R v Newman

Court of Criminal Appeal (NSW)|2022-08-15|Before: Ward P, Davies J, Fagan J

Background

The relevant facts, which are summarised in the sentencing judge's reasons for sentence and set out in an agreed statement of facts, are as follows.
Between 3 November 2019 and 11 June 2020 (the intercept period), the police monitored the applicant's mobile telephone communications (the applicant having been identified as a supplier of illicit drugs to customers in the local Moree area). In that period, the applicant made at least 25 individual supplies of methylamphetamine. Throughout the intercept period, the applicant was unemployed and the recipient of "Jobseeker" payments. On 10 April 2020, the applicant was recorded as bragging that, despite the fact that he had no job, he earned "five times more than" his friends who did have a job (see agreed facts at [48]).
As to the particular offending, to which the applicant pleaded guilty, this can be summarised as follows.
The sequence 3 count was the ongoing supply of methylamphetamine on four occasions between 28 February 2020 and 29 March 2020. The total amount supplied was at least 3.6 grams of methylamphetamine.
The sequence 14 count related to the applicant on 7 March 2020 agreeing to supply a quantity of cannabis to "Tommy".
The sequence 4 count was the ongoing supply from 30 March 2020 to 28 April 2020 being the supply of methylamphetamine on six occasions. The total amount supplied was at least 94.3 grams of methylamphetamine.
The sequence 5 count was the ongoing supply from 29 April 2020 to 28 May 2020 of methylamphetamine on nine occasions. The total amount supplied was at least 35.22 grams of methylamphetamine.
The sequence 40 count was the supply on 8 May 2020 of methylamphetamine. On 8 May 2020, the applicant received complaints about the quality of the drugs he was supplying. A particular complaint was made by a Mr Ronald O'Niele and, in response to the complaints, the applicant provided Mr O'Niele with 1.75 grams of methylamphetamine telling him to take it to a Ms Luxford (the applicant's co-offender) so that she could give Mr O'Niele $500 for it.
The sequence 34 count related to supplies on 31 May 2020 and 5 June 2020. On 31 May 2020, a Mr Joe Henderson attended the applicant's home and there was discussion about the poor quality of methylamphetamine which had been supplied. During the conversation, the applicant supplied Mr Henderson with an unknown amount of methylamphetamine which Mr Henderson agreed to on-supply for "top dollar". On 5 June 2020, Mr Henderson again attended the applicant's home and the applicant agreed to supply 0.1 grams of methylamphetamine to Mr Henderson so that one of his colleagues could sample the drug.
The sequence 6 count was the supply of a prohibited drug on 11 June 2020. On that date, a Mr Lionel McGrady entered the applicant's house and purchased drugs from the applicant. There was discussion as to the prices at which Mr McGrady proposed to sell methylamphetamine and he was given what police believed to be methylamphetamine. Mr McGrady left the applicant's home. Mr McGrady was later stopped by police and found to be in possession of three clear resealable plastic bags containing a white crystalline substance. The contents of the bags were found to contain 11 grams of N-isopropylbenzylamine. This charge was brought on the basis that the applicant had purported to supply Mr McGrady with a quantity of methylamphetamine which, in fact, was not that drug.
On the afternoon of 11 June 2020, police executed a search warrant in Moree at the address of the applicant's ex-wife and child. The applicant was later arrested. On his arrest, police located $2,812.80 in cash. Later, police located $1,812,80 in cash (sequence 42); and various other items including four mobile phones.
The sequence 35 count relates to dealing with $8,010 being the proceeds of crime. During the intercept period, the applicant attempted to exchange $5,150 worth of small notes for larger notes on five occasions. Further, over the intercept period, Ms Luxford was recorded paying the applicant a total of $2,860 on ten occasions during which no supply to Ms Luxford was occasioned. The sum of $8,010 comprised the $5,150 worth of small notes that the applicant attempted to exchange for larger notes together with the sum of $2,860 which was the amount recorded as being paid to the applicant by Ms Luxford over the intercept period.
As noted, the applicant pleaded guilty to the offences in the Local Court, entitling him to a 25% discount on his sentence for each offence.
It was an agreed fact that the applicant was not a "street-level dealer"; but rather he supplied drugs to a limited number of other suppliers who then on-sold the drug to people in the Moree region (and, as a result, the applicant often made demands for large repayments from others who were supplying drugs in the local area). The parties further agreed that the applicant was to be sentenced on the basis that he was a mid-level drug supplier who realised a moderate financial gain as a result of his offending.

Sentencing judgment

The sentencing judge delivered reasons for sentence on 19 November 2021. The applicant did not give evidence at the sentencing hearing but tendered a letter that he had written. The Crown tendered a Sentencing Assessment Report dated 8 September 2021. In the Sentencing Assessment Report, Ms Pay stated that: Mr Newman acknowledges his involvement in the offences and reflected upon his stupidity to become involved with drugs supply. He understands the impact his offences have had on his family and the emotional strain and embarrassment his family have endured while still residing in the community.
Under the heading "[i]nsight into impact of offending", Ms Pay stated: Mr Newman takes full responsibility for his involvement in the supply of prohibited drugs. Mr Newman claims that he understands the impact that illicit substances have on the community and Australian public and the severity of the offences for which he has been charged.
As the Director of Public Prosecutions (the respondent) points out, although the sentencing judge omitted to refer to sequence 40 when his Honour first referred to the nine charges (that charge being an offence contrary to s 25(1) of the Drug Misuse and Trafficking Act for supplying 1.75 grams of methylamphetamine), his Honour ultimately proceeded to sentence the applicant for sequence 40. Further, the respondent notes that the sentencing judge referred to sequence 35 as being an offence against s 193C(2) of the Crimes Act, whereas sequence 35 actually charged an offence against s 193B(2) of that Act but that his Honour correctly stated the maximum penalty for sequence 35 as being 15 years' imprisonment (and hence the respondent says that the incorrect reference to s 193C(2) is inconsequential). No issue is taken by the applicant as to those obvious slips in the sentencing judgment. Rather, the only issue taken by the applicant is as to the aggregate sentence.
In relation to objective seriousness, the sentencing judge noted that the facts disclosed "a number of very serious offences", as reflected in the maximum penalty of 20 years' imprisonment for an ongoing supply offence, and 15 years' for a supply offence. The sentencing judge referred to the principles in Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284; Robertson v R [2017] NSWCCA 205 at [50]; and Fayd'herbe v R [2007] NSWCCA 20.
His Honour noted that the offence in s 25A of the Drug Misuse and Trafficking Act is one directed towards repetition, system and organisation (that is, the business operation of supply) but that the quantity of drugs supplied is regarded as a significant factor. The sentencing judge also noted that (as was an agreed fact) the applicant was a middleman (a mid-level drug supplier) who realised a moderate financial gain as a result of his offending; and found that the applicant was motivated by a desire to obtain financial or material reward (though it was moderate) rather than by drug addiction.
As to the individual offences, the sentencing judge found that: the ongoing supply offence (sequence 3) 3.6 grams of methylamphetamine fell at the lower end of objective seriousness; the ongoing supply offences (sequences 4 and 5) 94.3 grams and 35.22 grams of methylamphetamine fell "towards the mid-range of objective seriousness"; the supply offence (sequence 6) 11 grams of purported methylamphetamine also falls towards the mid-range of objective seriousness; and, as to the dealing with proceeds of crime in relation to $8,010, (sequence 35), and dealing with proceeds of crime, namely $4,625.60 (sequence 42), his Honour found there was some overlap between those two offences and the ongoing supply offences.
The applicant does not here challenge the sentencing judge's assessment of the objective criminality or seriousness of the offending (i.e., that sequences 3, 14, 34 and 40 were at the lower end of objective seriousness, and sequences 4, 5 and 6 were towards the mid-range).
As to the applicant's subjective case, the sentencing judge noted that the applicant is an indigenous man who was 52 years of age at the date of sentence; and that the applicant was a single man with no dependents who, prior to his arrest, lived alone at his home in Moree. His Honour noted that there was no psychological report or other subjective material provided on sentence, save for the material that went to the issue of confiscation. The author of the Sentencing Assessment Report noted a close relationship with the applicant's mother, siblings and children who would all provide ongoing support upon release from custody.
As to his health, the sentencing judge noted that the applicant was involved in a workplace injury over ten years ago resulting in a compensation payment of $458,000 in July 2011; and that, prior to his arrest, the applicant was in receipt of the Newstart allowance. Pausing here, it is clear that the sentencing judge was therefore cognisant of the circumstances in which the applicant had obtained a substantial compensation payment (and hence which explained his significant assets despite the fact that he was unemployed).
As to remorse, the sentencing judge accepted from the applicant's plea of guilty, and from what he said to the community corrections officer, that the applicant was genuinely remorseful for his offending. The sentencing judge also appears to have accepted that the applicant had insight as to his offending although his Honour noted that the applicant had minimised the financial gain (inherent in the pleas of guilty to sequences 35 and 42). His Honour did not accept the applicant's account to the Community Corrections Officer that he received no financial gain from his drug supply operation. Rather, as noted, his Honour found that there was a moderate financial gain.
His Honour noted that the applicant reported recreational use of alcohol and illicit drugs (cannabis and cocaine) although he did not attribute his offending to his drug use.
The sentencing judge noted that the applicant had a criminal record dating back to 1989, but that it was a history of relatively minor offences. His Honour also noted that, at the time of the offending, the applicant was subject to a 21 month Community Release Order for an offence of driving with an illicit drug in his blood; and his Honour found this to be a serious aggravating factor.
His Honour noted that the applicant pleaded guilty at the first reasonable opportunity and was entitled to a reduction of 25% in his sentence for the utilitarian value of his plea of guilty. The applicant points out that his Honour was silent as to whether this was applied to the indicative or the aggregate sentence - see below.
His Honour found that the applicant had favourable prospects of rehabilitation, saying that: I come to that view based upon his age, that he does not have a serious criminal record, that he has never been convicted previously of a drug supply offence, the fact that he has pleaded guilty to these offences and that the Community Corrections officer in the Sentencing Assessment Report refers to the applicant being assessed at medium to low risk of reoffending. Also, I take into account that upon his release, he will have the continuing support of his family [emphasis added]
Although it was apparent that the applicant had been "locked down", and had the circumstances of his custody been affected by the pandemic, no material was provided to the sentencing judge concerning this issue.
His Honour noted the principles in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57; and found that, upon application of totality principles, there should be some degree of concurrence between sequences 35 and 42, and 3, 4 and 5. His Honour concluded that no sentence other than full-time custody was appropriate for these offences and for sequence 6, but not for sequences 14, 34 and 40.
The sentencing judge found special circumstances warranting a variation in the statutory ratio between the total sentence and the non-parole period; and the aggregate sentence ultimately imposed was in a ratio of 54.5%.
The sentencing judge indicated the following sentences: for sequence 3, 12 months' imprisonment; for sequence 4, three years, six months' imprisonment; for sequence 5, two years' imprisonment; for sequence 6, 12 months' imprisonment; for sequence 35, two years' imprisonment; and for sequence 42, six months' imprisonment. As noted above, the sentencing judge determined to impose an aggregate sentence of five years, six months' imprisonment, with a non-parole period of three years' imprisonment for the offences specified above and, for sequences 14, 34 and 40, the sentencing judge imposed three Community Correction Orders for two years, commencing on 19 November 2021, subject to the standard conditions.
By consent, the sentencing judge also made the following orders: two forfeiture orders pursuant to s 18(1) of the Confiscation and Proceeds of Crimes Act 1989 (NSW) (Confiscation and Proceeds of Crimes Act) in relation to the $1,812.80 cash found upon execution of a search warrant at the applicant's house in Moree and $2,812.80 cash found on the applicant on 11 June 2020; a pecuniary penalty order pursuant to s 24(1) of the Confiscation and Proceeds of Crimes Act, for $8,010, being the proceeds of crime; and a drug proceeds order pursuant to s 29(1) of the Confiscation and Proceeds of Crimes Act, for $37,316.50.

Additional evidence

The applicant had prepared an affidavit (not sworn due to COVID access restrictions) dated 8 July 2022 in preparation for the hearing of the application for leave to appeal against the sentence imposed by the primary judge, but at the hearing did not seek to read that affidavit (see at T 1.29-30).
The applicant did, however, press a psychological report dated 26 July 2022 by Dr Paul Pusey, in the event of re-sentencing under s 6(3) of the Criminal Appeal Act (see at T 1.30-31). The respondent objected to the use of that report, in substance on the basis that the applicant was there seeking to run a new and different case on re-sentence (T 1.50-2.4). Ultimately, nothing turns on this as the issue of re-sentence does not arise given the outcome of the application for leave to appeal against sentence. Had it arisen, I would have concluded that the report should not be admitted for the following reasons, but that, had it been admitted, it would have carried little weight in any event.
There was no dispute as to the applicable principles in relation to sentence appeals, namely that, as a general rule, such appeals are to be determined based on the material that was before the sentencing court, although evidence may be admitted "on the usual basis" to show events that have occurred since the time of sentencing (see Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 (Betts) at [2] per the Court; Ragg v R [2022] NSWCCA 150 (Ragg) at [56] per Beech-Jones CJ at CL). It is accepted that the general rule is not absolute and that an appellate court "has the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice" (see Betts at [2]; and see Barnes v R [2022] NSWCCA 140 at [26] per Hamill J, his Honour there citing Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 at [113]. The respondent emphasises that "a limiting condition on evidence sought to be tendered on the 'usual basis' is that such evidence cannot be put forward to 'run a new and different case'" (citing Ragg at [56]).
In the present case, the applicant says that the subjective case focussed on the workplace injury he had suffered in 2005 and its effect upon the applicant and his financial position. The applicant says that there was a negligible case run as to his subjective case at sentence and, as adverted to above, that the proceedings were "somewhat subverted" by the consideration of the recovery of items which had been seized and the fact of his workplace compensation payment as being the method by which these items had been obtained, as opposed to the subject charges (referring to a note filed by the applicant on 12 August 2022).
At the sentencing hearing, there were submissions as to the applicant's family having come from good standing, with strong ties, who had supported him in the past and would do so upon his release. The only evidence that addressed the applicant's background was the Sentencing Assessment Report dated 8 September 2021, which was tendered in the Crown case on sentence and which contained information provided by the applicant to the author of the report. In particular, the report recorded that the applicant reported a close relationship with his mother, his siblings and his children, and that he would have ongoing pro-social support upon release.
The applicant now seeks to rely on Dr Pusey's report dated 26 July 2022 (the psychological report) as providing information as to the historical effects of the applicant's background and upbringing, which the applicant contends should be admitted in the interests of justice if there is to be a re-sentence. The applicant says that the report is not pressed to cavil with the assessment made by the sentencing judge as to the role and motive of the applicant (see the psychological report at [10]-[13] which recounts the applicant's comments in relation to those matters), but that it is pressed as to the presence of dysfunction and trauma in that background in an attempt to establish that his moral culpability was consequently reduced (per Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 (Bugmy)), it being noted that the applicant is Indigenous and has primarily resided in western NSW and Queensland.
The applicant relies on this additional material as going to the applicant's psychological history, saying that the significance of this was not appreciated at the time of sentence; and it is submitted that the psychological report is relevant as to the application of the principles in Bugmy and further impacts the structure of any new sentence and the impact of that sentence upon the applicant.
It was conceded by the applicant in oral submissions that this material could have been obtained and provided at the time of the sentence hearing (see at T 3.31-39).
The respondent objects to the admission of the psychological report, noting that: it is based on the applicant's self-report (see at [3]); in part it repeats material that was before the sentencing judge and the subject of findings by the sentencing judge (see for example at [10]-[13]); and that it seeks to run a new and different case on appeal (referring in addition to [10]-[13] to [16]-[42], [46], [48], and [55], comprising new evidence of the applicant's psychological history, which was available to the applicant at the time of sentence; and [61], [62], and [65]-[78], comprising new evidence of opinion as to diagnoses and risk of reoffending and treatment).
In my opinion, the difficulty with the psychological report (apart from the fact that it is based largely if not wholly on the applicant's self-reporting, which cannot now be tested; and that it has not been established that it could not have been discovered with the exercise of reasonable diligence at the time of sentence) is that it is conditional in its content (expressed in terms of possibilities - see at T 15.24-29 and [62] of the psychological report) and, on its face, it appears clearly to be seeking to raise a new and different case on appeal. For example, the emphasis sought to be placed on dysfunction and psychological trauma is contradicted by the sentencing assessment report's conclusions (based on the applicant's self-report) as to the relationship with and support from the applicant's family; and there is no account of deprivation of the kind articulated in Bugmy in the material that was before the sentencing judge.
The applicant, at the end of the oral submissions, made clear that the applicant did not press the report in relation to those aspects where there had been findings made by the sentencing judge (see at T 16.44) but simply sought to rely on as material relevant to the subjective case and pressed for its admission in that context.
Given that the psychological report cannot be tested, that it could have been provided at the sentence hearing, and that the weight to be given to it is low having regard to the way in which the report is expressed, leave to adduce this evidence should be refused.

Ground 1: The sentence is manifestly excessive

Turning then to the sole ground of appeal against sentence, it is not disputed that the question here is whether the applicant has demonstrated that the sentence was unreasonable or plainly unjust (Markarian v R (2005) 228 CLR 357; [2005] HCA 25 (Markarian) at [25] per Gleeson CJ, Gummow, Hayne and Callinan JJ; Dinsdale v The Queen (2002) 202 CLR 321; [2000] HCA 54 at 325 per Gleeson CJ and Hayne J); and that what is to be determined is whether the sentence is within a proper range (TC v R [2016] NSWCCA 3 at [50] per Gleeson JA, Rothman and Bellew JJ agreeing, citing Morgan v R (1993) 70 A Crim R 368 at 371 per Hunt CJ at CL, Allen J and Loveday AJ agreeing; and Papworth v R [2011] NSWCCA 253 at [54] per Hoeben J (as his Honour then was) Whealy JA and Simpson J (as her Honour then was) agreeing). See also He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [41]-[42] per Bell P (as his Honour then was) Gleeson and McCallum JJA agreeing, cited recently in Burke v R [2022] NSWCCA 6 at [30] per Fullerton J, McCallum JA and Walton J agreeing; and JJ v R [2020] NSWCCA 165 at [14]-[15] per Hoeben CJ at CL, Fagan and Cavanagh JJ.
It is also not disputed that a sentencing judge has a wide discretion to impose a sentence that seems to the sentencing judge to be just and appropriate (Windle v R [2011] NSWCCA 277 at [55]; [61] per Hoeben J (as his Honour then was), Meagher JA and Rothman J agreeing); and that sentencing judges are permitted as much flexibility as is consonant with consistency of approach and applicable sentencing principle (see Markarian at [25]-[27] per Gleeson CJ, Gummow, Hayne and Callinan JJ, cited in Abousleiman v R [2021] NSWCCA 110 at [37] per Hamill J, Davies and Wilson JJ agreeing). It has been said that intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle or where the sentence imposed is so far outside the range available that there must have been error (see Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] per R A Hulme J).
Finally, it should be noted that the applicant has a "very heavy practical burden" and must show a kind of disproportion so manifest on its face so as to be indicative of substantive error of law (R v Elemes [2000] NSWCCA 235 at [22]-[23] per Sully J, Adams J agreeing).

Applicant's submissions

As adverted to above, the applicant takes issue only with the aggregate sentence. It is not contended that the sentencing judge erred in any particular respect. Rather, the applicant refers to aspects of the sentencing judge's reasons for sentence (see below) and to sentencing statistics (in general) in support of an overall contention that the sentence was manifestly excessive.
In the applicant's written submissions, complaint appears to be made that the sentencing judge was silent as to the application to the indicative sentences of the discount that his Honour accepted the applicant was entitled to for his guilty pleas (although the applicant says that the discount was presumably applied to the indicative sentences). The applicant says that if the discounts were applied to the indicative sentences (rather than the aggregate sentence), then it is reasonable to proceed on the basis that, but for the utilitarian discounts for the plea of guilty, the aggregate sentence would have been lengthier in proportion to the discount. The applicant says that this is particularly so where the same discount (of 25%) was applied to each indicative sentence. Thus, the applicant argues that it is reasonable to proceed on the basis that, had the discounts not been applied, the applicant's aggregate sentence would have been in the vicinity of seven years and four months.
As to parity, it is said that although a co-offender, Ms Luxford, was arrested at the same time, no parity issues were considered (or raised), apparently on the basis that there were different charges and different levels of culpability. The applicant notes that Ms Luxford received an intensive correction order (ICO).
As to the use of statistics, although the applicant accepts that there are limitations to the use of comparable cases (and accepts that the sentencing judge was not supplied with JIRS statistics or comparable cases), the applicant has annexed to his submissions (though without individual analysis) statistics using the criteria established by the primary offence (being s 25A of the Drug Misuse and Trafficking Act), the plea of guilty, the applicant's age and the fact that the applicant had a criminal history of a different type to the subject offending.
The assessment by the sentencing judge of the objective gravity of the individual offences is not impugned, nor is the finding of special circumstances in respect of the applicant's subjective case; and the applicant points to the positive subjective findings including as to remorse and favourable prospects of rehabilitation. It is also noted that the offending fell either below or towards the mid-range.
In substance, the complaint by the applicant is that the offending was substantially concurrent and part of the same enterprise. It is submitted that greater concurrency is warranted than was allowed by the primary judge and that the sentencing judge's consideration was subverted by a consideration of the applicant's financial assets (referable to the workers' compensation payment made some time before the offending) (see at T 17.18-26).

Respondent's submissions

In response to the applicant's submission that the sentencing judge did not particularly make findings on remorse and insight, the respondent points to what was said by the sentencing judge in accepting that the applicant was genuinely remorseful for his offending and his Honour's reference in the reasons for sentence to the part of the sentencing report as to the applicant's insight into the offending.
In relation to the application of the discount for the guilty pleas (and whether the sentencing judge discounted the indicative sentences or aggregate sentence for those pleas), the respondent points to the sequence adopted by the sentencing judge in imposing sentence (i.e., pronouncement of the indicative sentences, conviction for each of those offences which included a recognition of the pleas of guilty, and then imposition of the aggregate sentence) and says that this is not a case in which there is a rational basis to conclude that the sentencing judge misapplied s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The respondent contrasts the present with a case where a sentencing judge made repeated references to the indicative sentences prior to the application of the discount (see Connell v R [2020] NSWCCA 352 at [39] per Hoeben CJ of CL, Davies and Fagan JJ agreeing); and submits that it is tolerably clear that his Honour indicated the sentence for each offence taking into account the pleas of guilty and applying the associated discounts.
In relation to the assertion that principles of parity with the sentence imposed on Ms Luxford were not considered or raised, the respondent says that it is apparent from the transcript of the applicant's sentence proceedings that the sentencing judge was well attuned to considerations of parity. The respondent points out that his Honour had sentenced Ms Luxford not long before the applicant's sentence proceeding; and that, during the hearing of the applicant's matter, there was some discussion about Ms Luxford's role relative to the applicant, and to her circumstances. The respondent says that his Honour there indicated that he had sentenced Ms Luxford on the basis of being a drug user and street dealer, with which the applicant's counsel did not take issue; whereas, it was agreed between the parties that the applicant had a higher role in the enterprise than Ms Luxford (the applicant being a "middleman", and the respondent says that it was accepted by the applicant's defence counsel that the applicant was more culpable than she was. It is noted that in exchanges with counsel during submissions, the sentencing judge referred in some detail to the nature of Ms Luxford's offending and her subjective case. It is noted that the transcript of Ms Luxford's sentence proceedings and the sentencing judge's reasons for the sentence imposed on her were provided to the parties, because Ms Luxford's evidence in her sentence proceedings potentially impacted upon the applicant and upon an assessment of their respective roles. The respondent says that the parties were therefore well equipped with the information which would have been needed if parity arguments were reasonably available.
The respondent argues that it may be inferred, from the fact that arguments or submissions as to parity principles were not advanced by either party in the applicant's sentence proceeding, that this was a considered (and not plainly inadvertent) decision not to raise such issues; and that, to the extent that the applicant now suggests that Ms Luxford's sentence should bear upon an assessment of whether the applicant's sentence is manifestly excessive, such a submission should not be accepted.
In relation to the applicant's submissions in reliance upon statistics, the respondent notes the caution required in, and the limitations upon, the use to which bare sentencing statistics can be put on sentence (referring to Skocic v R [2014] NSWCCA 225 at [19] per Bellew J, MacFarlan JA and Fullerton J agreeing, cited in Hordern v R [2019] NSWCCA 210 at [44] per Johnson J, Gleeson JA and Fagan J agreeing. It is noted that in The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 the High Court, at [28] per French CJ, Keane and Nettle JJ, emphasised that consistency in sentencing involves consistency in the application of relevant principles, with consistency not being synonymous with numerical equivalence. The respondent says that while statistics show a range of sentences actually imposed in the past, the correctness of that range is not established, nor is its applicability to a given case (citing Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [59] per Gaudron, Gummow and Hayne JJ).
Thus, the applicant submits that the issue remains not whether the sentence falls outside a particular sentencing range but, rather, whether the sentence fell outside the range of permissible exercise of sentencing discretion (citing Mansour v R; Hughes v R [2013] NSWCCA 35). The respondent refers in this context to what was said by Adamson J (with whom McClellan CJ at CL and Rothman J agreed) in Vandeventer v R [2013] NSWCCA 33 at [45],namely that: One cannot adjudge whether a sentence falls within an appropriate range by reasoning from particular instances. Applicants will always be able to find cases where offenders appear to have been dealt with more leniently. So, too, will the Crown be able to find cases where offenders have apparently been dealt with more severely than the applicant for leave to appeal on sentence. This is not, however, the way in which this Court determines whether a sentence is manifestly excessive.
The respondent points out that, specifically in relation to offences of manufacture and supply of amphetamines (less than the commercial quantity), there is a broad range of weight and purity of the drug that is not identified by the statistics, and that the role of offenders in the commission of such offences can vary greatly (referring to what was said in R v Chidiac [2015] NSWCCA 241 at [40] per Price J, Bathurst CJ and Beech-Jones J (as his Honour then was) agreeing). It is noted that the need for care in comparing sentences imposed in relation to offences of ongoing supply of illicit drugs was identified in R v Cheikh; R v Hoete [2004] NSWCCA 448 (Cheikh) at [64] per Giles JA (Levine and R A Hulme JJ agreeing), his Honour there observing that the matters upon which sentence may depend include the mix of offences, offences taken into account, and the particular facts; and that a general pattern of sentencing is difficult to discern when in every case there are many sentencing considerations additional to the level of criminality.
Having regard to the applicable principles, the respondent says that the statistics referred to by the applicant do not provide a sufficiently meaningful comparison or analysis; and are not indicative of error. It is noted that the respondent's submissions annexed JIRS sentencing tables for offences against s 25A(1), limited by jurisdiction (higher courts), prior record (priors - different type), plea (guilty), and drug type (amphetamines), showing 18 sentences of imprisonment, 17 sentences of an intensive corrections order, and four sentences of a community corrections order (Annexure C to the submissions). The respondent says that, having regard to the nature and number of the offences committed by the applicant, and the circumstances of the offending, the 18 sentences of imprisonment provide a more meaningful indication than sentencing alternatives; and that the sentencing judge was correct in concluding that nothing other than full-time custody was appropriate for the s 25A(1) offences (and the respondent notes that defence counsel had not submitted otherwise). The respondent says that it was also correct that nothing other than full-time custody was an appropriate sentence for sequences 6, 35 and 42.
The respondent has in turn prepared a summary (see Annexure D to the respondent's submissions) of cases where offences against s 25A of the Drug Misuse and Trafficking Act involving methylamphetamine have been considered but says that only a few of those cases concern multiple s 25A offences, as occurred in the present case.
The respondent also refers to the following cases: Linden v R [2017] NSWCCA 321 (Linden), where the offender was re-sentenced on her appeal for two s 25A offences with a supply offence on a Form 1, to two years, two months' imprisonment with a non-parole period of ten months and 28 days (reduced from three years, three months, with a non-parole period of 18 months); Osman v R [2008] NSWCCA 157 (Osman), where the offender committed four s 25A offences, with similar matters on a Form 1; and his appeal against a sentence of 15 years with a non-parole period of nine years was dismissed (see at [40]-[41] per Howie J, McClellan CJ at CL and Hidden J agreeing); and Cheikh where both offenders pleaded guilty to four s 25A offences (and one, Mr Cheikh, had five additional s 25A offences on a Form 1) and, in that case, a Crown appeal was allowed, Mr Cheikh was re-sentenced to 15 years' imprisonment with a non-parole period of ten years, two months; and Mr Hoete's sentence was increased to eight years' imprisonment with a non-parole period of five years.
It is noted that in Linden, the offending involved organised distribution of drugs over nearly two months, with nine instances of supply (at [2] per Simpson JA and R A Hulme J); the offender received a 25% discount for her pleas of guilty (at [16] per Simpson JA and R A Hulme J). The respondent says that the offending was found to be serious but the offender also presented a powerful case in mitigation (at [4]-[10] per Simpson JA and R A Hulme J) (being a single mother with a history of having suffered sexual abuse and violence leading to drug abuse; having had a spinal injury; and that the effect on her children was taken into account). In Osman, the offender was involved in a drug syndicate over seven months, selling to street dealers; and he received a 10% discount for his pleas of guilty (see at [28] per Howie J). It is noted that the offender's criminal record included prior drug offences and he had breached a bond when he offended (see at [15] per Howie J). And, in Cheikh, Mr Cheikh managed a drug syndicate, with offending spanning seven months; Mr Cheikh did not have a serious criminal record; and Mr Cheikh received a 15% discount for his pleas of guilty; Mr Hoete was a runner for the same syndicate, and had 16 offences of supply taken into account on a Form 1; and Mr Hoete had no prior custodial offences and received a 25% discount for his pleas of guilty.
Having regard to the above, the respondent says that the relatively short period of full-time custody imposed in Linden was thus unusual; and was to take account of that offender's particularly strong subjective case. The respondent says that the balance of the cases concerning multiple contraventions are an indication that the applicant's sentence in the present case cannot be regarded as unreasonable or plainly unjust. In particular, it is said that the offender in The Queen v Woodley [2020] NSWDC 664 arguably engaged in more frequent offending but the circumstances are broadly able to be likened to the applicant's case.
The respondent says that O'Neile v R [2018] NSWCCA 291 (O'Neile), R v Wong [2018] NSWCCA 20 and R v Younan [2018] NSWCCA 180 (Younan) may also provide assistance, although the respondent notes that the purity of the methylamphetamine in O'Neile was high, whereas here there is no forensic testing for purity and indeed there is evidence of complaints of poor quality. The respondent says that the scale of offending in R v Amoroso [2021] NSWDC 393 was perhaps also comparable, although with fewer offences charged and involving a shorter timeframe.
The respondent submits that the following considerations reinforce that the applicant's sentence is not unreasonable or plainly unjust.
First, the respondent points to the importance of general deterrence in the present context. It is noted that s 25A was introduced in order to provide a strong deterrent to those who may be tempted to engage in an ongoing trade in drugs, and such offences are considerably more serious than s 25 offences, as is indicated by the greater maximum penalty (citing R v CBK (2002) 135 A Grim R 260; [2002] NSWCCA 457 (CBK) at 269 per Wood CJ at CL, Dowd J agreeing). The respondent notes that the sentencing judge in the present case cited Wood CJ at CL's observation in CBK (at [57]): An offender charged with a s 25A offence cannot rely upon an argument that the act of supply was an isolated event. Nor can [he] expect to receive a sentence of the kind which may be appropriate for a single offence of supply. Significant sentences must be imposed in such cases in order [to] give effect to the clear legislative intention to discourage the ongoing trade in drugs, which depends entirely upon the availability of a person such as the present applicant.
The respondent says that the focus on deterrence recognises that distributing illicit drugs (even at street level) has a significant impact on the community, particularly in a small community (citing Knight v R [2015] NSWCCA 222). It is noted that the relevant community in the applicant's case is Moree, and that the sentencing judge found that the applicant's offending facilitated the on-selling of drugs to people in the Moree area. The respondent says that his Honour was correct in observing that general deterrence and protection of the community must be given particular weight.
Second, that the offences against s 25A of the Drug Misuse and Trafficking Act involved continual offending spanning at least three months, which the respondent says renders the case particularly serious (citing the observations of two such offences in Younan at [84] per R A Hulme J, Gleeson JA and Button J agreeing). The respondent says that, while there occurred two acts of supply during the three months, the offending against s 25A(1) was not concurrent (cf the applicant's submissions at [55]).
Third, that it was necessary that the aggregate sentence reflect agreed facts and findings made by the sentencing judge which bore upon the objective seriousness (about which no issue is here taken, cf the applicant's submissions at [54]), including the applicant's role as a mid-level supplier, motivation by desire to obtain financial or material reward, the quantity of the drugs supplied and the transactions (as set out in Annexure B to the respondent's submissions), and that the offending occurred while the applicant was subject to conditional liberty.
The respondent says that the sentence also had to reflect the supply of 11g of purported methylamphetamine on 11 June 2020 (s 25(1) of the Drug Misuse and Trafficking Act) and the two proceeds of crime offences, noting that the first of those offences had a maximum penalty of 15 years' imprisonment, and was committed over a protracted period of seven months and eight days. It is noted that that offending subsumed the periods of the s 25A(1) offences but also exceeded those periods; and that it was also the only one of the additional three offences to overlap temporally with the s 25A(1) offence; and the respondent says that the s 25A(1) offences were necessarily not themselves concurrent with each other (cf the applicant's submissions at [55]).
Fourth, that the sentencing judge had proper regard to the applicant's subjective circumstances, including his criminal record. The respondent says that it is relevant that the applicant was a man of mature years who chose to become involved in serious and protracted drug supply (referring to what was said in Hanna v R [2015] NSWCCA 326 at [120] per Johnson J, Leeming JA and R A Hulme J agreeing).
Thus, the respondent submits that the aggregate sentence imposed by the sentencing judge lay within the range of sentences which were reasonably available in the circumstances and was not manifestly excessive.
In the event of re-sentencing, it is submitted that principles identified by the sentencing judge were appropriate and that the sentencing judge's findings on objective gravity may be adopted and acted upon; and it is noted that the sentencing judge's findings on the applicant's subjective case are not challenged.

Determination

The applicant has not pointed to any misapplication of sentencing principle, nor can it be said that the aggregate sentence imposed is so far outside the available range that there must have been error. As to the particular matters raised by the applicant in support of this ground of appeal against the sentence, I am of the following view.
First, no complaint can sensibly be made as to the conclusion the sentencing judge made as to remorse, the findings in this regard being favourable to the applicant.
Second, as to the issue of the application of the discount, it is apparent from his Honour's sentencing judgment what the indicative sentences would have been had the 25% discount not been applied. Ultimately, as to the individual offences there was a range of indicative sentences between six months and three years and six months. It was accepted by the applicant that the issue in this regard was whether there was too much notional accumulation; and whether the aggregate sentence reflected the objective criminality (see at T 16.38-45). I do not consider that there is force in the submission that the focus on the applicant's assets somehow "skewed" the exercise of the sentencing discretion (see at T 17.1-8).
Third, as to the psychologist's report, as noted above I do not consider that it should be admitted but even if it were to be admitted there is a real question of what weight can be attributed to a report given by the applicant to his psychologist and not able to be tested. In my opinion, the sentencing judge properly considered the applicant's subjective circumstances and took into account the pertinent matters. No error has been shown in that regard.
Fourth, insofar as a complaint as to parity is pressed, there are obvious differences in the level of offending as between Ms Luxford and the applicant; and it is clear that the sentencing judge was well apprised of the different level of offending. Moreover, no issue was raised as to this at the sentencing hearing of the applicant to suggest that there was any failure by the sentencing judge to deal with this.
Finally, as to the comparable cases, and noting that reliance was broadly placed on statistics by the applicant rather than there being any attempt to analyse the comparable cases, the review of cases to which the respondent has referred makes clear that the aggregate sentence imposed was not manifestly excessive. Looked at in the context of all the material before the sentencing judge, there were three ongoing supply offences (two being towards the mid-range of objective seriousness); and two offences of knowingly dealing with the proceeds of crime; the s 25A offences were serious offences requiring account to be taken of the principle of general deterrence; and the offences were made for a financial (albeit moderate) gain. There was a generous discount for special circumstances.
In my opinion the indicative sentences are not outside the range for appropriate sentences for this level of offending nor was the aggregate sentence that was imposed.
I would therefore refuse leave to appeal against sentence (but note that, if leave were granted, I would dismiss the appeal).
DAVIES J: I agree with Ward P and the additional remarks of Fagan J.
FAGAN J: I agree with the President that leave to appeal against the aggregate sentence of imprisonment should be refused. As her Honour's summary of the facts has shown, the three offences of ongoing supply of methyl amphetamine, committed during March, April and May 2020, involved a total distribution of at least 133 g of the drug in 19 separate supplies. The individual supply offence concerning 11 g and the proceeds of crime offences were part of the applicant's overall criminal conduct in an established and continuous enterprise. The learned sentencing judge's findings as to the relative seriousness of each matter were open to him. The agreed characterisation of the applicant's whole course of conduct in these offences, namely, that he was a mid-level supplier making moderate financial gain, was apposite. The applicant's subjective case was assessed by the sentencing judge favourably to him. He had entered an early plea of guilty and his acceptance of responsibility, genuine remorse, good prospects of rehabilitation and strong family connections were all recognised by the learned judge.
As observed by Gleeson CJ and Hayne J in Dinsdale v The Queen at [6]: A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive.
Taking into account the maximum penalties fixed for each of the respective offences, the objective seriousness of each infringement and the applicant's subjective circumstances, it cannot be said that the aggregate sentence of 5 years and 6 months with a non-parole period of 3 years was manifestly excessive. The relatively low proportion of the sentence to be served without parole - 54.5% instead of the statutory default ratio of 75% - incorporates a significant degree of leniency, in a manner that is constructive for the applicant's rehabilitation.
Whatever the applicant may have intended by the reference in his submissions to parity with the sentence imposed on a related offender, Ms Luxford, leave has not been sought to raise any ground of specific error in that respect. The learned judge was well aware of differences between the bases upon which Ms Luxford and the applicant, respectively, were sentenced. Their cases were disparate. Similarly, although the applicant suggested a possibility that the learned judge applied the 25% discount to the aggregate rather than to the indicative sentences, no ground of specific error is proposed in that respect and, in any event, nothing in the record would support it.
As the only ground of appeal would not succeed, it is appropriate to refuse leave. There is no occasion for the Court to have any regard to the psychologist's report that was tendered by the applicant. The report was to have been relied upon in the event of resentencing. If the proceedings had reached that stage, the applicant could not have pursued the findings to which the report appears to be directed. It propounds a background of family dysfunction and consequent psychological trauma and disadvantage to the applicant, reducing his moral culpability. That is at odds with the case presented in the District Court, where family connections and support were relied upon as promising for the applicant's rehabilitation and future good behaviour.

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Confiscation and Proceeds of Crimes Act 1989(NSW)

As to issue (ii):

It is apparent from his Honour's sentencing judgement what the indicative sentences would have been had the 25% discount not been applied: [89] (Ward P). Connell v R [2020] NSWCCA 352, distinguished.

As to issue (iii):

Sentence appeals are to be determined based on the material that was before the sentencing court, although evidence may be admitted "on the usual basis" to show events that have occurred since the time of sentencing. This general rule is not absolute and an appellate court may receive new evidence in order to avoid a miscarriage of justice: [46] (Ward P). Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25; Ragg v R [2022] NSWCCA 150; Barnes v R [2022] NSWCCA 140; Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118, considered.
The psychological report was based largely, if not wholly, on the applicant's self-reporting, which cannot now be tested, and it has not been established that it could not have been discovered with the exercise of reasonable diligence at the time of sentence. The report is conditional in its content, and, on its face, it appears clearly to be seeking to raise a new and different case on appeal: [53] (Ward P). Bugmy v R (2013) 249 CLR 571; [2013] HCA 37, applied.

As to issue (v):

Regarding the use of sentencing statistics, care must be taken when comparing sentences imposed in relation to offences of ongoing supply of illicit drugs: [71] (Ward P). R v Chidiac [2015] NSWCCA 241; R v Cheikh; R v Hoete [2004] NSWCCA 448, considered.
The review of cases to which the respondent has referred makes clear that the aggregate sentence imposed was not manifestly excessive: [92] (Ward P). Linden v R [2017] NSWCCA 321; Osman v R [2008] NSWCCA 157; R v Cheikh; R v Hoete [2004] NSWCCA 448; The Queen v Woodley [2020] NSWDC 664; O'Neile v R [2018] NSWCCA 201; R v Wong [2018] NSWCCA 20; R v Youman [2018] NSWCCA 180; R v Amoroso [2021] NSWDC 393, considered.
The applicant has not established that the sentence was unreasonable or plainly unjust. The indicative sentences are not outside the range for appropriate sentences for this level of offending, nor was the aggregate sentence that was imposed: [93] (Ward P). Dinsdale v The Queen (2002) 202 CLR 321; [2000] HCA 54; Markarian v R (2005) 228 CLR 357; [2005] HCA 25; TC v R [2016] NSWCCA 3; Morgan v R (1993) 70 A Crim R 368; Papworth v R [2011] NSWCCA 253; He v Sun (2021) 104 NSWLR 518; [2021] NSWCA; Burke v R [2022] NSWCCA 6; JJ v R [2020] NSWCCA 165, applied.
A sentencing judge has a wide discretion to impose a sentence that seems to the sentencing judge to be just and appropriate and sentencing judges are permitted as much flexibility as is consonant with consistency of approach and applicable sentencing principles. Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle or where the sentence imposed is so far outside the range available that there must have been an error: [57] (Ward P). Windle v R [2011] NSWCCA 277; Markarian v R (2005) 228 CLR 357; [2005] HCA 25; Abousleiman v R [2021] NSWCCA 110; Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221, applied.

(2021) 104 NSWLR 518

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