R v Medd

Per the Court (i) The sentencing judge, in applying the 20% discount for assistance to authorities, was in error. The combined discount he allowed for the plea and assistance on count 1 was 45%. That is near to the figure of 50% which this Court has said should not normally be exceeded. The Court considered a discount of 10% for the limited assistance provided was appropriate: [17] - [18]. SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249; AAT v R [2011] NSWCCA 17; R v AZ [2011] NSWCCA 43; (2011) 205 A Crim R 222; R v Holland [2011] NSWCCA 65; (2011) 205 A Crim R 429 (ii) Having regard to comparative cases and accounting for the full range of circumstances which may bear upon the relative seriousness of any particular instance of offending against s 25 of the Drug Misuse and Trafficking Act 1985 (NSW), the discount for assistance applied by the trial judge was unsupportably high: [19] - [20]. Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 318 (iii) The Crown discharged its onus to persuade the Court to refrain from exercising its residual discretion to leave the sentence undisturbed: [21] - [23]. CMB v Attorney General for New South Wales (2015) 256 CLR 356; [2015] HCA 9

Judgment

1. THE COURT: Medd (a pseudonym), the respondent to this Crown appeal, pleaded guilty in the Local Court at Sydney on 15 July 2015 to a charge that he supplied methylamphetamine, not less than the large commercial quantity. The charge was laid under s 25(2) Drug Misuse and Trafficking Act 1985 (NSW) and has a maximum penalty of life imprisonment and a standard non-parole period of 15 years. The period of the offence was between 19 July 2013 and 6 August 2013. Slightly over 1 kg of the drug was involved.
2. The respondent pleaded guilty in the District Court at Sydney on 25 May 2015 to a second charge under the same section, of having knowingly taken part in the supply of a large commercial quantity of methylamphetamine, in this case 2 kg for which he introduced a buyer to a seller between 5 August 2013 and 30 August 2013.
3. The aggregate sentence imposed by his Honour Judge Whitford SC, which the Crown contends is manifestly inadequate, was imprisonment for a non-parole period of 3 years 6 months and a balance of term of 1 year 2 months (total 4 years 8 months). The sentence commenced on 29 August 2013, the day the offender was arrested. He had been in custody from then until sentence was passed. His Honour nominated indicative sentences for the two charges respectively as follows: 1. for count 1 (supply of approximately 1 kg), a non-parole period of 2 years 7 months and a balance of term of 11 months (overall 3 years 6 months); and 2. for count 2 (knowing concern in supply of 2 kg), a non-parole period of 3 years 1 month and a balance of term 1 year 1 month (overall 4 years 2 months).

Facts of the offences

1. Count 1 arose out of supply of the drug by the respondent to an undercover operative ("UCO"). The UCO met with a co-accused, Kelly (also a pseudonym), on 10 July 2013 and tentatively arranged to purchase from him 1 kg of methyl amphetamine. Intercepted telephone calls show that Kelly sought to obtain a quantity of the drug to fill this order from the respondent who ultimately acquired it from an associate. On 22 July 2013 the respondent provided Kelly with a small sample to give to his buyer, the UCO. Kelly met with the UCO and handed this over.
2. When the UCO said he was content with the sample Kelly telephoned the respondent who then brought to this meeting 97.1 g of the drug and gave it to the UCO directly. The price to the UCO was $22,000, of which Kelly retained $5,000. The balance, $17,000, was paid by Kelly to the respondent who in turn paid most of it to his associate. The respondent subsequently told police he had received only $300 for this transaction.
3. Between 2 and 3 August 2013 Kelly arranged with the UCO for the 1 kg which had originally been discussed between them to be supplied on 6 August 2013. The respondent was informed of this and arranged for the 1 kg to be made available from his upline supplier. On 6 August 2013 the respondent and Kelly drove to a house in Greenacre where the handover was to take place. The UCO followed behind by arrangement. The respondent went inside the house followed by Kelly, who shortly afterwards brought out 999.6 g of methylamphetamine to the UCO and was handed $35,000 cash in exchange. The offender received $1,200 of this.
4. The 97.1 g which had been supplied on 22 July 2013 was 85.5% pure. The 999.6 g supplied on 6 August 2013 was 59% pure. In total, including the small sample given on 22 July 2013, 1,096.91 g had been supplied. The threshold for the large commercial quantity is 1 kg.
5. Count 2 concerns a further order which the UCO placed with Kelly in August 2013 for multiple kilograms of methylamphetamine. Kelly communicated to the respondent a wish to purchase 8 kgs. The upline supplier who had provided the 1,096.91 g the subject of count 1 left Australia at about this time and could not assist. The respondent contacted a cousin, and they discussed a possible alternative supplier. This person, in the event was unable to supply such a large quantity.
6. The respondent and his cousin met with yet a third potential upline supplier on 25 August 2013 to try to arrange a purchase. In the event this supplier dealt directly with Kelly and the buyer. The respondent and his cousin were cut out, against their wishes. The respondent was sentenced on the basis that he had concerned himself in the supply of at least 2 kgs.
7. Self-evidently the respondent's role was that of an intermediary, fielding orders for significant quantities of this drug and contacting one or more of a number of upline suppliers of whom he was aware, for the purpose of filling the order and reaping a small profit, either as a markup or as a transaction fee.

Subjective circumstances

1. The respondent was in his early 40s when the offences were committed. He was born overseas and moved to Australia with his family when he was very young. He commenced his schooling in this country at 8 years of age but after a few years the family returned to their country of origin. The respondent received no formal education there during the next 5 years. He came back to Australia in 1989, at age 19. He has only ever had unskilled work. He married in 2006 at age 36 and now has 4 children. When sentence was passed the children ranged in age from 7 years to 18 months, the youngest having been born whilst the respondent was on remand in custody for these offences.
2. The respondent's criminal record included a conviction for malicious wounding and four convictions for offences of dishonesty, the most serious of which was possession of identity information to commit an indictable offence dating from 26 August 2010. For this he was made subject to an intensive correction order of 18 months duration. That had only just come to an end when he committed the subject offences. He has not served a sentence of full-time custody for any previous offence. The learned sentencing judge considered that he was not entitled to any leniency on account of his record.
3. His Honour was not satisfied that the respondent had suffered from a major depressive disorder or post-traumatic stress disorder or from alcohol or substance abuse, as he contended. It was accepted, with some hesitation on his Honour's part, that the offender could be regarded as in a low to moderate range for risk of reoffending. The learned sentencing judge treated the respondent's expressions of remorse with scepticism as being "more calculated to benefit his sentence hearing than reflecting any genuine concern for the consequences of his conduct".
4. The respondent had pleaded guilty at the first opportunity to count 1, for which a 25% discount was allowed. A plea to count 2 was entered only on the day fixed for trial. His Honour allowed a 10% discount for that. An additional 20% discount was allowed in the sentences for both counts under s 23 Crimes (Sentencing Procedure) Act 1999 (NSW). His Honour apportioned this discount one third to past assistance and two thirds in respect of future assistance. With respect to this the Remarks on Sentence contain the following at [53]: "The extent of the assistance provided was clearly circumscribed by the offender and whilst such information as he provided appears from comparison with other sources to have been accurate, it seems to have limited utility. That utility primarily resides in a willingness to give evidence against two co-offenders."
5. The starting point for His Honour's indicative sentences, given that they were reduced by 45% and 30% respectively must have been: 1. for count 1, a non-parole period of 4 years 8 months with a balance of term of 1 year 8 months (total 6 years 4 months); 2. for count 2, a non-parole period of 4 years 5 months with a balance of term of 1 year 7 months (total 6 years).
6. The proportion of the balance of term to the non-parole period in the indicative sentences is, for count 2, 35.5% and, for count, 35.1%. His Honour made no finding of special circumstances for the purposes of s 44. The ratios applied in the indicative sentences are consistent with that. With equal consistency the ratio in the aggregate sentence is 33%.

Excessive discount for assistance

1. On the appeal the Crown has contended that the discount allowed was excessive. The Court has reviewed the confidential exhibits on sentence, D and F, which record the nature of the assistance provided. By reference to the criteria in s 23(2), the respondent's assistance may be evaluated as very limited. Because he remains in custody and because any degree of assistance to authorities may expose him to retribution, it would be inappropriate to refer in detail in these reasons to the nature and extent of the information the respondent has disclosed or the evidence he is willing to give. It is sufficient to say that his disclosure has been partial, selective and far short of the full extent of the knowledge which the respondent must necessarily have gained, from his own involvement in relevant events. There is no indication that assistance provided by the respondent was significant to the furtherance of police investigations or that it contributed to the police being in a position to apprehend any additional offender.
2. Having regard to these considerations I accept the Crown submission that a 20% discount was excessive. The combined discount for the plea and assistance on count 1 was 45%. That is near to the figure of 50% which this Court has said should not normally be exceeded: SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249 at [3], [53]; AAT v R [2011] NSWCCA 17 at [31]; R v AZ [2011] NSWCCA 43 at [94]; (2011) 205 A Crim R 222; R v Holland [2011] NSWCCA 65 at [42]; (2011) 205 A Crim R 429. The Court considers that an allowance of 10% for the limited assistance provided by the respondent would have been appropriate and that two thirds of this should be regarded as attributable to future assistance.

Manifest inadequacy, sentences passed in comparable cases

1. In order to establish manifest inadequacy it is not necessary that the Crown should demonstrate specific error. However the specific error with respect to allowing the unsupportably high discount for assistance is capable of lending weight to the Crown's contention of inadequacy. Further support for the Crown's position is found in a comparison of the starting point sentences which are implicit in his Honour's indicative terms with sentences which have been passed in comparable cases. In this comparison of course due allowance must be made for differences in both objective and subjective features and adjustments are required where discounts for pleas or for assistance have been allowed.
2. In Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 318 at [86] - [99] RS Hulme AJ collected citations of a number of cases which are more or less comparable with the present, subject to allowance and adjustment for differences of the kind referred to above. This comparison shows that the learned sentencing judge's starting point sentences in the present case were very significantly below sentences which have generally been passed for offences of this type and gravity. In making the comparison the Court has given consideration to the full range of circumstances which may bear upon the relative seriousness of any particular instance of offending against the relevant section of the Drug Misuse and Trafficking Act, including but of course not limited to the quantity of drug involved, its purity and the role of the offender. In this case the respondent was effectively a middle man or procurer of two wholesale quantities from separate upline suppliers.

Residual discretion to refrain from resentencing

1. As this Court finds error in the sentencing judge's decision, the question remains whether, nevertheless, the Court should exercise its residual discretion not to intervene: CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 at [34], [66]. The onus is on the Crown to persuade the Court to intervene. Considerations relevant to the exercise of this residual discretion were restated in R v Mereb; R v Younan [2014] NSWCCA 149 at [30] - [32]. A most important consideration in the present case is that the sentence imposed is, in the Courts view, significantly less than adequate and involves an excessive discount for very limited and partial assistance to authorities.
2. There has not been such significant delay in the appeal process as to warrant, of itself, exercise of the residual discretion. Sentence was passed on 16 December 2015 and the Crown served its notice of appeal on 17 February 2016. The appeal was heard on 8 June 2016. It is not apparent that the course of the appeal has caused prejudice to the respondent. This is a relevant matter: R v Hallocoglu (1992) 29 NSWLR 67 at 80D. The significant delay in relation to the respondent's case, which has led to the Crown's appeal now being decided only months before expiry of the non-parole period fixed in the District Court, has been the lapse of time between the laying of charges on 29 August 2013 and the sentence hearing, more than two years later, on dates in October, November and December 2015.
3. The proximity of this Court's decision, increasing the term of imprisonment, to what would otherwise be the earliest date on which the respondent would be eligible for release on parole under Whitford DCJ's orders is unfortunate. Notwithstanding that, the disparity between the sentence imposed by his Honour and the sentence we consider appropriate for two serious drug offences involving kilogram quantities of methylamphetamine, is such that the residual discretion to refrain from intervening should not be exercised.

Orders

1. For reasonable consistency with sentences passed in other cases of this kind and taking into account the objective seriousness of these offences and the weak subjective case, the Court considers the undiscounted or starting point sentences should have been: 1. for count 1, a non-parole period of 6 years 2 months with a balance of term of 2 years (total 8 years 2 months); 2. for count 2, a non-parole period of 7 years 6 months and a balance of term of 2 years 4 months (total 9 years 10 months).
2. With combined discounts for the plea and assistance of 35% and 20% respectively, the indicative sentences would then have been: 1. for count 1, a non-parole period of 4 years with a balance of term of 1 year 4 months (total 5 years 4 months); 2. for count 2, a non-parole period of 6 years with a balance of term of 2 years (total 8 years).
3. The learned sentencing judge's aggregate sentence comprised a non-parole period of 3 years 6 months which was only 5 months longer than the longest non-parole period of the two indicative terms he nominated, namely that for count 2. This reflects an effective accumulation of only 5 months which does not adequately reflect the entire criminality of the respondent's involvement in these two distinct large commercial supplies. A proper reflection of the total criminality would be achieved by imposing an aggregate which incorporates effective accumulation of 12 months of non-parole. That is, an aggregate sentence comprising a non-parole period of 7 years and a balance of term of 2 years 4 months (overall, 9 years 4 months).
4. Comparison may be made with the case of Kamran Zolfonoon for a count concerning supply of 3.5 kgs of heroin by way of several transactions over the first two months of 2012. At that time the statutory definition of "large commercial quantity" was the same for methylamphetamine as for heroin, namely 1 kg. Following a Crown appeal heard on the same day as the present appeal, this Court resentenced him to an aggregate term, based upon an indicative sentence for the count concerning 3.5 kgs of heroin of 6 years non-parole period and a balance of term of 4 years. His discount was 25% for an early plea and special circumstances were found, justifying an adjustment of the proportion of the non-parole period to the head sentence to 60%.
5. Accordingly the orders of the Court are: 1. The appeal is allowed. 2. The aggregate sentence imposed by his Honour Judge Whitford DCJ on 16 December 2015 is quashed. 3. In lieu thereof Medd is sentenced to an aggregate sentence for both counts of imprisonment for a non-parole period of 7 years to commence 29 August 2013 and to expire 28 August 2020 and a balance of term of 2 years 4 months to commence 29 August 2020 and to expire 28 December 2022. Medd will be eligible for release on parole upon the expiry of the non-parole period of the aggregate sentence.

Amendments 10 November 2016 - [3] - grammatical error corrected. [17] - grammatical error corrected. [20] - grammatical error corrected. [21] - grammatical error corrected. 11 November 2016 - Cover sheet - order 3 amended to reflect order 3 at par 28(3). 29 November 2016 - [16] - typographical error corrected. 28 February 2018 - Judgment anonymised. [18] - line 1, delete 'that Crown' substitute 'the Crown'. [21] - line 9, delete 'parcel' substitute 'partial'. [22] - line 2, insert 'of' after 'exercise'. [23] - line 3, delete 'the Whitford DCJ's' substitute 'Whitford SC DCJ's'. 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: 28 February 2018