Rizk v R [2020] NSWCCA 291 | Case summary

Court of Criminal Appeal (NSW)|2020-09-14|Before: Basten JA, Price J, Wright J

Solicitors: Oxford Lawyers (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2018/00242561 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 6 December 2019 Before: Bourke SC DCJ File Number(s): 2018/00242561

Judgment

BASTEN JA: I agree with Wright J that the application for leave to appeal against sentence should be granted, but the appeal dismissed. Subject to the following observations, I also agree with the reasons given by Wright J.

Ground 1 - Form 1 offence - maximum penalty

The judge misstated the maximum penalty for a relatively minor offence set out on a form 1 and taken into account in respect of a relatively serious offence (count 1). The minor offence of possessing a prescribed restricted substance (sequence 5) was incorrectly identified in the sentencing judgment as carrying a maximum penalty of 2 years imprisonment, whereas in fact the maximum penalty was 6 months. A second offence also contained on the Form 1, involving a supply of a prohibited drug (sequence 7), carried a maximum penalty of 15 years. The maximum penalty for the two substantive offences (counts 1 and 2) was in each case 15 years imprisonment. The judge did not sentence separately for the two counts, but indicated that the putative individual sentence for count 1 was 3 years 3 months.
The error with respect to sequence 5 resulted from a misstatement by the prosecutor in written submissions on sentence, which was corrected at the hearing, but was repeated in the judgment. In my view the Court should accept that the judge (i) was under a misapprehension in sentencing the applicant on count 1, and (ii) thought the maximum penalty for the offence was sufficiently significant to be recorded in his reasons. The transcript of the hearing may be relied on to identify what issues were raised for decision, and what resolution of those issues was proposed by each party; it is not available to rewrite the judgment.
On the basis that the judge mistook the guideline provided by the maximum penalty with respect to sequence 5, which the applicant agreed to have taken into account on sentencing for count 1, the question is whether that was a material error which was capable of affecting the outcome.
The resolution of that issue requires consideration of the following observations in the joint reasons in Kentwell v The Queen: [1] "[42] Spigelman CJ's analysis in Baxter should be accepted. When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, [2] the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh … This is not to say that all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion. By way of example, s 44(1) of the Sentencing Act requires the court when sentencing an offender to imprisonment to first set the non-parole period and then set the balance of the term. Prior to 1 February 2003, a court was required to first set the term of the sentence and then specify the non-parole period. A court which sentences an offender to imprisonment after 1 February 2003 by first setting the term of the sentence commits legal error. Without more, the error does not affect the exercise of the sentencer's discretion." [Emphasis added.]
The first emphasised passage suggests that it is not for the appeal court to assess "whether" the error affected the outcome. On the other hand, that is not to be understood as an absolute proposition. The second emphasised passage acknowledges that there are errors, such as a procedural error under s 44, which "does not affect the exercise of the sentencer's discretion." The latter does not engage the appeal court's duty to re-assess the sentence. The question is whether such errors include mistaking facts or aspects of the sentencing regime which could in some circumstances possibly affect the outcome, but in other circumstances can confidently be said did not.
In judicial review of administrative decisions, requiring error of law, reflecting, but perhaps more limited than, the classic statement of principles governing an appeal against sentence in House v The King, the High Court has eschewed setting aside decisions by reason of immaterial errors. [3] The principle has been applied in relation to judicial errors. [4] A similar principle can operate with respect to a superior court sentencing an offender. Criminal sentencing is not an exercise in precision; it involves a pragmatic balancing of factors pulling in different directions and involving variable weight. It is therefore often impossible to know if a possible effect has materialised, but the principle allows for an insignificant error to be disregarded.
Thus the example given in Kentwell of sentencing contrary to the mandate in s 44 could affect the sentencing discretion. To fix the full term before the non-parole period could, conceivably, lead a judge not to focus sufficiently on the sufficiency of the period of mandatory custody. Yet the possibility is clearly remote and the effect is likely to be minimal. These are, however, matters of degree.
In Lehn v R, [5] Bathurst CJ adopted the approach italicised in the following passage: "[66] I have dealt with the nature of the error in order to demonstrate that it is not open to conclude that the error was not connected with the sentencing process or did not affect the sentencing discretion. The question remains whether, assuming the error only affected the discretion to a limited extent, it is appropriate to exercise the discretion only in relation to that particular component."
The error in question, which required the Court to resentence, was identified as follows: "[64] In the present case, the approach the sentencing judge took meant that the discount for the plea was directly connected to a sentencing purpose in that he declined to grant a further utilitarian discount because the resulting sentence would not reflect the objective seriousness of the offence. … [65] Further, the error which was made was that the applicant was denied procedural fairness in circumstances where, during the sentencing hearing, the Crown did not contend that anything less than a 25% discount should be awarded and the sentencing judge gave no indication that he contemplated giving a lesser discount. …In the context of court proceedings, such a denial of procedural fairness will entitle the aggrieved party to a rehearing, unless a particular breach would not have affected the outcome. [6] "
The effect of an offence on a Form 1 is never quantified and should not be. Some offences may have an appreciable, if unquantifiable, effect on the sentence for the charged offence. However, there are less serious offences where it can confidently be said that an error in identifying the precise nature of the offence, or its maximum penalty, will have no effect on the outcome for the charged offence. Where that can be said, the error is properly characterised as immaterial.
That is so with respect to count 1 in the present case, for several reasons. First, while the disparity between the maximum penalty understood by the sentencing judge and the true maximum is significant in its own terms (the mistaken maximum quadrupled the true figure) the maximum sentence itself was not merely 10% of the maximum penalty for count 1, but was also 10% of the maximum penalty for the second offence on the Form 1 (sequence 7). Secondly, the penalty imposed for the charged offence, before the reduction for the early plea of guilty, was 42 months, or less than 25% of the maximum penalty for that offence. Thirdly, although referred to in the introductory statements at the commencement of the judge's reasons, the maximum penalty was not referred to again in the sentencing judgment. Fourthly, had the possession of the restricted substances been the subject of a separate count and a separate sentence, it should have been wholly concurrent with the sentence for the principal offence.
In these circumstances, this court can be confident that the erroneous statement of the maximum penalty for the Form 1 offence, sequence 5, did not affect the exercise of the sentencing judge's discretion in fixing the term of the aggregate sentence. Ground 1 in the notice of appeal should be dismissed.

Ground 2 - backdating commencement of sentence

On 7 June 2018 the applicant was sentenced to an intensive correction order (ICO) for a sixth conviction for driving whilst disqualified. The order was for a period of 7 months, expiring on 6 January 2019. The applicant's arrest in relation to the offences for which he was sentenced in the District Court occurred on 7 August 2018. The Parole Authority revoked the ICO, with effect from 7 August 2018, and imposed a fixed term of imprisonment for 5 months, expiring on 6 January 2019.
The judge backdated the aggregate sentence to commence on 6 January 2019, thereby in effect giving credit for the whole of the period spent in custody following his arrest, other than the period of 5 months during which he was serving the earlier sentence of imprisonment.
In substance, ground 2 alleged that the judge failed to consider commencing the aggregate sentence at a date prior to 6 January 2019, so as to permit a degree of concurrency with the earlier term of imprisonment. In its terms, the ground was without substance. The sentencing judge stated: [7] "The most significant factor, however, and one which aggravates his offences, is the fact that during part of the period of his offences he was subject to an Intensive Correction Order which was imposed at Burwood Local Court on 7 June 2018 for an offence of drive whilst disqualified. That Intensive Correction Order was revoked from 7 August 2018 as a result of the offender's arrest for the offences on which he now faces sentence." In backdating the sentence to 6 January 2019, the date on which the period of 5 months imprisonment terminated, the judge recognised the existence of the 5 month term and its date of expiration, with the necessary effect that there was no concurrency between that period of imprisonment and the aggregate sentence.
Perhaps realising that the "failure to consider" ground lacked merit, the applicant changed direction in the written submissions and alleged that there was double counting, because the judge had both treated the offending during the period of the ICO as a factor of aggravation and failed to permit an element of concurrency of the two sentences. However, that submission should also be rejected. It may readily be inferred that the element of aggravation was properly taken into account by not making the sentences partly concurrent.
The principle that an element of concurrency should be considered follows not from the fact that the circumstances of offending overlap, clearly they did not. Rather, there are two possible justifications. First, the later sentencing may relate to offences which occurred before the earlier sentence was imposed, and which would have involved a degree of concurrency if all had been imposed together. That was not this case. Secondly, there is a sense in which the later offending has already resulted in punishment by way of revocation of parole being served for the earlier offences. That justification turns on the next principle. Thirdly, in relation to revocation of parole, and as explained by Simpson J in Callaghan v R, [8] "[i]t is always open to an offender to seek and be granted parole even after a revocation; to sentence in such a way as to commence the subsequent sentence only on the date of expiration of the whole of the previously imposed head sentence is to assume that, absent the subsequent offences, the offender would not have been granted a second chance at parole."
It is true that the position of a person serving an ICO is analogous to the position of a parolee. An ICO imposed pursuant to s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Procedure Act") is treated as a custodial sentence, although it is served in the community. The Parole Authority is empowered to revoke an ICO. [9] The effect of a revocation order is to render the offender liable to serve his sentence in prison. The parole authority also has power to "reinstate" a revoked ICO. [10] The procedure for doing so, however, requires compliance with Pt 5 of the Sentencing Procedure Act, as if it were the imposition of an ICO. That step cannot be taken until the offender has served at least 1 month by way of full time detention. [11] Where the period to be served after the revocation order was made on 29 August 2018 was only 4 months, the possibility of reinstatement would have been remote. It is true that the effect of the aggregate sentence was to assume there would have been no reinstatement, absent the further offending. Not only does that seem a reasonable proposition, but there was in any event no obligation to backdate the aggregate sentence by any amount to take account of the 4 month period during which reinstatement might have occurred. There is no reason to doubt that the judge knew the precise effect of fixing the commencement date of the sentence: no error is revealed.

Ground 3 - failure to find special circumstances

I agree with Wright J, for the reasons he gives, that ground 3 must be rejected. However I would place a caveat on the proposition in the joint reasons in Lonsdale which is to the following effect: [12] "Further, it has been accepted that it is incumbent on a sentencing judge to consider or advert to the effect of accumulated sentences they may impose where the ratio of the effective non-parole period exceeds 75% of the total effective term".
This proposition, by use of the term "incumbent upon", imposes a duty on a sentencing judge. Two things are troubling about this proposition. First, although the joint reasons acknowledged that the statutory ratio provided in s 44 of the Sentencing Procedure Act has no application in relation to the effect of accumulated sentences, the holding is that the statutory scheme should be (or has been) extended by analogy. Secondly, the statutory ratio (not engaged in the circumstances) would have been satisfied if the minimum term had been three weeks shorter. That minimal variation (it would be unusual for a judge to sentence in period less than 1 month) led to the conclusion that the judge did not fail to "consider or advert to" the actual variation from the non-applicable statutory ratio. [13]
No submission was put to this Court as to the proposed "duty to consider". What has happened over some years is that the provision as to the statutory ratio, which cannot be diminished without a finding of special circumstances (the balance of term must not exceed one-third of the non-parole period) has been extended to apply to, not only the total sentence imposed by the sentencing judge, but, where that is accumulated on a previous sentence, the ratio of the new non-parole period to the combined effect of the sentences. What was originally described as a common practice became a good practice; then a matter which should be explained if no adjustment were to be made; and then an inference of reviewable error in circumstances where no reference was made to the effective ratio in the reasons for judgment.
Statutory interventions over the years have made the task of sentencing offenders more complex and more time consuming. There are, undoubtedly, important principles of procedural fairness and transparency involved in many of the statutory requirements. However, in my view, appeal courts should be restrained in imposing additional obligations. Each additional "duty" imposed by an appeal court, breach of which could affect the length or conditions of a sentence, will give rise to an obligation, in the case of a breach, to resentence by exercise of the appeal court's independent discretion. The possibility that a sentencing judge could be in breach of such an obligation by failing to expressly note that the sentence would have accorded with a non-applicable statutory ratio where the non-parole period would conform if reduced by three weeks is hard to justify. Nor did the more cautious statements in earlier authorities warrant the creation of a duty, albeit the joint reasons in Lonsdale added the qualification that "these principles are not hard and fast rules." No principles are; but breach of principles can give rise to appellate intervention.
The duty is apparently not qualified by reference to the submissions of counsel. Of course, the parties do not know before the judgment is delivered how any sentences will be structured; nevertheless, it will usually be known that whatever sentences are imposed will be accumulated in part or in whole on an existing sentence and, where there is more than one offence, that there will either be an aggregate sentence or an accumulation of individual sentences. Accordingly, if counsel think it appropriate, he or she should (and generally does) raise the issue at the hearing. As with many considerations, if counsel does not identify an issue to be taken into account, a judge should not usually be found to have erred by failing to address the issue expressly.
Finally, statements in cases before the conferral of power to impose aggregate sentences might need qualification in the light of changes in sentencing practice.
None of this means that the sentencing judge should not have regard to the relationship of a proposed parole eligibility date to the effective period of mandatory custody. Nor is to cast doubt on the principle that a finding of "special circumstances", for the purposes of s 44 of the Sentencing Procedure Act, will be justified to allow the ratio with respect to the last sentence imposed to be varied to avoid "an extraordinary disproportion" resulting from adherence to the formula. [14]
PRICE J: I agree with Basten JA and Wright J that the application for leave to appeal against sentence should be granted but the appeal dismissed. I agree with Wright J's reasons and the additional observations of Basten JA. However, I do not think it is necessary for this Court to comment on the scope of the decision in Campbell v R as in all the circumstances of this case, I am satisfied that the judge's incorrect statement of the maximum penalty for the Form 1 offence had no impact on the exercise of his Honour's sentencing discretion.
WRIGHT J: The applicant, Ahmed Rizk, seeks leave under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the aggregate sentence imposed on him by Bourke SC DCJ on 6 December 2019 in the District Court at Parramatta.

Background

On 8 August 2019 in the Local Court, the applicant pleaded guilty to two charges of knowingly taking part in the supply of a prohibited drug. He was committed for sentence to the District Court. The applicant also asked that two further offences be taken into account on a Form 1 when he was being sentenced in respect of count 1 on the indictment before the District Court.
The sentence proceedings were heard on 13 November 2019. On 6 December 2019, the learned sentencing judge imposed an aggregate sentence of 3 years 6 months commencing on 6 January 2019 and expiring on 5 July 2022 with a non-parole period of 2 years 7 months expiring on 5 August 2021.
In accordance with s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act), Bourke SC DCJ recorded that the sentences he would have imposed for each count on the indictment, had separate sentences been imposed instead of an aggregate sentence, were as follows: Offence Form 1 offences Indicative sentence 1 Knowingly take part in the supply of a prohibited drug, 112 g of cocaine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (DMT Act) for which the maximum penalty is 15 years' imprisonment and/or 2,000 penalty units. Seq 5: Possess prescribed restricted substance (9 vials of somatropin) contrary to s 16(1) of the Poisons and Therapeutic Goods Act 1966 (NSW). 3 years 3 months Seq 7: Knowingly take part in the supply of a prohibited drug, 7 g of cocaine, contrary to s 25(1) of the DMT Act. 2 Knowingly take part in the supply of a prohibited drug, 1,362 g of cannabis, contrary to s 25(1) of the DMT Act for which the maximum penalty is 10 years' imprisonment and/or 2,000 penalty units. 2 years 6 months

The indicative sentences reflected a discount of 25% because of the applicant's early pleas of guilty.
The applicant filed a notice of intention to appeal on 18 December 2019 and his notice of application for leave to appeal was filed, within the time, on 17 June 2020.
The applicant seeks to rely on three grounds of appeal: "1. His Honour erred by proceeding on the basis that the maximum penalty for the possess prescribed restricted substance offence was two years imprisonment. 2. When fixing a commencement date for the aggregate sentence His Honour erred by failing to consider the applicant's earlier period of custody. 3. His Honour erred in failing to find special circumstances."
These grounds require a consideration of Bourke SC DCJ's reasons for sentence.

Reasons for sentence

His Honour commenced his reasons for sentence by noting relevantly that: 1. the maximum penalty for the offence of knowingly take part in the supply of a prohibited drug, namely an indictable quantity of cocaine, was 15 years' imprisonment but there was no standard non-parole period; 2. the applicant had asked that a further offence on a Form 1 of taking part in supply of a prohibited drug, being 7 g of cocaine, be taken into account, the maximum penalty for which was also 15 years' imprisonment; 3. his Honour had been asked to take into account an offence on the Form 1 of possessing a prescribed restricted substance, somatropin, said to be "an offence carrying a maximum penalty of two years"; and 4. the applicant was also to be sentenced for an offence of knowingly take part in the supply of cannabis, the maximum penalty for which was 10 years' imprisonment, again with no standard non-parole period.
The sentencing judge recorded that the applicant had entered pleas of guilty at an early opportunity and a discount of 25% would be applied in relation to his sentences.

Circumstances of the offending and the applicant's arrest

The circumstances of the relevant offending were found by the sentencing judge based on the Agreed Statement of Facts and relevantly included what is set out in the paragraphs which follow.
Police investigations which commenced in December 2017 established that the applicant was the principal in a drug supply syndicate and directed a number of drug runners including his two co-offenders. The drug runners were provided with a specific drug-run mobile telephone, the number of which was used by customers to order and arrange the delivery of drugs including cocaine. Telephone intercepts captured one of the drug-run telephones sending out bulk text messages to customers promoting the sale of prohibited drugs. Such text messages included: "Hey guys it's the weekend and we are ready for you. Got cracker charlie very smooth and rocky youl love what we have install for you" and ""We are out and about tonight with that cracker charlie don't let your Saturday go to waste, got wheels and will travel" and "Friday night and we are out and about got the best going around let's start the weekend with a bang".
The specific facts of the offence in count 1 of knowingly take part in supply of 112 g of cocaine were found by the sentencing judge to be as follows. 1. On 8 April 2018, a telephone conversation was intercepted between the applicant and the first co-offender to the effect that the co-offender had just sold four 1 g deals of cocaine and still had 12 bags of 1 g deals of cocaine available. 2. On 15 April 2018, there was a coded conversation between the applicant and the first co-offender in which the co-offender told the applicant that he had $4,800 in his possession from sales of the last batch of cocaine, $5,100 from the old batch of cocaine and only five 1 g of deals of cocaine left to sell. 3. On 6 May 2018, intercepted communications between the applicant and the second co-offender included discussions of the fact that the applicant would be away on holiday for a short period of time and would put some extra aside for the co-offender, who also enquired as to the quantity of drugs he was expected to sell. On the same day the co-offender sent a text message to the applicant to the following effect: "To be honest it was slow last night and I called it early. Detectives were everywhere and I wasn't risking nothing for anyone". 1. On 27 May 2018, the applicant and the first co-offender had a telephone conversation in which the co-offender told the applicant, in code, that he had 29 1 g deals of cocaine left and had sold 17 1 g deals including four from the old batch of cocaine and that $900 had been paid to the drug couriers. During a conversation between those two persons later that night they appeared to be counting money and discussed the fact that some customers make contact in the early hours of the morning requesting delivery of drugs and the applicant directed the first co-offender that he should nonetheless deliver drugs to customers calling at 3 am in the morning. 2. On 31 May 2018, the applicant and the first co-offender had a conversation in which they discussed an agreement to supply an ounce, that is 28 g, of cocaine for $6,800 and that the unknown customer was able to pay $4,000 immediately. 3. On 3 June 2018, the first co-offender and the applicant were captured on surveillance devices discussing quantities of drugs and cash and the first co-offender told the applicant that he made $10,000 last Thursday as he sold 28 1 g deals of cocaine. 4. On 13 June 2018, the applicant was stopped by police and found to be in possession of three mobile phones, one of which was subscribed with false details. Another of the phones, which used advanced encryption software and which the applicant claimed belonged to a friend was seized by police. The applicant later told associates that the encrypted phone was in fact his phone and expressed extreme concern about its seizure and whether police could access information on it. Only hours later an unknown male attended the applicant's home and set him up with another encrypted phone so that he could continue his criminal activities. 5. On 29 June 2018, during an intercepted conversation between the applicant and his partner, the applicant was told that the mother of the second co-offender had thrown away 44 bags of cocaine that she found in his house. The applicant expressed anger at the loss of the drugs and said: "She owes us cuz, well she can fucking pay for it, $13,000. I'm so pissed off, 13 grand she threw them. He makes good money he can fucking pay for it, if I don't put a fucking bullet in her head. I want 6K, I want 7K".
Bourke SC DCJ found that what relevantly occurred in relation to the offence (sequence 7) on the Form 1 of knowingly taking part in the supply of 7 g of cocaine was that, on 2 July 2018, the applicant and the first co-offender exchanged text messages and calls which demonstrated that the first co-offender was still in possession of the drug-run phone and the applicant was in possession of drugs that he was distributing personally. The applicant asked the first co-offender to send him details of the location of the customers so that he could supply them with cocaine. Later that evening the applicant told the first co-offender that he had made $3,000 profit that day and the previous day and that his worst sale had been for $3,000. Based on the evidence of a drug expert, it was an agreed fact that a $3,000 sale equated to about 7 g of cocaine.
The facts and circumstances giving rise to the offence in count 2, for which the applicant was also sentenced, namely knowingly taking part in the supply of 1,362 g of cannabis between 5 July and 29 July 2018, were found by the learned sentencing judge to be as follows. 1. On 13 May 2018, the applicant was recorded speaking with his partner about one of his drug runners who had recently failed to sell cannabis in sufficient quantities, having reduced her sales to 1 pound or 454 g per week rather than the previous 4 pounds per week. The applicant was recorded as saying: "A pound a week. From four pounds to one, I can't handle it no more. She has to do something and it's not the bud. The bud is good. The bud is all right to smoke it. People smoke it. I can't handle it no more. She can't even do two a week". 1. On 5 July 2018, police arrested the applicant's brother and charged him with ongoing supply offences in relation to cannabis. Subsequently the applicant was captured on surveillance devices trying to re-establish his brother's drug run. 2. On 16 July 2018, the applicant provided his vehicle to members of this re-established syndicate to use in the supply of cannabis. 3. On 19 July 2018, police stopped that vehicle and found about 150 g of cannabis packaged into small supply quantities inside a shopping bag. The two persons in the vehicle at the time were found to be in possession of the run-phone and some cash. The next day, the applicant was captured on surveillance devices talking to one of his associates about this and he asked if it was possible for police to get fingerprints from a shopping bag. Notwithstanding the police intervention, the applicant carried on with the cannabis distribution network. 4. On 26 July 2018, the applicant told an associate he wanted someone to work "10 till 10 daily" so as to keep the run going while his brother was in gaol and so as to raise funds for his defence. The applicant also told the associate that in one month they were going to get a lot of money back. At this time, the applicant had possession of 2 pounds, 908 g, of cannabis which he had brought for $6,600. As a result of this conversation the associate contacted another person who came to the applicant's house and was interviewed for the role of cannabis distributor. 5. On 29 July 2018, the applicant met the associate and they discussed whether they could trust the person who had been interviewed and as a result the associate arranged for another person to attend. This person was interviewed by the applicant and the nature of the drug run was explained as well as the fact that a good wage would be paid and that they needed to be patient and wait for the contacts to build up again.
The circumstances relating to the other offence on the Form 1 (sequence 5) were found to be that on 2 August 2018 police executed a search warrant at the home of the applicant and located nine vials of human growth hormone in a kitchen cabinet as well as an encrypted mobile phone in his bag.
The applicant was arrested on 7 August 2018 when he attended Parramatta police station.

Assessment of objective seriousness

The sentencing judge noted that the objective seriousness of the offence of knowingly take part in the supply of 112 g of cocaine was indicated by the maximum penalty of 15 years, which his Honour said he must treat as a guidepost. He also noted that 112 g was more than 20 times the indictable quantity of 5 g.
His Honour found that the applicant engaged in the syndicate for the purpose of profit and concluded that he derived financial benefit over the period of the offending although he was unable to quantify that benefit with any precision. In this context, the sentencing judge took into account that financial gain is usually a standard motivation for drug trafficking and so he would not treat this as an aggravating factor.
His Honour also found that that the applicant was involved in an organised and reasonably sophisticated trafficking syndicate which was marketing and selling significant quantities of cocaine on a regular basis. It was found to be a business conducted for profit, involving the use of tools of the trade such as encrypted telephones and coded communications. He also said that he took into account that the offending was not isolated but occurred over a period of more than three months.
The sentencing judge found that the applicant was the principal of the syndicate and directed a number of drug runners including the two co-offenders. The applicant's role included the provision to the runners of critical equipment such as the run-phone which contained customer details and the arranging of supplies of bulk quantities of cocaine to be distributed to end-users. His Honour found that the Agreed Facts demonstrated that the applicant was in the position of managing the syndicate, making decisions, paying the couriers and reaping whatever profits he could.
These factors led the sentencing judge to assess the objective seriousness of the applicant's offending as being higher than that of his two co-offenders and "around the mid range".

Subjective matters

His Honour noted that the applicant was, at the time of the sentencing hearing, nearly 27 years of age. His circumstances were accepted as being set out in the report of the psychologist, Mr Borenstein, which was not the subject of challenge by the Crown. The applicant's generally good childhood and happy family were noted. It was found that he was married when he was only 18 and after his wife became pregnant with their first child he left TAFE to work in tree lopping. The relationship with his first wife produced two sons. However, the applicant and his wife separated in 2017 and she left Australia to travel to Turkey but did not return for four and a half months, which caused the applicant to become stressed and depressed that she would not return with the children.
The sentencing judge noted that the applicant expressed some remorse to the psychologist and said to him that he realised what he did was stupid and wrong. The applicant also said that he made stupid decisions when he was smoking cannabis but he accepted the adverse impact that drugs had upon him and on others. His Honour observed, however, that these statements to the psychologist were contradicted to some extent by the comments in the Sentencing Assessment Report. In that report, it was noted that, while the applicant was regretful, he appeared to minimise his role in the offences and stated that his offending was a one-off, motivated by financial gain but he did not receive any financial benefit. These contentions were found to be clearly inconsistent with the Agreed Facts and the sentencing judge did not accept that the applicant acquired no financial benefit, although his Honour was unable to quantify precisely what the benefit was.
Bourke SC DCJ rejected the submissions made on the applicant's behalf that that the primary reason for his offending was: 1. the applicant's state of desperation where his marriage was breaking down and he was becoming dependent on cannabis; and 2. his trying to make money to provide for his partner and children.
In his Honour's view, while the applicant may well have been stressed about his family situation, he entered into the offending solely because of the significant profits that it was capable of generating. It was also found that the applicant's offending would have continued but for police intervention.
Having regard to the matters referred to earlier from the psychologist's report and the Sentencing Assessment Report, the sentencing judge concluded that the applicant's remorse was limited to regret for the impact his actions had on his family and on himself.
As to the applicant's criminal history, his Honour said that the applicant had: "a fairly limited criminal history which largely involves offences of driving whilst suspended or disqualified. Relevantly, however, his record includes a prior offence in October 2013 of supplying a prohibited drug for which he received a period of imprisonment. The most significant factor, however, and one which aggravates his offences, is the fact that during part of the period of his offences he was subject to an Intensive Correction Order which was imposed at Burwood Local Court on 7 June 2018 for an offence of driving while disqualified. That Intensive Correction Order was revoked from 7 August 2018 as a result of the offender's arrest for the offences on which he now faces sentence."
In assessing the applicant's prospects of rehabilitation and likelihood of reoffending, the sentencing judge took into account the applicant's youth, his stated willingness to engage in psychotherapy, his family support, and the fact that he had arranged employment in the construction industry for when he was released. Positive matters in his favour were said to be his statements to the psychologist that he did not intend to keep offending, that he had learnt from the past and that he had returned to his religious faith, as well as his stated determination to become a full-time carer for his children. Taking into account, however, the fact that the offences were committed while the applicant was on conditional liberty and his history of disregarding court orders in relation to driving, his Honour considered that the applicant's prospect of rehabilitation must be treated with caution. It was concluded that, at best, those prospects were to be regarded as "fair".

The sentence

After referring to relevant principles and guideposts in relation to sentencing, his Honour stated his intention to impose an aggregate sentence and indicated the individual sentences that would have been imposed instead of the aggregate sentence, as required by the Sentencing Procedure Act. As to notional accumulation and concurrency, it was said: "Had I imposed individual sentences there would have been a significant degree of concurrency between those offences, given that they were each part of an ongoing business of supplying drugs although some degree of accumulation would have been appropriate."
The aggregate sentence referred to above was then imposed.

First ground of appeal

The first ground of appeal was that the sentencing judge erred by proceeding on the basis that the maximum penalty for the offence of possessing a prescribed restricted substance was two years' imprisonment.
At p 1 of his reasons for sentence, the sentencing judge did state, in relation to sequence 5, the less serious of the offences to be taken into account on the Form 1 when sentencing for count 1, that an offence of possessing a prescribed restricted substance, somatropin, carried a maximum penalty of two years.
The Crown accepted, correctly in my view, that the maximum penalty for possessing the human growth hormone, somatropin, which is a prescribed restricted substance, contrary to s 16(1) of the Poisons and Therapeutic Goods Act 1966 (NSW), is six months imprisonment or 20 penalty units or both. Under s 16(1), the maximum penalty of two years' imprisonment applies only if the prescribed restricted substance was "an anabolic or androgenic steroidal agent".
Thus, the sentencing judge's statement to the effect that an offence of possessing the prescribed restricted substance, somatropin, carried a maximum penalty of two years was erroneous.
The significance of his Honour's statement on p 1 of his reasons is, however, to be considered in light of what occurred at the sentence hearing and his reasons as a whole.
At the sentence hearing, the Crown's written submissions on sentence were provided to the sentencing judge. The table on the first page of those submissions included information in respect of the "Charge" described as "Possess prohibited restricted substance Form 1" that the "Quantity" was "Somatrophin [sic]" and the "Max Penalty" was "2 years and/or 20 penalty units". This was an error.
During the hearing, however, the error in that information was exposed. Mr Steirn SC, who appeared for the applicant on that occasion, said (at Tcpt, 13 November 2019, p 7(42 to 46)): "The only other matter which may have some significance is sequence 5, which is part of the form 1 and I just draw the Court's attention, and I'll be corrected by the Crown, we're of the view that that carries a maximum sentence of six months. The drug in question was a steroid. Is that right? Did you check that?"
Ms Velcic, the solicitor appearing for the Crown, asked for some time to check. Later, at Tcpt, 13 November 2019, p21(31) to p 22(3), the following is recorded: "VELCIC: … Also, just going back to the issue raised by my friend, senior counsel, relating to the maximum penalty of the form 1 offence relating to the steroids, it is conceded that I did make an error in my written submissions and that the maximum penalty is six months' imprisonment and I think there's a fine that also attaches to it. HIS HONOUR: Okay, so that's the somatropin? VELCIC: Yes. HIS HONOUR: What is it, six months? VELCIC: Six months, I think I wrote it down. … HIS HONOUR: And what about the penalty units, does that remain the same? VELCIC: Yes, it's six months' imprisonment and/or 20 penalty units. HIS HONOUR: Okay, thank you for that."
Thus, his Honour was well aware of the correct maximum penalty for this Form 1 offence. He reserved his decision on sentence and the sentences were imposed almost four weeks later on 9 December 2019.
The applicant contended that the sentencing judge, having reserved, relied upon the Crown's written submissions and overlooked the concession as to error made during the oral hearing and as a result acted on a wrong principle in sentencing the applicant.
The Crown contended that when taking into account an offence on a Form 1, a court is not sentencing the offender for that offence and thus the court has not relevantly "acted on" any maximum penalty applicable in respect of that offence. This Court's decision in Campbell v R [2018] NSWCCA 17 was relied upon to establish that proposition.
Further, it was in effect submitted that, in the circumstances of the present case, the misstatement of the maximum penalty for one of the Form 1 offences should not be found to be an error that vitiated the exercise of the sentencing discretion and gave rise to a need to re-sentence.

Consideration

When a judge acts upon wrong principle or allows extraneous or irrelevant matters to guide or affect the determination of a sentence, the sentencing discretion will have miscarried: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] (French CJ, Hayne, Bell and Keane JJ). Nonetheless, in Kentwell it was also recognised, at [42], that not all errors in the sentencing of offenders vitiate the exercise of the sentencing judge's discretion. Consequently, the question may arise whether an error was "material" in that sense.
Where there has been a misstatement of a maximum penalty for an offence in respect of which an offender is being sentenced, Beech-Jones J (with whom Ward JA and Adams J agreed) observed in Andreata v R [2015] NSWCCA 239 at [28]: "Given the significance of the maximum penalty to the sentencing process (Markarian v R [2005] HCA 25; 228 CLR 357 at [31]) it is difficult to conceive of a circumstance in which the misstatement of the maximum sentence would not result in House v R error except perhaps, for example, if the balance of the reasons demonstrated that the sentencing judge in fact acted on the basis of the correct maximum penalty."
In the present case, the error was in the statement of the maximum penalty for an offence to be taken into account on a Form 1 not for the principal offence. The question is whether the sentencing judge's statement that the maximum penalty for the sequence 5 offence was two years, when the correct maximum penalty was six months, amounts to a material error so that the sentencing discretion miscarried.
A similar question was considered in Zaky v R (Cth) [2017] NSWCCA 141. In that case, the error was in the statement of the maximum penalty for an offence for which the offender was being sentenced. Hoeben CJ at CL (Garling and Bellew JJ agreeing) observed, at [54], that whether a misstatement of a maximum penalty amounts to material error is determined by the facts of each case. The Chief Judge then referred to the comments of R A Hulme J (Grove and Howie JJ agreeing) in Stephen Leslie Newton v R [2009] NSWCCA 128 (Newton): "21 Error in having regard to an incorrect maximum penalty for an offence can, but does not necessarily, lead to the result that this Court will allow an appeal and re-sentence: see the discussion of relevant authorities in the judgment of James J in Smith v R [2007] NSWCCA 138 at [27] - [37]. 22 In this case, however, I am satisfied that the statement I have quoted as to the wrong maximum penalty had no material bearing upon the sentence that was imposed. It may be characterised as an inadvertent misstatement, or a slip, at worst."
The matters which led R A Hulme J to that conclusion (as summarised by Hoeben CJ at CL in Zaky at [56]) were: "1. The sentencing judge had earlier sentenced a co-offender and in doing so correctly referred to the applicable maximum penalty. 2. On the day the applicant was sentenced, the Crown correctly informed the sentencing judge of the maximum penalty. 3. The reference to the maximum penalty appeared at the beginning of the sentence remarks and thereafter there was no further reference to it."
In addition, in concluding that the misstatement of the maximum penalty in Zaky had not led to material error in that case, Hoeben CJ at CL took into account, inter alia, at [59], that: the individual sentences imposed were more consistent with the correct maximum penalty; and, what was said during oral submissions clearly indicated that the sentencing judge was fully apprised of the correct maximum penalty.
In my view, substantially the same approach is appropriate when considering an error in the maximum penalty for a Form 1 offence. Adopting that approach and having regard to all the circumstances of the present case including, without attempting to be exhaustive: 1. the clear identification, during the sentence proceedings in the passages quoted above, of the error in the Crown's written submissions and of the correct maximum penalty for the sequence 5 offence; 2. the sentencing judge's express acceptance of the correct maximum penalty for the sequence 5 offence during oral submissions; 3. the fact that the erroneous maximum penalty for the sequence 5 offence was stated once in the introductory paragraph of the reasons for sentence and was not referred to thereafter; 4. the fact that the applicant was not being sentenced for the sequence 5 offence but it was only being taken into account, along with the sequence 7 offence, in the sentence for count 1; 5. the maximum penalty for the offence in count 1 of 15 years' imprisonment; 6. the maximum penalty of 10 years' imprisonment for the offence in count 2; 7. the maximum penalty for the sequence 7 offence on the Form 1, of 15 years' imprisonment; 8. the unchallenged finding that the objective seriousness of the offending, including that involved in count 1, was "around the mid range"; 9. the applicant's guilty pleas; 10. the aggregate sentence of 3 years and 6 months, for count 1 (taking into account sequences 5 and 7) and count 2, with a non-parole period of 2 years 7 months; 11. the indicative sentences (after the 25% discount) for count 1 (taking into account sequences 5 and 7) of 3 years 3 months and for count 2 of 2 years 6 months; 12. the limited degree of notional accumulation between the indicative sentences for counts 1 and 2 reflected in the aggregate sentence of 3 years 6 months; and 13. the applicant's subjective circumstances, I am satisfied that the erroneous maximum penalty of 2 years had no material bearing upon either the indicative sentence for count 1 (taking into account the sequence 5 and 7 offences) or the aggregate sentence that was imposed.
As to the Crown's submission that this ground should be rejected because it cannot be said that a court "acts on" a maximum penalty for an offence when taking the offence into account on a Form 1 in sentencing for the principal offence, this requires consideration of this Court's decision in Campbell v R [2018] NSWCCA 17.
In Campbell v R, it was held at [36] and [37]: "36. As I have said already, the same error by misstatement [as to the maximum penalty] was made in respect of the s 154A(1)(a) offending to be taken into account on the Form 1. Having regard to the nature of the procedure prescribed by s 33 of the Sentencing Act I am not persuaded that this constitutes an error of principle acted on by the sentencing judge. It is axiomatic that the maximum penalty is relevant to punishment and there may be no punishment without conviction: Attorney General's Application Under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1) (2002) 56 NSWLR 146; [2002] NSWCCA 518 ("Attorney General's Application") at [23] and the cases there referred to. It is impermissible under the statute to impose punishment for the Form 1 offences: Attorney General's Application at [29]. That a court sentencing for a principal offence takes the Form 1 matters into account with a view to increasing the penalty that would otherwise be appropriate does not mean that the sentence is being imposed for the Form 1 offences: Attorney General's Application [42]-[45]. 37. I acknowledge that the maximum penalty for a Form 1 offence may be relevant to the question whether the s 33 procedure should be adopted for that offence. But that is a different question. Once the s 33 procedure is embarked upon notwithstanding a likely unquantified and unquantifiable increase in the sentence for the principal offence, it cannot be said legally that the sentencing judge has acted on the maximum for the Form 1 offence whether it has been misstated or not."
Thus, it can be accepted that a sentencing judge does not "act on" the maximum penalty for an offence when taking that offence into account on a Form 1. Campbell did not, however, involve consideration of whether the sentencing discretion might miscarry on other bases when an incorrect maximum penalty is identified for an offence to be taken into account on a Form 1.
As touched upon above, the bases for intervention in a case such as the present was described by the High Court in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] (French CJ, Hayne, Bell and Keane JJ) as follows: "When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit." (footnotes omitted)
Thus, if the sentencing judge allowed extraneous or irrelevant matters to guide or affect the determination of the sentence for the principal offence, then a relevant type of House v The King error would be established.
In order to understand what matters guide or affect the determination of a sentence for a principal offence when one or more offences on a Form 1 are taken into account, it is necessary to consider s 33 of the Sentencing Procedure Act and how it is to be given effect to. That section provides: "33 Outstanding charges may be taken into account (1) When dealing with the offender for the principal offence, the court is to ask the offender whether the offender wants the court to take any further offences into account in dealing with the offender for the principal offence. (2) The court may take a further offence into account in dealing with the offender for the principal offence - (a) if the offender - (i) admits guilt to the further offence, and (ii) indicates that the offender wants the court to take the further offence into account in dealing with the offender for the principal offence, and (b) if, in all of the circumstances, the court considers it appropriate to do so. (3) If the court takes a further offence into account, the penalty imposed on the offender for the principal offence must not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account. (4) A court may not take a further offence into account - (a) if the offence is of a kind for which the court has no jurisdiction to impose a penalty, or (b) if the offence is an indictable offence that is punishable with imprisonment for life. (5) For the purposes of subsection (4) (a), a court is taken to have jurisdiction to impose a penalty for an offence even if that jurisdiction may only be exercised with the consent of the offender. (6) Despite subsection (4) (a), the Supreme Court, the Court of Criminal Appeal and the District Court may take a summary offence into account."
When sentencing an offender for one offence but taking into account another offence on a Form 1 under s 33, the court is concerned and concerned only with imposing a sentence for "the principal offence": Attorney General's Application Under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1) (2002) 56 NSWLR 146; [2002] NSWCCA 518 (the Attorney General's Application) at [35] (Spigelman CJ with Wood CJ at CL, Grove, Sully and James JJ agreeing).
In such a case, the Attorney General's Application at [42] establishes that: 1. the court takes into account the offence on the Form 1, for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the principal offence; 2. the court does so by giving greater weight, as appropriate, when sentencing for the principal offence to at least two elements which are always material in the sentencing process: 1. the need for personal deterrence, which the commission of the offence or offences on a Form 1 will frequently indicate ought to be given greater weight by reason of the course of conduct in which the offender has engaged; and 2. the community's entitlement to extract retribution for a serious principal offence when there are one or more offences on a Form 1 for which no punishment has in fact been imposed; and 1. there are matters which limit the extent to which this may be done, including: 1. the express provision in s 33(3) that the penalty for the principal offence must not exceed the maximum penalty for that offence; and 2. the principle of totality.
The sentencing considerations or elements upon which the offence or offences on a Form 1 may impinge are not necessarily limited to those identified in the preceding paragraph: the Attorney General's Application at [43].
The manner and degree to which offences on a Form 1 can impinge upon elements relevant to sentencing for the principal offence will depend on a range of other factors pertinent to those elements and the weight to be given to them in the overall sentencing task: the Attorney General's Application at [44].
On the principles in the Attorney General's Application set out above, the more serious the offence on a Form 1, the greater the weight which should be given, other things being equal, to the need for personal deterrence in relation to the principal offence. Similarly, when the offence or offences on a Form 1 for which no punishment has in fact been imposed are more rather than less serious, greater will be the weight to be given to the community's entitlement to retribution for the principal offence.
The maximum penalty is a statutory guide to the seriousness of an offence: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [31].
Consequently, the maximum penalty for an offence on a Form 1 may guide or affect the extent to which the sentencing court should give greater weight, than would be the case if there were no Form 1 offence, to: 1. the need for personal deterrence; and 2. the community's entitlement to exact retribution for a serious principal offence.
An erroneous statement of the maximum penalty for a Form 1 offence is an extraneous or irrelevant matter in the exercise of the sentencing discretion. Accordingly, if the sentencing judge actually relied on an erroneous maximum penalty for a Form 1 offence and this had a material bearing on the sentence imposed for the principal offence, then an extraneous or irrelevant matter may have been allowed to guide or affect the determination of the sentence for the principal offence. If this is so, the sentencing discretion may have miscarried, even if the sentencing judge has not "acted on" the incorrect maximum penalty for the reasons given in Campbell.
Thus, I do not accept that Campbell necessarily requires the Court to reject the applicant's first ground of appeal.
For these reasons, I am not satisfied that the first ground of appeal would be made out, if leave were granted.

Second ground of appeal

The applicant's second ground of appeal was that "[w]hen fixing a commencement date for the aggregate sentence His Honour erred by failing to consider the applicant's earlier period of custody".
The applicant's submissions noted that that he was serving an Intensive Correction Order (ICO) at the time of his arrest on 7 August 2018 for the relevant offences and that he was ordered to serve the balance of the ICO from 7 August 2018 until 6 January 2019 in custody solely as a consequence of the further offences.
During the hearing on sentence on 13 November 2019, a submission was made to the effect that the applicant had been in custody for about 17 months, of which about 10 months was solely attributable to the offences for which he was to be sentenced. Consequently, it was contended that the sentence to be imposed should be made partly concurrent with the time spent in custody because of the revocation of the ICO.
Notwithstanding that submission, Bourke SC DCJ commenced the aggregate sentence from 6 January 2019, the day on which the balance of the ICO expired. The applicant contended that his Honour "gave no reasons as to why the further sentence was to be served entirely cumulatively upon the imprisonment imposed for breach of the ICO" and failed to consider the earlier period in custody.
In addition and even though it was not expressly identified as a ground of appeal, it was submitted that, because the sentencing judge had regarded the fact that that the offences were committed during the currency of the ICO as a matter of aggravation, his Honour's approach involved double counting.
The applicant referred to the decision in Hutchen v R [2015] NSWCCA 101 concerning revocation of parole as a result of further offending and submitted: "It was not a case of the offending occurring a very short time after the applicant's release to parole on 14 February 2016, as it occurred in the period commencing 15 February 2018, just over two years later. The balance of the ICO period, being five months, were similar to the period under consideration in Callaghan [a case referred to in Hutchen]. His Honour provided no explanation as to why he considers appropriate to entirely accumulate the sentence."
The Crown's submissions noted that the ICO was imposed for an offence of driving whilst disqualified, which was the applicant's sixth conviction for that offence. It was contended that it was plain from the fact that the sentencing judge commenced to the aggregate sentence on 6 January 2019 that he was fully cognisant of the period of custody served by the applicant after the revocation of the ICO.
The Crown also submitted that it fell to the applicant to demonstrate that it was not open to the sentencing judge to refuse to backdate the commencement of the aggregate sentence so that it was wholly or partially concurrent with the period of custody referable to the revocation of the ICO, and that the applicant had failed to do this. The Crown relied upon the decision of this Court in Callaghan v R [2006] NSWCCA 58 at [21] to [24]; (2006) 160 A Crim R 145 and submitted that, after the imposition of the ICO, the applicant not only continued to engage in the supply of cocaine but also took part in the supply of cannabis and thus it was well open to the sentencing judge to proceed on the hypothesis that the five-month period spent in custody following the revocation of the ICO was referable to the earlier offence not the subsequent offences.

Consideration

On 7 June 2018, the applicant was sentenced in the Local Court at Burwood to an ICO for seven months commencing on 7 June 2018 and expiring on 6 January 2019 for driving a motor vehicle while disqualified, being a second or subsequent offence. This order was confirmed by the District Court at Parramatta on 29 June 2018.
The offending the subject of count 1, knowingly taking part in supply of 112 g of cocaine, occurred between 8 April 2018 and 29 June 2018, on the facts as found by the sentencing judge which have been referred to above. The count 2 offence of knowingly taking part in the supply of 1,362 g of cannabis was committed between 5 July and 29 July 2018, as found by his Honour, but there had been an earlier conversation, concerning the applicant's involvement in the supply of cannabis, which took place on 13 May 2018.
Thus, it can be seen that the offences for which the applicant was sentenced by Berman SC DCJ were committed before and during the currency of the ICO.
The applicant was arrested on 7 August 2018.
On 29 August 2018, the Parole Authority revoked the ICO and ordered that the applicant serve the 5 month balance of the term of the ICO from 7 August 2018 to 6 January 2019 in custody.
The sentencing judge was clearly aware of, and considered, the ICO and the fact that the applicant was required to serve the balance of the ICO in custody until 6 January 2019. This is demonstrated by his Honour's statement that a most significant aggravating factor was that part of the offending occurred while the applicant was subject to an ICO, and by his determination that the aggregate sentence should commence on the date the ICO expired.
Thus, I would not accept that "[w]hen fixing a commencement date for the aggregate sentence His Honour erred by failing to consider the applicant's earlier period of custody". This would be sufficient to dispose of the second ground of appeal as formulated for the purposes of the application for leave to appeal. Nonetheless, the following additional observations can be made in light of the applicant's submissions as developed in writing and orally.
His Honour's awareness of the issue of the commencement date of the aggregate sentence and its interaction with the balance of the ICO was confirmed by what was said during oral submissions (at Tcpt, 13 November 2019, p 22 (38) to p 23 (17)): "STEIRN: … The only other matter I'm reminded of is that on this occasion the offender has done some 16 months in custody, almost 17 months, and that's the longest period he spent in custody in his life, because if one goes back to the earlier offences in 2013 and 2014, I think the longest period there was 14 months. HIS HONOUR: Actually, there is a matter, Ms Crown, I will ask you about that Mr Steirn referred to and that is the question of what level of backdating any sentence should be given. You would have heard his submission that Mr Rizk has been in custody for about 17 months but solely on these matters for just over 10 months and he has submitted that he should be given some credit, if you like, for some of the period during which he's been in custody by reason of the revocation of his parole [sic]. VELCIC: having regard to totality, your honour, I don't think it should be wholly concurrent. There is certainly the option of backdating the sentenced to 6 January; however, if your honour wanted to have the sentences run partially concurrent I wouldn't wish to be heard. HIS HONOUR: Okay. STEIRN: With respect, your Honour, that's basically what we submitted. We accept that, your Honour. HIS HONOUR: Yes, I think you referred to a period of something like maybe 13 months or something of that sort. STEIRN: It's really a matter for your Honour. HIS HONOUR: Yes."
In this passage as well as the applicant's submissions at Tcpt, 13 November 2019, p 8 (34) to (43), the parties correctly submitted or accepted, in effect, that the commencement date was a matter within the discretion of the sentencing judge and that his determination in that regard should be guided by, inter alia, application of the totality principle in relation to the balance of the ICO and the sentence for the drug related offending in 2018.
The totality principle requires the sentencing judge to consider the effect of the sentences and to determine whether the effective overall sentence for the offending involved is "just and appropriate" or "the appropriate sentence for all the offences": Mill v The Queen (1988) 166 CLR 59 (Mill) at 62 to 63; [1988] HCA 70. Further, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate, in order to reflect the fact that a number of sentences are being imposed: Mill at 63.
Thus, it was not necessary for the sentencing judge in the present case to make the aggregate sentence in the present case wholly or partially concurrent with the balance of the ICO in order to give effect to the totality principle. It was open to the sentencing judge to lower the aggregate sentence in order to give effect to the principle of totality.
In Hutchen v R [2015] NSWCCA 101 a similar situation was considered, although in that case it was parole rather than an ICO that had been revoked as a result of the offending for which the offender was being sentenced. Hoeben CJ at CL (Adams and McCallum JJ) held at [36] to [39]: "36. It is incorrect to characterise the time spent in custody, as a result of the revocation of parole, as "any time for which the offender has been held in custody in relation to the offence" as referred to in s47 of the Crimes (Sentencing Procedure) Act 1999. Section 47(3) is directed to incarceration directly relating to the offence in respect of which the offender is being sentenced. The period in custody, as a result of the revocation of parole, was directly referable to the previous offending not this offending. 37. A sentencing judge when considering a sentence of imprisonment is to take into account any time for which the offender was in custody in relation to the offence, i.e. the offence for which the offender is being sentenced (s24(a) of the Crimes (Sentencing Procedure) Act. If the sentencing judge orders that a sentence of imprisonment commence on a date before the date of sentence, the court is to take into account time held in custody for the offence (s47(2)). 38. There is no doubt, as the applicant submitted, that his Honour had a discretion to backdate the commencement date of this sentence so that it would be concurrent with or partly concurrent with the balance of parole (R v Kitchener [2003] NSWCCA 134; Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145). This does not mean that his Honour was obliged to exercise his discretion in that way. When parole is revoked as a consequence of the commission of a subsequent offence, whether the sentence for the subsequent offence should be backdated in that way is a matter for the sentencing judge. 39. The relevant principles were set out by Simpson J in Callaghan. There Simpson J (with whom James and Hall JJ agreed) said: '21 That the matter is discretionary appears to be the prevailing view of members of this Court. Even in Andrews and Kelly, the court accepted that a judge might backdate a sentence where parole had been revoked by reason of the offence for which the offender is then to be sentenced. 22 I maintain the view that a discretion exists. There is no clear rule which will govern all cases. The circumstances that bring an offender before a court for sentence after parole has been revoked are far too varied to permit a single absolute rule. 23 It would, in my opinion, in some cases be unfair not to backdate to some point (not necessarily the date of revocation of parole) before the expiration of the earlier parole period. It is always open to an offender to seek and be granted parole even after a revocation; to sentence in such a way as to commence the subsequent sentence only on the date of expiration of the whole of the previously imposed head sentence is to assume that, absent the subsequent offences, the offender would not have been granted a second chance at parole. 24 However, I am also of the view that, particularly where, as here, the re-offending has occurred within a very short time of release on parole, and the balance of term to which the offender is exposed is quite short, it may be appropriate to proceed on the hypothesis that the whole of the period spent in custody up to the expiration of the parole period is, as Hunt CJ at CL said, referable to the earlier offences and not to the subsequent offences.'"
Similarly in this case, the period in custody, as a result of the revocation of the ICO, was directly referable to the previous offending not the offending for which the applicant was sentenced by Bourke SC DCJ. And, when an ICO is revoked as a consequence of subsequent offending, whether the sentence for the subsequent offence should be backdated in the manner submitted by the applicant is a matter within the discretion of the sentencing judge.
The principle referred to by Simpson J in Callaghan v R [2006] NSWCCA 58 at [24] is, in my view, particularly apt in the present case. Consequently, where the offending for which the applicant was being sentenced occurred both before and within a very short time after the imposition of the ICO, and the balance of term to which the offender was exposed was quite short, it was appropriate to proceed on the hypothesis that the whole of the period spent in custody, up to the expiration of the balance of the ICO period, was more properly referable to the earlier offending and not to the subsequent offending. This is consistent with the comments of Hoeben CJ at CL in Ith v R [2013] NSWCCA 280 (at [52]) that the commission of a serious offence shortly after the commencement of parole "shows considerable contempt for the justice system" and that "to have further backdated the commencement date of the sentence would have offended the principle of totality and would not have provided adequate punishment and denunciation of the present offence". On this basis and in the circumstances of the present case, the commission of serious offences before and immediately after the imposition and confirmation of an ICO showed considerable contempt for the justice system. To have made the aggregate sentence in the present case partially concurrent with the balance of the ICO could properly be seen as not providing adequate punishment and denunciation of the offending for which he was sentenced by Bourke SC DCJ. Bearing in mind these principles and considerations, it appears to me that, in the present case, there has been no illegitimate double counting in relation to the time spent in custody as a result of the revocation of the ICO.
The decision to commence the aggregate sentence in the present case on 6 January 2019 was clearly open to the sentencing judge in the exercise of his discretion. The applicant has not established that the decision in this regard was affected by any specific House v The King type of error. Further, the aggregate sentences and the indicative sentences together with the commencing date of 6 January 2019 do not, in the circumstances of the present case, constitute a result that is so unreasonable or unjust that it would be inferred that there has been some failure properly to exercise the sentencing discretion.
For these additional reasons, I would not uphold the second ground of appeal, if leave were granted.
Although not expressly raised as a proposed ground of appeal, the applicant also submitted that the sentencing judge had failed to explain his decision to commence the aggregate sentence on 6 January 2019 and that it might have been an oversight. Having regard to what transpired during the sentence hearing and on a fair and not overly critical reading of the reasons for sentence, it does not appear to me that it can be inferred that the commencement date was an oversight. The commencement date was obviously chosen because it was the date on which the applicant was entitled to be released from custody as a result of the revocation of the ICO. In all the circumstances, there was no failure to give adequate reasons for choosing the commencement date of the aggregate sentence.
Finally, it can be observed that the applicant's submission that this "was not a case of the offending occurring a very short time after the applicant's release to parole on 14 February 2016, as it occurred in the period commencing 15 February 2018, just over two years later" was misconceived. The applicant was not required to serve the balance of the sentence of 1 year 10 months' imprisonment, which expired on 14 October 2016, as a result of the offences for which he was sentenced by Bourke SC DCJ and which were committed some two years later in 2018. The applicant's earlier release to parole in February 2016, which parole expired on 14 October 2016, is irrelevant to his second ground of appeal.
For all of these reasons, I would reject the second ground of appeal, if leave to appeal were granted.

Third ground of appeal

The third ground of appeal was simply that the sentencing judge "erred in failing to find special circumstances". The applicant's submissions went beyond the ground as formulated.
The applicant submitted that, at the sentence hearing, a submission was made that a finding of special circumstances should be made on the basis of the applicant's comparative youth and the need for close supervision and ongoing rehabilitation on release. It was noted that the Crown did not wish to be heard in relation to special circumstances. Nonetheless, no finding of special circumstances was made by the sentencing judge and no reasons for not doing so were provided. On appeal, it was also contended that the fact that the sentence imposed by Bourke SC DCJ was entirely cumulative upon the five-month period of imprisonment as a result of the revocation of the ICO was a further basis for a finding of special circumstances.
When the period in continuous custody from 7 August 2018 until 5 August 2021 is considered, it was submitted that the ratio of the effective overall non-parole period to the total term was 76.5%.
Finally, it was submitted that a failure to comply with the obligation to give reasons should be regarded as a material error unless the court was satisfied that it was not a "real possibility that it was not properly considered", relying on authorities including Lee v R [2016] NSWCCA 146 at [37] and [41].
The Crown submitted that the ratio of the non-parole period to the actual aggregate sentence imposed by Bourke SC DCJ was 73.8% and that the ratio of the overall effective non-parole period to the overall effective head sentence, taking into account the five months spent in custody as a result of the revocation of the ICO, was 76.5%.
It was noted that when dealing with one of the applicant's co-offenders, in the same reasons for sentence, his Honour said: "In relation to [one of the co-offenders], again I intend to impose a period of full time imprisonment. I am satisfied that no other penalty is appropriate. In his [the co-offender's] case however I make a finding of special circumstances, based on this being the offender's first time in custody and I will therefore vary the usual ratio between head sentence and non-parole period. In making that finding a special circumstances I've also take into account the evidence concerning his psychological condition."
On this basis, it was submitted that the sentencing judge plainly distinguished between the applicant's situation, in respect of whom he was not prepared to find special circumstances, and that of the co-offender.
As to the submission concerning failure to give reasons, the Crown submitted that there was no statutory requirement to give reasons and his refusal to find special circumstances in the case of the applicant was implicit in the passage from the reasons for sentence concerning the co-offender quoted above.
In addition it was submitted that, while there was no statutory requirement to provide reasons for imposing a sentence in which the ratio was greater than 75%, this Court had noted the advisability of providing reasons for imposing a sentence with a greater ratio so that it might be clear that that was intended and not the result of a slip, mathematical oversight or some similar matter.
The Crown contended that, in all the circumstances, the applicant had not demonstrated that it was not open to the sentencing judge to decline to find special circumstances and no error had been shown.

Consideration

The requirement to find special circumstances in certain situations arises out of s 44 of the Sentencing Procedure Act. That section relevantly provides: "44 Court to set non-parole period (1) Unless imposing an aggregate sentence of imprisonment, when sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence). (2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision). (2A) Without affecting the requirement to set a non-parole period for a sentence, a court imposing an aggregate sentence of imprisonment in respect of 2 or more offences on an offender may set one non-parole period for all the offences to which the sentence relates after setting the term of the sentence. (2B) The term of the sentence that will remain to be served after the non-parole period set for the aggregate sentence of imprisonment is served must not exceed one-third of the non-parole period, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision). (2C) The court need not indicate the non-parole period that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence unless it is required to do so by section 54B. (3) The failure of a court to comply with subsection (2), (2B) or (2C) does not invalidate the sentence. …"
A finding of special circumstances for the purposes of s 44(2) and (2B) is a discretionary finding of fact, and it is necessary for an applicant to establish error on the part of the judge in accordance with the principles in House v The King if the applicant is to be successful on the ground that the sentencing judge erred in failing to find special circumstances: Calhoun (a pseudonym) v R [2018] NSWCCA 150 (Calhoun) at [30] (Price J, Bathurst CJ and Basten JA agreeing).
Section 44(2) or (2B) both require reasons to be given if a finding of special circumstances is made. Those provisions do not oblige a sentencing judge to give reasons for not making a finding of special circumstances or for setting a non-parole period that is more than 75% of the total sentence: GP v R [2017] NSWCCA 200 (GP) at [15]. It has been held, however, to be advisable for the judge to explain why a ratio in excess of 75% was selected to avoid an inference that the matter was not considered, especially in cases where it could be inferred that an oversight might have occurred: Calhoun at [30] and see GP at [15].
Although not required by the express terms of s 44, pre-existing sentences being served by the offender at the time of sentencing for the offences in question may also be taken into account when determining the non-parole period in respect of those offences and whether special circumstances should be found. As Hamill J pointed out in GP at [16]: "It was held at an early stage that accumulation of sentences may amount to special circumstances. In R v Simpson (1992) 61 A Crim R 58 Hunt CJ at CL said at 60-61 that 'where the minimum term is accumulated upon an existing minimum term, that fact may of itself constitute special circumstances justifying a departure from the one third rule'. His Honour went on to say at 61: 'I am satisfied that, by a logical extension of that principle, special circumstances may also exist in the appropriate case where a court is imposing a series of cumulative sentences, so that it can ensure a proper proportion between the total minimum term and ineffective additional term - even if it is only to produce an effective additional term equal to, or roughly equivalent to, one third of the total minimum term which the prisoner is to serve.'"
The ultimate constraint on a finding of special circumstances is that the non-parole period must appropriately reflect the criminality involved in the offence: Calhoun at [30].
As formulated, the third ground of appeal merely contended that the sentencing judge had erred in failing to find special circumstances without identifying any House v The King type of error. As I understood the applicant's oral and written submissions under this proposed ground of appeal, however, they involved two additional aspects. First, the sentencing judge should have made a finding of special circumstances and consequently the ratio of the overall effective non-parole period to the overall effective head sentence, taking into account the five months spent in custody as a result of the revocation of the ICO, should not have been 76.5% but should have been less than 75%. Secondly, as a result of his Honour failing to give reasons as to why he imposed an effective non-parole period in excess of 75%, it should be concluded that his Honour fell into House v The King error by so doing.

A finding of special circumstances should have been made

As to the contention that a finding of special circumstances should have been made, such a finding is discretionary. It was clearly open to the sentencing judge not to make a finding of special circumstances in the applicant's case on all the material before the court. Indeed, I did not understand the applicant to submit that such a finding was not open. Further, the applicant did not identify any specific House v The King error in that specific regard but simply made the criticism that his Honour had failed to give any reasons for not so finding.
Section 44(2) and (2B) only require reasons to be given if a finding of special circumstances is made. No such finding was made in the applicant's case. Moreover, the present is not a case where there is reason to believe that the absence of express reasons for refusing to make a finding of special circumstances in respect of the applicant indicated that the sentencing judge had not turned his mind to the issue.
A fair reading of the reasons for sentence as a whole, including the passages relating to the applicant's co-offenders, demonstrates that the learned sentencing judge was well aware of the requirements of s 44 and the circumstances which might warrant a finding of special circumstances. The passage relied upon by the Crown, which has been quoted above, provides an illustration of this. Bourke SC DCJ made a finding of special circumstances in relation to one of the co-offenders immediately after imposing the aggregate sentence on the applicant. The words used indicate that his Honour had turned his mind to whether such a finding was appropriate in the applicant's case and had decided that it was not but he had reached a different conclusion in relation to the co-offender. As required by s 44(2), his Honour recorded his reasons for making the finding of special circumstances in relation to that co-offender. It can be observed that it was not necessary to consider making a finding of special circumstances in relation to the other co-offender as he was dealt with by way of an ICO.
For these reasons, I do not accept that the sentencing judge erred by failing to give reasons for not finding that there were special circumstances in the applicant's case.

The absence of reasons for exceeding the 75% ratio indicates error

The second aspect of the third ground was to the effect that the absence of reasons for imposing an effective non-parole period in excess of 75% supported the conclusion that the sentencing judge must have made some relevant error in the exercise of his discretion.
In Calhoun at [30], it was held that it may be advisable to explain why a non-parole period leading to a ratio in excess of 75% was selected to avoid an inference that the matter was not considered, especially in cases where it could be inferred that an oversight might have occurred. In GP, Hamill J said at [15] that "reasons may be required if the non-parole period exceeds 75% of the total sentence" (underlining added). In the present case, however, the ratio of the non-parole period to the aggregate sentence did not exceed the statutory ratio. It was only when the effect of the period spent in custody as a result of revocation of the ICO was taken into account that the ratio of the total time in custody to the total "effective" sentence exceeded 75%, being 76.5%.
The considerations which may guide a court in a situation such as the present have been recently considered in Lonsdale v R [2020] NSWCCA 267 by Hoeben CJ at CL at [30] to [33] and by Beech-Jones and N Adams JJ at [65] - [66]. Some of the relevant considerations derived from these paragraphs of Lonsdale and the authorities there cited may be summarised as follows: 1. section 44(2) and (2B) of the Sentencing Procedure Act do not apply directly to an analysis of the total effective sentence resulting from the operation of two or more sentences; but 2. where the ratio of the effective non-parole period to the total effective sentence exceeds 75% by a significant amount and an absence of explanation supports an inference that the ratio was not actually considered or the result was not actually intended by the sentencing judge, reasons for such a ratio should generally be given.
When the non-parole period and the aggregate sentence and the time served as a result of the revocation of the ICO in the present case are considered, it can be seen that the application of s 44(2B) was borne in mind by the sentencing judge and that there is no substantial basis to infer that the appropriate ratio was not considered or that the result was not as intended. Further and in any event, the statutory ratio was only exceeded to a modest degree and the considerations referred to above were not relevantly engaged.
The aggregate sentence imposed on the applicant was imprisonment for 3 years and 6 months, or 42 months. To comply strictly with s 44(2B), the non-parole period should not have been less than 31.5 months. Instead, however, of imposing a sentence including half a month, which might be 14, 15 or 15.5 days depending on the month in question, Bourke SC DCJ rounded that figure down to 31 months, or 2 years and 7 months. Thus, in my view, the actual non-parole period chosen indicates that the sentencing judge was aware of the requirements of s 44(2B), considered them and gave effect to them in a sensible and practical way. Doing so, however, yielded a ratio of the non-parole period to the actual aggregate sentence of 73.8%. While this is obviously less than the statutory ratio of 75%, it is only less because of the rounding down by 14 to 15½ days. To the extent that s 44(2) or (2B) require a finding of special circumstances to be made and reasons to be given in such a case of rounding, it appears to me that the finding and reasons are implicit in the rounded down non-parole period actually fixed. I would not conclude that any relevant error in the exercise of the sentencing discretion occurred as a result of this rounding down of the non-parole period.
Similarly, the overall effective non-parole period to the overall effective head sentence, taking into account the five months spent in custody as a result of the revocation of the ICO, led to a ratio in excess of 75%, but only by 1.5%. The ratio of the overall period in custody, 36 months, to the overall sentence, 47 months, is 76.5%. The ratio of 75% would have been met, if the effective non-parole period had been three quarters of a month less. In my view, this difference should properly be seen as exceeding the ratio by a "very modest amount" and the considerations identified in Lonsdale referred to above do not support the conclusion that any relevant error has been established. Put another way, it would not be inferred in this case because the sentencing judge did not explain why the ratio of the effective non-parole period to the total effective sentence exceeded 75% that the matter was not considered, or the result was not intended, by the sentencing judge in this case. It would not be concluded that the non-parole period, when compared to the aggregate sentence as well as the time spent in custody as a result of the revocation of the ICO, had been set by oversight.
For these reasons, it has not been established in this case that it was a real possibility that the question of the appropriate non-parole period was not properly considered by the sentencing judge.
Accordingly, I would not conclude that the sentencing judge's discretion miscarried on any of the bases relied upon by the applicant under the third proposed ground of appeal.

Conclusion on leave to appeal and the appeal and orders

Since the grounds of appeal, as elaborated upon in submissions, were arguable, I would grant leave to appeal but would dismiss the appeal, for all of the reasons given above.
Accordingly, the orders I propose are: 1. Grant the applicant leave to appeal. 2. The appeal is dismissed.

Endnotes

(2014) 252 CLR 601; [2014] HCA 37.
House v The King (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ.
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34.
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54.
(2016) 93 NSWLR 205; [2016] NSWCA 255 (Bathurst CJ; Beazley P, R A Hulme, Schmidt and Wilson JJ agreeing).
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [104]; Stead at 145.
Judgment, p 12.
[2006] NSWCCA 58; 160 A Crim R 145 at [23].
Crimes (Administration of Sentences) Act 1999 (NSW), s 164(2)(e).
Crimes (Administration of Sentences) Act, s 165(1).
Crimes (Administration of Sentences) Act, s 165(2)(a).
Lonsdale v R [2020] NSWCCA 267 at [65] (Beech-Jones and N Adams JJ).
Lonsdale at [66].
Simpson (1992) 61 A Crim R 58, at 60-61 (Hunt CJ at CL, Grove and Sharpe JJ agreeing), dealing with s 5(2) of the Sentencing Act 1989 (NSW), a forerunner of the Sentencing Procedure Act, s 44. 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: 06 November 2020

Sentencing Act 1989(NSW)

Rizk v R

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