Salim v R

The sentencing judgment

1. There were agreed facts and the sentencing judge's remarks on sentence accurately record the agreed facts.
2. The applicant was arrested and charged following Police investigations into an organised crime syndicate operating out of commercial premises at Seven Hills, NSW. In December 2016, Police lawfully installed integrated covert optical and audio surveillance devices at the premises.
3. The applicant was recruited to work with the syndicate and investigators monitored the operation of the syndicate, including the applicant's involvement via the surveillance devices.
4. The applicant attended at the premises on a number of occasions in May and June 2017.
5. On 5 May 2017 he was given a Blackberry and provided with instructions on how to use it for the purposes of the syndicate's operations.
6. Then on 30 May 2017, he attended at the premises and was heard discussing a delivery with other members of the syndicate. It was the respondent's case that he was paid $10,000 for his work and a subsequent discussion related to the proposed importation of AK-47 assault rifles by the syndicate.
7. Then on four occasions in June 2017 (2, 6, 12 and 20 June 2017), the applicant attended at the premises.
8. On 2 June 2017, the applicant was given several large resealable bags containing a white substance and given instructions as to delivery and the payment required for the substance.
9. On 6 June 2017, the applicant entered the premises with other members of the syndicate when he was shown two pistols.
10. Finally, on 12 and 20 June 2017, the applicant and other persons were observed to be at the premises, counting what appeared to be hundreds of thousands of dollars in cash.
11. The applicant was arrested on 28 June 2017.
12. On searching his home, the Police found $2,800 in cash. On searching his vehicle, the Police found 10 large plastic resealable bags containing 10.03 kilograms of ephedrine.
13. Further, an airsoft pistol was found in the lounge room of his home.
14. At the time of the offending the applicant was subject to a two year intensive corrections order ("ICO") in respect of offences of assault occasioning actual bodily harm in the company of others. The order commenced on 9 June 2017. It was revoked as from 28 June 2017 following his arrest for the offences the subject of this appeal and expired on 8 June 2019.
15. The sentencing judge found that the role of the applicant was essential to the operation of the drug syndicate, as he was a person who was either storing the drugs pending supply or supplying the drugs to another person.
16. Her Honour found that the applicant was part of a drug trafficking organisation capable of supplying large amounts of drugs to order. The quantity was more than twice the minimum to be within the large commercial quantity range.
17. Her Honour found that the supply offence was only slightly below the mid-range of objective seriousness.
18. In respect of the possession of pistol offence, her Honour took into account that it was an airsoft pistol and it was much less dangerous than other firearms. Her Honour found the offence to be in the lower range of objective seriousness but took into account that the firearm was possessed in the context of the applicant being part of a drugs and firearm syndicate.
19. At the time of sentence, the applicant was 36 years of age. He had prior convictions for four offences of assault occasioning actual bodily harm in company and was on conditional liberty at the time of the offending, which is the subject of these proceedings. The sentencing judge considered that his criminal history disentitled him to leniency.
20. The applicant relied on the report of a consultant psychologist, Tim Watson-Munro. The sentencing judge noted that the applicant impressed Mr Watson-Munro as an intelligent individual. He had been studying science and psychology at Macquarie University. However, he presented as depressed and anxious and Mr Watson-Munro thought that there was a clear nexus between his psychological problems and his offending behaviour.
21. At the time of the offending, the applicant had just been offered a new job. He was living with his mother and stepfather who remain supportive. He had a consistent work ethic.
22. The applicant suffered from significant health issues referrable to hypertension. He had first been diagnosed in prison and this had caused him considerable stress. His self-esteem had been impacted by his incarceration. Mr Watson-Munro considered that the applicant had an ongoing history of depression which was significantly compounded by his incarceration.
23. The sentencing judge was not satisfied that the applicant was suffering from any mental health condition at the time of his offending. She did not consider that Mr Watson-Munro had sufficiently exposed his reasoning as to the relationship between the applicant's psychological problems and his offending behaviour. However, her Honour accepted that, at the time of sentence, the applicant suffered from anxiety and depression which she said would be totally consistent with a person in the applicant's position. Her Honour said: "I accept that suffering such a condition results in an additional degree of hardship being within a custodial institution."
24. Her Honour accepted that the applicant acted for financial gain and that it was a significant matter of aggravation that the applicant was on conditional liberty at the time of the offending.
25. Her Honour also accepted that the applicant was genuinely remorseful and had some prospects of rehabilitation.

The applicant's submissions

1. The applicant submits that, although the sentencing judge made a finding of special circumstances, she did not have regard to three matters which had been the subject of submissions by the parties being that: 1. it was the applicant's first time in custody; 2. the applicant had only one prior set of convictions arising out of a single incident; and 3. the applicant would suffer greater hardship in custody due to his mental health condition.
2. Further, the applicant submits that the respondent had accepted at the sentence proceedings that a finding of special circumstances was open on the basis that: 1. he had been of good character prior to his first conviction in 2014; 2. this was to be his first custodial sentence; 3. there had only been a short period between the imposition of the ICO and his further offending, such that he had been given little opportunity to engage in rehabilitation.
3. In her remarks on sentence, her Honour said: "There will have to be a degree of accumulation for thes[e] offences to reflect the separate nature of the offences and the overall criminality. There will also have to be a degree of accumulation on the sentence served since the offender's arrest, which was totally unrelated and of a different nature. I have made a finding of special circumstances, this is required due to the accumulation on the pre-existing sentence and to ensure the offender has additional support and supervision to return to the community upon his release."
4. Her Honour thus made a finding of special circumstances but did so on the basis of: 1. the effect of the accumulation on the pre-existing sentence; and 2. the need for additional support and supervision on release into the community.
5. On appeal, both the applicant and respondent accepted that the latter finding must have been made having regard to the applicant's prospects of rehabilitation and the need for a lengthier period under supervision (i.e. whilst on parole), rather than because it was the applicant's first time in custody.
6. The essential point made by the applicant is that, in circumstances in which the parties made submissions as to why there should be a finding of special circumstances, the sentencing judge was required to consider the matters put forward by the parties and explain why she did or did not consider those matters as being such as to justify a finding of special circumstances.

The respondent's submissions

1. The respondent's position is simply put. It is that the sentencing judge made a finding of special circumstances and identified the basis of that finding. The sentencing judge was not obliged to identify the basis on which she was not making a finding of special circumstances. The only inference is that her Honour did not consider that the matters raised by the applicant provided a proper basis for additional findings of special circumstances.

Consideration

1. Sections 44(2A) and (2B) Crimes (Sentencing Procedure) Act are in the following terms: 44 Court to set non-parole period 44(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. 44(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).
2. The Court may not vary the statutory ratio unless there are special circumstances in which case the Court must make a record of its reasons for that decision.
3. There is no statutory prescription of the matters which might constitute special circumstances. A finding of special circumstances is a discretionary finding of fact. [1] As such, the circumstances in which this Court might interfere with such a finding are limited. [2]
4. It is perhaps an unusual feature of this matter that the applicant maintains error despite the sentencing judge making a finding of special circumstances and identifying the reasons why she made such a finding. The point made by the applicant could thus only be that the sentencing judge was required to do more, particularly when the parties identified other grounds on which there might be a finding of special circumstances.
5. In my view, there are a number of problems with the applicant's contentions.
6. Firstly, varying the statutory ratio is governed by s 44 Crimes (Sentencing Procedure) Act. The Court is required to make a record of its reasons for any decision to vary the statutory ratio, having found special circumstances.
7. The sentencing judge complied with that requirement.
8. At least under s 44, the sentencing judge was not required to record what she did not find. The sentencing judge was not required to record reasons why other grounds which the parties suggested would support a finding of special circumstances were not accepted. Submissions made by Counsel do not bind the sentencing judge.
9. As observed in GAS v The Queen; SJK v The Queen [3] , there may be an understanding between Counsel as to the submissions they will make but that does not bind the judge in any sense. Implicit or even expressed agreement by the Crown with the offender's submissions on sentence does not require the sentencing judge to accept those submissions.
10. Secondly, as was observed by Spigelman CJ in Simpson merely because there is a circumstance which is capable of constituting special circumstances does not mean that a sentencing judge is obliged to vary the statutory proportion. [4] It is necessary that the circumstances be sufficiently special to justify the variation. [5]
11. Thirdly, the fact that it may be the offender's first time in custody does not necessarily provide a basis for a finding of special circumstances. As was observed by McClellan CJ at CL (R A Hulme and Schmidt JJ agreeing) in Collier v R: [6] "The fact that a person has no criminal record and, accordingly, has not previously been incarcerated is a matter relevant to the total sentence of non-parole period. However, it is unlikely to be a circumstance warranting further leniency to an offender by a reduction in the term of the non-parole period: R v Fidow [2004] NSWCCA 172 at [18] (Spigelman CJ). Many persons who are sentenced will receive a sentence of imprisonment for the first time. That fact alone is unlikely to justify a finding that the offender's circumstances are special."
12. The same must be said about the second matter which the applicant submits the sentencing judge overlooked, being that the applicant had only one prior set of convictions arising out of a single incident. It does not seem to me that pointing to the limited number of times that an offender had been convicted previously, in this case, one set of convictions arising out of a single incident, would generally be a factor giving rise to a finding of special circumstances.
13. Contrary to the applicant's submission, patent error is not established by her Honour's lack of comment on these two matters in relation to her Honour's consideration of special circumstances. This is particularly so as neither matter would usually provide a basis for a finding of special circumstances.
14. Fourthly, the sentencing judge made a finding that the applicant's anxiety and depression would result in an additional degree of hardship whilst in custody (the third matter relied on by the applicant).
15. Again, the fact that her Honour did not then go on to expressly reject the applicant's submission that special circumstances could be found on this basis does not mean her Honour simply overlooked it.
16. Whilst a sentencing judge is obliged to set out the reasons for any particular finding, a sentencing judge is not obliged to recite each point made by the parties during submissions and explain why it has or has not been accepted. Absent other reasons for doing so, this Court would not infer that a matter has been overlooked in the context of a particular aspect of sentencing when the matter has been the subject of consideration and comment by the sentencing judge elsewhere in the sentencing judgment.
17. Finally, in my view, it is clear from the judgment as a whole that her Honour had regard to all of the three matters referred to by the applicant in the context of determining the sentence. Her Honour made a specific finding that the applicant's prior convictions disentitled him to leniency. Her Honour was plainly aware that, although the applicant was on conditional liberty at the time of this offending, this would be his first time in custody. The finding in respect of the hardship whilst in custody must be taken to impact upon her Honour's finding as to the total sentence.
18. In my view, the absence of any reference to the three matters relied upon by the applicant does not lead to a conclusion that her Honour overlooked those factors as opposed to believing that they did not justify any additional finding of special circumstances.
19. Ground 1 has not been established.

The applicant's submissions

1. The applicant submits that her Honour must not have been aware that the finding of special circumstances resulted in a variation of the statutory ratio to only 71% having regard to the accumulation with the pre-existing sentence.
2. The applicant submits that it is conventional sentencing practice that sentencing judges have regard to the effect of any such accumulation when considering the adjustment of the statutory ratio. [7] It is said that such a slight reduction is suggestive of error.
3. In this regard, the applicant relies on the observations of Hamill J (with whom Hoeben CJ at CL and Johnson J agreed) in Sabongi v R [8] at [88] as follows: "Whilst it is clear that the learned sentencing Judge was aware of the total effective non-parole period and total effective overall sentence, nowhere in the Judgement on sentence, the transcript of the submissions or the explanation to the applicant of the impact of the sentence after sentence was imposed did his Honour make plain that he fully intended and was aware that the adjustment to the non-parole period on count 7 would achieve no more than resulting in the applicant spending 75% of the total sentence in custody."
4. The applicant also relies on the observations of Wright J (with whom Bathurst CJ and Garling J agreed) in Woods v R [9] at [67]-[68]: "This was not a case where the sentencing judge, when dealing with accumulation and totality, expressly considered his finding of special circumstances and the ratios of the various non-parole periods and head sentences and, notwithstanding those matters, determined that the criminality of the offending and the applicant's circumstances required the ratio of the effective non-parole period to the overall, effective sentence to be 71.4%. The portion of the remarks on sentence concerning accumulation has been quoted above. In Sutton v R [2004] NSWCCA 225, Howie J at [30], after finding appealable error on other grounds and in the course of resentencing, described reducing the statutory ratio of 75 per cent to about 70 per cent, which meant a reduction in the non-parole period by about three months, as 'rather mak[ing] a mockery of a finding of special circumstances'."
5. The applicant submits that absent any explanation for the modest reduction in the non-parole period, this Court should accept error.

The respondent's submissions

1. The respondent submits that the degree or extent of adjustments to the statutory ratio is a matter for discretion of the sentencing judge. [10] The respondent submits that there is no norm and this Court would not intervene unless satisfied that the sentence did not give effect to the intention of the sentencing judge.
2. Further, the respondent submits that the sentencing judge reduced the statutory ratio to 66% in respect of the sentence imposed by her Honour. It was only the effect of the accumulation with the pre-existing sentence that impacted the percentage reduction.
3. It thus can be inferred that the setting of the non-parole period was precisely what the sentencing judge intended. [11]

Consideration

1. As has often been said, the degree or extent of any adjustment of the statutory ratio is a matter for discretion of the sentencing judge: Caristo at [31]; Cramp at [31].
2. The question that arises under Ground 2 is whether the degree of alteration of the statutory ratio is such that it could not be said that the sentence reflects the finding of special circumstances and thus suggests error.
3. In my view, it is important to have regard to the content and structure of the sentencing judgment as a whole. In this matter, the sentencing judge made findings as to: 1. accumulation; 2. special circumstances; 3. the indicative sentences; 4. the aggregate sentence; and 5. the non-parole period,
4. Her Honour structured her judgment in such a way as to deal with those matters consecutively.
5. It would be surprising if her Honour was not aware of or overlooked the impact of any accumulation on the sentence which she intended to impose.
6. As her Honour observed, there was a degree of accumulation for the offences for which she was sentencing to reflect the separate nature of the offences and the overall criminality and there was also a degree of accumulation on the sentence served since the applicant's arrest which was totally unrelated.
7. Unlike cases such as Sabongi in which the sentencing judge was sentencing in respect of all offences the subject of accumulation, in this matter, her Honour was not sentencing in respect of the earlier offending the subject of the ICO.
8. It is not suggested that the reduction in the ratio to 66% with respect to the offences coming before her Honour for sentence would suggest error. It is just that the adjustment ended up being something less having regard to accumulation with the earlier sentence.
9. Further, the applicant's submission that he received only a 3 month reduction in the non-parole period for a sentence which is almost 8 years in length rather overstates the position.
10. The sentencing judge was not sentencing the applicant in respect of his earlier assault convictions. He was in custody in respect of that offending because he failed to comply with the terms of his ICO. The aggregate sentence imposed by the sentencing judge in respect of the offending for which her Honour was sentencing the applicant was 6 years and 9 months with a non-parole period of 4 years and 6 months.
11. On any view, her Honour did not intend that there be a significant variation of the statutory ratio. This is apparent from the indicative sentence in respect of the supply offence.
12. Having regard to all of these matters, I am not satisfied that the sentence does not reflect that which her Honour intended. Error is not demonstrated merely because the reduction in the non-parole period might have been more significant. I am not satisfied that the discretion available to the sentencing judge has miscarried just because the adjustment ends up being relatively small because of the accumulation with the earlier sentence.
13. In the circumstances, the applicant has not established Ground 2.

Orders

1. I propose the following orders: 1. Leave to appeal is granted. 2. The appeal is dismissed.

Endnotes

1. R v El-Hayek (2004) 144 A Crim R 90; [2004] NSWCCA 25 at [105] (per Howie J, Hodgson JA and Grove J agreeing).
2. House v The King (1936) 55 CLR 499; [1936] HCA 40; R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [73] (per Spigelman CJ, Mason P, Grove and Sully JJ and Newman A-J agreeing).
3. (2004) 217 CLR 198 at 211; [2004] HCA 22 (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ).
4. Simpson at [68]; see also R v Fidow [2004] NSWCCA 172 at [22] (per Spigelman CJ, Hulme and Adams JJ agreeing).
5. Simpson at [68].
6. [2012] NSWCCA 213 at [36].
7. Hejazi v R (2009) 217 A Crim R 151; [2009] NSWCCA 282 at [35]-[36] (per Howie J, Hislop J agreeing).
8. (2015) 249 A Crim R 167; [2015] NSWCCA 25.
9. [2020] NSWCCA 219.
10. R v Cramp [2004] NSWCCA 264 at [31] (per Spigelman CJ, Hidden and Buddin JJ agreeing); Clarke v R [2009] NSWCCA 49 at [13] (per McClellan CJ at CL, James and Adams JJ agreeing); Trad v R (2009) 194 A Crim R 20; [2009] NSWCCA 56 at [33] (per Price J, Grove and Buddin JJ agreeing).
11. Caristo v R [2011] NSWCCA 7 at [35]-[37] (per R A Hulme J, Giles JA and Adams J agreeing); AB v R [2014] NSWCCA 31 at [54]-[57] (per R A Hulme J, Beazley P and Schmidt J agreeing). 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: 03 September 2021