recorded as being 4%. Similar considerations and conclusions apply to the sequence 4 offending, although the substantially smaller quantity likely put it even lower on a spectrum of the conduct that is capable of being put by the particular offence provision. In assessing the objective gravity of the ongoing supply offence, sequence 10, the relevant considerations will include the quantities, the degree of repetition, the system and the organisational structure utilised. In the event that the individual supplies are large in nature, it is accepted that the sentencing Court may give increased significance to the weight supplied, however the evidence does not permit a conclusion to the requisite standard that the individual supplies here were of a large quantity. The observations I have already made about Mr Ferguson's role generally apply equally in respect of this offence. Again, relative to like offending that is frequently seen in this Court, the sequence 10 offending involving supplies on 24 occasions across 13 separate days within the period of a month between 18 October 2019 and 15 November that year is well removed from the most serious examples of offending against this provision. It is in the nature of what is frequently described as street dealing for whatever value might be derived from that expression. Sequence 15 involved the supply of 140 grams of cocaine to a known male on 21 December 2019. Sequence 18 relates to a sum of $3100 which was connected to the payment for a storage shed lease between 18 May 2016 and 7 February 2020. Sequence 19 involved the supply of 168 grams of cocaine to an unknown male on 23 January 2020. Mr Ferguson accepts and it is accordingly common ground that a period of fulltime custody is inevitable, however he submitted that the Court on balancing the objective circumstances of the offending such as his role as a runner and storer of drugs for others against his strong subjective case, would impose a sentence that would reflect a substantial degree of leniency." (Emphasis added)
The Crown had submitted that the sequence 1 offence was "in the upper range of objective seriousness" and the sequence 4 was "above the mid-range of objective seriousness". [10]
Counsel for the respondent made a broad submission that "the objective gravity of the offending conduct would be deemed to be below the mid-range". [11]
The above extract from the remarks on sentence makes clear that the primary judge accepted in large part the submissions that were skilfully made by counsel for the respondent. However, there are some problems with that acceptance.

[26]

Consideration

The starting point in relation to this ground of appeal is to note the caution with which this Court approaches contentions of error in the assessment of the objective seriousness of an offence. In Khorami v R; R v Khorami [2021] NSWCCA 228 at [18], after quoting both Spigelman CJ and Simpson J in Mulato v R [2006] NSWCCA 282 at [37], [45], Bell P (as his Honour then was) said: "More recently, Leeming JA in Taitoko [[2020] NSWCCA 43] at [87] observed that the "question of objective seriousness is quintessentially a matter for the sentencing judge". It is for this reason that it has been said, citing Mulato [[2006] NSWCCA 282] at [37], that "[t]he Court has therefore been 'very slow' to determine such matters for itself or to set aside the judgment made by the first instance judge exercising a broadly based discretion": see Lees v R [2019] NSWCCA 65 at [55]."
The respondent supplied drugs on behalf of "others" according to the agreed facts, although he told Dr Ram it was his drug dealer to whom he owed a debt. In either case, he was trusted with the possession of large quantities of drugs from which he was to make supplies. It is not known for each transaction what the quantities were; but where it is known it is consistent with the respondent operating at a wholesale level. In other words, rather than being a supplier of small quantities to individual users of the drug, he was supplying quantities that clearly imply his purchasers were themselves drug suppliers. An offer he made to obtain a Cipher device for one of his customers for $2000 further implies this.
The respondent operated with a degree of organisation and sophistication. This is indicated by the hidden compartment in his vehicle, his use of a safehouse and his use of a Cipher phone.
The secret compartment in the respondent's vehicle was opened by a complex means of pressing a button on the dashboard, turning the air conditioner fan on, and then pressing a button on a garage remote.
His use of a safehouse on its own was indicative of organised drug supply activity. Like the hidden compartment in his vehicle, it was his, not his principal's. It was well away from his own home, and equipped with items used in the preparation and packaging of drugs: multiple plastic bags; a vacuum sealer; a block press and a kitchen scale. The judge did not refer to these items, or even to the agreed fact that the apartment at Wentworth Point was described as a "safehouse".
For communications in relation to his drug supply activities the respondent used an encrypted Cipher device so as to avoid detection and interception by law enforcement agencies. He had sufficient knowledge and connections to even offer to obtain such a device for one of his customers.
In the context of involvement in a large-scale drug supply enterprise, these features may not be beyond what is ordinarily expected. However, they are features for which the respondent was directly responsible. They are not consistent with the sentencing judge's description of the offending comprising mere physical storage of drugs and being a runner who delivered those drugs for others in a manner that was "hardly sophisticated or highly organised". The exception from this description of the hidden compartment acknowledged by the judge was understated: "with the possible limited exception of …".
The quantities the subject of the large commercial quantity supply offences were substantial. The prescribed large commercial quantities for both MDMA and methylamphetamine are 500g, yet the sequence 1 offence concerned 11.24kg of MDMA and the sequence 4 offence concerned 782g of methylamphetamine.
The other offences for which the respondent stood for sentence provided a relevant context or background against which the seriousness of the offences in sequences 1 and 4 required assessment. If the latter were offences devoid of such context they would fall to be assessed as isolated instances of involvement in drug supply. The true position is otherwise.
The offence in sequence 10 was a serious example of its type. Supplying prohibited drugs on an ongoing basis requires proof of supplies for financial or material reward on three or more separate occasions during any period of 30 consecutive days: s 25A, Drug Misuse and Trafficking Act. The respondent's offence well-exceeded this: 24 supplies of an unstated quantity and 2 supplies each of 85.2g of cocaine. While there was no evidence as to the quantity in most of the supplies, the overall context denies the description of the sentencing judge of "street dealing".
The individual supply offences in sequences 15 and 19 were not minor matters either. They each involved cocaine, one of 141.7g and the other of 168g. The supply offences taken into account involved quantities of 27.3g, 28.4g, 91.2g and 56.8g. The quantity involved for such an offence may range from the prescribed indictable quantity of 5g to the commercial quantity of 250g.
Nothing was said in the statement of agreed facts as to the respondent's remuneration. He did not give evidence in the sentence proceedings, but the history provided to Dr Ram included that he was rewarded by having his debt to his drug dealer reduced and by taking out drugs for his own use. He said the debt was about $30,000 at the time of the offending. [26]
It is unfortunate that the agreed facts referred to the respondent being a "runner" as that term is inherently imprecise. It is often used to connote somebody at the lowest echelon of drug supply activity; someone involved in selling "street deals" to users of a drug: see, for example, R v Hoon; R v Pouoa [2000] NSWCCA 137 at [40]; R v Fakhreddine; R v Doudar [2004] NSWCCA 354; (2004) 147 A Crim R 422 at [38]; Hurmz v R [2017] NSWCCA 235 at [8]; Kay v R [2019] NSWCCA 275 at [6]. The term has also been used to describe someone involved in transporting much larger quantities of drugs but where their activities are confined to the transporting: see, for example, R v Shi [2004] NSWCCA 135 at [16], [44]; DAB v R; NJB v R [2010] NSWCCA 275 at [13]; and R v Pavlou [2014] NSWCCA 337 at [5]. It is difficult to conceive of an offender who carried out the activities described in the statement of agreed facts in the present case as a "runner" in either of the ways described in cases such as these.
Johnson J observed in R v Paxton [2011] NSWCCA 242; (2011) 219 A Crim R 104 at [135] that an offender's role in drug supply is not to be determined by the selection of a label which might attach to it. It should be assessed by a consideration of the involvement of the offender in the steps taken to effect the drug supply offences.
In relation to the respondent carrying out activities for "others" it is necessary to note (as the Crown emphasised) that this was not a matter that reduced his criminality as might be the case if the respondent was acting under duress or coercion. As the Crown characterised it, "he voluntarily decided to go to work for serious drug dealers, to involve himself in serious supplies because he didn't want his family to find out that he was using cocaine". [27] This was a reference to what the respondent told his psychologist: "He expressed shame and embarrassment, indicating that he could not ask his family or friends for help because he did not want to disclose his drug use to anyone". [28]
When referring to specific matters affecting the gravity of the individual offences, the judge compared the quantity of the drug involved in the sequence 1 offence (11.24kg of MDMA) as being "many, many orders of magnitude less than is too frequently seen in offending that comes before this Court". Nothing was cited in support of this proposition, and it is not sustainable. On any view, a quantity in the order of 11kg that is more than 22 times the prescribed large commercial quantity of MDMA exceeds that found more often than not in offending against the Drug Misuse and Trafficking Act. [29]
Having diminished the gravity of the sequence 1 offence in part by that analysis, the judge then distinguished the sequence 4 offence by referring to it as involving a "substantially smaller quantity". [30]
There was no controversy about the fact that the quantity involved in a drug supply case is not determinative of the sentence to be imposed. It is important to recognise, however, that this does not mean that it may not be of significance. McCallum J (as her Honour then was) addressed this in Pham v R [2013] NSWCCA 217. Her Honour went to the primary authority on the issue, Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 and said: [24] … It is instructive to revisit that decision. Above all, what it emphasises is the vice of an overly prescriptive or formulaic approach to the assessment of the objective seriousness of drug offences. [25] In that context, Gleeson CJ noted the risk of error in adopting a guideline which attached significance to the objective fact of the quantity of the drug, noting by way of example that there are cases where "an offender's state of information and belief about the quantity of heroin imported is much more significant than the objective fact as to quantity" (at [31]). [26] The same proposition was emphasised in the joint judgment of Gaudron, Gummow and Hayne JJ (at [68]-[69]). Their Honours noted, "it is by no means uncommon for many of those involved in an importation of narcotics to know nothing at all about what they are dealing with, except that it is a quantity of narcotic", adding that "information about the kind and size of reward given or promised to the offender for involvement in the importation will [often enough] be seen as important in fixing a sentence and distinguishing between offenders". [27] The critical proposition is that the quantity of the drug is a relevant but not determinative measure of the degree of seriousness of the offending. The Court must consider all of the circumstances informing that issue, including the role played by the offender, his or her state of knowledge, the reward to be received and any other relevant indicator of moral culpability or lack of it. That said, as recently explained by Latham J, the quantity of the drug remains a very material consideration in assessing the objective seriousness of a State offence against the Drug Misuse & Trafficking Act: see R v Calcutt [2012] NSWCCA 40 at [60]."
A large part of the respondent's case in this Court, and before the sentencing judge, involved characterising his role as that of a menial underling, devoid of any authority or decision-making capacity. It was sought to contrast this with the role of his principal(s) who, as described by the judge in accepting the defence submissions, were "concerned in the planning, organisation and profit of the enterprise" and who were "protected from detection". This is a matter which pervades the judge's reasons both as to objective seriousness and in supporting his later explanation for extending considerable leniency in sentencing. It is, however, to identify characteristics that if present would render the offences more serious. The absence of such characteristics did not render the offences less serious than they in fact were.
It must be accepted that the respondent was not a principal in whatever enterprise was engaged in this drug dealing venture. However, he performed a vital function for its existence. He was trusted with large quantities of drugs worth very large sums of money, and he employed sophisticated techniques to carry out his role. He was actively engaged in drug supply activity over several months. This is the background against which an assessment had to be made of the respondent's possession for the purpose of supply of large commercial quantities of MDMA and methylamphetamine on 6 February 2020. The objective seriousness of the offence in sequence 1 was not "well below the midrange" and the offence in sequence 4 was not "even lower".
Ground 1 must be upheld.

[27]

Ground 2 - manifest inadequacy

The Crown submitted that the aggregate sentence (and the underlying indicative sentences) failed to reflect the objective seriousness of the offences. They are so low as to inadequately reflecting important sentencing considerations: Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284. The non-parole period of the aggregate sentence did not reflect the gravity of the offences or the need for general deterrence: R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [65].
R v Le Cerf (1975) 13 SASR 237 at 239 was cited for the proposition that those who participate in a drug supply enterprise at any level should receive a heavy penalty. [31]
The Crown summarised its case as follows: [32] "The respondent willingly involved himself in significant dealing of three types of drugs over the course of approximately four months. He was sentenced for two offences over the course of approximately four months. He was being sentenced for two offences that carried a maximum penalty of life imprisonment and a standard non-parole period of 15 years, in addition to other offences carrying maximum penalties of 15 and 20 years. Viewed against these guideposts, the sentence was manifestly inadequate. … [T]he indicative sentences for sequences 1 and 4 were inadequate, if not manifestly so. Once the totality of the criminality that fell to be reflected in the ultimate sentence is taken into account, the aggregate sentence is manifestly inadequate. The sentence had to reflect two supplies of a large commercial quantity, one of which involved a quantity 22 times over the relevant threshold. The s 25A offence involved 24 supplies, including two supplies of 85.2g of cocaine. The individual supply charges likewise involved quantities that were not insignificant (cocaine supplies of 140g, 168g, 27.3g, 28.4g, 91.2g and 56.8g)."
While acknowledging the limitations of the exercise (citing Hili v The Queen; Jones v The Queen (2014) 242 CLR 520; [2010] HCA 45 at [59] and Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]), the Crown referred to a number of decided cases said to reveal that the sentence in the present case is more consistent with (although still below) sentences imposed for a single offence of large commercial quantity supply (and for quantities of drugs lower than that involved in sequence 1). [33]

[29]

Consideration

The ongoing supply offence in sequence 10 was a very grave example of its type. The quantity supplied is not irrelevant: Daher v R [2018] NSWCCA 287 at [52]. In Mirza v R [2007] NSWCCA 248 at [11] Howie J observed that s 25A was said to have been enacted to target dealers who were involved in the ongoing supply of drugs for profit where the amounts supplied on any particular occasion were small and one instance of supply did not fairly represent the involvement of the supplier in the distribution of drugs. His Honour considered that the amount of the drug supplied in that case (an ounce of cocaine on each of three occasions) was "an important fact in determining the seriousness of the crime committed … in the range of criminal activity that could be encompassed by the section". In the present case it is known that on 2 of the 24 occasions the amount supplied was 3 ounces (85.2g) and there is a compelling inference that the amounts on each of the other 22 occasions were not trivial.
Again, however, the sentencing judge diminished the significance of the amount supplied, and the activity involved generally, by describing the offence in terms that are completely unsupportable: "[T]he evidence does not permit a conclusion to the requisite standard that the individual supplies here were of a large quantity. The observations I have already made about Mr Ferguson's role generally apply equally in respect of this offence. Again, relative to like offending that is frequently seen in this Court, the sequence 10 offending involving supplies on 24 occasions across 13 separate days within the period of a month between 18 October 2019 and 15 November that year is well removed from the most serious examples of offending against this provision. It is in the nature of what is frequently described as street dealing for whatever value might be derived from that expression."
"Street dealing" is a term usually associated with sales of drugs to end users. The respondent's supply of drugs was at least in part to drug suppliers such as Mr Rolfe. Neither party referred to this offending as involving "street dealing". [35]
The judge's assessment of a sentence of 4 years before reduction for the plea of guilty for the s 25A offence where the maximum penalty is 20 years is grossly inadequate.
The judge's finding that respondent's moral culpability was diminished for the reasons identified in the extract from the sentencing remarks set out above (at [41]) was, to say the least, generous. It was not open to the judge to take the respondent's self-induced intoxication at the time of the offending into account as a mitigating factor (s 21A(5AA), Crimes (Sentencing Procedure) Act) but perhaps that is not what his Honour meant when referring to "drug use" in relation to this issue. However, having regard to the description of the activities in which the respondent engaged in carrying out the offences, and the rather limited respect in which it could be said that his mental health was impaired and had a bearing upon the offending, it is difficult to understand why moral culpability was reduced in any significant respect.
There was no suggestion in the evidence that the respondent acted without knowledge of what he was doing, or of the gravity of his actions. Accordingly, the justification for any moderation of the weight to be afforded to general deterrence was at best slight: see, for example, R v Wright (1997) 93 A Crim R 48 at 52.
The Crown reminded the judge, but he made no reference to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act. The Crown also reminded his Honour of Parente v R in which (at [108]-[111]) a five-judge bench of this Court emphasised the importance of deterrence and protection of the community in sentencing for drug supply cases. The Court also spoke of the necessity for judges to remain mindful of the maximum penalty and any standard non-parole period which are the legislative guideposts.
The nine cases described in the Crown's written submissions under the heading "Comparable cases" each involved offences of supplying a large commercial quantity of MDMA, methylamphetamine or cocaine. Six of the cases involved a single such offence and three involved two such offences. Some also involved an offence of a different type: one offender was also sentenced for possession of more than three firearms; two offenders were also sentenced for dealing with proceeds of crime; another two were also sentenced for supply of an indictable quantity of a drug.
None of the cases involved an appeal against an aggregate sentence imposed for the number of offences involved in the present case. The Crown's reliance upon them was more to indicate that the indicative sentences for the large commercial quantity offences in the present case were inadequate by comparison. However, there are points of distinction of varying significance rendering the cases of little assistance in the determination of whether this ground of appeal is made out.
The aggregate sentence imposed by the primary judge involves a very large degree of notional concurrency of the indicative sentences. The longest indicative sentence is 5 years and 3 months for the sequence 1 offence. The aggregate sentence is 6 years and 6 months. The additional criminality involved in the other offending is substantial but accounted for only a further 1 year and 3 months. Such concurrency was unjustifiable.
An aggregate sentence of 6 years and 6 months, absent a finding of special circumstances pursuant to s 44(2B) of the Crimes (Sentencing Procedure) Act, would require a non-parole period that is at least 4 years and 10.5 months. The judge neglected to make a finding of special circumstances but nevertheless reduced the non-parole period to 3 years and 3 months, 50% of the total term. Such a non-parole period is wholly inadequate in reflecting "all of the circumstances of the offence and the offender - including the objective gravity of the offence and the need for general deterrence": R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [65].

[32]

Resentencing

The respondent read two affidavits for the purpose of resentencing if that eventuality arose. Both attested and provided documentary material as to the respondent's experience in custody since sentencing last November. None of this material was contested and the deponents were not required for cross-examination.
It is apparent that the respondent has continued on the same trajectory he established whilst on remand. He has continued to seek out rehabilitative and self-improvement courses and programs and has participated in whatever has been made available to him. He appears to remain highly motivated to maintain the abstinence he has achieved since coming into custody.
The respondent is presently highly regarded as a leading hand in an industry-related employment position at his current placement. Like the majority of inmates, he has experienced adverse conditions as a result of the COVID-19 pandemic. For example, he was looking forward to an in-person visit by his parents in May which was cancelled at late notice because of a COVID-19 related lockdown. Visiting generally has been disrupted significantly through the pandemic era. Communication by way of AVL is not as readily available as might be desired. Unsurprisingly, the respondent describes himself as extremely anxious and stressed about the outcome of this appeal. It has impeded his ability to progress from C2 classification to C3, the lowest available classification which would enable benefits such as day leave and work release.
All of this material is highly favourable to the respondent and should be taken into account in that way.
The primary judge was in error in his assessment of the objective seriousness of the large commercial supply offences in sequences 1 and 4. They are within the middle of the range, albeit just so. The ongoing supply offence in sequence 10 is far removed from the primary judge's description of it involving "street dealing". It is a serious example of its type. The indictable quantity supply offences in sequences 15 and 19 are of moderate seriousness. Finally, the proceeds of crime offence is of such insignificant seriousness it is a wonder the prosecution pursued it.
The existing sentence should be quashed. A new aggregate sentence should be imposed based upon indicative sentences set out below, taking into account the offences on the Form 1 documents in respect of sequences 1, 4 and 19. Because of the quantities involved, the offence in sequence 4 is slightly less serious than that in sequence 1 but it has two significant offences on the Form 1 attached to it.
The proceeds of crime offence should be excluded from the aggregate sentence and disposed of without penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act.
The strong subjective case for the respondent is factored in by assessing the aggregate and indicative sentences at the lowest end of the range that is proportionate to the gravity of the offences. The principle of totality has been applied with some degree of accumulation being notionally factored into the assessment of the aggregate sentence.
There should be a finding of special circumstances in the need to continue fostering the respondent's rehabilitation through treatment programs and courses under an extended potential period of parole.
Each of the indicative sentences has been reduced by 25% on account of the respondent's early pleas of guilty. Seq Offence Assessed sentence Indicative sentence 1 Supply large commercial quantity of MDMA (11.24kg) 10 years 7 years 6 months Seq 6 on Form 1 for Seq 1: Possess prohibited drug (2.43g Oxandrolone) - - 4 Supply large commercial quantity of methylamphetamine (782.3g) 10 years 7 years 6 months Seq 9 on Form 1 for Seq 4: Supply indictable quantity of cocaine (27.3g) - - Seq 14 on Form 1 for Seq 4: Supply indictable quantity of cocaine (28.4g) - - 10 Ongoing supply of prohibited drug (24 supplies, 22 of unknown quantity; 2 each of 85.2g cocaine) 8 years 6 years 15 Supply indictable quantity of cocaine (141.7g) 5 years 3 years 9 months 19 Supply indictable quantity of cocaine (168g) 5 years 3 years 9 months Seq 2 on Form 1 for Seq 19: Supply indictable quantity of cocaine (91.2g) - - Seq 17 on Form 1 for Seq 19: Supply indictable quantity of cocaine (56.8g) - -

R v Ferguson

At a glance

Court

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Catchwords

Judgment (36 paragraphs)

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Legislation Cited (4)

Cases Cited (43)

Cited By (6)