(b) Failing to provide reasons in sufficient detail to explain the basis upon which the sentence imposed for the federal offence was wholly accumulated upon the sentence imposed for the State offence.
- The sentence was structured by imposing a 12-month fixed term for the (State) supply offence and wholly accumulating the 2½ year sentence for the (Commonwealth) attempting to import offence.
- The applicant submits that his Honour fell into error by failing to give effect to his stated intention in relation to the accumulation. That intention was, in terms, to "notionally" accumulate the sentence whereas the sentence was, in fact, wholly accumulated. In the alternative, the applicant submits that his Honour failed adequately to expose his reasoning for wholly accumulating the sentences. This ground of appeal, which rests on the ambiguity surrounding his Honour's use of the word "notional" must be upheld.
- The key paragraph of the sentencing judgment in assessing the competing argument under this ground of appeal is at [50]:
"The aggregate sentence I impose is intended to reflect the principle of totality. There should, as counsel for the offender correctly acknowledged, be notional accumulation, given that there were separate and distinct offences. Because of the structure of the sentence that I am imposing, reflecting sentences for both state and federal offences, I have not set a non-parole period for the state offence (s 45 of the CSP Act)."
- The language of "aggregate" sentencing and "notional accumulation" is more apposite in a case where a sentencing judge is imposing an aggregate sentence pursuant to s 53A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW). There are many authorities which have referred to "notional accumulation" in this context. [7] Even in such cases there are difficulties in the use of the expression because:
"This Court is not in a position to analyse issues of concurrence and accumulation in the same way that it can analyse traditional sentencing structures." [8]
- In the present case, his Honour was not imposing an aggregate sentence. In those circumstances, the phrase is misplaced. Further, there was nothing "notional" about the accumulation in the sentences imposed. The sentences were wholly and actually accumulated. As the applicant submitted, it is difficult to know what his Honour meant by "notional accumulation" in the circumstances of this case.
- Further, counsel appearing for the applicant in the sentencing proceedings did not at any stage suggest that there should be "notional" accumulation. On the contrary, counsel argued that there should be "some level of accumulation to the supply offence" and, at least implicitly, that the sentences should be largely concurrent. When pressed, counsel made a blunt submission that the extent of the accumulation should be for a period of six months.
- The relevant passages of Counsel's submissions were as follows:
"So your Honour. In my submission, the non-parole period is where your Honour could focus on your Honour's leniency and, in my submission, one year, particularly when compared to those other cases is more than sufficient to satisfy the course for retribution and punishment.
…
Your Honour may choose to attach some level of accumulation to the supply offence, but in my submission there is very limited evidence with respect to that offence and it is quite different to the other cases in that schedule in the sense that there isn't evidence of hectic commercial dealing." [9]
- Following the Prosecutor's submissions concerning the commencement date of the second sentence, counsel for the applicant submitted:
"Your Honour, just on that issue, with the state offences, there can't be a gap, your Honour. There's two ways your Honour could do it. Your Honour could have a non-parole period and a parole period for the state offence or your Honour could do a fixed term, which is concurrent or partly concurrent that just ends. If it was to be for a short period, for example six months or something of that nature. If your Honour is to fix a non-parole period and a parole period, there needs to be a statutory formula, unless your Honour finds special circumstances. I don't think it would be contention here your Honour would find special circumstances because of his psychological issues also because he's for the first time in custody.
….
To be blunt, your Honour, I'd say that a fixed term of six months for the supply offences would capture the criminality and then your Honour could have a period of another six months accumulation for the importation charge. Then the absence of a parole period would be taken into account because there would be the parole period with the Commonwealth offence and that's also the offence for which you're taking into account the schedule offences and they're not going to effect the non-parole period," [10]
- Nothing in the exchanges between defence counsel and the sentencing Judge reduces the opacity of his Honour's remark that he intended to apply "notional accumulation" to the two sentences.
- In the course of argument in this Court, counsel for the respondent submitted that by "notional accumulation" his Honour meant "some accumulation". It is impossible to accept this submission in circumstances where the sentences were then wholly accumulated. The respondent's attempts to make sense of the sentencing Judge's statement concerning "notional" accumulation required some verbal or linguistic gymnastics. Counsel for the applicant pointed out in-reply that "notional" does mean, in any context, "some". It is a word with an entirely different meaning.
- Obviously enough, it was not incumbent on Judge Abadee to accept defence counsel's submissions. However, if his Honour's reference to "notional" accumulation was intended to reflect the exchanges he had with the applicant's barrister, it is clear that the structure of the sentences imposed did not reflect those discussions or that intention. In that circumstance, ground 1(a) must be upheld.
- Alternatively, as submitted by Mr Howell, ground 1(b) must be upheld because the sentencing judgment failed to expose the reason for imposing a wholly accumulated sentence or how that approach gave voice to principles of totality.
- It is true, as counsel for the respondent submitted, that the extent to which a sentence is ordered to be served concurrently or consecutively, is a matter in the discretion of the sentencing Judge. [11] It is also true that a sentencing Judge is not obliged to articulate in any particular way the manner in which they have applied the principle of totality, [12] although it is preferable that they do so. It is a task which has been described as "difficult, if not impossible … to do more than state and apply the principle." [13] This is because questions of accumulation are considered to be inherently intuitive and "by their very nature limit the level of transparency that can be provided". [14]
- However, in the circumstances of the present case, and given the issues raised by counsel during the proceedings on sentence, some explanation as to why the sentences were wholly accumulated was required. As the applicant submitted, at the very least, the "brevity" of the sentencing Judge on this point gives rise to some concern. [15] Given the similar nature of the offending, and their temporal proximity, there was much to be said for a sentence that was substantially concurrent.
- There were a number of features of the case which militated in favour of a degree of concurrency. [16] Those features included:
1. That the offences were closely linked in fact, each being a drug offence involving the same prohibited substance.
2. They were essentially part of a single episode of criminality effectively culminating on the same day, the day of the applicant's arrest, in February 2020.
3. They were part of the same small enterprise operated and shared the same "combination of motivation that informed this applicant's offending." [17]
- I am not persuaded in the circumstances of this case that the single reference to the sentence being "intended to reflect the principle of totality" is sufficient to expose the sentencing Judge's reasoning. Whilst his Honour was not obliged to provide any formulaic detail, in this case it was not "discernible from the reasons as a whole and the sentence imposed that the totality principle was applied as part of the instinctive synthesis involved in the sentencing process". [18]
- For those reasons, I would uphold the first ground of appeal. It is necessary to undertake the sentencing discretion afresh in accordance with the High Court's decision in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. Further, it is not necessary to make a determination whether the sentence was manifestly excessive as asserted by ground two.