R v Sara

Solicitors: Commonwealth Director of Public Prosecutions (Applicant) Zahr Partners (Respondent) File Number(s): 2016/00387916 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: R v Sara [2019] NSWDC 841 Date of Decision: 29 October 2019 Before: Hunt DCJ File Number(s): 2016/00387916

Judgment

1. BATHURST CJ: I agree with Harrison J.
2. HOEBEN CJ at CL: I agree with Harrison J and the order which he proposes.
3. HARRISON J: The Crown appeals against the sentence imposed upon Benjamin Sara by his Honour Hunt DCJ with respect to his participation in a conspiracy to import a commercial quantity of a border controlled drug, namely approximately 18kg of pure heroin, contrary to ss 11.5(1) and 307.1(1) of the Criminal Code (Cth). His Honour sentenced Mr Sara to imprisonment for 7 years and 6 months commencing on 27 December 2016 with a non-parole period of 5 years expiring on 26 December 2021.
4. The Crown appeals upon the single ground that the sentence is manifestly inadequate. In particular the Crown contends that the sentence: 1. Does not adequately reflect Mr Sara's criminality; 2. Was infected by findings of fact that were not open on the evidence; 3. Was infected by specific legal errors; 4. Gave undue weight to subjective features and insufficient weight to the need for general and specific deterrence; and 5. Requires appellate intervention to maintain the public's confidence in the justice system and the sentencing of high-level offenders involved in international conspiracies to import commercial quantities of border controlled drugs.

Facts

1. Mr Sara was sentenced upon the basis of Agreed Facts. Those facts are as follows.
2. Mr Sara was involved in an international drug importation conspiracy, referred to as the Fiji Conspiracy, which took place between 14 August 2014 and 13 January 2015. A number of his co-conspirators were involved in other conspiracies, after the failure of the Fiji Conspiracy. A summary of the various conspiracies, the drug types and quantities, the participants and the result of each conspiracy was set out in an Agreed Statement of Facts.
3. The Fiji Conspiracy involved Mr Sara, Jose Garcia, Joseph D'Agostino, his brother Frank D'Agostino, their cousin Joseph Pirrello, "Aaron" (who was an undercover police operative), and individuals overseas including in Fiji and Asia, such as "Kimchi" and "Asterfright".
4. The roles and conduct of the co-conspirators in the Fiji Conspiracy are set out in the Agreed Statement of Facts. Mr Sara's participation in the conspiracy arises from the following matters.
5. On 20 October 2014, Mr Sara met with Mr Pirrello and J D'Agostino at Star City Casino to discuss the importation of drugs into Australia from Fiji. Between 21 October 2014 and 3 December 2014, Mr Pirrello met with J D'Agostino on four occasions to discuss the importation. On one occasion the two men were joined by Garcia. At that meeting, Garcia indicated he had received information that the drugs would be ready to leave Fiji in mid-November 2014. Mr Garcia also indicated he was in direct contact with Mr Sara, stating: "I got a message from the guy you had a meeting with yesterday" (referring to the meeting Mr Pirrello and J D'Agostino had with Mr Sara on 20 October 2014).
6. On 5 December 2014, Mr Sara met with the undercover operative "Aaron", J D'Agostino and F D'Agostino in Haymarket and discussed the importation. Among other things, Mr Sara indicated that he had been advised that the drugs would be available in Fiji from 13 December 2014 and that there was a connection to Laos and Thailand. He advised that there would be 104 packages in total, comprising 80 "plates" or "half catties" of heroin, which were 350g each, or about 28kg (gross) with the possibility of a further 24kg of pseudoephedrine, comprising 104 packages in total.
7. Mr Sara explained that his contact had a "door" in Fiji that would help move the drugs through Fijian Customs. He said he also had a contact with an interest in importing drugs via Indonesia or Malaysia and that his contact would "after this … gonna get all excited and wanna put three, four, five hundred, from Fiji".

His Honour's findings

1. His Honour made the following relevant findings with respect to the objective nature and circumstances of the offence.
2. Mr Sara participated in the conspiracy between 20 October 2014 and 23 December 2014, his involvement being limited to actions over a little more than two calendar months. He was an Australian point of contact and an intermediary between the overseas and Australian participants providing the service of bringing the drugs from Fiji to Australia.
3. The initial planning pursuant to the conspiracy was actioned by co-conspirators other than Mr Sara. He knew the weight of the drug, how it would be packaged and the type of drug to be imported.
4. Mr Sara's own words - "In this, you've got one side, you've got another side and you've got a piggy in the middle to put it together. Like a middle man. We're the middle man" - provided an overt aid in establishing his role.
5. J D'Agostino had his own connection to overseas contacts "over and above" any connection provided by Mr Sara. Such was clear from J D'Agostino's statement on 5 December 2014 that "the main Asian bloke" involved in the importation was travelling to Fiji.
6. The bulk of Mr Sara's communications with "Aaron" when "Aaron" was in Fiji consisted of Mr Sara forwarding, without commentary, communications that he had received from his overseas connections.
7. Mr Sara's last effective overt act undertaken occurred on 23 December 2014. [Fijian authorities had earlier seized the drugs on 20 December 2014].
8. Following attempts by "Aaron" to communicate with Mr Sara in January 2015, Mr Sara likely sent the following message to "Aaron" on 13 January 2015 in an attempt to avoid detection: "Hi mate, I think you have the wrong person, there's more than one person uses this phone, but I have an idea who you're talking about. I'll pass on the message or you can get this Italian guy to contact your friend."
9. Mr Sara's message to "Aaron" on 13 January 2015 represented his voluntary termination of any further involvement in the conspiracy. Moreover, he had not been actively engaged in moving the conspiracy forward since 23 December 2014. Other co-conspirators did not have any further need for Mr Sara's services after the drugs were seized.
10. Mr Sara was a "middle man", responsible for creating introductions between the overseas group transporting the heroin to Fiji and the Australian group transporting the heroin from Fiji to Australia. By inference, there was some plan for Mr Sara to receive a financial reward for his participation in the conspiracy, but his Honour was not satisfied beyond reasonable doubt that that financial reward was "substantial".

Subjective circumstances

1. His Honour made the following findings concerning Mr Sara's subjective features.
2. His Honour said that Mr Sara's subjective case was powerful. He was 34 years of age and, on the balance of probabilities, was remorseful. His plea of guilty at an early (although not the earliest) point in the proceedings demonstrated his willingness to facilitate the course of justice and warranted a discount on sentence of 25%.
3. Mr Sara had an extended medical, psychological and psychiatric history. He was subject to an effective medication regime which managed his depression and anxiety. His Honour concluded that Mr Sara's time in custody would be much more onerous for him because of his mental health difficulties. Mr Sara's mother suffered from mental illness, including during his teenage years, and more recently had attempted suicide.
4. Due to the breakdown in Mr Sara's marriage and an inferential nexus between his time in custody and his mother's poor mental health, Mr Sara's period on remand had some effect of specific deterrence. Further, he visited upon himself some extra curial punishment by virtue of the distance that was now between him and his wife and his mother. Mr Sara had very strong support from his family, being one of four siblings in a tightly knit family.
5. Mr Sara had been devoted to his faith since a young age. He has deeply re-engaged with that faith since being back in custody.
6. Mr Sara has demonstrated a good work ethic whilst in custody and his custodial record was free of any infringements.
7. Because of Mr Sara's criminal history, specifically three convictions and a period of imprisonment served for supplying prohibited drugs, there was an additional need for specific deterrence.
8. Mr Sara's prospects of rehabilitation were good, because he was previously able to serve out a period of parole without breach or incident and had been gainfully employed before he went into custody in relation to the more recent offence. As noted, he had a strong familial support network and had voluntarily terminated his involvement in the conspiracy.
9. His Honour accepted the opinion of Mr Sara's psychologist, Alison Cullen, that his religious affirmation, meaningful and achievable job prospects and stabilised mood were additional protective factors.

The Crown's appeal

1. In the sentencing proceedings, the Crown submitted that Mr Sara was the main point of contact and intermediary between the international participants devoted to importing a large quantity of heroin using an ocean-going vessel. Mr Sara was said to be essential to the progress of the enterprise and performed a high-level facilitating and co-ordinating role. His Honour did not accept the Crown's characterisation of Mr Sara's role in the conspiracy. The Crown contended in this Court that his Honour's assessment of Mr Sara's conduct and role in the conspiracy substantially diminished the objective gravity of his offending.

Crown's submissions

1. The Crown submitted that the inadequacy of the sentence imposed on Mr Sara was the result of three errors made by his Honour in the exercise of his sentencing discretion as follows: 1. Factual findings that were not open on the evidence. 2. Specific errors of legal principle. 3. Errors in the application of sentencing principles.

Factual findings that were not open on the evidence

1. The Crown contended that his Honour made six findings of fact that were not open on the material that was before him.

Mr Sara's voluntary termination of his involvement in the conspiracy

1. His Honour relied upon Mr Sara's message to "Aaron" on 13 January 2015 suggesting that he had "the wrong person". That message was sent 24 days after the Fijian authorities seized the drugs on 20 December 2014. Mr Sara became aware of that seizure and discussed with his co-conspirators what had gone wrong. The Crown submitted in these circumstances that it was not open to his Honour to find that Mr Sara voluntarily terminated his involvement in the Fiji Conspiracy on 13 January 2015. Moreover, the Crown contended that Mr Sara's indication that he would pass on a message was in fact an acknowledgment of his continuing role. The fact that Mr Sara was not involved in the subsequent conspiracies is said to be entirely beside the point.

The co-conspirators no longer needing Mr Sara's services

1. This finding by his Honour appears on the Crown's submission to be drawn from the fact that Mr Sara had attempted to distance himself from "Aaron" to avoid detection and had voluntarily terminated his involvement in the Fiji Conspiracy. The Crown maintained that neither of those findings was open. In any event, the Crown submitted that they did not support the finding in question but only supported a finding that Mr Sara was himself no longer interested in offering his services to his co-conspirators: it said nothing about whether or not they had any further need for him.

Mr Sara's remuneration not a substantial amount

1. His Honour was not prepared to conclude that Mr Sara's remuneration would be a "substantial amount" but was prepared to infer that there must have been "some plan for financial reward". The Crown submitted on sentence that Mr Sara's payment as one of five conspirators was likely to be one fifth of 30%, or $2.28M, calculated by reference to the anticipated wholesale value of the drugs. Accepting that proposition, Mr Sara's share was likely to be in the order of $456,000. The Crown submitted that that was clearly a substantial amount. His Honour's reference only to "some plan for financial reward" was an error.

Mr Sara was exposed to greater risk than his co-conspirators

1. His Honour's finding to this effect informed his ultimate conclusion that Mr Sara was at the "lower end" of the conspiracy hierarchy. The Crown contended that the finding was not open: his Honour did not identify any so-called risk to which Mr Sara was uniquely exposed. His Honour did not identify any other factual circumstances suggesting that Mr Sara was exposed to greater risk. On the contrary, the material before the Court was said to support only a finding that Mr Sara's role was relatively low risk when compared to the roles of the overseas and Australian participants.
2. The Crown submitted that Mr Sara was in fact insulated from risk and detection as the result of the hands-on and practical roles performed by his co-conspirators. His Honour erred in finding that Mr Sara was exposed to greater risk than the others, thus placing him at the "lower end of the hierarchy". The Crown submitted that such a finding was not open on the facts.

Mr Sara's role was not essential to the conspiracy

1. Mr Sara described himself as "like a middle man" or a "mediator". The Crown submitted on sentence that this meant he played an essential role. His Honour did not accept that characterisation, finding only that Mr Sara's role was important. Even a bit-player in the importation of drugs is essential: R v Laurentiu (1992) 63 A Crim R 402 at [32]. The Crown submitted that Mr Sara was more than a bit-player.

Contacts 'over' and 'above' Mr Sara

1. His Honour reasoned that J D'Agostino had his own connections to overseas contacts involved in the Fijian Conspiracy "over and above" any connection provided by Mr Sara. That finding assisted his Honour's assessment that Mr Sara was at the lower end of the conspiracy hierarchy. The Crown submitted that there was no evidence to support any such finding and that the facts disclosed that Mr Sara was in contact with relatively senior members of the overseas group. In any event, such a finding could not sensibly diminish Mr Sara's position in the conspiracy hierarchy given his direct contact with the boss of the overseas syndicate.

Specific errors of legal principle

1. The Crown submitted that his Honour made two such errors.

Error 1: reduced significance to attach to the weight of the drug

1. Following his Honour's finding that Mr Sara played a "relatively lower role in the enterprise", he determined that "reduced significance should attach to the weight of the drugs" when assessing the "objective criminality of the offence". His Honour was referred to R v Pham, Tran and Dang; Ex parte DPP (Cth) [2017] QCA 46. The Crown contended that this case was not authority for the proposition that the weight of the drugs should be given reduced significance where the particular offender plays a lower role in a syndicate's hierarchy. Rather, it is authority for the general proposition that the weight to be given to the quantity of the drug by a sentencing judge may vary depending upon the circumstances of the case.

Error 2: objective gravity of Mr Sara's conduct reduced due to the unlikely success of the importation

1. By reason of "Aaron's" involvement in the importation from an early stage, it was always destined to fail. His Honour determined that the objective gravity of Mr Sara's conduct was therefore "somewhat reduced". His Honour relied upon R v Irusta [2000] NSWCCA 391; 117 A Crim R 6 at [41]. The Crown submitted that his Honour should have directed attention to Mr Sara's overall culpability judged by reference to his own conduct and that the participation of "Aaron" did not mitigate Mr Sara's moral culpability unless the failure of the enterprise was somehow referable to his own lack of sophistication or incompetence.
2. In summary, the Crown submitted that his Honour made significant legal and factual errors that were central to his appraisal of Mr Sara's role in the conspiracy. The consequence of those errors in combination was "a profound depreciation" of Mr Sara's moral culpability and the objective gravity of his offending.

Errors in the application of sentencing principles: manifest inadequacy

1. The Crown submitted that the sentence imposed on Mr Sara is so far below the range of sentences that could justly be imposed that it can be inferred that his Honour failed to give factors their correct weight in the application of the principles that govern the sentencing of Commonwealth drug offences. Specifically, the Crown contended that the sentence imposed by his Honour: 1. is not a sentence of a severity appropriate in all the circumstances of the offence; 2. did not give sufficient weight to general deterrence and impose a sentence of stern punishment; 3. did not adequately address the need for specific deterrence; and 4. did not adequately denounce the Fiji Conspiracy and Mr Sara's role in it.
2. Moreover, his Honour gave disproportionate weight to Mr Sara's subjective case and insufficient weight to the objective gravity of the offending. His Honour's assessment that Mr Sara had a "powerful subjective case" was not justified and was likely caused by him making a number of overly favourable findings to which Mr Sara was not entitled.
3. First, his Honour found that Mr Sara had "relatively good prospects of rehabilitation". That finding was made in the context of him previously serving a not insignificant period of imprisonment for three drug supply offences contrary to the Drug Misuse and Trafficking Act 1985. [Those charges concerned a commercial quantity of MDMA (209.98g) and indictable quantities of methylamphetamine (61.7g and 47.26g) with further offences taken into account on a Form 1]. This finding was primarily based on Mr Sara not committing other offences whilst on parole or breaching the conditions of his parole. However, the Crown submitted that his involvement in the Fiji Conspiracy represented an escalation in drug offending on an international scale when compared with his previous convictions: any rehabilitative purpose that Mr Sara's previous period on parole may have served must have all but dissipated upon his subsequent involvement in the Fiji Conspiracy.
4. His Honour also found that Mr Sara had good prospects of rehabilitation because he voluntarily terminated his involvement in the conspiracy. As earlier noted, that finding is said to be in tension with his Honour's finding that Mr Sara distanced himself from "Aaron" in an attempt to evade detection on 13 January 2015, which was in any event after the importation had failed. It also does not concord with his Honour's finding that the other members of the conspiracy did not have any need for Mr Sara's services after the Fiji Conspiracy's failure. Aside from the conflicting factual findings, the Crown submitted that it is difficult to accept that Mr Sara should have been given any rehabilitative credit for his decision to "terminate" his involvement in the Fiji Conspiracy, because the message he sent on 13 January 2015 indicated his continuing role, and followed the conspiracy's failure, the seizure of the drugs on 20 December 2014 and the arrests of co-conspirators in Fiji.

Mr Sara's submissions

1. In response, Mr Sara maintained that, contrary to the Crown's submissions, his Honour in fact made no specific error but instead acted entirely according to principle. He contended that none of the Crown's complaints about his Honour making factual findings that were not open to him has merit.
2. Before dealing with the six separately nominated impugned factual findings, Mr Sara made the following preliminary points of principle.
3. First, the Court of Criminal Appeal, on an appeal against sentence, will only find that a factual finding was wrongly made if there was no evidence upon which that finding could have been made, that the evidence was all one way, or that the sentencing judge misdirected himself or herself regarding the proper approach to the determination of the facts: R v O'Donoghue (1988) 34 A Crim R 397 at 401 (see also Xiao v R [2018] NSWCCA 4 at [118]-[125] and Haines v R [2018] NSWCCA 269 at [368]-[369]).
4. Secondly, facts adverse to an offender must be found proved beyond reasonable doubt and facts submitted in his or her favour need only be established on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27]-[28]; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [64], [66].
5. Thirdly, where the Crown seeks to advance an error of fact on a Crown appeal against sentence, it must show that the sentencing judge erred in entertaining a reasonable doubt as to the specific factual finding challenged: Director of Public Prosecutions (NSW) v Lombard [2008] NSWCCA 110; 184 A Crim R 565 at [31]; R v Stunden [2011] NSWCCA 8 at [56].
6. Fourthly, an appeal is not a second chance for a party to run a case they could have run at trial. Parties are bound by the way their counsel conducted their case at first instance. This is particularly so where, on a Crown appeal, the Crown seeks to allege that a matter not drawn to the sentencing judge's attention by the Crown constituted an error: see, for example, R v Amohanga [2005] NSWCCA 249; (2005) 155 A Crim R 202 at [119]-[120]; R v Robinson [2014] NSWCCA 12 at [32]; Director of Public Prosecutions (Cth) v Haynes [2017] VSCA 79; A Crim R 455; at [60]-[62].
7. Fifthly, a degree of latitude must be given to the remarks of District Court judges. It is not appropriate that they be "parsed and analysed": cf R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [48]; see also Horvath v R [2019] NSWCCA 285 at [21]. It is to be expected that they may lack the "precision of language that can be incorporated into a judgment after the luxury of time for consideration, refinement of expression, and polishing": cf R v Speechley [2012] NSWCCA 130; 221 A Crim R 175 at [34]; Horvath at [21].

"Factual findings that were not open on the evidence"

1. Mr Sara dealt together with the alleged errors relating to Mr Sara's voluntary termination of his involvement in the conspiracy and his co-conspirators no longer needing his services. In that context, Mr Sara drew attention to the following exchange between his Honour and the Crown at the sentencing hearing: "HIS HONOUR: Can I just test you with this? The fact that Mr Sara doesn't have any further involvement could either be voluntary cessation, or it could be that he had nothing further to offer the other conspirators, or both, couldn't it? HOWELL: Quite right, all three are open. Respectfully, the Crown urges a particular view based on findings as to what his role was and the value that he had to the Fiji conspiracy as being the second of those three options, but I don't be [sic] so bolshy as to say that there's no other interpretation available on the material…" (Emphasis added.)
2. Mr Sara contended that his Honour was entitled to act upon this concession made by the Crown, represented by experienced counsel. The findings were in any event available on the balance of probabilities. His Honour's findings were well within the bounds of a properly exercised sentencing discretion.
3. With respect to the issue of whether Mr Sara's remuneration was or was not a substantial amount, the Crown's written submissions on the topic below were limited to the following two paragraphs: "39. In this case, the Crown position is that the Court could find beyond reasonable doubt that the Offender's payment was to be 10% of the wholesale value of the drugs, based on the other Australian participants expecting about 20% (to share between [sic, among] themselves) and the Offender receiving Blackberry messages from the overseas boss indicating that the total payment for those involved in Australia was 30%. 40. Even in the absence of a finding as to the specific payment the Offender was to receive, the Court would be satisfied that he must have expected a substantial amount for his role in connecting and facilitating communications between the Australian and overseas sides of the enterprise."
4. His Honour dealt with this issue in the following terms: "Although the Crown invited me to draw an inference that one portion of the profits unaccounted for might have been this offender's share, the reality is there is no material on which I could be satisfied about the degree to which Mr Sara was to be rewarded for his involvement in the matter. I am unable to be satisfied beyond reasonable doubt it was a substantial amount but I am prepared to infer that there must have been some plan for financial reward."

"Specific errors of legal principle"

1. Mr Sara submitted that the suggestion that his Honour gave insufficient weight to the quantity of the drug must fail. His Honour's remarks are relevantly as follows: "It is accepted that following on from Wong v R (2001) 207 CLR 584 at para 68 and following that the weight of the drugs should not be given too much emphasis in the sentencing process, although there is, as I have said, knowledge that this offender was aware of the weight involved given the relatively lower role in the enterprise that I have determined reduced significance should attach to the weight of drugs in terms of my assessment of the objective criminality of the offence, see R v Pham, Tran & Dang; ex parte DPP (Commonwealth) [2017] QCA 46 at para 35."
2. The Crown accepts that Pham at [35] is authority for the general proposition that the weight to be given to the quantity of the drug by a sentencing judge may vary upon the unique circumstances of each case: see also Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [68].
3. Mr Sara submitted that his Honour was not ascribing any particular principle of law to Pham at [35] other than the proposition for which it stands. His Honour's decision to give diminished weight to the quantity of the drug was one made in the exercise of his sentencing discretion and entirely consistently with the two cases that he cited. Nothing in the sentencing remarks indicates that his Honour considered himself bound by, or that he followed, an erroneous proposition of law. In any event, it is well-established that the weight to be given to particular matters is very much in the province of the sentencing judge and the circumstances in which such matters will justify appellate intervention are narrowly confined: see, most recently, Stines v R [2019] NSWCCA 115 at [22]-[25].
4. Mr Sara next contended that the Crown's attack upon his Honour's finding that the gravity of his conduct was reduced by the low prospects of the importation succeeding should not be permitted as it was not put in issue by the Crown below. His Honour concluded that the objective seriousness of Mr Sara's offending was "somewhat reduced" as a result of "the unlikely success of the planned importation" due to "Aaron's" involvement. There was no error in doing so. Mr Sara raised the issue and the Crown did not address it.
5. However, and more fundamentally, the chances of success of an attempt to commit a substantive offence is a legitimate matter to consider along with all the other surrounding circumstances: R v Schofield [2003] NSWCCA 3; 138 A Crim R 19; at 139. All other things being equal, a conspiracy whose object is not achieved is less objectively serious than one whose criminal object is achieved. His Honour was entitled to approach the matter thus.

"Errors in the application of sentencing principles: manifest inadequacy"

1. Mr Sara addressed the Crown's areas of concern.

Rehabilitation prospects

1. Mr Sara submitted that this issue was a matter that was plainly open to his Honour. It is also clear that his Honour gave the issue close consideration, as a review of the following extract from his remarks on sentence reveals: "Although the offender has a prior record for involvement with prohibited drugs which denies him a leniency which somebody without that record would enjoy, in a guarded fashion consistent with the contention of the prosecution I formed the view that Mr Sara has relatively good prospects of rehabilitation. The reasons for that are first that, notwithstanding the existence of his prior sentence of imprisonment, he was able to serve out his period on parole without breach or incident. Additionally he was able to employ himself gainfully in the period before he went into custody. He has a strong support network to assist him when he is released in due course. His prior record of consistent employment and his expression of desire to return to useful work are also protective factors. Ms Cullen's assessment, which I accept as to his reduced risk of recidivism, identifies 'additional protective factors' as including 'strong familial support, religious affiliation, meaningful and achievable job prospects and stabilised mood (following resumption of his psychotropic medication)'. Ms Cullen while identifying that a number of past diagnosed conditions no longer operate including ADHD, Tourette's syndrome, intermittent mood disorder and bipolar. Those issues dissipating together with his continuing conditions being amenable to medication also increase his prospect of rehabilitation in my view. Another reason I formed the view that Mr Sara had relatively good prospects for rehabilitation, my finding that he voluntarily terminated his involvement in the conspiracy."
2. Mr Sara submitted that his Honour's assessment could not be assailed.

Specific deterrence

1. Mr Sara emphasised that his Honour recognised that there was "an additional need for specific deterrence in his case" as he had previously served a term of imprisonment. The Crown took no issue below with the self-serving nature of Mr Sara's report to Ms Cullen. The matters that Mr Sara told Ms Cullen were factual propositions which were not in contest below and are not in contest now.

Other matters

1. Mr Sara maintained that his Honour appropriately recognised that general deterrence and denunciation were primary considerations in sentencing him in this case. The weight to be attributed to matters such as objective seriousness, subjective factors, and prospects of rehabilitation as well as general and specific deterrence were matters "quintessentially" for his Honour. He referred to and considered them all and arrived at a sentence that was consistent with a proper application of sentencing principles.

Consideration

1. It is important before proceeding further to observe that this Crown appeal raises a single ground of manifest inadequacy. In those circumstances, the alleged errors to which the Crown's submissions have directed detailed attention are not to be treated as separate grounds of appeal but as examples, according to the Crown, of the possible ways in which or how his Honour arrived at the sentence that he did. The Crown has therefore approached this appeal upon the basis that the appellable error in his Honour's sentencing discretion takes the form of an inferred misapplication of principle upon the basis that the result was "unreasonable or plainly unjust" in the sense that it was manifestly inadequate: see CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 at [56] citing R v Hernando [2002] NSWCCA 489; 136 A Crim R 451 at [12].
2. The principles that apply to an attack upon the adequacy of a sentence are well known.
3. The assertion that a sentence is manifestly inadequate is an assertion that the sentence is "unreasonable or plainly unjust", as that expression is used in House v The King: see Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]. In other words, the Court must be satisfied that the non-parole periods and total sentences imposed were outside the range of sentences that could have been imposed: see R v Mereb; R v Younan [2014] NSWCCA 149 at [32].
4. However, appellate intervention will not be justified simply because the result arrived at below is markedly different from other sentences imposed in other cases. The Court must be driven to conclude that there must have been some misapplication of principle: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [58]-[59], [75]-[76]; The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at [28].
5. In assessing whether the sentence imposed was "unreasonable or plainly unjust", the following principles apply: 1. Sentencing is a discretionary judgment and there is no single correct sentence: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24]. 2. The Court of Criminal Appeal must not substitute its own opinion merely because it would have exercised the sentencing discretion differently to the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]. 3. Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Markarian at [25]; Hili at [58]. 4. The weight to be given to the various factors to be taken into account (including the evidence and various purposes of sentencing) is a matter for the sentencing judge: Bugmy at [24], [99]. 5. Although the Court of Criminal Appeal is not bound by the sentencing judge's assessment of objective seriousness, the Court should be very slow to form its own view: CMB at [78]; Mulato v R [2006] NSWCCA 282 at [37]. 6. Whether or not manifest error has occurred is not "fundamentally intuitive". What reveals manifest inadequacy is a consideration of all of the matters that are relevant to fixing the sentence: Hili at [60]. 7. Reviewing a history of sentencing can establish a range of sentences that have in fact been imposed. However, that history does not establish either that (i) that range is the correct range; or (ii) that the upper or lower limits to the range are the correct limits. They are only a yardstick against which to examine a proposed sentence: Hili at [54] approving Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [303]-[304].

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 July 2020