REGINA v YILDIZ

Court of Criminal Appeal (NSW)|2006-04-05|Before: Simpson J, Adams J, Hoeben J, Mr P, Kirby J

the application for leave to appeal against sentence 36 The sentence prescribed for the offence by s33 of the Act is imprisonment for life. By s54A of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act"), a standard non-parole period of fifteen years is prescribed in respect of offences of this kind that may be described as within the middle range of objective seriousness. The sentencing judge expressly held that this offence did not come within the middle of the range of objective seriousness. Her Honour complied with her obligations as stated in R v Way [2004] NSWCCA 131; 60 NSWLR 168, and had regard to the standard non-parole period as a guidepost or benchmark. She proceeded to impose a sentence consisting of a non-parole period of seven years with a balance of term of three years, making a total term of imprisonment of ten years. That represents a significant reduction on the prescribed standard non-parole period to just 46%. 37 Adams J takes the view that her Honour was in error in regarding the degree of planning as an aggravating feature. By s21A(2), the fact that an offence is part of a planned or organised criminal activity is a matter that a sentencing court is obliged to take into account as an aggravating feature. But, by the suffix to that subsection, the court is expressly enjoined against taking into account any aggravating feature if it is an element of the offence charged. That injunction has been extended to circumstances that are "an inherent characteristic" of the offence charged (see, for example, Elyard v The Queen [2006] NSWCCA 43; per Howie J. An example is the disregard for public safety implicit in dangerous driving offences. But this principle does not mean that the degree to which the "inherent characteristic" exists in relation to a particular offence may not, where it exceeds the norm, be taken into account as an aggravating factor. The problems that are created by s21A were spelled out by Howie J in Elyard. 38 Here the sentencing judge in fact acknowledged and appeared to act upon a concession that a crime such as supply of prohibited drugs could rarely be other than planned; she then turned her attention to the question of the degree of planning evidenced by the offence. She held that the evidence did not permit any such finding. She then said: "However, the planning implicit in the possession of such a large quantity of drugs is a matter of aggravation of the objective seriousness of the crime." 39 As in Elyard, there was no evidence that would permit a finding beyond reasonable doubt that the degree of planning in this case exceeded what would ordinarily be expected of an offence of this kind - that is, the degree of planning that would be inherent in the possession of a large quantity of drugs for the purpose of supply. I therefore conclude that what was said was an error. However, in my view, it was something that, at most, marginally affected the selection of the ultimate sentence. 40 Adams J has reached the conclusion that the sentence was manifestly excessive. However, at least in one respect, his Honour appears to have reached this conclusion on the basis that her Honour gave undue emphasis to the standard non-parole period. I do not think that this can be read into the remarks on sentence. The proportion that the non-parole period actually imposed bears to the standard non-parole period lends no support at all to the proposition. 41 I agree that the sentence is a lengthy one, and probably longer than might have been imposed prior to the introduction of Division 1A of Part 4 of the Sentencing Procedure Act. But that is the effect of the amendments to the law, and to the sentencing process, made by Division 1A. It is the obligation of sentencing judges to apply the law as it is made and expressed by the legislature. In the light of the standard non-parole period I am unable to conclude that the sentence was manifestly excessive. I would grant leave to appeal against the sentence but dismiss the appeal.

The appellant was charged with supplying on 11 April 2003 at Sydney not less than a large commercial quantity of ecstasy, namely 602 gm of the prescribed chemical. The prosecution case was opened to the jury upon the basis, in substance, that the appellant had agreed with one Mr Thompson to supply it or else it was in his possession for the purpose of supply. In due course, the appellant was convicted and, on 17 September 2004, sentenced to a non-parole period of seven years commencing on 23 July 2004 and ending 22 July 2011 together with an additional term of three years. 43 The grounds are variously stated but, as articulated at the hearing of the appeal, the appellant contends that the indictment, or the verdict, is void for latent duplicity. In order to appreciate the gravamen of this contention, it is necessary to outline the prosecution case.

The facts 44 On 11 April 2003 police in an unmarked vehicle went to Mount Street, North Sydney at about 7.40 pm. As the vehicle approached the intersection of Mount Street and the Pacific Highway they saw motor vehicle registered AJU 14S (the Audi) pull out of a parking space in Mount Street. It was not contested that the Audi was being driven by the appellant. The Audi stopped in the middle of Mount Street. There was an unidentified male passenger in the vehicle with the appellant. It was going in the opposite direction to the police vehicle, which did a U-turn to follow it. The Audi was evidently out of view for a short time. When police next observed the Audi, the passenger was gone and the appellant was alone. The Audi was driven by the appellant to Auburn under covert police observation. It was there stopped and searched. Ecstasy tablets were located in a bag in the boot. They were the tablets that weighed 602 gm. It is inescapable that they comprised the drugs alleged in the indictment to be supplied by the appellant. Almost $3,000 in cash was found on the appellant's person, together with a small notebook. 45 The Crown had established that on 7 April 2003 the Audi had been driven by a person - who may well have been the appellant - to a meeting between that driver and a Mr Lionel Thompson. Nothing in the intercepted telephone conversations of 7 April suggested an illegal purpose, let alone drug dealing, for the meeting, though no doubt the police regarded it as suspicious (probably because of other intelligence that was not, nor could be, the subject of evidence). A number of further telephone conversations on 11 April 2003 were intercepted and played to the jury. These conversations, eleven in all, concerned an arrangement to meet that night at North Sydney. It is reasonable to infer from circumstantial links (the voice of the appellant not being identified) that the arrangement involved the appellant and Mr Thompson and that the meeting was to be that which brought the Audi and the appellant to North Sydney and under police surveillance. However, except for the possibility that the appellant hinted at a credit transaction involving some item or other about which it might have been inferred that his language was guarded, there is nothing in these conversations capable of raising beyond the level of mere speculation an inference that the meeting concerned the supply of drugs, let alone having anything to do with the drugs found in the Audi when the appellant was arrested. It may be that that the prosecution hoped to make something more of this material but, as the case turned out, the significance and relevance of these calls was limited. 46 The telephone used for these calls was not located by the police when the Audi was stopped. The Crown prosecutor contended that the phone had been surreptitiously disposed of by the appellant during his trip to Auburn. If so, this may have been some evidence of consciousness of guilt, but such a case was not put to the jury and no complaint is made about the absence of directions in this regard. It should be noted in this regard that, phone or not, the police had monitored all the calls using this phone and the conversations were relatively innocuous. Whether the appellant was indeed one of the parties speaking was a live issue but, in my view, the jury would have been entitled to infer that he was. 47 It appeared that the Audi was owned by a motor dealer for whom the appellant worked and of which he had the use from about a month before the alleged offence. 48 The telephone conversations could justify the inference that the passenger seen in the Audi by police on 11 April 2003 might well have been Mr Thompson. But there was no evidence one way or another permitting any inference to be drawn that the meeting (even if it involved Mr Thompson) was connected with the 602 gm of ecstasy tablets found in the boot of the Audi when it was eventually stopped. 49 The appellant drove south across the Harbour Bridge and then west before pulling up in a street in Auburn. A police officer, who had been following, approached the appellant. The officer, Detective Gates, told the appellant that he had observed him exceeding the speed limit. The appellant replied, "Come on…I only have two points left, I'm just around the corner, Mum's just around the corner" and showed Det gates a piece of paper with the words "29 Northcote Street, Auburn…near Cumberland" written on it. Later investigations revealed that the appellant's mother did not live at that address. The appellant provided his licence and complied with Detective Gates' request to return to the car whilst a check was made. Shortly after, Detective Dubojski arrived and the two officers approached the appellant's vehicle and asked the appellant a number of questions. The appellant turned off the engine and got out of the car. He was asked whether he owned everything in the car to which he replied that he did. He was asked to open the boot. Inside the boot was a tray of peaches and a gym bag. The officers searched the bag and found a large plastic resealable bag with a number of pills in it. Detective Dubojski informed the appellant of his right to remain silent. At this point the appellant backed away from his vehicle and attempted to use his mobile phone to make a call. He was directed not to make any calls and his mobile phone was confiscated. The appellant then said, "Can't we work this out?" Detective Dubjoski then said, "No, it doesn't work that way, you are under arrest. Take a seat over there." 50 Shortly after that, Detectives Mackillop and Walsh arrived, closely followed by Detective Bolton. Detective Dubojski directed attention to the sports bag that was still in the boot of the car. Det Walsh saw a large number of pink tablets in two plastic resealable bags. Detective Walsh commenced searching the appellant and located $2990 in cash. The appellant was shown the bags and asked if he wished to answer questions about the pink tablets. The appellant said that he would not answer until he had spoken with his solicitor. 51 The officers took possession of two plastic bags and the sports bag and the appellant was taken to Auburn Police Station with the exhibits. When the sports bag was searched at the police station a further quantity of 34 pink tablets was found in plain white unmarked envelope. Also found in the gym bag was a pair of white gloves, a gym membership card to Newtown gym in the name of the appellant, his business card, a pair of white socks and the gym gloves. It was not, in substance, disputed that the gym bag was the appellant's or that the items in it, except for the drugs and their containers, were his. The appellant's DNA was found on an item of clothing in the bag. 52 The drugs found in the appellant's sports bag were worth in excess of $30,000, possibly up to $120,000.

The Crown case 53 The Crown prosecutor contended that the appellant was aware of the presence of the ecstasy tablets in the bag in the boot of the Audi for, amongst others, the reason that he had met with Mr Thompson in Mount, Street, North Sydney as arranged at about 7.30 pm on the night in question. This is an obvious non sequitur and I say no more about it. 54 It had been initially contended by the Crown Prosecutor that the evidence showed that there was an agreement between the appellant and Mr Thompson to supply drugs at North Sydney on the night in question. He conceded that it was not known whether the appellant supplied Mr Thompson or Mr Thompson supplied the appellant. The prosecutor was not able to stipulate what the connection was between the drugs in the car and Mr Thompson except that they were there because of some agreement to supply them that involved Mr Thompson. 55 As I have said, the evidence did not even establish that the meeting between Mr Thompson and the appellant concerned the supply of drugs, let alone who was the supplier or that there was any agreement of any kind concerning the drugs found in the Audi. It may be that, even if some such an agreement occurred as contended for by the Crown, it related to the drugs found by the police or maybe not. In this respect, the Crown case was no more than speculation. The evidence of the surveillance at North Sydney might have been relevant as showing the course of the police surveillance but it was otherwise of very limited relevance to the issues in the case. The Crown prosecutor's submissions about it considerably overstated its actual as distinct from its prejudicial significance.

The issues identified in the summing up 56 The substantial issue in the case, as articulated by counsel for the defence, was whether the appellant was aware of the presence of the ecstasy tablets in the boot of the Audi which he was driving. It seems to me that, if the jury concluded that the appellant had indeed met Mr Thompson on the evening in question and that meeting concerned ecstasy tablets or drugs in any way, it could all the more readily be inferred that the presence of a large quantity of ecstasy tablets in the boot would be unlikely to be unknown to the appellant. 57 Indeed, this was the relevance of what the jury might find had occurred between Mr Thompson and the appellant, as put by the learned trial judge in her Honour's summing up to the jury. For example, her Honour said - "...[If] you find that it was the accused who made those phone calls to Mr Thompson then you can use that piece of evidence as part of the circumstantial case in determining whether you find beyond reasonable doubt that the accused had possession of the drugs in the case. That is, that he knew or believed that the gym bag contained drugs. …The Crown says you would be satisfied…[the man in the passenger seat] was Mr Thompson, again from the combination of what was said on the phone tapes and what the police observed. If you find that it was Mr Thompson [in] the car of the accused, then you may use that fact as part of the circumstantial case on possession. If you did not find it was Mr Thompson, then you would put that to one side and consider the circumstantial case without that observation and that finding." 58 Later on in her summing up, however, the learned trial judge said - "…of particular relevance to this case is that the law also provides that you can have possession of drugs for the purposes of supplying them. The Crown says that the accused had the drugs in his possession for the purposes of supplying them and the Crown says that the accused was in possession of the drugs because of an agreement made between himself and Mr Thompson to supply them. To prove that…the Crown again relies on circumstantial evidence…which, it says, when taken together, would persuade you beyond reasonable doubt that there was an agreement between Mr Thompson and the Accused to supply drugs and that is why the Accused had them in his possession." 59 Her Honour then briefly mentioned the intercepted telephone calls, the observations of the police and the discovery of the drugs in the car and cash in the appellant's wallet as the circumstances upon which the Crown relied, adding - "…It is a matter for you whether you are satisfied beyond reasonable doubt that the only reasonable conclusion arising from these pieces of evidence is that the accused and Mr Thompson had an agreement to supply drugs." 60 The learned trial judge then pointed to the Crown's reliance on the mere fact of possession by the accused of no less than the trafficable quantity of ecstasy to prove the charge. Her Honour said - "…Even if you were not satisfied that the evidence allowed you to conclude that there was an actual agreement between Mr Thompson and the accused to supply drugs, if you were satisfied beyond a reasonable doubt that he had possession of the drugs in the gym bag, the amount of the drugs in his possession would at law be sufficient for you to find him guilty of the charge. The Crown case is that the Accused had an agreement to supply drugs with Mr Thompson and they met in North Sydney after arranging through telephone calls to do so. The Crown case is that it was part of this agreement that the accused had the drugs and money in his possession…[when he was arrested] in Auburn." 61 Counsel for the defence sought no redirection as to these matters. To the contrary, he compared both the clarity and correctness with which the learned trial judge had put these issues to the jury with the Crown Prosecutor's address. He sought a discharge of the jury upon the ground that, despite "the integrity and efficacy" of her Honour's directions, "in stark contrast" to the Prosecutor's submissions, the effect of those submissions "cannot be overcome." 62 In my view, the jury were left in no doubt that the supply in question was that of the drugs found in the car. It was invited to conclude that the drugs were there because of an agreement concerning their supply that had been entered into between the appellant and Mr Thompson. However, the jury was also directed that, even if they had a doubt about this, they could convict the appellant of supplying the drugs upon the basis that they were deemed to have been in his possession for the purpose of supply, and even though nothing was known about to whom it was proposed to supply them. 63 There is no contradiction between these two cases. The evidence did not suggest that the appellant and Mr Thompson had not entered into the alleged agreement, or that the drugs had not be placed in the Audi pursuant to such an agreement, or that they were in the boot under some other agreement or arrangement. A conviction that reflected the presumed supply case would not have been inconsistent with an acquittal of the Thompson agreement case, had there been two such counts in the indictment. If there was evidence capable of justifying the Thompson agreement case, I can see no reason why, in principle, the Crown was not entitled to put both that and the deemed supply case. 64 The crucial, indeed only, question in the case was whether the appellant was guilty of supplying the drugs found in the car. That he might have been guilty of that offence because of an agreement with Mr Thompson or, for that matter, anybody else, or because he had simply acquired possession from Mr Thompson or someone else with the intention, at his own instigation and without any agreement with anyone, of supplying the drugs to someone else does not matter. In my view, even a succession of agreements with different persons to supply the drugs in the car would not have created any more than one offence, providing the agreements concerned the whole of the drugs in the car. The hypothesis proposed by the Crown was that the appellant had agreed with Mr Thompson to supply the drugs found in the car. Even on the assumption that, at the time of that agreement, the appellant was not in possession of the drugs, he was ex hypothesi in possession of the drugs at the time of his arrest pursuant to his agreement with Mr Thompson to supply them. Accordingly, he was in possession for the purpose of supply. If some of the jury convicted him on the basis of the Thompson agreement (assuming that the evidence permitted such a conclusion) that was a conviction of supplying the drugs in the car; if others had convicted him on the basis that they doubted the agreement but were persuaded that he was in knowing possession of the drugs, that was a conviction of supplying the same drugs. In my view, these were but different paths to the same conclusion. 65 With unfeigned respect for Simpson and Hoeben JJ (whose judgments I have read in draft) I do not agree that this discloses a latent duplicity or that it poses what might be conveniently called the S problem (S v The Queen [1989] HCA 66; 168 CLR 266). If, however, the Thompson agreement concerned different drugs or a lesser quantity than those discovered in the car, I would agree that the S problem is posed and that, subject to the proviso, the convictions must be quashed. 66 The evidence about the appellant's communications with Mr Thompson provided no basis for concluding that Mr Thompson and the appellant had entered into any agreement about anything. In this Court, the Crown conceded that the evidence was insufficient to permit a conviction on the Thompson agreement case, a concession rightly made, as my account of the evidence makes clear. The Crown prosecutor's ill-judged insistence upon running this case, which invited the jury to engage in prejudicial speculation, was capable of deflecting the jury's attention from the real case. Certainly, it took up a lot of Court time on legal argument and in submissions to the jury, all of which was a waste of time.

Ground 1: The trial miscarried because the count on the indictment contained a latent duplicity. 67 In my view, there was no duplicity here. The crucial element was whether the appellant was supplying the drugs in question. The wide definition of "supply" in s 3 of the Drug Misuse and Trafficking Act 1985 meant that the appellant was supplying if he undertook or was a party to any of the activities there described. At all times the crucial question in the trial concerned the reason for which the drugs in the appellant's bag were in the appellant's possession. As has already been said, the Crown case was simply that the drugs were there because the appellant had agreed with Mr Thompson to supply them to someone or others or they were deemed to be in his possession for the purpose of supplying them to someone or others, whether or not he had agreed with Mr Thompson that he should do so. 68 I do not think that the mere fact that the Crown's explanation could not be proved and the jury, to convict, necessarily had to rely on the deeming effect of s 29 of the Act created or reflected any duplicity. This ground of appeal must fail.

Ground 2: Her Honour erred by failing to require the Crown to elect which act or acts of the appellant constituted the offence charged. 69 This ground assumes that the posited agreement with Mr Thompson and the appellant is a completed and actual supply (because once agreement is reached, there is a supply by virtue of the definition of supply in s 3 of the Act) whilst the supply that is proved by the deeming provision of s 29 is a different supply. During argument below this distinction was relied on by counsel for the appellant, though it was stated as being between a deemed supply on the one hand and an actual but not completed supply on the other. The argument is, as I understand it, that there were two offences of supply alleged here: the first constituted buy the Thomson agreement; and the second by the appellant's possession. In my view this distinction is apparent rather than real. The offence under s 25 of the Act is supplying the prohibited drug. That may be done in a number of ways, described in s 3 of the Act. An agreement to supply is, therefore, supply for the purposes of s 25, though not in ordinary parlance. The deeming provision in s 29 does not create a distinct or separate form of supplying. Once possession of the prescribed quantity of drugs is established and the possessor's personal use not proved on the balance of probabilities, he or she is deemed to have the drugs in his or her possession for purpose of supply, in the sense in which that word is given an extended meaning in s 25 as defined in s 3. For some purposes the expression "deemed supply" is useful but in this case it has served only to confuse. For the purposes of the appellant's guilt or otherwise of the offence, the question is whether he undertook the supply (as defined) of the drugs in the car, however that was proved and whether there had been an "actual" supply or not. In ordinary parlance, of course, an agreement to supply such as that alleged by the Crown in the Thompson agreement case is not an "actual" supply either. 70 The case unmistakably put to the jury, as demonstrated by the passages extracted from the learned trial judge's directions set out above, is that the drugs in the car were in the appellant's possession for the purpose of supply, either because he had agreed with Mr Thompson to supply them or simply because the quantity required the finding that he had them for the purpose of supplying them. The Thompson agreement and the possession of the quantity were each ways of proving the same supply, namely that the ecstasy was in the appellant's possession for the purpose of supplying it. 71 The case might be different if the alleged agreement with Mr Thompson concerned drugs other than those found in the appellant's possession. However, this was not the Crown case at any point. 72 It follows that this ground of appeal fails.

Ground 3: Her Honour erred by failing to discharge the jury on the applicant of the appellant upon the address of the Crown Prosecutor. 73 The application to discharge the jury was, in substance, based upon what - with some justification - was submitted to be the Crown Prosecutor's confused contention concerning the Thompson supply case and the deemed supply case. It is unnecessary to analyse the address since the submission rests upon the mistaken assumption that there were indeed two such cases necessitating election. For the reasons previously given this assumption is wrong. I agree that the Prosecutor's address to the jury was confused and likely to be productive of confusion, mainly because he was unwilling to recognise the inconcIusiveness of the intercepted telephone conversations, the effect of which he overstated on a number of occasions. I do not think that much is gained by setting out the prosecutor's address in this judgment. It is sufficient that I state my conclusion that the learned trial judge's directions (excerpts of which are quoted above) sufficiently clarified the matter. 74 This ground of appeal therefore fails.

Ground 4: Her Honour erred by directing the jury that they could convict the appellant on either of two alternative bases, namely either because he had agreed to supply ecstasy or, alternatively, because he was in possession of MDMA for the purposes of supply. 75 For the reasons already given, this ground must fail.

Ground 5: Her Honour erred by directing the jury that they could convict the appellant on the basis that he had agreed with Thompson to supply MDMA when there was no evidence capable of proving that the appellant did in fact agree with Thompson to supply MDMA. 76 As I have said, the Crown prosecutor in this Court conceded that, indeed, there was no evidence capable of proving that the appellant did in fact agree with Mr Thompson to supply MDMA. The jury were invited to consider whether the evidence established the posited agreement. Some jurors may have mistakenly thought that the evidence did establish it and it was not necessary, therefore, for them to consider whether the Crown had established knowledgeable possession of the drugs in the appellant's vehicle. This line of reasoning, if undertaken, was fundamentally flawed since it is not possible that the evidence proved the posited agreement. On the other hand, the evidence established beyond reasonable doubt that the appellant was aware of the presence of the drugs in his bag. 77 The position seems therefore to be that the jury were invited to move by two routes to the conclusion of guilt: the first route could not justify such a conclusion; the second route made conviction inevitable. Counsel for the appellant at the trial did not submit that the trial judge should direct the jury that they could not use the first route to establish the appellant's guilt. Indeed, he said that he had "no cavil [with her Honour's directions] either as to the law or the evidence."

78 It follows that there was a misdirection which was not sought to be corrected. Leave is therefore required to permit the ground to be raised on appeal. The defence case on the deemed supply was so weak and the Crown case so overwhelming, counsel for the defence might well have refrained from seeking to correct the misdirection because of the forensic advantage that might (quite reasonably) have been seen to flow from the prosecutor's attempts to maintain a fundamentally flawed case. Had the jury been faced with the stark outlines of the deemed supply case, the forensic task facing the defence would have been much more difficult. In light especially of the positive acceptance by defence counsel of the correctness of the trial judge's summing up, I would refuse leave to raise this ground of appeal. 79 The Crown submits that this error was not a substantial miscarriage of justice. What constitutes a substantial miscarriage of justice has recently been the subject of consideration in the High Court of Australia in Weiss v The Queen [2005] HCA 81. This is not a case in which evidence was wrongly admitted. The error here was to suggest to the jury that they might take a line of reasoning to conviction that that evidence was simply not capable of supporting, but leaving the question whether that line of reasoning did justify such a conviction entirely to it to consider and determine. 80 I am satisfied that "the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty" (cf Weiss v The Queen [2005] HCA 81 at [44]. There was no procedural irregularity. As the case was fought, no significant issue depended on the demeanour of the witnesses. It follows that there was no substantial miscarriage of justice. 81 Leave to raise this ground of appeal should therefore be refused.

Conclusion as to conviction appeal 82 The appeal against conviction fails.

Sentence appeal 83 The applicant appeals against the severity of his sentence of ten years with a non-parole period of seven years. The offence of which he was convicted was the supply of a large commercial quantity of ecstasy, namely 602 grams. Any quantity above 500 grams is a large commercial quantity, rendering the offender liable to a maximum term of life imprisonment. The applicable standard non-parole period for a case in the middle of the range of objective seriousness is fifteen years.

Objective circumstances 84 Nothing more is known about the background or involvement of the applicant in this offence than appeared in evidence at the trial. Thus, he may have been deeply implicated in an organized supply of drugs or merely an opportunistic courier. His having possession of the drugs may have been planned or relatively spontaneous, he might have had an interest in a share of the proceeds or was merely performing a delivery for some relatively small reward. There is no evidence whatever enabling any conclusion to be drawn as to these various possibilities. That the drugs were held in his sports bag with no real attempt at concealment suggests that they were not a part of any much larger transaction and does not hint at planning. It suggests that they were going to be in his possession for a relatively short time. However, this is but a straw in the wind. It is sufficient to note that there is no evidence from which any conclusion can be deduced suggesting that this was part of a continuing criminal activity in which he was involved. The fact is that the applicant was carrying the drugs. In my view he cannot properly be punished upon any other basis than that he was doing so on this occasion for reward of some kind. It follows that he cannot be punished for any supply more culpable - though it is certainly serious - than that of a single delivery. 85 In my view, the evidence could not justify a conclusion other than the applicant was involved as a courier in single delivery of the drugs to the address in Auburn which was contained on the piece of paper found in his possession at the time of arrest. The learned judge concluded that "the possession of such a large quantity of drugs must speak of an involvement in an enterprise to supply drugs", although her Honour did not specify the extent of the applicant's involvement. With respect, this was an important aspect of his culpability. The sentence imposed by her Honour seems to me to be more consistent with the view that he was an active participant in the enterprise as distinct from a one-off courier. For the reasons that I have given, I do not think, with respect, that the evidence justified such a view. 86 The learned sentencing judge rightly rejected the argument that the applicant was involved in an agreement with Mr Thompson to supply drugs. So far as any aggravating features are concerned, her Honour referred to the concession made by the applicant's counsel that the offence necessarily involved some planning, as distinct from having been committed opportunistically or on the spur of the moment and held that "the planning implicit in the possession of such a large quantity of drugs is a matter of aggravation of the objective seriousness of the crime". 87 This conclusion was, as I understand it, a reference to s21A(2)(n), which specifies as an aggravating factor "to be taken into account in determining the appropriate sentence" the fact that "the offence was part of a planned or organised criminal activity". Accepting (as I respectfully do) the learned judge's conclusion that a degree of planning beyond the spontaneous was implicit in the character of the offence itself, it follows that this factor is a feature of the seriousness of the offence as indicated both by the maximum available sentence and the standard non-parole period. Had this feature simply been noticed as a reason for rejecting any notion that the applicant's crime was unplanned or impulsive, there would have been no error. However, it seems to me that her Honour regarded this as an additional feature of aggravation. This is a form of double counting and was, therefore, an error: cf The Queen v McNamara [2005] NSWCCA 195. 88 In R v AJP (2004) 150 A Crim R 575 at 579-580, Simpson J, with whom the other members of the Court agreed on this point, summarised the effect of R v Way (2004) 60 NSWLR 168 and subsequent cases as follows - [13] The following propositions emerge from Way and subsequent cases:

(i) while s 54B(2) requires, in sentencing in respect of an offence to which Div 1A applies, unless the sentencing court determines that there are reasons not to do so, that it set the standard non-parole period as the non-parole period for the offence, that obligation exists where the offence in question is an offence in the middle of the range of objective seriousness of offences of that kind; one reason permitting departure from the standard non-parole period is that the offence in question falls outside the middle of that range (at [67]);

(ii) the standard non-parole period was intended for a middle range case where the offender is convicted after trial: a plea of guilty might be in itself a reason for departure from the standard non-parole period (at [68]);

(iii) a sentencing judge will be required, in relation to any given case, to hypothesise what is an abstract offence in the middle of the range of objective seriousness in order to determine where the subject offence lies in relation to such an offence; such an exercise is, in reality, little different from the traditional sentencing exercise of evaluating objective seriousness of any offence, and should be approached intuitively and based upon the general experience of courts in sentencing for the particular offence (at [74]-[77]);

(iv) circumstances that affect the evaluation of the objective seriousness of any offence include (but are not necessarily limited to) the actus reus, the consequences of the conduct, such factors as impinge upon the mens rea of the offender, matters of motivation, mental state, mental illness or disability (where causally related to the commission of the offence). Factors that affect the circumstances of the offender as distinct from the offence (for example, youth or prior sexual abuse) do not affect the evaluation of objective seriousness (at [85]-[86]);

(v) that an offence is "typical" or "common" does not dictate that it is in the middle of the range of objective seriousness (at [101]);

(vi) the numerical frequency with which an offence of a particular kind is committed is not an indicator of the objective seriousness of any individual instance of that offence (at [101]-[102]);

(vii) where a court determines that there are reasons for departing from the standard non-parole period, the standard non-parole period nevertheless remains of relevance in the sentencing determination, as a reference point, benchmark, sounding board or guidepost (at [122]); see also R v Davies [2004] NSWCCA 319.

[14] Finally, it is to be observed that there is nothing in Div 1A that compels a court which finds that an offence is in the mid range of objective gravity to fix the standard non-parole period in respect of that offence. Possible reasons for departing from the standard non-parole period are extensive, as s 21A makes clear. 89 Simpson J pointed to a number features as relevant to an assessment of the objective seriousness of the offence. These included the nature of the sexual intercourse itself, "how the offences took place, over what period of time, wit what degree of force or coercion, the use of threats or pressure before or after the offence to ensure the victim's compliance with the demands made, and subsequent silence, and any immediately apparent effect on the victim" (ibid at 582 [25]). If I may respectfully say so, her Honour was plainly correct in the identifying these features as relevant - perhaps in many such cases, determinative - of the objective seriousness of offences of the particular kind. However, to identify them as relevant is, of course, not to hypothesise a case within the middle of the range of objective seriousness. 90 Simpson J went on to say (ibid at 583 [27]) - "I have come to the view that there was an error in the approach taken by the sentencing judge to the evaluation of the objective seriousness of the offence…Having regard to the matters to which I have referred in [25] and…[the absence of threats or pressure to secure the complainant's compliance or subsequent silence]…the challenge to the finding that the respondent's offence fell in the mid range has been made good. It should properly be seen as falling somewhere below the mid range of an offence against 66A [of the Crimes Act 1900]. Of most significance in this conclusion is that this was an isolated incident. That is, of itself, sufficient to warrant departure from the standard non-parole period." 91 In my judgment in AJP (150 A Crim R at 587 ff), I suggested that actually hypothesising an abstract case in the middle of the range of objective seriousness, as that category is used in s54A of the Crimes (Sentencing Procedure) Act 1999, is fraught with real logical and practical difficulties. I suggested (at [47]) that "sometimes…it is easier to perceive that the case is not in that category by identifying particular features that place it at a lesser level of gravity." After all, where there is a departure from the standard non-parole period, this is precisely the exercise required by s54B(4). The simple point I wish to make is that this is what the Court actually did in AJP: the intermediate step of hypothesising a middle of the range case was not actually undertaken. Nor has it been undertaken in other cases where this Court has considered sentences where there is an applicable standard non-parole period: eg R v Porteous [2005] NSWCCA 115; R v Walker [2005] NSWCCA 109; R v Mills [2005] NSWCCA 175. 92 In dealing with whether the case fell within the middle range of objective seriousness, her Honour said - "In this case, having regard to the circumstances of the offence and after taking into account the matters contained in s21A, I am of the view that this case does not fall within the middle range of objective seriousness and thus the question of whether or not to impose the standard non-parole period does not arise. Even if I am in error as to that assessment of the case, the facts and circumstances of the case as I have set out in these reasons themselves would operate as a reason for declining to impose the standard non-parole period. However, the standard non-parole period operates as a guide as to what extent his criminality falls below that standard."

With respect, the standard non-parole period does not operate in the way described by her Honour in the last sentence of this passage. It is not a guide of criminality. It is a guide for punishment. It is not a starting point. To say that it is a standard is, in my view, to significantly overstate its role where the case is not one falling within the middle of the range of objective seriousness. 93 In R v Way (2004) 60 NSWLR 168, this Court said (at 192-193) - "[122] In this approach the standard non-parole period can properly take its place as a reference point, or benchmark, or sounding board, or guidepost, along with the other extrinsic aids such as authorities, statistics, guideline judgments and the specified maximum penalty, as are applicable and relevant. In particular, it can have a direct relevance as a reference point to be compared with the sentence which is provisionally reached after an assessment has been made of the relative seriousness of the subject offence, and of the various aggravating and mitigating factors, as well as any other subjective factor that may be present, including in particular the fact, if it be the case, that the offender entered a plea of guilty…" … [131] What is not appropriate, in our view, is for a sentencing judge to commence the process for every offence (irrespective of its seriousness, and irrespective of whether the offender's guilt was established after trial or by a plea), at the standard non-parole period, and then to oscillate about it by reference to the aggravating and mitigating factors. The problem with that approach is that the standard non-parole period will tend to dominate the remainder of the exercise, thereby fettering the important discretion which has been preserved by the Act."

If I may be permitted another metaphor, the standard non-parole period is not a fulcrum with the sentence moving up or down with respect to it. The passage to which I have referred, with respect suggests that the standard non-parole period for the present charge has, indeed, dominated the sentencing process. In my view that this occurred is confirmed by the sentence imposed which, on any account, is a very severe one. 94 I have already pointed out that, as this Court said in AJP (amongst other cases), an assessment of the significance of the standard non-parole period, even in a case that does not fall within the middle of the range of objective seriousness requires "a sentencing judge…in relation to any given case, to hypothesise what is an abstract offence in the middle of the range of objective seriousness in order to determine where the subject offence lies in relation to such an offence…" (see the passage set out above). The learned sentencing judge has not undertaken this task in this case. In the circumstances here, however, this requirement may be satisfied indirectly. It seems to me that, at least where there are objective features of the case that take it out of the middle of the range of objective seriousness, it is not necessary to do more than identify those particular features. Using the standard non-parole period as a marker must still be done, of course, with the caution that it is but one of the relevant considerations to bear in mind. Where a case, in the Court's view, does fall within the middle of the range of objective seriousness, then the reasons for that conclusion must obviously be given, notwithstanding that the task might be a difficult one. 95 In the circumstances of the present case, the fact that there is no evidence that this was other than an isolated offence and that the applicant was more than a courier lead me to the conclusion that it was objectively significantly less serious than a middle of the range case of objective seriousness. I also bear in mind the value of the drugs, which does not strike me as especially high. It seems to me that a case within the mid range of objective seriousness for the offence of supplying a large commercial quantity will usually have as features the fact that the supply is part of a course of business undertaken by the offender and that his or her participation will usually involve actual dealing with the drugs for profit, either alone or with others, at higher than street level.

Subjective factors 96 As the learned judge stated in her reasons for sentence, the applicant was 32 years of age as at the date of sentence, he had no relevant criminal history and was well regarded by his employers and friends. He had the advantage, from the rehabilitation point of view, of a large and supportive family. There was evidence that justified the conclusion that the offence was out of character as those who knew him well believed it to be. There was good reason to infer that his prospects for rehabilitation were good. These factors justified the conclusion that the sentence should be substantially less than the standard non-parole period.

Conclusion 97 There is not very much guidance to be had from the Judicial Commission statistics for offences of the present kind. There is not a statistically significant number of cases. I have considered the range of sentences imposed for cocaine, heroin and amphetamines to widen the range, bearing in mind that ecstasy is dealt with separately in the legislative regime and is quite a different drug. It seems to me that the sentence in the present case falls in the higher end of the statistical range of sentences for supplying these drugs. 98 I have concluded, for the reasons stated above, that the learned judge sentenced the applicant upon a factual basis that the evidence did not justify. Moreover, in assessing the objective seriousness of the offence, her Honour gave additional weight to the factor of planning which had the effect of double counting this aspect. I also consider that her Honour gave too much significance to the standard non-parole period for an offence that fell well below the middle of the range of objective seriousness. Bearing in mind the objective and subjective features to which I have referred, I have concluded, with respect, that the sentence passed on the applicant was manifestly excessive. It follows that this Court should grant the applicant leave to appeal against his sentence, quash the sentence passed below and resentence him. 99 I have had regard to the affidavit filed on the applicant's behalf. This shows that whilst in custody the applicant has made use of the courses available to him to assist in his rehabilitation. Having regard to the fact that this is the first term of imprisonment served by the applicant and to the need as I see it for supervision when he is released to parole, I consider that there are special circumstances warranting departure from the statutory ratio between the non-parole period and the balance of the term. 100 I propose that the applicant should be sentenced to a term comprising a non-parole period of five years to commence on 23 June 2004 and end on 22 June 2009 with a balance of term of three years to commence on 23 June 2009 and end on 22 June 2012. The earliest date upon which the appellant would be eligible to be released on parole is 22 June 2009. 101 HOEBEN J: I agree with the judgment of Simpson J and the orders which she proposes

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.

Walsh v Tattersall [1996] HCA 26; 188 CLR 66 Elyard v The Queen [2006] NSWCCA 43 S v The Queen [1989] HCA 66; 168 CLR 266 Weiss v The Queen [2005] HCA 81 CASES CITED: The Queen v McNamara [2005] NSWCCA 195 R v AJP (2004) 150 A Crim R 575 Rv Way (2004) 60 NSWLR 168 R v Porteous [2005] NSWCCA 115 R v Walker [2005] NSWCCA 109 Rv Mills [2005] NSWCCA 175

Ground 5 34 Given the Crown's concession, it was, in my opinion, an error (into which the trial judge was led) to direct the jury that the appellant could be convicted of supply on the basis of an agreement evidenced by the intercepted telephone conversations. 35 However, the case on the alternative basis was so powerful as to be virtually unanswerable. Accordingly, applying the principles stated in Weiss v The Queen [2005] HCA 81; 80 ALJR 444, I am satisfied that no substantial miscarriage of justice has occurred. Nor did the latent duplicity cause a substantial miscarriage of justice. I would dismiss the appeal.

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