R v JDX; JDX v R

Offender's application

1. The offending conduct involved three related activities. The first, on 6 November 2011, involved the supply by the applicant of a sample of six tablets containing 2.35 grams of a drug commonly known as Nexus (referred to as "sequence 1"). On 22 February 2012 two further supplies of substantial quantities of drugs occurred. The first supply involved 5,000 tablets, which contained 1,142 grams of a drug known as BZP, and was the first offence ( "sequence 3", but below as count 1) for which the applicant was sentenced.
2. Later on the same day, 22 February 2012, there was a second supply of tablets which constituted the second offence ("sequence 4" and count 2 below) and which contained 294.5 grams of Nexus. The earlier sample supply was taken into account in sentencing for this offence, having been included on a Form 1. In respect of each sentence, the sentencing judge allowed a 25% discount for the early plea and a further 10% discount for assistance to law enforcement authorities, pursuant to s 23 of the Sentencing Act.
3. The applicant challenged the total sentence for each offence, but not the non-parole period. Given the combined 35% discount, the notional starting point for each sentence must have been 18.5 years. Because each offence involved the large commercial quantity of the respective drug, in each case the maximum sentence was that of life imprisonment and a 15 year standard non-parole period applied.

(a) changed basis of sentencing

1. The first ground of appeal asserted that the total sentence must have been inflated by the inclusion in the applicant's criminal record of his conviction for murder, on the basis of events pre-dating the drug offences.
2. Although the applicant had a significant record for drug offences and offences of violence, which would have warranted little leniency, it should be accepted that the most serious disregard for the law evidenced by the murder conviction would have led to a higher starting point than might otherwise have been the case, in order to give full effect to the need for both general deterrence and deterrence of the applicant from further offending.
3. Once the murder conviction was set aside, it followed that the applicant had been sentenced for the drug offences (through no fault of the sentencing judge) on a false basis, which was relevant and material in assessing the sentences to be imposed. Accordingly, the applicant's appeal should be upheld in its challenge to the total sentences. Whether it is possible for the applicant to have this Court intervene with respect to the relevant balance of term in each case, without reconsidering the non-parole period, is not an issue which needs to be determined, as the Director's appeal with respect to the inadequacy of the non-parole periods should also be allowed, for reasons identified below.

(b) equality of sentences

1. The applicant further contended (ground 3) that the sentencing judge must have erred in imposing equal sentences for each offence, where the offences involved disparate quantities of different drugs. Thus, count 1 involved the supply of 1,142 grams of BZP, while count 2 involved 294 grams of Nexus. The applicant submitted: [4] "It will be noted that the quantity of drugs supplied in respect of [count 1] was almost 4 times the amount supplied in respect of [count 2]. The supply involved in [count 2] occurred very much as a follow-up to the supply involved in [count 1]. In other words, because the applicant did not have the agreed number of pills, he supplied the remainder a matter of hours later …. Thus, although there were two discrete acts of supply, the criminality involved in each - putting quantity aside - was, essentially, the same. Thus, all other things being equal, the significantly lower quantity, involved in respect of [count 2], ought to have led his Honour to impose a significantly lesser sentence in respect of [count 2] …."
2. The sentencing was thus said to involve a breach of the principle identified by the High Court in Pearce v The Queen [5] that separate and appropriate sentences be identified with respect to each separate offence.
3. However, as the applicant acknowledged, quantity is relevant, though not determinative, in establishing relative criminality. Furthermore, the significance of particular quantities will vary as between drugs, in so far as the relevant statute identifies different levels of severity of offending depending on the quantity of the particular drug. That factor is highly significant in the present case, but not in the way in which the submissions set out above suggested. The large commercial quantity for BZP is 1 kilogram. [6] Accordingly, although the amount of BZP was almost four times the amount of Nexus, it was only marginally above the amount required to engage that offence. By contrast, the specified amount of Nexus required for a large commercial quantity of that drug is 100 grams; accordingly, the amount of Nexus involved was almost three times the amount sufficient to engage that level of criminality.
4. The applicant's submissions sought to discount this factor on the ground that the applicant thought that, in each case, he was supplying "ecstasy", for which the large commercial quantity is an amount of 500 grams. As the Director pointed out, this submission tended to cut both ways in that it rendered the 1,142 gram supply more than twice the large commercial quantity of the supposed drug. In any event, the sentencing judge was entitled to treat the applicant's belief as of limited relevance to the objective seriousness of the offending, and of limited relevance subjectively, in circumstances where the offender gave no evidence as to his beliefs in relation to the drugs supplied.
5. The equality of sentences did not, as the applicant submitted, demonstrate a failure to fix appropriate sentences for each offence. However, as the applicant is entitled to succeed on the first ground, the differential circumstances will be reconsidered in the resultant resentencing.

(c) judge's intention in fixing level of accumulation

1. Although the applicant raised, in his notice of appeal, a ground suggesting that the trial judge had misunderstood the effect of the chosen commencement dates on the overall period of mandatory custody resulting from the murder conviction and the accumulated drug supply offences, the point is no longer material, the murder conviction having been set aside.

(d) remittal

1. The applicant's primary written submission was that, because the factual basis of the sentencing had changed, the matter should be remitted to the District Court for resentencing. That course should not be adopted. The delay in appealing precluded the Court which set aside the murder conviction from addressing the drug sentences. The non-parole period of the first sentence is due to expire on 31 January 2017 and the partly accumulated second non-parole period is due to expire on 31 July 2017, leaving limited time for a resentencing.
2. Further, the issues raised on the Director's appeal probably cannot be dealt with in the District Court; at least there was no basis on which they could be so dealt with identified on this appeal. Accordingly this Court must resentence the applicant.

Director's appeal

1. The Director also submitted that the sentencing exercise had miscarried because it was undertaken on a false basis. Again the false basis was relevant and material to the fixing of the non-parole periods. The correct application of the principle of totality had led the sentencing judge to make "a substantial downward adjustment to the non-parole periods imposed." [7]
2. The applicant resisted the Director's appeal on the basis that the non-parole periods were not manifestly inadequate. He noted that the sentencing statistics for ecstasy showed that 27% of cases involved non-parole periods equal to or less than that imposed on the applicant. While acknowledging that the bare statistics provided little assistance in relation to the present case, he further submitted that the decision of this Court in R v Choi [8] demonstrated that the non-parole periods were not so low as to be "an affront to the administration of justice." Finally, he relied upon an affidavit of a clinical psychologist, Mr Sam Borenstein, as supporting his progress in prison and as justifying a discretionary refusal to intervene if indeed manifest inadequacy had otherwise been established.

(a) adequacy of minimum terms

1. It is clear, both from the judge's reasoning and from the dates of the various sentences, that the only purpose for finding "special circumstances" pursuant to s 44 of the Sentencing Act, was to allow a variation of the total period of mandatory custody, to give effect to the principle of totality so as not to impose an overwhelming sentence. Absent such a finding, the statutory ratio would have required a 12 year sentence to comprise a non-parole period of 9 years with a balance of term of 3 years. The effect of the additional sentences was also mitigated by commencing the first sentence one year prior to the expiration of the 26 year non-parole period for murder. Once the murder conviction and accompanying sentence were quashed, there was no justification for such a large reduction in the non-parole period. Accordingly, the Director's submission should be accepted. The non-parole period became manifestly inadequate once the murder sentence was removed.
2. The circumstances of Choi do not demonstrate otherwise. The starting point in that case was a sentence of 9 years imprisonment, subject to a 50% discount. The drug involved was ecstasy. In addition to an early plea and assistance to the authorities, the offender was formerly of good character and had persuasive subjective circumstances. Although there had been an agreement to supply approximately 5.9 kgs of ecstasy, the only actual supply was an amount of 394 grams, which was below the large commercial quantity. The offender was unable to obtain the promised quantity in time to complete the deal. The trial judge had accepted (wrongly, as this Court held) that there was "no real prospect" of the supply of the larger quantity actually occurring. [9]
3. While Choi may provide grounds for adopting a lower starting point than the 18.5 years adopted in this case, it does not warrant a finding that the present sentence was merely "lenient", to use the language accepted by the applicant.
4. The circumstances in which it is necessary to adjust both the overall sentence and the non-parole period militate against the exercise of the residual discretion not to intervene on the Director's appeal. It is true that the discrepancy between an appropriate balance of term and the non-parole period will be reduced by reducing the head sentence; however, as explained below in resentencing, there are powerful reasons for increasing the non-parole period.
5. It follows that both appeals should be upheld and that this Court should determine for itself, in the current circumstances, what sentences to impose, if different from those determined by the sentencing judge.

Resentencing

1. The material considerations have been set out by Campbell J, in particular at [101]. It is important to note that both offences carried a maximum sentence of life imprisonment and a 15 year standard non-parole period. These are important statutory guidelines as to the seriousness of the offences.
2. Further, there was the unchallenged finding of the sentencing judge that the offending was "objectively serious and more towards the mid-range of objective seriousness for offences of this type." [10] The phrase "more towards" is to be understood as meaning just below the mid-range.
3. Apart from the removal of the murder conviction, the applicant relied on two further factors in seeking to reduce the assessment of the severity of the sentences warranted.

(a) rehabilitation

1. The sentencing judge stated: [11] "The Offender's prospects of rehabilitation are guarded at best, given his lengthy criminal record and recognising the obvious difficulty in making such a finding given the length of the sentence he is already serving." The judge further noted that the early plea provided "some evidence of remorse" but, understandably, he afforded it little weight because the offender had not given evidence.
2. Apart from the changes to the circumstances already noted, it is necessary to have regard to the evidence of Mr Borenstein prepared for the purpose of the present hearing. That evidence must be treated with some circumspection. Mr Borenstein's assistance was not sought until 6 November 2016, for the purposes of the appeal on 17 November 2016. He spoke to the applicant by telephone on 7 November, but for how long is not revealed. His report was dated 11 November and filed on 15 November and was understandably sketchy.
3. So-called expert psychological reports which uncritically parrot claims by an offender who does not give evidence could be challenged by the prosecution. That rules of evidence are largely ignored in relation to an offender's case on sentence does not mean that the material tendered need be given weight. Much of it is probably ignored or given very little weight. Nevertheless, because this Court admitted such material it should explain how it has been assessed. Clarity in this regard may cause parties to reconsider the obtaining, tender and objection to such material.
4. A key issue addressed in the report was the applicant's frequently affirmed intention to "stay strong and positive and [pursue?] a life without drugs". [12] Mr Borenstein reported the applicant's statements that "he has turned his life around particularly since acquittal for the offence of murder", that he has "co-operated with police and he has successfully avoided using drugs in prison." [13] Mr Borenstein stated that the applicant "impressed as highly motivated to ensure he maintains a positive life course." How he impressed was not revealed. Mr Borenstein further stated: [14] "His life has been given back and he is confident he will never return to use illicit drug use [sic] for [from?] which he has been free for the last 4½ years since coming to prison."
5. There is a difficulty in accepting this evidence at face value. Mr Borenstein was aware that the applicant "was breached for refusing to provide a urine sample in 2015 and he says he was unable to urinate within the prescribed period of time." [15] Although not recorded by the psychologist, that prison offence occurred on 14 September 2015, less than four months after he was sentenced for the drug offences. Further, the contemporaneous records prepared by two prison officers indicated that the applicant, when directed to provide a urine sample, said, "I am not going to supply, put me down as a refuse." When advised that refusing would incur the same penalty as a positive result, the applicant reportedly responded, "Yes I know." That account differs from his explanation to the psychologist.
6. Because the applicant did not give evidence, the factual issue cannot be resolved, but the single sentence in the psychologist's report of his telephone conversation with the applicant provides an inadequate basis for concluding that the prison officers were not recounting the truth in the contemporaneous records. He has not established that he has been "drug free", even in prison.
7. So far as his subjective circumstances are concerned, there is a further difficulty in that the applicant in effect seeks inconsistent findings. Through his psychologist, he asserts that he suffers from PTSD (although no psychiatric opinion is available) and that his drug use is a form of "self-medicating" for his psychological problems. If his psychological problems remain, and there is no evidence of any other treatment being provided, the prospects of him remaining drug free on release must be, in the words of the sentencing judge, "guarded". If he is not to remain drug free, he will presumably continue to associate with those who use and deal in drugs, with at least a prospect that he will return to serious drug dealing. An expression of good intentions, by a man with his criminal record, who is not willing to be tested in the witness box, carries little weight.
8. The reference to "self-medicating" is unhelpful: is it intended to explain or excuse illegal drug use? As an explanation, it is implausible - the applicant's drug use pre-dated the supposed triggers of PTSD. If an excuse, it nevertheless involved a choice. Further, any diminution of moral responsibility is undermined by the fact that the supposed psychological condition which is sought to be treated, itself appears to be the product of the applicant's involvement in illegal drug dealing.
9. On the other hand, there is clearly a greater opportunity for rehabilitation in circumstances where a 26 year non-parole period, and a conviction for murder, have been removed. His prospects are undoubtedly better now than they were when he was first sentenced.

(b) assistance

1. The applicant also sought and obtained from the Court an opportunity to provide a further report from a senior police officer with respect to the assistance he has been able to provide to authorities since his first sentencing. He thus seeks an increase in the 10% discount allowed by the sentencing judge, which was limited to assistance already provided at that time. [16]
2. The further evidence is hard to assess. On the one hand, the senior police officer described the assistance provided as "invaluable", but stated that it was invaluable "in defining investigative strategies". It may be accepted that the applicant remains ready to provide further assistance, a factor which would tend to put him at continuing risk of retaliation, although it is not possible to say to what extent the risk will increase beyond that identified before the sentencing judge.
3. In terms of future assistance, the usual expectation is that an offender will, if asked to do so, give evidence at a trial of other offenders. There does not appear to be any specific undertaking or expectation in that regard. Giving the applicant the benefit of the doubt, it is appropriate to increase the allowance made by the sentencing judge by 5%, giving an overall discount for the early plea and for assistance to authorities totalling 40%.

Conclusions

1. The applicant's challenge to the overall sentence period accepted by the sentencing judge should be upheld. In lieu of the starting point of 18.5 years, an appropriate starting point is 14 years (168 months). Applying the 40% discount would result in a total sentence period of 8 years 4 months (100 months).
2. On that basis, and applying the statutory ratio, the sentence would involve a non-parole period of 6 years 3 months with a balance of term of 2 years 1 month.
3. There is no longer a need to vary the s 44 ratio in order to apply the principle of totality because of the lengthy murder sentence. It is, however, common ground that it is appropriate to maintain the statutory ratio with respect to the applicant's current period of continuous custody, which appears to have commenced in late April 2012. On the basis that the first of the current sentences will commence on 1 February 2014, there is a period of 1 year and 9 months (21 months) custody pre-dating the present sentences. The period of custody is then increased by 6 months, being the accumulation of the sentence for count 2 on the sentence for count 1. To that (27 months) should be added the sentence of 8 years 4 months dating from 1 August 2014 (100 months). To ensure a total period of mandatory custody which does not exceed 75% of the total sentence period, the non-parole period for count 2 should terminate on 31 March 2020, approximately 7 months before the expiration of the otherwise appropriate 6 year 3 month non-parole period. So varied, the sentence on count 2 should be a non-parole period of 5 years 8 months to date from 1 August 2014, with a balance of term of 2 years 8 months.
4. There remains a question as to whether there should be differentiation between the two sentences. In my view, count 2 was the more serious offence, because it involved a quantity of drugs three times the prescribed large commercial quantity, whereas count 1 involved an amount only marginally above the large commercial quantity for that drug. Because the criminality was all part of one course of conduct, no great differentiation is required. Nor does the inclusion of the offence of supplying the sample (the Form 1 offence) increase significantly the sentence warranted on count 2.
5. After allowing for the 6 month accumulation, the remainder of the sentence on count 1 will be wholly subsumed within the sentence for count 2. For that reason, it is appropriate to impose a fixed term reflecting the non-parole period which would otherwise have been set for that offence. Accordingly, on count 1 (sequence 3) I would propose a fixed term of 6 years imprisonment to date from 1 February 2014 and expiring on 31 January 2020. With respect to count 2, I would propose a sentence of 8 years 4 months imprisonment, involving a non-parole period of 5 years 8 months and a balance of term of 2 years 8 months. The non-parole period will commence on 1 August 2014 and expire on 31 March 2020. The earliest date on which the applicant will be eligible for conditional release will thus be 31 March 2020.

Orders

1. The Court should make the following orders: 1. Grant the offender leave to appeal against the sentences imposed by the District Court on 5 June 2015 for two offences under s 25(2) of the Drug Misuse and Trafficking Act 1985. 2. Allow the appeals of the Director of Public Prosecutions and the offender against the sentences. 3. Quash the sentences imposed by the District Court and resentence the offender as follows: 1. on count 1, impose a fixed term of 6 years imprisonment to commence on 1 February 2014 and expire on 31 January 2020; 2. on count 2, impose a sentence of 8 years 4 months imprisonment, involving a non-parole period of 5 years 8 months to commence on 1 August 2014 and expire on 31 March 2020 and a balance of term of 2 years 8 months to commence on 1 April 2020 and expire on 30 November 2022. 1. The earliest date on which the applicant will be eligible for conditional release will thus be 31 March 2020.
2. CAMPBELL J: These proceedings challenge sentences imposed on the offender in the District Court at Campbelltown on 5 June 2015 on his plea of guilty to serious drug-supply charges. In the somewhat unusual circumstances of this case the Court is dealing with both a Crown appeal and the offender's application for leave to appeal.
3. On 29 January 2014, the offender pleaded guilty in the Local Court at Wollongong to two offences of supplying a large commercial quantity of a prohibited drug, namely 1.142kg of 1-benzylpoperazine ("BZP") (sequence 3) and 294.5g of 4-bromo2,5-dimethoxyphenethylamine, commonly "Nexus" (sequence 4). Each offence was contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) ("DMTA"). The maximum penalty for each offence is life imprisonment and a standard non-parole period of 15 years.
4. On 5 June 2015, the offender came before Townsden DCJ for sentencing. His Honour was asked to take into account a further offence of supply prohibited drug (2.35g of "Nexus") contrary to s 25(1) of the DMTA on a Form 1 when dealing with sequence 4, under s 33 Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Act"). This additional offending would have attracted a maximum penalty of imprisonment for 15 years if dealt with separately.
5. Part of the unusual circumstances I have referred to is that at the time of sentencing, the offender was already serving a sentence for murder. On 12 December 2014, following trial and conviction by a Supreme Court jury, R S Hulme AJ imposed a term of 34 years imprisonment with a non-parole period of 26 years, commencing 1 February 2014. The non-parole period was to expire on 31January 2040 and the balance of term on 31 January 2048.
6. The offender was sentenced by Townsden DCJ as follows: 1. Sequence 4 (taking into account the Form 1 offence): 12 years imprisonment with a non-parole period of 3 years imprisonment, commencing on 1 February 2039. 2. Sequence 3: 12 years imprisonment with a non-parole period of 3 years imprisonment, commencing on 1 August 2039.
7. The overall term of imprisonment for the drug offences was 12 years and 6 months, with a non-parole period of 3 years and 6 months, commencing on 1 February 2039. I interpolate that it is obvious that in applying the principle of totality in the sentencing task his Honour adopted a particular structure partially accumulating the total-effective non-parole period and additional term for the drug-supply offences on those components of the murder sentence. This ensured that both components of the effective sentence he imposed had real practical effect, reflecting the criminality involved in that offending which was quite separate from the responsibility for murder.
8. On 21 September 2016, that is some 15 months after being sentenced by Townsden DCJ, the offender's appeal against his conviction for murder was upheld by this Court (Beazley P, RA Hulme and Adamson JJ) and a verdict of acquittal entered: decision restricted [2016] NSWCCA 202.
9. On the following day, 22 September 2016, the Court made an order pursuant to s 59 Sentencing Act bringing forward the commencement date of the sentences for the drug offences to 1 February 2014, and 1 August 2014 respectively. Accordingly, as things stand now, the offender is first eligible for parole on 31 July 2017.
10. The successful murder appeal and s 59 order complete the unusual features of the case. The Crown appeal and application for leave to appeal were initiated on 29 September and 8 November 2016 respectively.

Objective circumstances

1. The offender was sentenced by Townsden DCJ on a statement of agreed facts. These facts have been summarised in the written submissions of the parties and what follows draws upon their summaries.
2. Between 30 September 2011 and 22 February 2012 (the latter being the date of the offender's arrest), police investigated the suspected ongoing supply of prohibited drugs by the offender and a co-offender. As a part of this investigation, police were granted an authority to conduct a controlled operation in which an undercover police officer ("UCO") and a civilian participant would seek to purchase prohibited drugs from the offender. At about this time, police commenced lawful interceptions of the offender's mobile phone.
3. On 27 October 2011, the civilian participant met with the offender at a café. The offender agreed to provide the civilian participant with a sample of "pills". Six brown tablets were supplied by the offender during a second meeting on 6 November 2011. The tablets were analysed and found to consist of 2.35 grams of the prohibited drug "Nexus", being an indictable quantity. This supply event makes up the Form 1 offence. These drugs were a sample of a larger quantity later supplied by the co-offender.
4. On 9 November 2011, in a meeting between the offender and the civilian participant, arrangements were made for the former to meet with a "friend" (the UCO) of the civilian participant the following day. On 10 November 2011, the civilian participant, the UCO and the offender met in the car park of a local library. This meeting was one of a series of meetings leading to the supply of the larger quantity by the co-offender which occurred on 21 November 2011. It provides background only to the offending for which the offender was sentenced.
5. On 16 February 2012, the civilian participant informed the offender that the UCO was interested in purchasing an amount of tablets. The offender agreed to supply the drug and deal directly with the UCO. Via text message, an arrangement was made for the supply of 5,000 tablets.
6. At about 3:50pm on 22 February 2012, after a brief meeting in a car park, the offender and the UCO drove to the offender's home, where the offender supplied the UCO with a quantity of tablets in exchange for $45,000 cash. These tablets were analysed and identified as a combined total of 1,142g of BZP, which is a large commercial quantity of that prohibited drug (the subject of sequence 3). BZP is a stimulant commonly found in "party pills". The offender advised the UCO that he would have to go and collect the balance of the 5,000 pills.
7. At about 5:06pm that same day, the UCO received a telephone call from the offender asking the UCO to return to the offender's house. Upon arrival, the offender placed the remaining tablets into the boot of the UCO's car. These tablets were analysed and identified as 294.5g of the prohibited drug "Nexus", being a large commercial quantity of that particular drug (sequence 4).
8. The offender was charged on 3 May 2013, whilst in custody on matters unrelated to this particular offending. He has remained in custody since 23 April 2012, on my reading of the material before the Court.

Subjective circumstances

1. The offender did not give evidence on sentence but relied upon a psychological report prepared by Mr Bradley Jones, forensic psychologist, dated 22 August 2014. That report had been prepared for the purpose of sentencing for the offender's overturned murder conviction, but it sufficed to put the offender's subjective circumstances before his Honour for sentencing in respect of the drug offences.
2. His Honour took the offender's lengthy criminal history into account: he was then serving the sentence of 34 years imprisonment by the Supreme Court which commenced on 1 February 2014; and he had previously served 2 terms of imprisonment for offences including the supply of prohibited drugs commencing in 2006 and 2012. There was other offending including for crimes of violence and, I note, serious driving offences for which a term of imprisonment was imposed. Taking this into account, his Honour regarded his prospects of rehabilitation to be "guarded at best". His Honour found it "difficult" to make an assessment given the lengthy murder sentence he was then serving.
3. His Honour afforded the offender a discount of 25% for the utilitarian value of his early guilty plea and an additional 10% for his past assistance to police under s 23(1) Sentencing Act. The early guilty plea was also considered by his Honour to be some evidence of remorse, and the assistance as evidence of him turning his back on his previous criminal associations. But his Honour thought these matters were of limited weight as the offender did not, himself, give evidence.
4. It was accepted that the offender suffered from symptomatic post-traumatic stress disorder due to 2 separate incidents. The first occurred in August 2007 when he was attacked with a knife and stabbed 13 times in a nightclub. And the second in October 2007 when his godfather was gunned down and died in his presence. His was the death the subject of the murder charge. The PTSD condition requires ongoing treatment which he was receiving in custody.
5. Because it features in the offender's submissions it is important to record here that the Crown conceded below, and the sentencing judge appeared to accept, that the offender at all times believed he was supplying "ecstasy", rather than the drugs for which he was charged. The practical significance of this is said to be that the supply of ecstasy is treated in law as less serious than the supply of Nexus. This is reflected in the respective thresholds for supply of a large commercial quantity: for ecstasy the threshold is 500g (at least in the form of methylamphetamine); for Nexus, 100g; and for BZP, 1kg.

Reasons for sentence

1. His Honour concluded that the offences fell "towards the mid-range of objective seriousness" noting that the offences were committed for profit without regard for the consequences of his offending behaviour. That the drugs were supplied to an undercover operative and not disseminated into the community was not regarded as of particular significance by his Honour.
2. Considering that the second supply offence (sequence 4) involved the supply of the balance of a quantity earlier agreed upon, and that only a single payment was received by the offender, his Honour concluded that there should be a "modest" degree of accumulation only.
3. His Honour also recognised the difficulty attending the application of the totality principle when the offender was currently serving a very long sentence for an entirely separate offence. It is fair to say that the recognition of this difficulty was central to his Honour's approach to the whole sentencing task.
4. Having regard to the offender's existing sentence and the principles of totality, his Honour made a finding of special circumstances justifying the imposition of a sentence where the additional term exceeds one-third of the non-parole period under s 44 of the Sentencing Act. Indeed the statutory ratio was varied so that the non-parole period was around 25% of the total effective sentence. It is apparent that the balance of the term for each offence was three times the non-parole period. This was 9 times greater than the usual statutory ratio.
5. As I have already said, the offender was sentenced to a term of 12 years imprisonment with a non-parole period of 3 years for each sequence 3 and sequence 4, although sequence 4 was to be partly accumulated by 6 months.

Crown appeal

1. The sole ground of appeal raised by the Crown is that the non-parole period of the sentence imposed was manifestly inadequate because of the gross displacement of the statutory ratio. It was accepted that this asserted manifest inadequacy was a necessary consequence of the offender's successful appeal against his murder conviction. Nonetheless, the sentences so structured, standing alone and unsupported by the murder sentence, were appellable.
2. Reference was made to R v Tolmie (1994) 72 A Crim R 416. The Crown argued this was a case where the residual discretion should not be exercised. There had been no relevant delay, the "error" did not result from the conduct of the Crown below, nor was there any matter arising since sentence that would justify the Court declining to intervene.
3. Mr Lange for the offender argued that the sentences standing alone, even focusing upon the non-parole periods, were not manifestly inadequate. He relied upon the statistics compiled by the Judicial Commission and the decision of this Court in R v Choi [2010] NSWCCA 318. The statistics related to the supply of ecstasy. As I have said, the offender believed that was the prohibited drug he was supplying. Of 59 cases of full time terms of imprisonment for the supply of a large commercial quantity of ecstasy disclosed by the statistics, 16 offenders or 27% of the cohort were sentenced to non-parole periods involving 42 months or less.
4. The reference to Choi was said to demonstrate "the sentences imposed upon the respondent were not an affront to the administration of justice." That case involved an agreement to supply 30,000 ecstasy tablets. It was estimated that such a supply would have involved 5.9 kilograms of the drug had it gone ahead. Before a 50% discount for Choi's plea and assistance allowed by the sentencing judge, the non-parole period would have been one of 5 years. Before discount, the non-parole period in the case at hand would have been about 5 years and 4 months. That Choi was of prior good character and the deal thwarted because Choi could not source the drugs in the time available were argued not to be significant distinguishing features.

The Offender's Application for Leave to Appeal

1. The offender sought leave to appeal relying on the following 3 grounds: 1. His Honour's sentencing discretion miscarried in circumstances where the applicant was sentenced on the basis that he had previously been sentenced to a lengthy term of imprisonment in respect of the offence of murder, but that sentence was subsequently quashed; 2. His Honour erred in failing to give effect to his stated intention in determining the commencement dates; 3. His Honour erred in failing to apply the principles in Pearce's case in determining the appropriate sentences for the two offences.
2. It can be seen that Ground 1 is effectively the mirror-reverse of the Crown's sole ground of appeal.
3. At pages 8 and 9 of his reasons for sentence, Townsden DCJ summarised the effect of the sentences he had imposed as being that the "overall non-parole period of imprisonment is therefore extended by 2 years on [the offenders'] existing sentence, while his total term is extended by 2 years." The simple point relied on by the offender is that his Honour imposed sentences where the effective non-parole period expired on 31 July 2042, 2 years and 6 months after expiration of the non-parole period for murder, and where the total effective sentence would expire on 31 July 2051, an addition of 3 years and 6 months on the murder sentence. It was argued that it is apparent from this that his Honour mistook the facts relevant to the sentence imposed.
4. In respect of the third ground, it was argued that his Honour misapplied the totality principle in relation to the two offences, notwithstanding the Form 1 offence appurtenant to sequence 4. It was argued that this was a clear case of a single episode of criminality. The amount involved in sequence 4 was much less than the amount involved in sequence 3, particularly if one has regard to the consideration that the offender believed all of the drugs supplied by him were ecstasy. The amount involved in the Form 1 offending was trivial. The same sentence for each sequence was not called for.
5. The Crown submitted that the length of the total sentence imposed was governed more by the offender's previous criminal history for drug supply offending than by the then existing murder sentence. In the circumstances it was submitted that the total sentence of 12 years, 6 months was not manifestly excessive.
6. It was argued by the Crown that ground 2 was of no practical effect given that the sentences imposed by Townsden DCJ had been "re-set" by this Court following the successful murder appeal.
7. Referring to the respective thresholds for BZP, Nexus and ecstasy, the Crown argued that on the logic underpinning the offender's argument, he was "advantaged" in relation to sequence 3 by the consideration that so far as the quantity of drug supplied is relevant, the amount of BZP supplied is double the large commercial quantity threshold for ecstasy. I understood this argument to be advanced to demonstrate that the logic of the offender's argument is fallacious. It was accepted that the Crown conceded that the offender at all times believed he was supplying ecstasy but not that that circumstance was a mitigating factor. It was pointed out (reasons for sentence, page 8) that his Honour was alive to the significance of the consideration that sequences 3 and 4 were part of one transaction. His Honour, correctly, took the view that the weight of the drug was not the only relevant factor. Given the Form 1 offending it would have been inappropriate for his Honour to impose wholly concurrent sentences. The Crown argued that the total effective sentence was not affected by error.

Consideration

1. The Crown appeal was filed on 29 September 2016 and the offender's application for leave to appeal on 8 November 2016. In my judgment, to the extent necessary, the time fixed for filing the respective notices under Rule 3B of the Criminal Appeal Rules should be extended accordingly. I am also of the view that the Crown Appeal should be allowed; the offender granted leave to appeal; and that his appeal should be allowed.
2. I accept the Crown argument that the case at hand is covered by R v Tolmie (1994). Hunt CJ at CL (Smart and Badgery-Parker JJ agreeing) held as a matter of principle in circumstances similar to those before the Court (at 418): "The remaining sentences no longer are appropriate to the criminality of the remaining offences standing alone. If they were also manifestly inadequate in relation to those offences standing alone, then there should be no reason why a Crown appeal should not be allowed." [Emphasis added] His Honour had earlier referred to Thomas v R (1992) 65 A Crim R 269 where it had been held, at least where concurrent sentences have been imposed for separate offending, that the setting aside of one may require the others to be reviewed. In Thomas, Hunt CJ at CL said (at 275): "Moreover, it is not without significance that the three sentences were to be served concurrently. Where sentences are made cumulative, the principle of totality demands that each be less than it would otherwise have been if it had been the only sentence imposed. Conversely, where two or more concurrent sentences are imposed (particularly where they are of equal length, such as are the sentences for the first and second counts here), they tend to be longer than each would otherwise have been had it been the only sentence imposed." [Emphasis added] In the present case, the sentences for sequences 3 and 4, as I have pointed out, were largely concurrent involving only a very small degree of accumulation in sentences each of 12 years.
3. It is of course now trite to say that the task of sentencing involves an instinctive synthesis of all relevant facts, matters, circumstances and principles rather than a stepped or staged approach. Nonetheless, in most serious cases it is necessary for the Court to fix a minimum or non-parole period and a maximum time to be served. The non-parole period is, of course, the minimum time justice requires the offender to serve for his offending. Despite the need to fix a minimum and maximum, both components are informed by the same relevant factors and principles. For this reason a total sentence may be manifestly excessive and at the same time the non-parole period manifestly inadequate.
4. What follows from Tolmie and Thomas is that where the application of the principle of totality is affected by the setting aside of a sentence forming an integral part of the structure of a number of sentences imposed for disparate offending, the sentencing discretion may be shown to have miscarried by reason of the balance of the remaining sentences having been undermined. This may be characterised as an error of principle, as Hunt CJ at CL suggests, or, perhaps, simply as latent error resulting in sentences which standing alone are plainly unreasonable. Moreover, the effect of this undermining may entitle both the Crown and the offender to a legitimate sense of grievance, the former on behalf of the community.
5. In my opinion what was a sentence structure carefully crafted by Townsden DCJ, as I have said, giving both the non-parole period and the additional term real practical effect, has resulted in a disproportionate sentence where the minimum term is manifestly inadequate and the overall sentence is manifestly excessive once the murder sentence was quashed. In making this assessment, I have borne in mind that release on parole when an offender is first eligible (except where a parole order has been made by a court) is not automatic, but depends upon the exercise of an independent discretion by the State Parole Authority.
6. My conviction that the total sentences passed by the learned sentencing judge, standing alone, are manifestly excessive is informed by a number of different considerations, bearing in mind that where there is latent error a governing error cannot be identified.
7. His Honour found that the objective seriousness was towards the mid-range, recognising that the weight of the drug, whilst relevant and significant, was not determinative. The offender has a poor criminal record including prior similar offending. On the other hand, the weights or quantities involved here, in absolute terms, are not very large. Given that his Honour was prepared to allow a combined discount of 35% for the early plea and assistance, his notional starting point must have been a little less than 20 years, for each offence. Moreover, although the consideration that the second supply involved the completion of the one transaction called for a high degree of concurrency, the separate criminality involved in that matter did not necessarily require the imposition of an identical sentence, even taking the Form 1 offending into account. I am satisfied that the total sentences were manifestly excessive.
8. At the same time standing alone it is impossible to justify a non-parole period of only 25% of the maximum term in a case like this. That is not to say that there may not be cases where such proportionality is justified. The offender had been given the benefit of a relatively large discount for his plea and assistance. Those factors should not be "double-counted" to support a very lenient non-parole period. I am satisfied that the non-parole period is manifestly inadequate. Were it necessary to say so, I would accept the Crown's argument that it was so lenient as to be "an affront to the administration of justice": Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462.

Re-sentencing

1. The demonstration by the offender of appellable error requires this Court to re-exercise the sentencing discretion (in accordance with Kentwell v The Queen [2014] HCA 37; 252 CLR 601).
2. There is no challenge to the facts as to the offending, which were agreed; nor to the findings made about the offender's subjective circumstances; nor to the finding that the offending fell "towards the mid-range of the objective seriousness". These matters have been set out above.
3. The main issues remain the discount that should be allowed for past and future assistance to the authorities and the application of the totality principle for the remaining drug-supply offences, having regard to the previous sentences commencing on 23 April 2012 which remained current at the new commencement date fixed by this Court under s 59 Sentencing Act.
4. As against the event that the Court would proceed to re-sentence, the offender was given leave to tender a further psychological report by Mr Sam Borenstein, clinical psychologist, dealing with the offender's current psychological condition and a further affidavit of assistance by a senior police officer sworn on 24 November 2016. This additional material should be taken into account. It is not inconsistent with the sentencing court's unchallenged factual findings; rather Mr Borenstein's report provides evidence of the offender's progress towards rehabilitation since the sentences were imposed. And the affidavit of assistance, in my judgment should be received and considered in the assessment of whether some other sentence is warranted in law to avoid a miscarriage of justice. That material also informs the question of progress towards rehabilitation: Betts v The Queen [2016] HCA 25; 90 ALJR 758.
5. The relevant considerations for re-sentencing the offender on the basis of the facts as found by Townsden DCJ are: 1. Each offence carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years; 2. The objective seriousness of the offending is "more towards the mid-range of objective seriousness for offences of this type"; 3. Each supply was sufficient to satisfy the statutory element of a large commercial quantity for the drug actually supplied, but in absolute terms the supplies were not very large; 4. The sentence for sequence 4 must take account of the criminality involved in the Form 1 offending. That offending involving the supply of samples was not an isolated incident. It was a preliminary step to the later supply for which the co-offender was convicted; 5. The applicant is entitled to a 25% discount for his early plea; 6. There should be a further discount for assistance about which I will say more below; 7. The applicant seems to have made greater progress towards rehabilitation than the sentencing judge expected; 8. Nonetheless his prior record does not entitle him to a great degree of leniency; 9. It is accepted that he suffers from a recognised psychiatric condition of PTSD. I would not regard this as reducing his moral culpability, but it may make his time in custody more difficult than it otherwise would have been, notwithstanding the availability of treatment; 10. There remains scope for the application of the principle of totality. Although the murder sentence has been set aside, the offender has been continuously in custody since 23 April 2012, serving sentences for prior offending. I find the offender's criminal record and custodial history a little confusing but there appear to be terms of imprisonment for three episodes of prior offending. A term of imprisonment of 20 months with a non-parole period of 15 months commencing on 23 April 2012 was imposed for an earlier drug supply matter; a term of 18 months commencing on 27 April 2013 with a non-parole period of 12 months for a police pursuit (first offence); and another term of imprisonment of 20 months with a non-parole period of 15 months commencing on 27 October 2013 (after an appeal to the District Court) was imposed for a second police pursuit offence. The police pursuit offending occurred on 1 and 27 April 2012 respectively. Although imposed at different times, these sentences were, as can be seen, partially accumulated on each other. This Court backdated the sentences under review to 1 April 2014, the date previously fixed for the commencement of the set aside murder sentence. This had the effect of partially accumulating the sentences under review on the second and third of these prior sentences.

Prospects of rehabilitation

1. As I have said, the offender seems to have made more progress towards rehabilitation than the sentencing judge expected. From the history received by Mr Borenstein, who admittedly only had the opportunity to interview the offender over the telephone, the offender has gained insight into the role of his own drug use in his record of offending. He told Mr Borenstein, "if I never used drugs this stuff would never have happened to me". He obviously feels a great sense of relief after his acquittal of the murder charge. He said "I have been given my life back and I won't waste it." He has performed productive work whilst in custody. He told Mr Borenstein from his experience in custody so far he has learnt to "stay strong and positive and a life without drugs" (sic). He explained the breach of discipline in 2015 for refusing to provide a urine sample as an inability to produce the sample within the required time. (I do note, however what Basten JA has written about this matter at [37]-[38].) Although he did not give evidence before the sentencing judge, these matters tend to suggest, notwithstanding his relative maturity (he is now 30) that he will be able to rehabilitate himself.

Intent

1. It is necessary to say something about the offender's belief that he was providing ecstasy and not Nexus. I have difficulty regarding this as a mitigating circumstance. He did not give evidence to the effect that had he known of the true nature of the drug, the subject of sequence 4, he would never have gone through with completing the transaction. As the Crown pointed out, the logic of treating his belief that he was supplying ecstasy, rather than the drugs the subject of the charges, must cut both ways. If the threshold of the large commercial quantity for each drug has relevance to this, then supplying BZP is less serious than supply ecstasy. A guilty mind is, of course, an element of the offences to which he pleaded guilty. Generally it would be more than sufficient that there be an awareness that the substance supplied is a prohibited drug without any particular belief as to its precise nature: Kural v R [1987] HCA 16; (1987) 162 CLR 502.
2. By his plea, there can be no doubt the offender had the relevant guilty mind. If his mistake about the precise nature of the drug is a mitigating factor, he carries the onus of proof. I am not persuaded on the balance of probabilities that his mistakes about the precise substance being supplied, conceded by the Crown, mitigates his offending.

Assistance provided to authorities

1. The Court's power to reduce penalties for assistance provided to law enforcement authorities is governed by the provisions of s 23 Sentencing Act. It is important to bear in mind, however, that "a lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence": s 23(3).
2. I have read the confidential exhibit that was before Townsden DCJ and very carefully considered the information contained in the new affidavit of assistance. I am aware that the senior police officer providing the information has described the assistance provided as "invaluable in defining investigative strategies" in relation to offences which are unrelated to the offending for which the offender is being sentenced. But, with respect, one needs to be cautious about accepting such an assessment at face value: Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at 71 [30]; R v Gallagher (1991) 23 NSWLR 220 at 232.
3. Assessing the assistance provided objectively, I am satisfied that the offender has provided information that mainly consisted of "intelligence" which corroborated other information investigators were assessing in relation to the unrelated crime. The offender also expressed a willingness to assist by seeking further information directly from identified suspects. This assistance would have consisted of facilitating the introduction of a third party to the person or persons of interest. His willingness to participate in this way was thwarted when he was charged with murder and became physically unable to participate.
4. Through his solicitors the offender has confirmed his continued willingness to provide this assistance. He has not provided a written undertaking to provide, nor has he committed to providing, written statements or evidence in Court.
5. It seems that the information provided so far on the assessment of the investigators is reliable and he had expressed a willingness to assist within a reasonably early time after his arrest for this offending. The evidence is that he has not been offered any benefit in exchange for his assistance and given the nature of the matters being investigated, there can be no doubt that the provision of his assistance will involve personal danger.
6. As I have said, Townsden DCJ allowed a 10% discount for past assistance over and above the 25% his Honour allowed for the early plea. Given the then subsisting murder sentence, his Honour may have considered that the offender's opportunity for providing future assistance would have been strictly limited.
7. I am persuaded that the offender continues to be prepared to provide the proffered assistance, although there may be difficulties as he will remain in custody. It seems that in the past, investigators were confident that the offender could assist while he remained in custody. Given the seriousness of the unrelated offences and the investigators' assessment of the usefulness of the offender's participation, I am of the view that a discount should be permitted or allowed for future assistance.
8. There is sometimes said to be a rule of practice that the combined discount for a plea of guilty and assistance should not exceed 40% other than in "very exceptional" cases: R v Sukkar [2006] NSWCCA 92; 172 A Crim R 151 at [5]. This rule is not invariably applied: Choi at [82] - [90]. Nonetheless as the promised future assistance goes beyond the mere provision of information I consider it appropriate to allow a total discount for assistance of 15% apportioned as to 10% for the past and 5% for the future.

Sentences

1. Since writing the aforegoing I have had the benefit of considering Basten JA's judgment in draft. Although our approaches differ in some potentially material respects, I am in agreement with the new sentences his Honour proposes. With respect, they are consonant with the views I have espoused about resentencing, including the need to apply the totality principle with regard to the previous sentences.

Comparable Sentences

1. In arriving at these views I have had regard to the Judicial Commission's statistics and the case of Choi referred to by Mr Lange, but I have decided they do not provide an appropriate yardstick in the particular circumstances of this case. In particular, leaving aside the difficulties of being asked to compare just one case, the circumstances in Choi relevant to sentencing were very different from this case, especially what Basten JA refers to as his persuasive subjective case. That a minority cohort of around 25% of cases from the statistics had a non-parole period in length similar to that fixed here by Townsden DCJ does not establish that the sentence passed standing alone was appropriate to the offending or the offender.

Residual discretion

1. I am persuaded that the residual discretion to leave the non-parole period as it is should not be exercised. Latent error arose out of the setting aside of the murder conviction and sentence. The Crown moved swiftly to appeal once this occurred. There is no delay. The structure that was explicable at the time the sentences were imposed became manifestly excessive, so far as the whole term was concerned, and the non-parole period, manifestly inadequate. It would be, in my view, inappropriate to correct one and not the other.
2. N ADAMS J: I have had the benefit of reading in draft the reasons of Campbell J and the additional reasons of Basten JA. I agree with both of their Honours that the applicant should be re-sentenced and I also agree with the new sentences proposed. Their Honours have taken slightly different approaches to arrive at the ultimate result. I do not disagree with any of their Honours' reasoning apart from noting that I share the views expressed by Basten JA at [34] - [41] regarding the circumspection with which the evidence of rehabilitation described in Mr Borenstein's report should be treated. I do not otherwise find it necessary to add any further reasons for joining in the orders proposed.

Endnotes

1. Criminal Appeal Act 1912 (NSW), s 5(1)(c) and s 5D(1).
2. Sentencing Act, s 59(1).
3. Sentencing Act, s 59(5).
4. Written submissions, 7 November 2016, par 17.
5. (1998) 194 CLR 610; [1998] HCA 57.
6. Drug Misuse and Trafficking Act 1985 (NSW), Sch 1.
7. Director's written submissions, 28 October 2016, par 33.
8. [2010] NSWCCA 318.
9. Choi (NSWCCA) at [53].
10. Judgment, p 6.
11. Judgment, p 7.
12. Report, p 5.2.
13. Report, p 6.6.
14. Report, p 6.7.
15. Report, p 2.4.
16. Judgment, p 5.8. 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: 13 February 2017