234 CLR 143
CMB v Attorney General (NSW) [2015] HCA 9
243 A Crim R 282
Cullen v R [2014] NSWCCA 162
Dinsdale v The Queen [2000] HCA 54
202 CLR 321
Everett v The Queen [1994] HCA 49
181 CLR 295
Griffiths v The Queen [1977] HCA 44
Source
Original judgment source is linked above.
Catchwords
234 CLR 143
CMB v Attorney General (NSW) [2015] HCA 9243 A Crim R 282
Cullen v R [2014] NSWCCA 162
Dinsdale v The Queen [2000] HCA 54202 CLR 321
Everett v The Queen [1994] HCA 49181 CLR 295
Griffiths v The Queen [1977] HCA 44137 CLR 293
Hili v The QueenJones v The Queen [2010] HCA 45242 CLR 520
House v R [1936] HCA 4055 CLR 499
Gall v RGall v R [2015] NSWCCA 69
Green v The QueenQuinn v The Queen [2011] HCA 49244 CLR 462
JM v R [2014] NSWCCA 297
Lowndes v The Queen [1999] HCA 29195 CLR 665
Makarian v The Queen [2005] HCA 25228 CLR 357
Mill v The Queen [1988] HCA 70166 CLR 59
Mulato v Regina [2006] NSWCCA 282
Pantorno v The Queen [1989] HCA 18171 A Crim R 267
R v Hayes (1984) 1 NSWLR 74066 NSWLR 566
R v MJB [2014] NSWCCA 195
R (Cth) v Nguyen84 NSWLR 581
The Queen v Pham [2015] HCA 39
Toole Kurt v R
Toole Joshua v R [2014] NSWCCA 318
Zreika v R [2012] NSWCCA 44
Judgment (4 paragraphs)
[1]
R v House [2005] NSWCCA 88
R v Jennar [2014] NSWCCA 331
R v Li [2014] NSWCCA 327
R v Loveridge [2014] NSWCCA 120
R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
R v MJB [2014] NSWCCA 195
R (Cth) v Nguyen; R (Cth) v Nguyen [2010] NSWCCA 331
R v Rae [2013] NSWCCA 9
R v Robert Borkowski [2009] NSWCCA 102
R v Scott [2005] NSWCCA 152
R v Van Ryn [2016] NSWCCA 1
R v Williscroft (1975) VR 292
R v Wood [2012] NSWCCA 231; 84 NSWLR 581
The Queen v Pham [2015] HCA 39
Toole Kurt v R; Toole Joshua v R [2014] NSWCCA 318
Zreika v R [2012] NSWCCA 44; 223 A Crim R 460
Category: Principal judgment
Parties: Regina - Applicant Crown
George Hatzisavvas - Respondent
Gustavo Lopez-Rios - Respondent
Representation: Counsel:
H Baker - Applicant Crown
T Game SC/D Barrow - Respondent Hatzisavvas
A Francis - Respondent Lopez-Rios
[2]
Solicitors:
Solicitor for Public Prosecutions - Applicant Crown
The Law Practice - Respondent Hatzisavvas
E Rahme - Respondent Lopez-Rios
File Number(s): 2013/2623942013/262128
Decision under appeal Court or tribunal: District Court of NSW
Jurisdiction: Criminal
Date of Decision: 07 August 2015
Before: Flannery SC DCJ
File Number(s): 2013/262394
2013/262128
[3]
Judgment
HOEBEN CJ at CL:
Offences and sentence
Mr Hatzisavvas
On 14 October 2014 Mr Hatzisavvas [Hatzisavvas] pleaded guilty in the Local Court to two counts of supplying a large commercial quantity of methylamphetamine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for each offence is imprisonment for life. There is a standard non-parole period of 15 years.
On 7 August 2015 Flannery SC DCJ sentenced Hatzisavvas to an aggregate sentence of imprisonment for 8 years and 3 months with a non-parole period of 5 years. That sentence was to commence on 28 August 2013 and expire on 27 November 2021. The non-parole period will expire on 27 August 2018.
Hatzisavvas received a combined discount of 33 per cent for his pleas of guilty (25 per cent) and for his assistance to authorities (8 per cent).
The indicative sentences were:
Count 1 - Imprisonment for 6 years with a non-parole period of 3 years 6 months.
Count 2 - Imprisonment for 7 years 3 months with a non-parole period of 4 years 3 months.
Mr Lopez-Rios
On 14 October 2014 Mr Lopez-Rios [Lopez-Rios] pleaded guilty in the Local Court to the same two charges as Hatzisavvas.
On 28 August 2015 Flannery SC DCJ sentenced Lopez-Rios to an aggregate sentence of imprisonment for 9 years with a non-parole period of 5 years 6 months. The sentence commenced 28 August 2013 and will expire on 27 August 2022. The non-parole period will expire on 27 February 2019. Lopez-Rios received a discount of 25 per cent for his pleas of guilty.
The indicative sentences found by her Honour were:
Count 1 - Imprisonment for 6 years 9 months with a non-parole period of 4 years.
Count 2 - Imprisonment for 8 years 3 months with a non-parole period of 5 years.
The Director of Public Prosecutions has appealed against both aggregate sentences, pursuant to s 5E(1) of the Criminal Appeal Act 1912. In respect of Hatzisavvas the Notice of Appeal was served on 17 September 2015. In respect of Lopez-Rios the Notice of Appeal was served on 19 September 2015.
In each matter the Crown relies upon a single ground of appeal particularised as follows:
Ground 1: The aggregate sentence imposed is manifestly inadequate.
(i) The sentencing judge failed to properly assess the objective seriousness of the offences.
(ii) The overall indicative sentences individually were manifestly inadequate having regard to the criminality involved and the need for general deterrence. Further the indicative sentences arrived at for each count did not adequately reflect the differing degrees of criminality involved; and
(iii) The degrees of notional accumulation were inadequate and failed to reflect the totality of the criminality of the two offences in each instance.
Factual Background
In both matters Agreed Facts were tendered. Apart from minor differences, the Agreed Facts are the same for both respondents.
In June 2013 police began an investigation into the criminal activities of Li Wei Dong (Li). This included the use of undercover police officers, surveillance and telephone intercepts. During the investigation the police became aware of the behaviour of the two respondents and Mr Beyhoon Kucuk [Kucuk].
[4]
Amendments
01 August 2016 - Typographical error in Case Title
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 01 August 2016
On 8 August 2013 an undercover operative contacted Li by phone and negotiated the supply of 1 kilogram of methylamphetamine for $220,000. Later that day, Li met with two undercover police officers at a hotel in Mascot to discuss the sale. Li provided a small sample of the drug and told the officers that this drug was cheaper, costing $190,000, and that he had 10 kilograms available for supply. The undercover officers agreed to buy 1 kilogram.
Li then contacted Kucuk to arrange the supply. Kucuk told Li that he needed to go to Chinatown first and that he would then contact him. Police later saw Kucuk meet the two respondents in a restaurant in Chinatown. Kucuk then drove to meet Li at the Mascot Hotel. A short time later, the two respondents arrived at the hotel. Hatzisavvas was carrying a paper bag containing a number of packages making up one kilogram of methylamphetamine.
The two respondents were met in the hotel lobby by Kucuk and taken to the eleventh floor. Kucuk took Hatzisavvas into a room to meet Li. Lopez-Rios waited near the lifts with another man (Moustafa). Hatzisavvas, Li and Kucuk discussed the drug sale and the location of the money. Li tested a sample of the drug and Hatzisavvas asked for confirmation that $190,000 was available. Li assured him that it was.
A short time later one of the undercover officers entered the room and asked Hatzisavvas whether all the packages of drugs were the same. He reassured the officer saying "Absolutely. If there's a problem you can call me and I'll fix the problem. One hundred per cent."
Hatzisavvas and Li went into another room on the floor. Inside that room Hatzisavvas handed the officer the bag containing the drugs in exchange for $190,000 in cash. Inside the paper bag were five packages wrapped in black electrical tape. Within each package was 200 grams of methylamphetamine with a purity of 79 per cent. The packaging also contained remnants of a black granular charcoal like substance.
The two respondents left the hotel with $140,000. This was after Kucuk was given $30,000 and Li was given $20,000. The respondents caught a taxi to an apartment in Zetland.
Police continued their investigation into the respondents' activities. On 28 August 2013 police became aware that they intended to meet an unknown male. Throughout that day Hatzisavvas was in phone contact with Lopez-Rios and discussed who to meet and what to say. The respondents also discussed changing their mobile phones. Later that day, in a further conversation Lopez-Rios said: "Let's go Malaka and get the things" to which Hatzisavvas said "Huh". Lopez-Rios said "Let's go and get the things" to which Hatzisavvas said "What thing … the Aboriginal?".
Subsequently the respondents were seen catching a taxi. Lopez-Rios had a large black suitcase with him. They travelled by taxi to an address in Glebe where they met Robert Johnston and entered his house. A short time later, they travelled back to Zetland. They still had the suitcase but it appeared to be much heavier.
Police believe that Robert Johnston is "the Aboriginal".
Police executed a search warrant at the Zetland apartment later that night. Both respondents were present. Police found the black suitcase. Inside were four brown paper bags. Three were sealed and one was ripped open. Each had a label which suggested that they had come from Mexico. Each of the bags contained smaller vacuum sealed bags containing a black granular charcoal like substance. Buried inside were smaller packages containing methylamphetamine. Each package weighed between 190 and 220 grams. Two packages were found loose in the suitcase. A fifth brown bag was found in a cupboard. It contained the same charcoal like substance and smaller packages of methylamphetamine.
The packaging of these drugs was the same size as those supplied to the undercover police officers two weeks earlier. A total of 47 plastic bags were found. Digital scales and 10 mobile phones were also seized. $1,200 was found on Lopez-Rios. Analysis revealed that all 12 bank-notes came from the money used by the undercover operatives to purchase the drugs on 12 August. $1,000 of $1,500 used by Hatzisavvas to pay the rent was also found to be part of the "buy" money. A total of 9.42019 kilograms with a purity of over 80 per cent was seized.
The next day police returned to the Zetland premises and upon further inspection, discovered six bottles labelled "tequila" in a box. The bottles were later examined and found to contain 3.964 kilograms of liquid methylamphetamine with a purity of 20 per cent. Fingerprints from Lopez-Rios were on one of the bottles and on two of the brown paper bags. Robert Johnston's fingerprints were found on an opened paper bag. The combined quantity of methylamphetamine seized from the apartment was 13.384 kilograms.
Sentence judgment - Hatzisavvas
Having reviewed the factual background to the claim, her Honour summarised the submissions of the Crown and Hatzisavvas as to the seriousness of the offending. Her Honour set out her conclusion on this issue as follows:
"Each offence is self-evidently serious. The offender had ready access to large quantities of methamphetamine and was involved in the supply of it for profit.
I agree with Mr Boulten that of the two Mr Lopez-Rios appeared to be the one making the decisions, however, as the Crown pointed out they were living together in the apartment at Zetland where the drugs were found and seemed to be operating together.
The quantity involved in count 1 does place that offence below the middle of the range of objective seriousness but not appreciably so and I agree with Mr Boulten that count 2 is a mid-range offence.
Madam Crown submitted that I would conclude that the offences were aggravated as they were part of an organised criminal activity.
Mr Boulten submitted that I would not reach that conclusion as that fact is inherent in matters of this kind.
I agree with Mr Boulten." (Sentence judgment 6.9, 7.1 - 7.5)
By reference to a psychologist's report, letters from friends and family and a certification from the "Breakout Program" her Honour summarised the subjective case of Hatzisavvas as follows:
"He is the eldest of three siblings of his Greek parents and was born in Australia in April 1970. He has a minor criminal history which I do not consider to be of much relevance here. When he was seven the family moved to Greece where his father worked, making marble. The offender described to Ms Wakely a positive and relaxed lifestyle in Greece and said that he was provided with a good education and that his parents ensured he continued private English lessons to maintain the language.
When he was 20 he returned here independently and spent the following year living with his relatives until the remainder of his family also returned.
He has had a number of romantic relationships in the past and lived with a number of partners for periods of time. However his last serious relationship took place around seven years ago and ended after two years due to his lifestyle choices at that time.
In the future he would like to settle down and have a family.
He has various friends who visit him in gaol. They are mostly a positive influence and have their own businesses and families.
He finished high school in Greece and excelled at sport. Upon his return to Australia he completed a one year course in computer programming through Randwick College, then got a job with a mechanical engineering company and remained there for a few years. Following that he went to university to become a PE teacher. However he only completed 18 months of the degree before winning Lotto and withdrawing from his degree.
He won one million dollars on Lotto in 1996 and then bought four units which provided him with a considerable income. He later traded shares on the stock market and purchased a shop, which he owned until 2003. He was doing well until 2001 when his use of substances increased and became problematic, ultimately leading to poor financial decisions and financial problems.
He was then forced to sell his properties to cover his debts and regain control over his finances. However he continued to engage in a negative cycle of substance abuse and poor monetary management which ultimately led to him losing all of his assets and money by approximately 2010.
After his Lotto win he started consuming large amounts of alcohol. He then started using cocaine in social settings as at that time everyone wanted to be his friend and over time he came into contact with numerous people who also used cocaine. His life became a constant party.
Between 2000 and 2010 he used cocaine each day. Over time and as his money dwindled his use also slowed and his social network changed but when he had money he would resume frequent use. However he told Ms Wakely that when he had no money "no-one wanted to know me". He told Ms Wakely that prior to his arrest he was using cocaine regularly. He also told her that he knew of people who were involved in offences of this kind and thought he would take a chance to make money and get back on his feet.
He said he hoped to repay his debts of $100,000 and then get back to work. He feels sorry for his mother who gave him everything and he told Ms Wakely that "I shamed the family, I feel sorry and ashamed"." (Sentence judgment 7.7 - 9.4)
Her Honour found that since being in gaol Hatzisavvas had completed the Breakout Program and was currently completing a computer course. For 17 months he had been a supervisor of inmates who refurbish Qantas headsets. He would like to pursue further study while in custody and hoped to obtain the necessary tickets for demolition work.
Upon his release he intended to live with his parents and hoped to purchase a business such as a shop or a delivery service. He told Ms Wakely that he was aware that substance abuse clouded his mind and that since ceasing substance abuse, he was thinking more clearly. He told her that being in custody had motivated him to change his lifestyle.
Her Honour reviewed the test results obtained by Ms Wakely. Despite the use of substances being reduced, Ms Wakely found that he still met the criteria for psychological dependence compulsive use. The test results indicated that his level of intelligence was extremely low. Ms Wakely accepted that this may have been an underestimate but her impression was that he was of below average intelligence.
Ms Wakely gave a very positive prognosis for his rehabilitation. Her Honour accepted that Hatzisavvas appreciated the seriousness of his conduct and that he was genuinely sorry for the shame which he had brought upon his family. Her Honour accepted the assessment of Ms Wakely and found that Hatzisavvas was in a low risk category of re-offending. Her Honour qualified these findings by noting that because he had not lived a normal lifestyle since 1996, only time would tell whether he would be able to return to an ordinary life upon release. Her Honour took into account his strong family support and the absence of a significant criminal history.
Her Honour found that Hatzisavvas had provided some information to the authorities, which was truthful and accurate, and of some value as intelligence. Her Honour regarded that assistance as indicative of remorse and that it pointed towards the unlikelihood of him offending in the future. Taken with his early plea of guilty, her Honour assessed Hatzisavvas as entitled to a discount on sentence of 33 per cent.
In relation to totality, her Honour said:
"In Mr Boulten's submission I needed to be careful not to double count as the offences were committed as part of a course of conduct involving the same source of the drugs and so he submitted although there should be some partial degree of accumulation it need not be great.
Madam Crown submitted that there should be some degree of accumulation as it cannot be said that the criminality for one offence is wholly comprehended in the elements of the other offence." (Sentence judgment 11.9 - 12.1)
"I accept that the offender committed each offence as part of a course of conduct. However the offences are separate and distinct and so I propose to reflect in the aggregate sentence I impose a degree of partial accumulation." (Sentence judgment 12.9)
Her Honour received submissions as to the relative importance of the part played by Mr Hatzisavvas in the drug supply. Her Honour noted that she had sentenced Kucuk in relation to count 1 and in relation to a proceeds offence on a Form 1. She characterised Kucuk's function as that of a high level broker who facilitated the coming together of the buyer and seller for a not insignificant commission. Her Honour noted that Kucuk, who was aged 44 at the time of sentence, had a criminal history which included serious firearms offences and a supply a prohibited drug offence for which he received a sentence of imprisonment. Her Honour commenced her sentence calculations for Kucuk at 10 years and then reduced them by 60 per cent for his plea of guilty and assistance.
Her Honour then said:
"In those circumstances, and having regard to what the offender did, Mr Boulten submitted I would conclude that although the offender was further back in the line of distribution than Mr Kucuk, his moral culpability was not significantly higher than Mr Kucuk's and was less than Mr Lopez-Rios' having regard to the fact that Lopez-Rios was directing the offender on the 27th and 28 August and kept his distance from the actual transaction on 12 August, which in Mr Boulten's submission suggests he was further up the hierarchy than this offender.
Obviously there are significant differences between the cases of Mr Kucuk and the offender, which work in Mr Kucuk's favour, including the discount of 60% against the discount of 33%. However, he had a matter on a form 1, which I took into account, and he was not entitled to the leniency I am satisfied this offender is entitled to, having regard to Mr Kucuk's earlier serious criminal offending.
So far as their respective offending is concerned, I agree with Mr Boulten that it is about the same level as Mr Kucuk's was as Mr Kucuk was in contact with Mr Li on the one hand, and the offender and Lopez-Rios on the other, and as I accept the offender was unlikely to have received much more of a reward for his role than Mr Kucuk received." (Sentence judgment 14.1 - 14.8)
Her Honour referred to the sentencing principles in s 3A of the Crimes (Sentencing Procedure) Act 1999. Her Honour noted the Judicial Commission statistics which had been placed before her on behalf of Hatzisavvas and said:
"… statistics are a blunt tool as they tell me nothing about the offence or the offender but they are of some value as a reference point. I also recognise that no two cases are the same. However, I have found the cases of some assistance." (Sentence judgment 15.1)
Her Honour then imposed the sentence to which reference has already been made.
Sentence judgment - Lopez-Rios
In relation to the seriousness of the offending, her Honour said:
"Mr Rahme, who appeared for the offender, accepted that what was involved here was a serious course of conduct and that the offender had a very hands on role in relation to each offence.
Neither the Crown nor Mr Rahme wanted to be heard against the conclusions I expressed when I sentenced Mr Hatzisavvas, that is that I would not conclude that count 1 was as high as in the middle of the range of objective seriousness and in relation to count 2, I would find that it was no higher than the middle of the range.
Each offence is self-evidently serious. The offender had ready access to large quantities of methylamphetamine and was involved in the supply of it for profit. As I found when I sentenced Mr Hatzisavvas, the quantity involved in count 1 does place that offence below the middle of the range of objective seriousness but not appreciably so and I consider that count 2 was a mid range offence." (Sentence judgment 6.3 - 6.8)
In the course of the sentence proceedings, the following exchange took place between the Crown and her Honour:
"CROWN: Your Honour, when it comes to the aspect of parity, our position is that the starting penalty is the same for Mr Hatzisavvas as it is for Mr Lopez Rios and that there are minor differences in the way they dealt with things, but they were certainly there as a joint enterprise at all times, and there is only a marginal difference in Mr Lopez Rios's facts, and that's the fourth and fifth line relating to the large quantity in late August. The difference therefore becomes, notwithstanding Mr Lopez Rios has subjective material which is different to that of Mr Hatzisavvas, our position is still that the Court would look at the commencing sentences being the same, but Mr Lopez Rios does not have the benefit of the discount that Mr Hatzisavvas did have and Mr Kucuk in a slightly greater extent, and Mr Kucuk only had one charge as well.
HER HONOUR: My starting point for Mr Hatzisavvas in respect of count 1, I think was nine years.
…
And in respect of count 2 … with 11 years. So they're the figures that you suggest
CROWN: They're the figures that the Court would apply in sentencing Mr Lopez Rios.
HER HONOUR: Yes, all right, thank you, Madam Crown. …."
(Transcript 21.8.2015, p3)
By relying on a report of Dr Nielssen, psychiatrist, other medical reports and references, her Honour summarised the subjective case of Lopez-Rios.
"The offender is 36. He has a limited criminal history which I do not consider should deprive him of leniency.
He was born and raised in Pereira Colombia where he spent the first 19 years of life going to school and doing three years of a civil engineering degree.
He arrived in Australia in 2000 to study English.
He later worked and established a business in the construction industry and became a citizen.
In 2005 he was diagnosed with testicular cancer and lost his testicles. As a result he now has monthly testosterone injections and cannot have children. It is a concern to him that he does not know how much damage the medication is doing to his liver and kidneys although he is grateful for the medical attention.
His five year relationship then broke up and his depression, which he had developed as a result of the cancer, got worse and he closed his business and decided to go to Colombia and spend some time with his family.
Each of his parents now have cancer.
He came back to Australia and was introduced to methylamphetamine and before he knew it was addicted to it." (Sentence judgment 7.3 - 7.9)
Her Honour noted that Lopez-Rios had tried to be as productive as he could while in custody and had done a number of courses including the SMART Program. He had returned to religious worship and the gaol chaplain commented favourably on his co-operation with prison staff and compliance with prison routines.
Her Honour noted that Dr Nielssen believed that Lopez-Rios had a good prognosis and good prospects of rehabilitation having regard to the circumstances in which he developed his drug addiction which led to the offending. Her Honour largely adopted that conclusion and found:
"I am satisfied that the offender appreciates the seriousness of his conduct and the devastating impact drug use can have on people. I am also satisfied that he is sorry for the shame he has brought upon his family. I am satisfied that he has good prospects of rehabilitation having regard to his age, his solid work history, and as I was particularly impressed with the contents of his letter, which suggests that he has real insight into his situation." (Sentence judgment 9.4)
In relation to totality, her Honour said:
"Madam Crown submitted there should be some degree of accumulation as it cannot be said that the criminality for one offence is wholly comprehended in the elements of the other offence." (Sentence judgment 9.3)
"I accept that the offender committed each offence as part of a course of conduct however the offences are separate and distinct and so I propose to reflect in the aggregate sentence I impose a degree of partial accumulation." (Sentence judgment 9.7)
In relation to the position of Lopez-Rios in the drug supply organisation, her Honour said:
"The parties here suggested that I would find the criminality of Mr Hatzisavvas and the offender to be about the same despite the submissions to the contrary that had been made by Mr Boulten who appeared for Mr Hatzisavvas, and that apart from the s 23 factor, I would deal with the offender in much the same way as I had dealt with Mr Hatzisavvas.
I propose to do so. Although when I sentenced Mr Hatzisavvas I agreed with Mr Boulten that of the offender and Mr Hatzisavvas, the offender appeared to be the one making the decisions. I did not find this a significant matter as I accepted the Crown's submission that they were living together at the place the drugs were found and seemed to be operating together. I have found that the offender has good prospects of rehabilitation whereas I found Mr Hatzisavvas' were reasonable. And I have found that the offender was remorseful." (Sentence judgment 10.9 - 11.4)
Crown submissions
The Crown did not rely upon any cases as setting out a range of sentences for offences of this kind or as providing guidance as to an appropriate range. The Crown did point out that all of the cases to which her Honour was referred by the respondents concerned the supply of ecstasy. None concerned the supply of methylamphetamine. The Crown accepted that under the only ground of appeal relied upon, it had to establish that the aggregate sentences were "unreasonable or plainly unjust".
In relation to its first particular of inadequacy, i.e. a failure by her Honour to properly assess the objective seriousness of the offending, the Crown accepted that an assessment of this kind involved an evaluative process and the exercise of a discretion and as such, it was reviewable in this Court only on the principles stated in House v R [1936] HCA 40; 55 CLR 499 (Mulato v Regina [2006] NSWCCA 282 at [46], Gall v R; Gall v R [2015] NSWCCA 69 at [125]). The Crown submitted that such an error had occurred in this case.
The Crown submitted that her Honour should have found that both offences were above the middle of the range for offences of this kind. The Crown relied upon concessions by senior counsel for Hatzisavvas (which were implicitly accepted in the sentence proceedings of Lopez-Rios). It was accepted on behalf of Hatzisavvas that these were serious examples of each offence and demonstrated a serious course of conduct in which the offenders played a very "hands on" role. It was also accepted that Hatzisavvas played "an essential role", was "quite a central figure" and was involved for financial gain. The Crown submitted that in addition to the increase in the quantity of methylamphetamine, it was clear from the telephone intercepts and conduct of the respondents in relation to the second count, that further supply activities were imminent. The Crown submitted that by reference to the money involved in the first supply, the drugs involved in the second count would have involved transactions approaching the $2 million mark.
The Crown submitted that for count 1, in respect of both respondents, her Honour was unduly influenced by the quantity of methylamphetamine and did not properly appreciate the part played by them. The Crown submitted that her Honour focused too much upon count 1 and the circumstances surrounding it and did not adequately assess the seriousness of the offending and the criminality involved in count 2. Had she done so she would have assessed count 2 as substantially in excess of the midrange. This was particularly so when one had regard to the high purity (80%) of this extremely addictive and dangerous substance. The Crown submitted that her Honour had no regard to those matters nor to what the respondent stood to gain in relation to count 2 had the supply proceeded to finality.
In relation to its second particular of inadequacy, the Crown submitted that the indicative sentences showed a flaw in her Honour's reasoning in that her Honour made no mention of general deterrence and denunciation apart from a general reference to s 3A of the Sentencing Act. The Crown submitted that in a case such as this where a large commercial quantity of drugs was involved, general deterrence was of prime importance. The Crown submitted that it was clear from the start points chosen for the indicative sentences that insufficient, if any, regard was had to the principle of general deterrence. In making that submission the Crown accepted that the appeal was not against the indicative sentences but against the aggregate sentence. In that regard, the Crown relied upon the statement of principle in R v Brown [2012] NSWCCA 199 at [17] by Grove AJ (with whom Macfarlan JA and McCallum J agreed) that an "erroneous approach in the indication of the sentence that would have been imposed for the offence may well reveal error in the aggregate sentence reached". The Crown referred also to PD v R [2012] NSWCCA 242 at [44] per Beech-Jones J (with whom Basten JA and Hall J agreed); R v Rae [2013] NSWCCA 9 at [33] per Button J (with whom Macfarlan JA and Price J agreed).
The Crown submitted that the indicative sentences failed to have regard to the two important guideposts available to her Honour, i.e. the maximum penalty of life imprisonment and the standard non-parole period of 15 years. The Crown stressed that these guideposts were applicable to each of the offences for which her Honour was sentencing. The Crown submitted that the indicative sentences, in particular the non-parole periods, did not appear to have regard to the guideposts and most importantly, failed to reflect the degrees of criminality involved in each offence. The Crown submitted that by reference to the difference in seriousness between count 2 and count 1, the relativity between the starting points for the indicative sentences, i.e. a difference of 2 years, revealed error.
In relation to its third particular, i.e. insufficient accumulation, the Crown accepted that with an aggregate sentence the process of accumulation is notional (R v Brown at [35] per Grove AJ) and that the degree of concurrence and accumulation was only implicit since the indicative sentences are not actually imposed (Cullen v R [2014] NSWCCA 162 at [26] per Adamson J). The Crown sought to rely upon the notional accumulation as indicating an error in reasoning and approach by her Honour. It was therefore possible to determine the likely notional accumulation and sentence structure because there were only two indicative sentences for each respondent.
Following that approach, the Crown submitted that 12 months accumulation (for Hatzisavvas) and 9 months accumulation (for Lopez-Rios) was patently inadequate given the different and serious nature of the criminality involved in each of the offences. On that issue, the Crown relied upon its submissions in relation to the other particulars of manifest inadequacy.
Lopez-Rios submissions
Lopez-Rios relied upon R v Cimone [2001] NSWCCA 98; 121 A Crim R 433 where Beazley JA (Studdert and Sperling JJ agreeing) said in relation to a Crown appeal:
"27 Cosovan's sentence, on its face, also appears to be manifestly inadequate. If it is, the principle stated in Diamond and Steele would apply. However, there has been no Crown appeal in the case against Cosovan. Indeed, the Crown, in a practical sense, has shut itself out of an appeal in that case by expressly accepting before the sentencing judge that the sentence imposed on Cimone was the benchmark against which Cosovan's sentence should be measured."
Lopez-Rios submitted that in accordance with that statement of principle, the Crown was precluded from appealing against the sentence imposed on him because it had conceded in his sentence proceedings that parity principles warranted notional "starting points" commensurate with those arrived at by her Honour in sentencing Hatzisavvas. Lopez-Rios noted that Hatzisavvas had been sentenced on 7 August 2015, i.e. three weeks before he was sentenced (28 August 2015). Lopez-Rios noted that the sentencing judge was not informed at the time that he was sentenced that a Crown appeal was being contemplated in the Hatzisavvas matter.
Lopez-Rios submitted that having invited her Honour in the sentencing proceeding to strictly apply the parity principle, and not having told her Honour about any anticipated appeal against the Hatzisavvas sentence, the Crown now argued that her Honour had erred in complying with its submissions. In those circumstances, just as in R v Cimone, Lopez-Rios submitted that the Crown had shut itself out of an appeal against the sentence imposed in his case.
Lopez-Rios submitted that the Crown's submissions concerning accumulation and the misapplication of the principle of totality were misconceived. In that regard, Lopez-Rios relied upon what was said by R A Hulme J (with whom Leeming JA and McCallum J agreed) in R v Jennar [2014] NSWCCA 331:
66 The last mentioned of the Crown's submissions may be despatched immediately. In assessing whether a sentence for multiple offences (whether it be an aggregate sentence or otherwise) is excessive or inadequate, it is quite arbitrary to identify one of the components and then regard the balance as being referrable to all of the other components. It is as illegitimate as arguing that the indicative sentences for the Water Board Bowling Club robbery offence and the shooting offence add up to more than the aggregate sentence and so the respondent must not have received anything for the three other offences. Indeed, counsel for the Crown almost conceded the futility of such an approach four paragraphs earlier in her written submissions.
67 I have earlier referred to some of the authorities relating to totality and questions of concurrency and accumulation: see, particularly, the summary of principles provided by Hall J in R v XX at [52]. The sentencing judge, as observed earlier, stated that he had regard to such principles. The question is whether the final result reflects that he correctly applied them."
Lopez-Rios submitted that the Crown was unable to make out its ground of manifest inadequacy because it had not referred to any cases which established a range of sentences or provided some guidance as to what would be an appropriate range.
In that regard, Lopez-Rios relied upon The Queen v Pham [2015] HCA 39 (French CJ, Keane and Nettle JJ) where their Honours said:
"28 Previous decisions of this Court have laid down in detail the way in which the assessment of sentences in other cases is to be approached. It is neither necessary, therefore, nor of assistance to repeat all of what has previously been said. But, in view of the way in which the Court of Appeal approached the task in this case, it is appropriate to re-emphasise the following:
…
(7) Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle."
Lopez-Rios submitted that assistance could be provided to this Court by the decision in R v Li [2014] NSWCCA 327. The principal judgment was delivered by Fullerton J (with whom R A Hulme and Garling JJ agreed). The facts were that a complaint of manifest inadequacy was upheld in respect of a sentence of 10 years imprisonment with a non-parole period of 7 years and 6 months. That sentence was imposed following a plea of guilty to the offence of knowingly take part in the supply of 24.9782 kilograms of methylamphetamine. A wholly concurrent sentence of 7 years with a non-parole period of 4 years and 4 months, was imposed for another offence of conspiracy to supply 1 kilogram of methylamphetamine. Lopez-Rios submitted that the facts in Li represented criminality of a significantly higher order than his. He submitted that in Li there was an ongoing and salaried recruitment, involvement in a much greater quantity of drugs and cash and a willing commitment to a well entrenched and sophisticated criminal syndicate operating from overseas.
Lopez-Rios submitted that the 9 month differential in the respective head sentences between him and Hatzisavvas did not support a conclusion that "there must have been some misapplication of principle" in the sentence imposed by her Honour in his case. He submitted that the sentence in his case demonstrated a consistency in the application of principle with the approach taken by this Court in Li.
Hatzisavvas submissions
The oral submissions by Hatzisavvas differed somewhat from the written submissions. He did not, however, abandon his written submissions.
In relation to the Crown's first particular, Hatzisavvas stressed the discretionary nature of an assessment of objective seriousness and relied upon the principles set out in Mulato v Regina.
In relation to the Crown's second particular, Hatzisavvas emphasised his strong subjective case to which her Honour had regard. At the time of sentence, he was aged 45 and facing prison for the first time. He had pleaded guilty at an early stage in the proceedings and had provided some assistance to authorities. His prior criminal record was inconsequential and he was entitled to a measure of leniency. He had a long standing addiction to prohibited drugs at the time and was of limited intelligence. He was genuinely remorseful and had good prospects of rehabilitation. His subjective case was significantly stronger than that of Kucuk.
In relation to the failure to mention general deterrence, Hatzisavvas relied upon R (Cth) v Nguyen; R (Cth) v Nguyen [2010] NSWCCA 331 where a similar complaint was made. There Simpson J (Hall and Garling JJ agreeing) said:
"44 I would reject that contention. The issue of general deterrence is fundamental to any sentencing decision, and is known to be of particular importance in offences involving drugs. I would not infer that this was overlooked. Rather, I would infer that, by reason of its very primacy, it called for no express statement (although, I would add, it would generally be wise at least to record that it has been taken into account)."
In relation to particular 3 of the Crown's appeal, Hatzisavvas submitted that while the offending in count 2 was more serious than that in count 1, the only obvious difference between the two offences was the additional quantity of the drug in count 2. He submitted that otherwise the features of the offending were the same in each case. There was no evidence of the plans which were on foot for the sale of the drugs involved in count 2. He submitted that there was a connection between the two counts and that the offences were committed within a relatively short period of time and were part of a course of conduct. He accepted that some accumulation was appropriate and that her Honour had taken that into account in the aggregate sentence.
In oral submissions, Hatzisavvas focused upon the issue of parity and the residual discretion which had to be exercised in a Crown appeal.
In relation to parity, he adopted the submission of Lopez-Rios that the acceptance in argument by the Crown of the adequacy of the indicative sentences in his (Hatzisavvas) proceeding meant that the Crown was precluded from appealing against the aggregate sentence imposed on him. Hatzisavvas submitted that in those circumstances, it would offend the parity principle for his sentence to be increased. He submitted that this would bring about the very situation which occurred in Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 which the High Court said should be avoided. Because of this concession by the Crown, it would be unfair and create disparity if his sentence was increased but that of Lopez-Rios was not, because of the Crown's conduct.
In relation to the exercise of the residual discretion, Hatzisavvas submitted that in the sentence proceedings of Lopez-Rios, not only did the Crown accede to the same indicative sentences being found as in his case but it was a party to proposing such a course of action. He submitted that in the exercise of its residual discretion this of itself should cause the Court to refrain from interfering with the sentence imposed on him if the Court were disposed to do.
Hatzisavvas submitted that there was no issue of principle involved in that the principles for the sentencing of offenders convicted for the supply of large commercial quantities of prohibited drugs were well understood. The sentence imposed upon him was not derisory. He relied upon the statement in R v Robert Borkowski [2009] NSWCCA 102 by Howie J (McClellan CJ at CL and Simpson J agreeing) at [70] that:
"70 … the purpose of a Crown appeal is not simply to increase an erroneous sentence imposed upon a particular individual. It has a wider purpose, being to achieve consistency in sentencing and the establishment of sentencing principles. That purpose can be achieved to a very significant extent by a statement of this Court that the sentences imposed upon the respondent were wrong and why they were wrong. ..."
Consideration
The principles applicable to a Crown appeal are now well understood. A claim of manifest inadequacy requires the Crown to establish that the sentences imposed were unreasonable or plainly unjust in a sentencing environment where there is no single "correct" sentence and 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; 202 CLR 321 at [6]; Makarian v The Queen [2005] HCA 25; 228 CLR 357 at [25]; Hili v The Queen [2010] HCA 45; 242 CLR 520 at [58]).
Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice. Inadequate sentences give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public, and are likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown as well as convicted persons to appeal against sentences assists in maintaining confidence in the administration of justice: Everett v The Queen [1994] HCA 49; 181 CLR 295 at [306] (McHugh J).
The primary purpose of a Crown appeal against sentence is to lay down principles for the governance and guidance of courts having a duty of sentencing convicted persons. In the exercise of its jurisdiction under s 5B Criminal Appeal Act 1912 the court retains a residual discretion to decline to interfere with a sentence even though the sentence is erroneously lenient: Green v R; Quinn v R at [1]. The Crown must negate any reason why the residual discretion of this Court not to interfere should be exercised: Griffiths v The Queen [1977] HCA 44; 137 CLR 293; CMB v Attorney General (NSW) [2015] HCA 9 at [36]; 243 A Crim R 282. As was observed in Green v R; Quinn v R at [42] cases might arise where the court concludes that the inadequacy of the sentence appealed from is so marked that it amounts to "an affront to the administration of justice" and risks undermining public confidence in the criminal justice system. In such a case the court is justified in interfering with the sentence.
A claim of manifest inadequacy is a conclusion and does not depend upon the establishment of specific error: Dinsdale v R at [6]. In R v Harris [2015] NSWCCA 81 Adamson J (Basten JA and RA Hulme J agreeing) observed that where the only ground of appeal is manifest inadequacy, identification of specific error is not required. Her Honour noted that nonetheless identification of specific error may assist to explain why a sentence is manifestly inadequate. Her Honour observed that CMB v The Attorney General (NSW) did not support the proposition that specific error must be identified before this Court will intervene if manifest inadequacy can be established.
A difficulty for the Crown in its first particular of manifest inadequacy challenging her Honour's assessment of the objective seriousness of the offending in each case, is the rationale underlying the decision in Mulato v Regina. While this Court may have come to a different conclusion on that issue, judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency.
In Mulato Spigelman CJ said at [37]:
"37 Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour. In my opinion it was open, although I have some hesitation in deciding so and find it to be at the lower end of the range which could reasonably be held to be so characterised."
Simpson J who agreed with Spigelman CJ, said:
"46 The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55 CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance."
Like Spigelman CJ in Mulato, I have some hesitation in accepting her Honour's characterisation of objective seriousness for each offence and it was undoubtedly at the lower end of the range. That having been said, it is well established that absent error this Court may not substitute its own opinion for that of the sentencing judge merely because the Court would have exercised its discretion in a manner different from the way in which the sentencing judge exercised his or her discretion (Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at 671 - 672; Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at 477 - 478).
Applying those principles, I am not satisfied that the Crown's first particular of manifest inadequacy has been made out.
There is another reason why the Crown has not succeeded in making out its first particular. This relates not only to the first particular but to the Crown's second particular of manifest inadequacy which is directed to the indicative sentences proposed by her Honour.
In the sentence proceedings relating to Lopez-Rios, the Crown made no submission contrary to her Honour's proposal of assessing objective seriousness in that matter in the same way as she did in the Hatzisavvas matter. Her Honour noted that the Crown did not wish to be heard on that issue. Additionally in the Lopez-Rios sentencing proceedings, the Crown specifically endorsed the indicative sentences proposed by her Honour in Hatzisavvas. The Crown did so on the basis that subject to their different subjective cases, the overall criminality of the offending by Lopez-Rios was similar to that of Hatzisavvas (see [37] hereof).
As was submitted by Hatzisavvas, if these concessions by the Crown in the Lopez-Rios matter effectively precluded the Crown from challenging his sentence on those bases, (i.e. errors in objective seriousness and the indicative sentences), the parity principle would operate to prevent this Court increasing his (Hatzisavvas) sentence by having regard to those first two particulars of manifest inadequacy. To so increase the Hatzisavvas sentence would give rise to the very problem identified by the High Court in Green v The Queen; Quinn v The Queen at [32] and [37].
It follows that the Crown has failed to make out its first two particulars of manifest inadequacy.
It is necessary to consider the submission of Lopez-Rios which has as its basis the decision in R v Cimone. That submission has two limbs. The first is that because the sentence proceedings in his matter took place three weeks after those of Hatzisavvas, the Court would infer that a Crown appeal in the Hatzisavvas matter must have been under consideration even though no document had yet been filed. Lopez-Rios submitted that if such were the case, her Honour should have been informed of that fact in his sentence proceedings.
The second limb for the submission is that the endorsement, if not promotion, by the Crown of the indicative sentences proposed in his case has the same effect. He submitted that if, as was likely, the Crown was contemplating an appeal in the Hatzisavvas matter, the position adopted by the Crown was quite inconsistent with that fact and had the effect of misleading her Honour. Lopez-Rios submitted that these facts placed the matter on all fours with what had occurred in R v Cimone and that in accordance with that decision (see [51] hereof), the Crown is precluded from appealing against the sentence imposed on him.
The facts in R v Cimone were somewhat unusual in that a co-offender had been sentenced by another judge approximately a month after Cimone. When sentencing the co-offender, the judge had relied upon the sentence imposed on Cimone as providing a benchmark for the sentence imposed on the co-offender. When sentencing the co-offender, the judge was not told of the existence of a Crown appeal in the Cimone matter. There was no appeal by the Crown against the sentence imposed on the co-offender.
It was in that context that the observation by Beazley P at [51] hereof was made.
The facts here are different from R v Cimone in material respects. Given the somewhat slipshod way in which the Crown dealt with the Lopez-Rios sentence proceedings, I am not prepared to infer that the Crown was considering an appeal against the Hatzisavvas sentence at that time. Moreover, the Crown when it endorsed similar indicative sentences in the Lopez-Rios matter to those proposed in the Hatzisavvas proceeding, did not in terms, or implicitly, endorse the aggregate sentence passed in the Hatzisavvas matter. Finally, unlike R v Cimone, the sentences passed on both co-offenders in this case are the subject of a Crown appeal.
Accordingly, I have concluded that the issue of accumulation raised in particular 3 of the Crown's case on manifest inadequacy remains available to be relied upon by the Crown. As already indicated, I accept that insofar as the Crown's first two particulars are concerned, it is precluded from relying upon them as a basis for a finding of manifest inadequacy against both respondents.
The Court has not received much assistance by reference to cases dealing with supply of a large commercial quantity of methylamphetamine. The Crown did not rely upon any cases and those relied upon by the respondents in the sentence proceedings concerned the supply of ecstasy not methylamphetamine. The only "comparative" case relied upon before this Court was R v Li. Unfortunately, R v Li provides little by way of guidance as to an appropriate range of sentences for supply of the kind before the Court.
As Fullerton J made clear more than once in R v Li, the court there was bound by a number of extremely generous and in some cases incorrect factual findings by the sentencing judge. The Crown in its appeal against sentence in Li had not challenged any of those findings. On that issue, Fullerton J said:
"50 The written submissions were brief in the extreme. In seeking to persuade the Court that the individual sentences and the non-parole periods were manifestly inadequate, it was not submitted that any of the factual findings made by the sentencing judge favourable to the respondent were either unsupported by the evidence or findings not open to him. …
…
52 The senior Crown prosecutor who appeared on the hearing regarded himself as bound by the approach the Crown had articulated in the written submissions. For that reason, he did not seek to be heard on what appeared to me to be a number of questionable factual findings made in the respondent's favour concerning both the actual extent of his knowing involvement in the criminal organisation of which he admitted he was a member, evidenced by his conduct in Australia, and the circumstances of his arrest. I have already noted that his Honour's failure to find that the offending was part of a planned and organised criminal activity is contradicted by the agreed facts. …"
Her Honour was also highly critical of the unchallenged findings by the sentencing judge that the position of the offender was that of a mere "courier" and that "he had determined to withdraw from the criminal syndicate before he was arrested".
In relation to the Crown's third particular of manifest inadequacy, I am satisfied that the level of accumulation is so clearly disproportionate to the seriousness of the criminality involved that the only conclusion open is that her Honour's sentencing discretion miscarried. Her Honour appears to have focused very much upon count 1 and the actual supply of one kilogram of methylamphetamine and not taken into account the substantially greater criminality associated with count 2. Although count 2 was part of an overall course of dealing, it was entirely separate from count 1. Both respondents were actively involved in the movement of almost 14 kgs of methylamphetamine. One can confidently infer that the acquisition by them of that substantial quantity of drugs presaged a further supply such as had occurred in relation to count 1.
A conclusion to that effect is not prevented by the observations of R A Hulme J in R v Jennar. R A Hulme J was there pointing out the difficulty in assessing accumulation and concurrency where a number of indicative sentences were involved. Here there were only two indicative sentences proposed for each respondent so that the extent of any accumulation and concurrency in the aggregate sentence could be readily determined.
The concession made by the Crown in the Lopez-Rios matter as to objective seriousness and the indicative sentences did not relieve her Honour of ensuring that the aggregate sentence ultimately imposed adequately comprehended the full extent of both respondents' admitted criminal offending. Aggregate sentences of 8 years and 3 months with a non-parole period of 5 years and 9 years with a non-parole of 5 years 6 months fell so short of appropriate sentences that the Crown has succeeded in establishing that they were manifestly inadequate.
This is particularly so when one has regard to the important guideposts of the maximum sentence and the standard non-parole period applicable to each offence. These are not a mere formality, but yardsticks created by the legislature to guide sentencing courts. Against a standard non-parole period of 15 years the non-parole periods of 5 years and 5 years 6 months for two large commercial supply offences cannot be justified even on the most favourable view of the respondent's criminal offending and their subjective cases. I have concluded that the aggregate sentences are so inadequate as to amount to "an affront to the administration of justice which risks undermining public confidence in the criminal justice system" (Green v The Queen; Quinn v The Queen at [42]; R v Van Ryn [2016] NSWCCA 1 at [282]).
This does not end the matter. There remains the issue of the residual discretion. I am conscious of the submission of Hatzisavvas that the position adopted by the Crown in the Lopez-Rios sentence proceedings is a matter which should result in the exercise of the residual discretion in the respondents' favour. I am satisfied, however, that the Crown has established that her Honour's sentencing discretion so miscarried that it resulted in sentences that were well below those that could be properly imposed and that the Crown appeal should not be dismissed.
Because it has become necessary to re-sentence the respondents, consideration has to be given to any changes in their circumstances which have occurred up to the present time.
In an affidavit affirmed on 5 February 2016, Hatzisavvas said that he had complied with gaol discipline and had completed a first aid course. Up to the present time he has not had the opportunity to participate in drug counselling. Because he is an inmate of the South Coast Correctional Centre at Nowra, it has been difficult for his family to visit him. When he received notification of the Crown appeal in September 2015, he became upset because he thought that the legal proceedings were over. I do not regard these matters as significantly adding to his subjective case. There is no affidavit of Lopez-Rios bringing his situation up to date.
In re-sentencing Hatzisavvas for the reasons set out above, I make no change to the indicative sentences. I propose that the aggregate sentence imposed on 7 August 2015 be quashed and be replaced with an aggregate sentence of 11 years with a non-parole period of 7 years.
In re-sentencing Lopez-Rios I propose that the aggregate sentence imposed on 28 August 2015 be quashed and be replaced with an aggregate sentence of imprisonment for 11 years and 9 months with a non-parole period of 7 years and 6 months. Both sentences are to commence on 28 August 2013.
Accordingly, the orders which I propose are as follows:
Hatzisavvas
1. The Crown appeal is allowed.
2. The aggregate sentence imposed by Flannery SC DCJ on 7 August 2015 is quashed.
3. In lieu thereof, the respondent is sentenced to an aggregate sentence of imprisonment for 11 years with a non-parole period of 7 years, commencing 28 August 2013 and expiring 27 August 2020.
Lopez-Rios
1. (1) The Crown appeal is allowed.
2. (2) The aggregate sentence imposed by Flannery SC DCJ on 28 August 2015 is quashed.
3. (3) In lieu thereof, the respondent is sentenced to an aggregate sentence of imprisonment for 11 years and 9 months with a non-parole period of 7 years and 6 months, commencing 28 August 2013 and expiring 27 February 2021.
FULLERTON J: I agree with Hoeben CJ at CL that the Crown appeal against the inadequacy of the aggregate sentence imposed on each of the respondents be allowed and with the orders proposed by his Honour on re-sentence.
Those orders preserve the disparity between the aggregate sentences imposed on the respondents by the sentencing judge, consistent with what her Honour found was a differentiation between their roles in the supply of the commercial quantities of methamphetamine the subject of each of counts 1 and 2 - a factual finding not challenged by the Crown on the appeal.
I also agree with his Honour that the intervention of this Court and re-sentence is not by reason of the sentencing judge's appointment of indicative sentences for each of counts 1 and 2. The conduct of the Crown in the sentencing proceedings foreclosed upon any assessment of the "adequacy" of the indicative sentences as revealing error in the aggregate sentence (see for example R v Brown [2012] NSWCCA 199 at [17]).
It is the preponderant weight of all the sentencing factors, including the objective seriousness of offending in both counts, that has driven me to conclude that there has been a misapplication of the totality principle in the sentencing exercise and that manifestly inadequate aggregate sentences have resulted.
It is the notional accumulation of 12 months in the aggregate sentence of Hatzisavvas and the notional accumulation of 9 months in the aggregate sentence of Lopez-Rios for the discrete criminality inherent in the actual supply of a commercial quantity of methamphetamine in granular form (count 1) and, within weeks of the commission of that offence, the deemed supply of the same drug in both granular and liquid form (count 2) (and in a total amount more than 13 times the commercial quantity applicable to that drug) that represents a failure on the part of the sentencing judge to properly apply totality principles in the exercise of her sentencing discretion.
For this Court to intervene to correct a sentencing error in the imposition of markedly inadequate aggregate sentences is consistent with the "limiting purpose" of an appeal brought under s 5D of the Criminal Appeal Act (see Everett v R [1994] HCA; 181 CLR 295 and The Queen v Pham [2015] HCA 39; 244 A Crim R 280).
Although the Crown did not seek to persuade the Court that the aggregate sentences are manifestly inadequate by reference to sentences imposed in comparable cases, or that the misapplication of principle is evident from undertaking a comparison with other cases, that does not derogate from the force of the Crown submission that the notional accumulation between both counts in the appointment of the aggregate sentences failed to reflect the total criminality inherent in the offending comprehended by counts 1 and 2. I do not regard the passage in Pham to which the respondents' counsel referred in the following extract, as obliging the Crown to demonstrate that a sentence under challenge as inadequate, is at variance with comparable cases before appellate intervention is justified.
[28] Previous decisions of this Court have laid down in detail the way in which the assessment of sentences in other cases is to be approached. It is neither necessary, therefore, nor of assistance to repeat all of what has previously been said. But, in view of the way in which the Court of Appeal approached the task in this case, it is appropriate to re-emphasise the following:
(1) Consistency in sentencing means that like cases are to be treated alike and different cases are to be treated differently.
(2) The consistency that is sought is consistency in the application of the relevant legal principles.
(3) Consistency in sentencing for federal offenders is to be achieved through the work of intermediate appellate courts.
(4) Such consistency is not synonymous with numerical equivalence and it is incapable of mathematical expression or expression in tabular form.
(5) For that and other reasons, presentation in the form of numerical tables, bar charts and graphs of sentences passed on federal offenders in other cases is unhelpful and should be avoided.
(6) When considering the sufficiency of a sentence imposed on a federal offender at first instance, an intermediate appellate court should follow the decisions of other intermediate appellate courts unless convinced that there is a compelling reason not to do so.
(7) Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.
While a comparison with comparable cases indicating the sentence under challenge to be at marked variance with them might, in an appropriate case, be a sentencing factor of considerable weight, it is not a factor that operates as a precondition to a successful Crown appeal. In this case, despite what is said to be the mitigating influence of the respondents' subjective circumstances, the aggregate sentences imposed on the respondents reflect sentences well below that which could be justly imposed for offending of this kind, and on this scale.
There is little point in seeking to appoint the extent of the respondents' business as drug suppliers or, for that matter, the positions either occupied as wholesale suppliers of commercial quantities of methamphetamine, in both granular and liquid form. In considering the adequacy of the aggregate sentences, what cannot be overlooked is her Honour's finding (which is not in contest) of mid range offending for count 2 and offending "not appreciably below" the mid range for count 1. On that assessment alone, I agree with Hoeben CJ at CL that aggregate sentences of 8 years and 3 months and 9 years (with non-parole periods of 5 years and 5 years and 6 months respectively) are "unreasonable and plainly unjust" (see Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 as cited in R v Wood [2012] NSWCCA 231; 84 NSWLR 581 at [50]).
As Hoeben CJ at CL observed at [51]-[53], Lopez-Rios sought to persuade the Court that what his counsel submitted was a statement of principle in R v Cimone [2001] NSWCCA 98; 121 A Crim R 433 should foreclose on the Crown appeal being allowed in this case. In that case, the Crown on sentence expressly submitted that the sentence of one co-offender was the benchmark against which the sentence on Cimone should be assessed. In the Court's view, this had the effect of foreclosing on any challenge to the inadequacy of his sentence in circumstances where the co-offender's sentence was not the subject of a Crown appeal. I share his Honour's view that the Crown's invitation in Lopez-Rios' sentence proceedings for her Honour to apply parity principles when she was considering the undiscounted indicative sentences for counts 1 and 2 (Hatzisavvas having been sentenced in separate proceedings three weeks earlier) does not foreclose on the Crown challenging the adequacy of the aggregate sentences that were imposed on both respondents. It might have been otherwise were the Crown either expressly or by necessary implication to have endorsed the appropriateness of the aggregate sentence imposed on Hatzisavvas in Lopez-Rios' sentence proceedings or to have sought to appeal against the inadequacy of the sentence of only one of the respondents.
To the extent that the conduct of the Crown in the sentence proceedings of Lopez-Rios is relied upon by both respondents as weighing against the Crown satisfying the Court that the residual discretion should not be exercised (see CMB v Attorney General (NSW) [2015] HCA 9; 243 A Crim R 282), I am not persuaded that the conduct of the Crown should have that impact on this appeal. Neither am I persuaded that there is any sufficient additional basis to invoke the residual discretion in the respondents' favour.
RS HULME AJ: I have had the advantage of reading the reasons for judgment of Hoeben CJ at CL and can accordingly omit from these reasons much of the detail to which his Honour refers.
The first of the offences committed by each of the Respondents was of supplying 1 kilogram of methylamphetamine, a quantity at the bottom of the large commercial range, a circumstance which led the sentencing judge to describe the offence as "below the middle of the range of objective seriousness but not appreciably so". The second of the offences committed by each of the Respondents, involved the deemed supply of 13.384 kilograms of methylamphetmine, found in premises they occupied. The sentencing judge described this second offence as "mid-range". Details of what was found on the execution of a search warrant at the Respondents' premises recounted by Hoeben CJ at CL make it clear that the Respondents committed their offences as part of an ongoing large scale commercial operation, no doubt for the financial benefits they would bring.
For the supply of the 1 kilogram the Respondents were paid $190,000 from which sum $50,000 was paid to others who facilitated the transaction. That methylamphetamine was of high purity, about 80%, as was about 9.4 kilograms of the 13.384 kilograms which was the subject of the second charge. It is therefore a reasonable inference that the large quantity would have realised for the Respondents well in excess of $1,000,000. There was unchallenged evidence before the sentencing judge from a police officer very experienced with the drug trade that leads to the conclusion that that street level sales in 2013 were commonly of 0.1 to 0.2 gram at a price of $50-$150 each. Thus at street level the 1 kilogram would yield 50,000 to 100,000 deals and would be worth about $5,000,000. On a similar basis, the larger quantity would yield 500,000 to 1,000,000 deals and was worth approximately $50,000,000. In these calculations I have assumed the drugs were not, as commonly occurs, "cut" or diluted.
By s 25(2) and Schedule 1 of the Drug Misuse and Trafficking Act 1985, Parliament has provided a maximum penalty of life imprisonment for the supply of a large commercial quantity of methylamphetamine and by s 54A et seq of the Crimes (Sentencing Procedure) Act 1999 a standard non-parole period of 15 years for such offending. The standard non-parole period "represents the non-parole period for an offence (in respect of which it is specified) that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness" and is a matter that, in determining the appropriate sentence for an offence in respect of which there is such a period specified, a court is required to take into account. Section 54B of that Act also requires the Court to adopt a similar approach when determining an aggregate sentence.
Her Honour decided to impose aggregate sentences as permitted by s 53A of the Crimes (Sentencing Procedure) Act 1999. In doing so, she was required to indicate that sentences she thought appropriate for the individual offences and did so. The indicative sentences were, in the case of Mr Hatzisavvas, imprisonment for 6 years including a non-parole period of 3 years 6 months and, for the second offence, imprisonment for 7 years and 3 months including a non-parole period of 4 years 3 months. In the case of Mr Lopez-Rios, imprisonment for 6 years 9 months including a non-parole period of 4 years and, for the second offence, imprisonment for 8 years 3 months including a non-parole period of 5 years.
The sentences her Honour ultimately imposed were, in the case of Mr Hatzisavvas, imprisonment for 8 years and 3 months, including a non-parole period of 5 years, and in the case of Mr Lopez-Rios, imprisonment for 9 years including a non-parole period of 5 years and 6 months. In arriving at these figures and those for the indicative sentences her Honour held that the Respondents were entitled to a discount of 25% for pleading guilty and, in the case of Mr Hatzisavvas, a further discount of 8% for assistance to authorities Apart from some minor rounding, the difference in discounts accounts for the difference in sentences thought appropriate and ultimately imposed on the Respondents. The non-parole periods also reflect findings of special circumstances which the Crown conceded and which led to reductions of a little over 1 year in the case of each offender.
There were of course the Respondents' subjective factors to be also taken into account. Mr Hatzisavvas was born in 1970 and had a relatively minor criminal record - for driving with a low-range PCA and for common assault (for which he was fined $1,800) - a stable family history, and in her Honour's view presented with reasonable prospects of rehabilitation.
The evidence also showed that Mr Hatzisavvas had a far better start in life than most, a good education and extremely good fortune in winning Lotto but chose to party and indulge in alcohol and illegal drugs until he became addicted and over a period of in excess of 10 years wasted the substantial assets he had. Her Honour seems to have accepted statements by Mr Hatzisavvas that he felt sorry and ashamed for what he had done to his family - feelings which were presumably absent or ignored in the preceding 10 years.
Her Honour found that Mr Lopez-Rios "appreciates the seriousness of his conduct and the devastating impact drug use can have on people. I am also satisfied that he is sorry for the shame he has brought upon his family. I am satisfied that he has good prospects of rehabilitation having regard to his age, his solid work history, and as I was particularly impressed with the contents of his letter which suggests he has real insight into his situation".
Mr Lopez-Rios had told a psychiatrist, Dr Nielssen, that his involvement in offending began with his own addiction to methylamphetamine, this in turn flowing from depression, a breakdown in a long term relationship, itself contributed to by testicular cancer and its aftermath. Mr Lopez-Rios had also had a good start in life and his education had included 3 years of a civil engineering degree. He had used cannabis and cocaine when younger and occasionally ecstasy. His criminal record consisted of one charge of driving with a mid-range PCA and, in 2011, one charge of possession of 10.2 grams (pure) of a drugs or plants suspected of being illegally imported. For the latter offence he was placed on a 12 months good behaviour bond.
However none of these matters, singly or in combination can justify the sentences imposed. General sentencing principles require that the subjective circumstances of an offender not be allowed to overshadow the objective seriousness of an offence and that a sentence reflect the offence's objective seriousness - R v Dodd (1991) A Crim R 349 at 354; R v Scott [2005] NSWCCA 152 at [15]; R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at [15].
Against the statutory guidelines of life imprisonment and a 15 years non-parole period the sentences imposed by her Honour - in the case of Mr Hatzisavvas, imprisonment for 8 years and 3 months, including a non-parole period of 5 years, and in the case of Mr Lopez-Rios, imprisonment for 9 years including a non-parole period of 5 years and 6 months, and this for two offences, one of which fell fairly within the statutory reference of "middle of the range", committed by each Respondent - are utterly disproportionate and manifestly inadequate.
The situation is a fortiori once regard is had to the enormous value which the evidence before her Honour showed the drugs to have, and this whether at a wholesale or retail level. Given the profits to be made, if the sentences imposed in this case are typical it is no wonder that, as I indicate later in these reasons, the number of methylamphetamine dealing offences is increasing.
That said, the reasons of Hoeben CJ at CL demonstrate that the conduct of the representative of the Director of Public Prosecutions who appeared at Mr Lopez-Rios' sentencing proceedings, in accepting that the starting points used in the determination of the indicative sentences appropriate for him should be the same ones as recorded in Mr Hatzisavvas' case, effectively precludes this Court from allowing a challenge to those starting points.
The indicative sentences were determined principally on the basis of those starting points, discounts for pleas and findings of special circumstances. There was no challenge to these last two matters in the court below or in this Court. It follows that this Court should approach the Crown's challenge to the adequacy of the sentences ultimately imposed upon the basis that the indicative sentences were correct. While sight must not be lost of the question whether the sentences imposed were manifestly inadequate, in effect the issue for this Court boils down to whether the degree of accumulation apparent in the aggregate sentences imposed was manifestly inadequate.
Section 53A of the Crimes (Sentencing Procedure) Act 1999, which provides for the imposition of aggregate sentences, is a procedural provision - R v MJB [2014] NSWCCA 195 at [55]. Its purpose was "to ameliorate the difficulties of applying the decision in Pearce v The Queen [1998] HCA 57: 194 CLR 610 in sentencing for multiple offences." - JM v R [2014] NSWCCA 297 at 39.
The requirement in s 53A that judges state the sentence that would have been imposed for each offence had separate sentences instead of an aggregate sentence been imposed, makes it clear that the section was not introduced to enable judges to avoid the imposition of sentences that properly reflect multiple instances of criminality and that, except insofar as it simplified the formulation of the sentence, the section does not affect the operation of the principal of totality.
That principle finds expression in Mill v The Queen [1988] HCA 70; 166 CLR 59 at 63 where the High Court endorsed an extract from D A Thomas, "Principles of Sentencing", viz:-
"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences to review the aggregate sentence and consider whether the aggregate sentence is 'just and appropriate'."
In R v Harris [2007] NSWCCA 130; 171 A Crim R 267 at [45]-[46], after quoting the above passage, this Court said:
Two points may be made. Firstly, the principle is expressed in terms of coming back from the result of a simple aggregation. Secondly, if each individual sentence is appropriate for the criminality of the offence to which it relates, prima facie additional criminality requires an increase in sentence. Obviously the totality principle imposes limits to that last proposition but those limits will rarely if ever go so far as to justify wholly concurrent sentences for all of a series of offences such as those here. Subject to those limits, in general, sentences significantly cumulative should be imposed for separate serious offences of which those here are all examples.
In this connection the Court endorses the remarks of Sully J, though as a member of a two judge bench, in R v Wheeler [2000] NSWCCA 34. At [36] - [37] his Honour said:-
"... (There) is the need to ensure public confidence in the administration of criminal justice; and, in particular, to ensure that there does not emerge in the community at large a perception that there is not all that much to choose between the person who commits one or two offences, and the person who commits six or seven offences, for the reason that somehow or other they all manage to finish up with effective sentences between or among which there is hardly anything in practical terms to choose.
It needs to be clearly understood by all concerned that a person who commits a deliberate series of discrete offences, - and the present applicant's case, is a good example of the kind, - he must not be left with the idea that by intoning references to the principle of totality as though it were some magic mantra, he can escape effective punishment for the offences which follow successively one upon another throughout the whole course of a studied and deliberate course of criminal behaviour."
Some of those remarks have no literal application here but the principle does.
On separate occasions, each of the Respondents committed very serious offences. If in the case of Mr Hatzisavvas the appropriate sentence for his first offence was 6 years and the sentence appropriate for the second 7 years and 3 months, an increase in the first sentence by only 2 years or an increase in the second by only 1 year is quite disproportionate to the seriousness of the offence inspiring the increase.
Had the approach in R v Mill and R v Harris been followed, the sentencing judge would have arrived at a total sentence of 13 years and 3 months and then, if her Honour thought that period not "just and appropriate", she could have reduced it. Such a course would have been calculated to have made clear to her Honour how inadequate and disproportionate to Mr Hatzizavvas' criminality the sentence ultimately imposed on him was.
Similar remarks may be made in respect of the sentences indicated for, and imposed on, Mr Lopez-Rios and of all non-parole periods.
The sum of the indicated non-parole periods in the case of Mr Hatzisavvas was 7 years and 9 months and in the case of Mr Lopez-Rios 9 years. In that the indicated non-parole periods may reasonably be regarded as a reflection of starting points that the Crown accepted, this Court should, as I have indicted, proceed on the assumption they were adequate. The non-parole periods her Honour imposed, respectively 5 years, and 5 years and 6 months, amounted to very substantial reductions which were unjustified, manifestly excessive and which resulted in manifestly inadequate sentences. I agree with Hoeben CJ at CL's description that the result is "an affront to the administration of justice which risks undermining public confidence in the criminal justice system" and that the Crown appeal should not be dismissed in the exercise of this Court's discretion. I accept his Honour's summary of the further material adduced for consideration in the event of re-sentence and that the indicative sentences should not be changed.
In the case of Mr Hatzisavvas, a simple accumulation of the indicative sentences would result in a sentence of 13 years and 3 months with a non-parole period of 7 years and nine months. In the case of Mr Lopez-Rios, a simple accumulation of the indicative sentences would result in a sentence of 15 years with a non-parole period of 9 years. Considerations of totality lead to the conclusion that these periods should be reduced and I agree with the sentences proposed by Hoeben CJ at CL.
There is one further topic to which I would advert, although in light of my view that the Crown's conduct in the sentencing of Mr Lopez-Rios means that this Court should proceed on the basis of the indicative sentences fixed by the sentencing judge, it does not affect the conclusions at which I have arrived.
In Toole Kurt v R; Toole Joshua v R [2014] NSWCCA 318 at [118] I observed:-
The courts cannot be unconscious of the increase in frequency of offences involving trafficking in amphetamines. Statistics published by the Bureau of Crime Statistics confirm that that is the case, the rate of offences per 100,000 of the population having roughly doubled over the last 10 years. Clearly the weight to be given by the courts to deterrence should also markedly increase and result in a commensurate increase in sentences. However, I have not found it necessary in considering this ground to place weight on this factor.
During the hearing of the appeal in this matter, I raised the remarks that I have quoted from Toole Kurt v R; Toole Joshua v R and indicated that I felt entitled to adopt in this case the course that I foreshadowed in that case. I provided to counsel a number of publications which I suggested, "tend to support the proposition that the trafficking in amphetamines has increased substantially".
Mr Game SC, appearing for Mr Hatzisavvas, took exception to my doing so upon a number of bases. He submitted, inter alia that it was unfair for a single judge to raise the issue at the end of the hearing, and inappropriate in a Crown appeal where the issue had not previously been raised. There followed a number of exchanges which included the Court inviting the parties to provide further submissions if they wished. This they did. Those on behalf of the Crown on 26 February, those on behalf of Mr Hatzisavvas on 8 March and those on behalf of Mr Lopez-Rios on 14 March last.
In substance, those on behalf of the Respondents contended that the Court was not entitled to proceed as I had foreshadowed, that it would be unfair to the Respondents who were privately funded to expect them to respond to the sort of information in the documents to which I refer below, that, particularly given the terms of s 144 of the Evidence Act 1995, the Court could not take judicial notice of the contents of those documents and that in any event the proper way of dealing with any thought of a general increase in penalties was by way of a guideline judgment as contemplated by Division 4 of the Crimes (Sentencing Procedure) Act 1999. It was further submitted that any increase in the penalties imposed for methylamphtamine offences would offend the proportionality between these offences and those involving heroin or MDMA apparent on the face of the Drug Misuse and Trafficking Act 1985 or Customs Act 1901; Adams v The Queen [2008] HCA 15; 234 CLR 143 was referred to.
Some of these arguments may have some validity but what they do not deal with is that the prevalence of a type of offence is, and has always been, relevant to sentencing - R v Cuthbert (1967) 86 WN (NSW) 272 at 278; R v Williscroft (1975) VR 292 at 299, 302; R v Downie and Dandy (1997) 95 A Crim R 299 at 304-6; R v Loveridge [2014] NSWCCA 120 at [100] - [103] and the courts may take notice of a change in prevalence that is notorious - R v Hayes (1984) 1 NSWLR 740 at 742; 11 A Crim R 187 at 189; Downie at 305. It is true that in R v House [2005] NSWCCA 88 at [24] Wood CJ at CL suggested that the topic of increased prevalence might be better left for a guideline judgment but there is nothing in the legislation providing for such judgments to suggest that any limitation on the powers that the courts had previously exercised was being introduced. Courts have not previously taken the view in this area that because Parliament can address a problem the courts should not. I see no reason why, if the judges perceive a problem, they should neglect to deal with it just because there is another method available.
Furthermore, it is clear that if a court regards a prevailing standard of sentencing as too low, it is not obliged to correct it by an upward trend rather than an abrupt increase - Poyner v The Queen (1986) 60 ALJR 616. There are cases where, as a matter of discretion, an increase in a level of sentencing, has been brought in over time - R v Lewfatt (1993) 70 A Crim R 66; R v D (1997) 96 A Crim R 364, R v Kench [2005] SASC 85; 152 A Crim R 294 but whether these are all reconcilable with Poyner v The Queen is a question I need not pursue. It may of course be necessary, as I did in this case, for a judge to give the parties notice of any change in approach he intends to adopt - Pantorno v The Queen [1989] HCA 18; 166 CLR 466 at 473.
It may be that I complicated the issue by referring to publications - though the cases referred to demonstrate that course was not inappropriate - but having done so it is worthwhile to record what they say. In the above quotation from Toole Kurt v R; Toole Jushua v R I have recorded statistics published by the Bureau of Crime Statistics. Another publication, "Methylamphetamine-related Emergency Department Presentations by Admission Status" published by the New South Wales Government Health Department revealed that from 2009 to 2014 there has been an increase in the number of persons presenting to Emergency Departments from 394 to 2,982. The numbers of these admitted increased from 124 to 973, an 8-fold increase. The publication "Australian Trends in Ecstasy and Related Drug Markets 2014" published under the aegis of the National Drug and Alcohol Research Centre at [6.5] confirms the increase, albeit at a lower rate. A fourth, the "NSW Recorded Crime Statistics March 2015 Quarterly Update" recorded large increases in the recorded rate of amphetamine related offences in regional New South Wales as well as in parts of Sydney and that "National survey data shows that the proportion of people using methamphetamine (ice) daily or weekly had jumped from 9.3% in 2010 to 15.5% in 2013".
Another, the Australian Crime Commission publication "The Australian Methylamphetamine Market, the National Picture" of March 2015 reported at page 10, that "in the past 5 years there has been significant growth in the detected importation, manufacture and supply of" methylamphetamine and that "(o)f all illicit drugs, the ACC assesses that methylamphetmine, and in particular crystal methylamphetamine, poses the highest risk to the Australian community".
To these matters I may add reference to the fact that, although the change occurred after the Respondents' offences, Parliament has given recognition to the problem by halving the minimum quantity that falls within the large commercial quantity range to which a maximum penalty of life imprisonment applies - see Drug Misuse and Trafficking Amendment (Methlyamphetamine) Regulation 2015. Whether this will be enough to inspire an increase in penalties for those dealing in large commercial quantities remains to be seen.
However, I do not need to rely on the information to which I have referred. I am satisfied from my general community knowledge that there has been a substantial increase in the use methylamphetamines. I have now sat in this Court for almost 20 years and that experience also confirms the fact that there has been a very substantial increase in the frequency of offences involving trafficking in amphetamines. I am satisfied that that knowledge of those increases is notorious and not reasonably open to question and thus a matter about which s 144 of the Evidence Act 1995 says proof in not required.
But that said, because of the Crown's attitude during the sentencing of Mr Lopez-Rios, I do not feel able in this Crown appeal to implement the view I expressed in R v Toole.