SY v R

Agreed facts - drug manufacture and possession

1. The applicant was sentenced on the basis of an Agreed Statement of Facts, according to which he operated a laboratory producing illicit drugs between 1 May 2014 and 18 August 2014. The laboratory was located in a garage under a residence in western Sydney. Access could be gained via a vehicle entry at the end of a short driveway from the street. There was an internal stairway from the living area above but the door to this stairway at the garage level was sealed shut. The living area above was not occupied and was under renovation. The applicant was arrested on 18 August 2014. A police search of the premises under warrant the day after the arrest revealed the following: 1. The garage was set up with benches on which there were arranged various items of laboratory equipment such as conical flasks, reactive flasks, evaporator flasks, beakers and funnels. 2. The garage was equipped with an extraction fan and ducting. There were present in the garage air purifying respirators, gloves and a lab coat. 3. Quantities of ingredients for drug manufacture were found, including approximately 180g of ephedrine and pseudoephedrine that were capable of being processed, with the addition of hypophosphorus acid and iodine, into approximately 78g of methyl amphetamine. 4. The contents of some of the laboratory vessels yielded 211g of pure methyl amphetamine (the subject of charge A on the Form 1 in connection with count 1). 5. There were present within reagent bottles, flasks and other laboratory vessels quantities of compounds that are sequentially produced during stages in the manufacture of PMMA. The quantities indicated that a large commercial quantity (over 1kg) of PMMA had been manufactured. One of the intermediate compounds that is produced in the course of manufacturing PMMA was found to be present in a quantity sufficient to yield between 1.39kg and 2.46kg PMMA, the exact outcome depending upon the method used, the quality of the other ingredients and reagents and the skill of the operator. 6. In some of the beakers and other containers there was PMMA in admixture with other compounds. There was a total of 19.098kg of such admixed material, from which PMMA was in the course of being extracted. The total amount of PMMA that had been and was still being extracted was not ascertainable but it was clearly very significantly in excess of the large commercial quantity of 1kg. 7. A folder in the garage contained documents that detailed the manufacturing processes for methyl amphetamine and for PMMA. 8. A back pack was hanging near the doorway of the garage, inside which was a smaller "Diesel" brand bag containing beige tablets, with a total weight of 1,341.2g, containing 17.5% PMMA. A DNA profile consistent with the applicant's DNA was found on the Diesel brand bag. A second bag containing 88 similar tablets was found in another part of the garage. The total weight of the PMMA tablets was 1,365.63g (the subject of the supply charge in Count 2).
2. The applicant had been observed attending the premises where the laboratory was located on 12 occasions between 12 June 2014 and 18 August 2014. The following additional evidence directly linked him to the laboratory: 1. his DNA on the bag of PMMA tablets found within the garage; 2. the applicant's fingerprints and DNA consistent with his profile on another 11 items within the garage, including respirator filters, gloves and documents containing manufacturing instructions; 3. traces of methyl amphetamine and PMMA on the applicant's clothes and shoes and on the door handle of his car, at the time of his arrest; 4. at the time of his arrest the applicant had documents relating to manufacturing processes for illicit drugs on his mobile phone and on a laptop computer in his possession; 5. at the time of his arrest the applicant was in possession of a printout from a website on which anhydrous methyl amine gas was offered for sale and a quantity of this gas was found in the laboratory, suitable for use in the manufacture of PMMA.
3. Sentence proceedings in respect of the applicant and a co-accused, Joe Andary, were conducted jointly. The residence under which the garage laboratory was located was owned by Andary's sister, who also owned another residence nearby. Andary permitted the applicant to use the garage. He pleaded guilty to a charge of manufacturing PMMA on the basis that the Crown accepted he had not initially known that drug manufacture would be undertaken but had become aware of the activity and had permitted the applicant to continue using the garage. The Crown also accepted that it could not prove that Andary knew the scale of the operation, hence the charge against him was particularised as manufacture of an indictable quantity only. In the garage there was a fingerprint of one person other than the applicant and no forensic link to Andary. During the course of police surveillance of the residence, which was intermittent, no one other than the applicant was seen to enter the garage.
4. During surveillance of the applicant from mid May 2014 he had purchased CCTV security cameras and drums of solvent. CCTV cameras of the same make and type and identical drums were found at the laboratory after his arrest. On 8 July 2014 he was observed departing from the laboratory, driving a utility with a number of cardboard boxes on the tray. One of these was dislodged. Police retrieved it and found that it related to a 3 litre filtering flask of a type commonly used in chemical synthesis.
5. On 17 July 2014 the applicant made enquiries from a payphone to a laboratory equipment supplier, concerning a thermostatic bath. Later the same day a vehicle belonging to the applicant's brother, which the applicant had on occasion been observed to drive, attended the laboratory supplier's premises. A thermostatic bath was purchased at that time for $3,234 in cash. Following the arrest of the applicant it was found that his laptop had been used to research this piece of equipment. An identical item was found in the laboratory when the warrant was executed on 19 August 2014.
6. Prior to his arrest on 18 August 2014 the applicant had purchased from a hardware store a number of 2kg containers of caustic soda, paper masks and gloves. All of this material was suitable for use in the drug manufacturing process that was being carried on in the laboratory.
7. On 7 August 2014 police installed surveillance devices in a container at Kennard's Self Storage facility at Wentworthville. The container was kept under surveillance until the applicant's arrest. In that period he was the only person to enter the container. On 8 August 2014 he was detected by the surveillance device removing items from within the container. When was arrested he had in his possession a key to it. When the container was searched after the arrest there were found within it numerous drums of chemicals, some of them similar to drums located upon execution of the search warrant at the laboratory. Included amongst the chemicals was a quantity of hypophosphorus acid, such as would be used to convert the ephedrine and pseudoephedrine that was found in the laboratory into methyl amphetamine. The container also held numerous items of glass laboratory equipment.
8. There was nothing in the Agreed Statement of Facts to indicate the involvement in this enterprise of any person other than the applicant and Andary, whose involvement was limited to permitting the use of the garage, and possibly the person whose fingerprint was found within the laboratory. In the sentence proceedings the applicant did not give evidence or call any evidence. The Agreed Statement of Facts was the unchallenged material upon which the sentencing judge was to determine the nature of the applicant's role in the drug manufacturing enterprise.

Agreed facts - possession of prohibited firearms

1. With respect to count 3, the 9mm Parabellum calibre submachine gun was located within the laboratory. It was of unknown manufacture, described as home-made. A DNA swab from the cocking handle of this firearm yielded an analysis consistent with the applicant's DNA. A video of instructions for making such a weapon was located on a laptop at the applicant's residence. The pistol that is the subject of count 4 had its serial number erased so as to be untraceable. That weapon and the two pistols that are the subject of charges B and C were found inside the container. No ammunition for any of the weapons was found by police in their searches. There was no evidence of the circumstances in which the applicant came into possession of the firearms.

Pre-sentence procedural history and custody

1. After his arrest on 18 August 2014 the applicant was remanded in custody. In February 2015 he was committed for trial in the District Court. He was granted conditional bail on 29 May 2015 after a period of 284 days on remand. The applicant and his co-offender entered pleas of not guilty on 14 April 2016. A first trial date in March 2017 was fixed and later vacated.
2. On 14 September 2017 the applicant was charged with an unrelated offence and remanded in custody. His bail in respect of the charges that are the subject of this appeal was not revoked at that time. From 14 September 2017 until 28 March 2018 the applicant was in custody solely on remand for the unrelated matter.
3. A second trial date, fixed for 5 March 2018, was vacated for negotiations with the Crown. Those negotiations resulted in the co-offender pleading guilty on 7 March 2018. The applicant entered pleas of guilty on 12 March 2018. On 28 March 2018 the applicant's bail in respect of the charges for which he was in due course sentenced by Acting Judge Grogin was revoked. The total period in which the applicant's custody on remand was solely referable to the unrelated charge was 6½ months, from 14 September 2017 to 28 March 2018.
4. The sentence proceedings in respect of both the applicant and the co-offender were conducted before his Honour 10 August 2018, 13 August 2018, 4 December 2018, 12 December 2018 and 1 February 2019. As earlier mentioned, sentence was passed on 27 February 2019.

Assistance

1. During adjournment of the sentence proceedings in 2018 the applicant arranged for the voluntary surrender to police of 11 firearms and one stick of commercial grade mining explosive. The applicant's assistance in this respect was the subject of a confidential affidavit from a police officer, marked as Exhibit G. The surrendered firearms included four that were prohibited, being a shortened rifle, a self-loading centre fire rifle and two auto-loading shot guns capable of propelling projectiles in rapid succession during one pressure of the trigger. No information concerning the source of the firearms was provided to police and they were not linked to current investigations. Without the applicant's voluntary assistance in the surrender police may not have recovered the items.

Findings of the sentencing judge relevant to grounds 1-3

1. So far as relevant to grounds 1-3, his Honour's findings included the following (with numbers added for ease of reference): 1 [The drug manufacture] was an operation with significant planning. It was a significant undertaking, was not meant to be a temporary one off manufacturing and supply but something intended to be more permanent. 2 I find beyond reasonable doubt that the offender was significantly involved in the operation of the clandestine laboratory. He was completely involved in all aspects of its establishment and operation. I agree with the submission of the Crown concerning the involvement of the offender. [The Crown submission, as paraphrased by his Honour, was "that the offender was a principal in a substantial manufacturing enterprise. The evidence is said to establish that the offender was a principal if not the sole principal in this enterprise"]. 3 I find that the seriousness of the drug offences is exacerbated by the presence of the firearms at the premises. 4 I find that the supply charge, which is count 2, is just below the mid-range of objective seriousness … 5 … I find that the firearm offence falls in the mid-range of objective seriousness.

Ground 1 - culpability as principal in the drug offences

1. The applicant submits that the Crown only contended before his Honour that he was a principal in relation to manufacturing (count 1 and charge A). He submits that his Honour was mistaken in thinking that the Crown contended that he was a principal in relation to the supply of PMMA (count 2). It is presently irrelevant whether his Honour misunderstood the Crown's submissions. The 1.365kg of PMMA that is the subject of the supply offence in count 2 was obviously the product of the manufacturing enterprise being carried on in the laboratory where this quantity of the finished drug was found. The question in the application for leave to appeal on this ground is whether it was open to his Honour to find that the applicant was a principal in the manufacturing. If that was open and should not be disturbed, then it is an inescapable inference that the applicant was also a principal in the possession for supply.
2. The applicant relies upon the judgment of Simpson J in Nguyen v R [2011] NSWCCA 92. The offender in that case had pleaded guilty to hydroponic cultivation of the large commercial quantity of cannabis. It was accepted by the sentencing judge that the offender did not have the capability to set up the electrical and other equipment that was in use in the premises. The sentencing judge concluded that there must have been at least one other person who had inspired the project and installed, or arranged the installation of, electric lighting and a wiring bypass to the electricity grid. On those findings Simpson J (with whom Davies J agreed) considered it inappropriate to categorise the offender as a principal.
3. Simpson J held as follows at [4]: [4] There was, in my opinion, no proper basis for the finding that the applicant was a principal. "Principal" is an expression that is commonly used in sentencing in respect of drug offenders, but may not have a commonly accepted or applied meaning. In my opinion, the indicator of the role of an offender as "principal" involves at least some of the following characteristics: - contributing financially to the cost of setting up the operation; - standing to share in the profit (as distinct from receiving payment); - having some hand in the management of the operation (although it is well recognised that principals will, so far as possible, distance themselves from the day to day operation, they nevertheless maintain considerable control over the enterprise); - having some decision making role (which may not be different from the item above). This does not purport to be anything like an exhaustive list. There may well be other features that indicate that an offender ought to be characterised as a principal.
4. Her Honour considered that the evidence in that case fell far short of establishing any of the above characteristics in relation to the offender. That is understandable where there were explicit findings that a person with greater interest in and control over the enterprise had inspired it, preyed upon the offender's vulnerability to involve her in it and carried out aspects of the project that were beyond the offender's abilities. On the Statement of Facts to which the applicant agreed, the third and fourth of Simpson J's criteria were fulfilled in the present case. The applicant was a one-man enterprise, with some possible undefined involvement or complicity of another person who left a fingerprint. The Agreed Statement did not touch the extent or nature of anything done by anyone other than the applicant, apart from Anadary who merely permitted use of the premises. So far as the Agreed Facts show, there was no other person who stood in a position superior to the applicant, or who had initiated the project or orchestrated its establishment, or who directed the applicant in any respect.
5. The applicant held the recipes and instructions for manufacture. He purchased laboratory equipment and ingredients. He took delivery of those items and brought them to the laboratory. The applicant held supplies and spare laboratory equipment in the storage container to which he had a key. There is no evidence of how much money he spent on this or from what source it came or how much money, if any, he had derived from sale of product by the time of his arrest. Nor was there any evidence that any other person was a financier or a participant in the product or the profits. The learned sentencing judge's conclusion that the applicant was a principal in relation to all of the drug offences was well open to him.
6. The applicant submitted that because he was involved in activities that exposed him to being connected with the laboratory, such as purchasing equipment and supplies and attending to its operation, therefore he must have been subordinate to someone else because a principal would remain behind the scenes and not expose himself to detection in this manner. This argument proceeds from an assumption of the point that it attempts to prove; that is, an assumption that there was some other person. Not every clandestine drug laboratory has to have a hierarchy of persons involved, including a superior principal who orchestrates from behind the scenes while lesser participants do the fetching, carrying and mixing. So far as the evidence before the sentencing judge showed, the applicant did everything. There is no merit in ground 1.

Ground 2 - exacerbation of drug offences by firearms offences

1. It is correct, as the applicant submits, that the Crown's argument on sentence was the reverse of his Honour's finding No 3 quoted at [21] above. The Crown had argued that the gravity of the firearms offence in count 3 (the submachine gun found in the laboratory) was increased by its association with drug offences, rather than the other way around. Further, it is correct that the Crown only advanced this point in relation to count 3. It did not submit that count 4 or charges B and C, which concern weapons found in the storage unit and not in the laboratory, were more objectively serious by reason of connection with drug manufacture.
2. The Court accepts that his Honour erred in this respect. The objective seriousness of the manufacturing charge in count 1 lay in the planning involved; the extended period over which the activity was continuously undertaken; the significant quantity of product that had already been derived and the further amount that was in an advanced stage of production; the permanency of the laboratory and the evident intent to continue the enterprise into the future. The objective seriousness of the supply charge lay in the substantial quantity and the clear commercial purpose of the applicant with respect to it. Having regard to the legal elements of the drug manufacture and supply offences and the circumstances of this case, the objective seriousness of counts 1 and 2 could not be regarded as exacerbated by the possession of the firearms.
3. On the other hand, in assessing the gravity of the possession of the submachine gun (count 3), its presence at the drug laboratory would support an inference that was held for the purpose of defending the enterprise. In the absence of ammunition, that use would be limited to threatening and intimidation. The circumstance of connection with the laboratory makes the offence more serious than if it had been committed in isolation; that is, if the applicant was not connected with any other criminal activity and if he held the submachine gun at a neutral location that did not suggest that possession of it was ancillary to or in readiness for the perpetration of other offences. See Luu v R [2008] NSWCCA 285 at [32]; R v Thalari [2009] NSWCCA 170 at [89]; R v AZ [2011] NSWCCA 43 at [76] (Johnson J, McClellan CJ at CJ and McCallum J agreeing). The same points can be made with respect to the objective seriousness of the possession of the other firearms in count 4 and charges B and C. Those weapons are not disconnected from the drug manufacture and supply activity. They were kept in a storage facility that was integrally related to the activities at the laboratory.
4. Leave to appeal should be granted in respect of ground 2. The combined significance of this ground and ground 4, considered below, is that the appeal should be upheld on both grounds and the applicant should be resentenced.

Ground 3 - separate assessment of seriousness of each firearms offence

1. The applicant submits in support of ground 3 that finding No 5 quoted at [21] above fails to identify which "firearm offence" his Honour was referring to in assessing a "mid-range of objective seriousness". On a fair reading it is apparent that his Honour intended this assessment with respect to both of the firearms offences in counts 3 and 4. It is not to be supposed that his Honour did not realise that there were two such offences. On the contrary, and consistently with his intention to assess both of them at mid-range, his Honour indicated precisely the same indicative sentence for both. If the mid-range evaluation had been intended only with respect to one of the firearms counts, one would have expected the Remarks on Sentence to contain an assessment of the other count in some later passage. There is no such other assessment.
2. The applicant submits that, on the assumption that his Honour assessed counts 3 and 4 at the same level of objective seriousness, that was erroneous because count 3 should have been treated as more serious by reason of the submachine gun being located in the laboratory whereas the pistol that was the subject of count 4 was in the container. It does not follow from those considerations that it was not open to the learned judge to treat the two offences as of equal seriousness and to nominate the same indicative sentence for each. Possession of a submachine gun at the drug laboratory (count 3) and possession of a pistol with its serial number erased in a storage container associated with that laboratory (count 4) are offences of comparable seriousness. In determining the sentence for each of them, his Honour was required to take into account Form 1 offences, being charges B and C, that were also broadly comparable. Charge B was more serious than Charge C because the pistol concerned in the latter charge was capable of firing blank cartridges only. The influence of the Form 1 matters upon the appropriate indicative sentences was not great in view of the seriousness of each of counts 3 and 4 standing alone. It was open to his Honour to consider that the two offences were so closely comparable that no meaningful gradation of objective seriousness could be articulated. There is no merit in ground 3 but as the applicant will have to be resentenced, this Court will make its own assessment of whether the indicative sentence for the two firearms offences should be the same.

Ground 4 - failure to allow a discount for assistance

1. On the basis of the applicant's procurement of the voluntary surrender of firearms as referred to at [20] above, the learned sentencing judge was asked to apply a discount under s 23 of the Crimes (Sentencing Procedure) Act. It is only necessary to quote sub-ss (1), (2)(b) and (4) of that section, as follows: 23 Power to reduce penalties for assistance provided to law enforcement authorities (1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence. (2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters - (b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered, (4) A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must - (a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and (b) state the penalty that it would otherwise have imposed, and (c) where the lesser penalty is being imposed for both reasons - state the amount by which the penalty has been reduced for each reason.
2. His Honour applied s 23 to the evidence of the applicant's assistance in the following passage: I find that the inclusion of the words "prevention and detection" in [s 23(1)] significantly widens the issues that may be considered by the Court. I find, however, in this matter that the offender has arranged for the surrender of firearms and explosive with no further assistance or cooperation given or planned. The purpose of s 23 cannot, however, be overlooked. I find, however, that the assistance provided in this matter is negligible and as such do not provide any specific discount. However, I take into account the actions of the offender is a feature of his subjective case.
3. In the context of the whole of this passage and having regard to the fact that no specific discount was quantified under s 23(4), the word "negligible" was evidently intended by his Honour to mean "nil" and it was given effect in that sense. The Court is respectfully of the view that it was not open to his Honour to make that assessment. The surrender of 11 firearms, including four prohibited firearms, together with a quantity of explosive, could not properly be treated as nil assistance to "law enforcement authorities in the prevention … of … any other offence", meaning any offence other than that for which the applicant was being sentenced. Parliament has indicated, by its enactment of the Firearms Act including the heavy penalties provided therein, its concern to restrict rigorously the possession of firearms, by a system of registration of weapons and licensing of individuals who may keep them. It is provided in s 3 that one of the underlying principles of the Act is "to improve public safety - by imposing strict controls on the possession and use of firearms". New South Wales police make enforcement of this legislation a high priority in the interests of the community safety. In the administration of the Act and related legislation, the Courts are astute to give full effect to Parliament's policy of firearms control. The applicant's voluntary surrender of a significant collection of unlicensed firearms, including four of prohibited type, could not be regarded as of no assistance at all to law enforcement authorities.
4. The assistance was not enhanced by the provision of any information about where or by whom the weapons had been held or concerning how or from whom that person or those persons had acquired them. The information did not support the laying of any charges under the Firearms Act. No information was provided that might support an investigation or the charging of any person in relation to use of any of the firearms in any other offence. However, for the purposes of s 23(2)(b) there was a "significance and usefulness" in the surrender of these items. Their surrender reduced the risk of other crimes being committed either by continued possession of them or by subsequent use of them in crimes of violence.
5. Leave to appeal will be granted in respect of ground 4 and the ground will be upheld. The sentencing discretion will have to be exercised afresh because the determination and application of an appropriate level of discount for assistance will require consideration of all sentencing factors. This is not a discrete, confined or minor error of calculation that could be corrected without proceeding to resentence: Lehn v R [2016] NSWCCA 255.

Ground 5 - commencement date of the aggregate sentence

1. The revocation of the applicant's bail in respect of the subject charges, on 28 March 2018, has been noted above. From then until his Honour passed sentence 11 months later the applicant was on remand concurrently in respect of the drug and firearms charges and the unrelated matter for which he had been arrested on 14 September 2017. His Honour appears to have thought, incorrectly but favourably to the applicant, that this period of concurrent remand had commenced from 12 March 2018 when the applicant's pleas of guilty were entered. His Honour backdated the commencement of the applicant's aggregate sentence to 1 June 2017. That was 284 days before 12 March 2018. His Honour thus made full allowance for the applicant's custody during his initial remand following arrest (see [16] above) and for the concurrent remand from 28 March 2018.
2. In December 2019 Tupman DCJ ruled that evidence the Crown had proposed to tender in its case on the unrelated charge would be excluded. On 27 February 2020 the Crown determined not to appeal her Honour's ruling and formed the view that the ruling had rendered the unrelated charge unsupportable. It was withdrawn. That was one year after sentence had been passed by Grogin ADCJ. The applicant now submits that there has been a miscarriage of justice because the learned sentencing judge did not backdate commencement of the sentence for the drug and firearms charges to give credit for the whole of the period during which the applicant was remanded solely on the unrelated charge. The further credit claimed is 179 days, representing time on remand solely in relation to the unrelated matter between 14 September 2017 and 11 March 2018 - his Honour having, inadvertently it would seem, allowed backdating for the period 12-28 March 2018.
3. The applicant added ground 5 to his application for leave belatedly. Notice of Intention to Appeal was filed in March 2019. Notice of Appeal was filed on 12 August 2020, containing grounds 1-4. The applicant's submissions were filed with the grounds. On 26 October 2020 the appeal was listed for hearing on 16 November 2020. The applicant filed his application to add ground 5 on 12 November 2020, accompanied by submissions in support.
4. There are insuperable obstacles to the applicant's argument on ground 5. The period of pre-sentence custody in question was not "in relation to" the charges on which Grogin ADCJ sentenced him. Sections 24(a) and 47(3) of the Crimes (Sentencing Procedure) Act do not apply and his Honour was not required to take into account that period in determining the commencement date of his sentence: Refaieh v R [2018] NSWCCA 72 at [64] (Adams J, Hoeben CJ at CL and Johnson J agreeing). Apart from those sections, there was no basis upon which his Honour could have allowed for the 179 days by backdating the commencement of the sentence, because that was not a period of pre-sentence custody that was referable to or in any relevant sense connected with the drug and firearms charges on which the sentence now under appeal was passed on 27 February 2019. The applicant had a grant of bail in respect of those charges throughout the period in question.
5. It was not submitted to the learned sentencing judge that he should backdate the commencement of the sentence for the drug and firearms charges to allow for the period during which the applicant was remanded solely on the unrelated charge. In accordance with usual sentencing practice it would have been expected by the judge and the parties that that period would be taken into account in sentencing the applicant for the unrelated matter, if and when he should be convicted of it. If the applicant's bail for the drug and firearms charges had been revoked when he was arrested on the unrelated matter on 14 September 2017, then from that time forward his remand in custody would have been concurrent, in relation to both the drug and firearms charges and the unrelated matter. The applicant could then have asked Grogin ADCJ to backdate the commencement of his sentence to allow for the period from 14 September 2017. Upon application of the principle that time on remand will normally count towards sentence, backdating would have followed. Had that occurred the applicant could not also have had the same period of pre-sentence custody taken into account when and if he came to be dealt with for the unrelated matter. The respective charges being unrelated, there would have been no question of permitting the same period to count towards both sentences, for example to satisfy the totality principle - at least, that is how the matter appears from the papers in this appeal.
6. As grounds 2 and 4 are to be upheld and the sentencing discretion is to be exercised afresh by this Court, the applicant submitted that the withdrawal of the unrelated charge subsequent to the passing of sentence by Grogin ADCJ may be taken into account. However, the withdrawal of the charge makes no difference. The applicant relied upon R v Karageorge [1999] NSWCCA 213 where commencement was backdated to allow for a period in which the offender had been on remand for the charges on which he was to be sentenced, except that the sentencing judge declined to allow for approximately 12 months of that remand during which the applicant's custody was also attributable to a sentence that he was serving for an unrelated offence. The offender's conviction on the unrelated offence had been quashed and the sentence had been set aside by the time the judge came to deal with the case. This Court held that the whole of the applicant's remand in respect of the charges for which he was sentenced should have been allowed to count. He should not have been denied credit for the 12 months of remand during which he had concurrently been serving a sentence that was later quashed. At [21] Sperling J (with whom Spigelman CJ and Simpson J agreed) said this: Sentencing is a discretionary exercise. Fairness and reasonableness have constantly to be borne in mind. It would be unjust to disallow credit for time in custody pending trial because that time overlapped a sentence later set aside. A sentence set aside should count for nothing against the person concerned.
7. That principle would also embrace cases where the pre-sentence custody was a concurrent remand for both the offence on which sentence is passed and for an unrelated matter that was later dismissed or withdrawn. The remand for the unrelated matter "should count for nothing against the person concerned" upon the dismissal or withdrawal of the unrelated charge, just as a quashed sentence "should count for nothing". However, two factors are critical to the application of the principle in R v Karageorge: 1. the pre-sentence custody for which credit is to be given must have been a remand with respect to the charge upon which the offender was sentenced, whatever else he may have been in custody for, and 2. the dismissal or withdrawal of the unrelated charge, or the quashing of the sentence that was being served concurrently with the remand, must be known at the date when sentence is passed.
8. It is the first of these requirements that stands in the way of the applicant's argument in the present case. From 14 September 2017 until 28 March 2018 the applicant was not in custody on account of or referable to the drug and firearms charges.
9. The difference between pre-sentence custody that is referable to the offence for which sentence is passed and pre-sentence custody that is not so referable is plain. Either the accused has a grant of bail for the matter upon which he is later sentenced or he does not. By adhering to this criterion there is a clear, principled and readily understood basis upon which a sentencing judge may know whether a remand prior to sentence may be taken into account in fixing the commencement date. It would have been open to the applicant to have had his bail on the drug and firearms charges revoked when he was taken into custody on 14 September 2017 for the unrelated matter: Refaieh v R at [61]. Had that been done, his continuing pre-sentence custody would have been referable, concurrently, to the drug and firearms charges and to the unrelated matter. In this way any accused person may maintain his eligibility to have the principle in R v Karageorge applied in his favour, whatever may be the future of the unrelated charge that is a concurrent cause of his loss of liberty before sentence.
10. There is a sharp distinction between (a) time on remand that is attributable, either solely or concurrently with some other basis of custody, to refusal or revocation of bail for the charge upon which sentence will be passed and (b) pre-sentence custody that is solely attributable to an unrelated matter. That distinction is the determinant of whether the pre-sentence custody may count toward sentence and be the subject of backdating, or not.
11. The decisions of this Court in R v Niass (NSWCCA, 16 November 1988, unrep) and Hampton v R [2014] NSWCCA 131 support the position that the period in question in this case cannot be taken into account following withdrawal of the unrelated charge because that part of the remand was never referable to the drug and firearms matters. The circumstances of those two earlier cases were not exactly the same as those of the present appeal but the principle underlying them applies equally. In each of R v Niass and Hampton v R it was held that an offender could not have his sentence backdated to allow for a period of remand that was referable only to an unrelated charge. In both cases the unrelated remand was in respect of a charge of which the offender was later acquitted. In both cases the unrelated remand occurred prior to the commission of the offence for which the offender received the sentence against which he was appealing.
12. In R v Niass the offender was sentenced for supplying Indian hemp. Before committing the offence he had been in custody for 12½ months on remand for an unrelated charge of which he was ultimately acquitted. We infer from the brief unreported judgment that the 12½ months was prior to the commission of the Indian hemp offence. The judge who dealt with him for the supply of Indian hemp declined to backdate commencement of his sentence to allow for the 12½ months. Lee CJ at CL (Gleeson CJ and Allen J agreeing) said this: The proposition which is put forward here is one which would require the court, in every case where a person was acquitted of a charge, to take into account when sentencing him on a wholly unrelated offence the period spent in custody; and in the absence of any authority that such a course should be taken, I would not be disposed to initiate it now. It seems to me that there is good reason to keep intact the division between the functioning of the court dealing with a particular offender in respect to the offence on which he comes before the court and taking into account periods spent in custody in respect of that offence, and the function which the State has undertaken on occasions to recompense persons who, when the justice system has miscarried, may seek solatium.
13. In Hampton v R the applicant had been in custody bail refused for about three months on an unrelated charge of which he was subsequently acquitted. The earlier offence and the three months custody had taken place before he committed a robbery. The judge who sentenced him for the robbery declined to allow credit for the three months. This Court was asked to reconsider R v Niass. Hampton v R was heard by a bench of five judges. All members of the Court concurred in the judgment of Johnson and Bellew JJ, who confirmed the position stated in R v Niass, as follows (emphasis added): [27] [R v Niass] makes it clear that where what is sought to be done is to invite a sentencing court to take into account, as a relevant matter, a period in custody for an unrelated matter leading to acquittal or discharge, that factor is not, in and of itself, relevant to the sentencing exercise. [28] Relevant statutory provisions confirm that time for which an offender has been held in custody in relation to the offence for which sentence is to be passed is a mandatory factor to be taken into account on sentence: ss 24(a), 47(3) Crimes (Sentencing Procedure) Act 1999. There is nothing in s 21A Crimes (Sentencing Procedure) Act which supports the Applicant's submission. It is true that s 21A is not exhaustive and factors available to be taken into account at common law remain available. However, this brings one to the decision in R v Niass, which has been applied frequently in this State. [29] Later decisions of this Court tend to confirm this approach. Some have involved an acceptance that where other events occur during such a period in custody, those events may bear upon the issue of sentence. However, that is because they relate to the offender's subjective circumstances: R v Evans (NSWCCA, 21 May 1992, unrep); R v Webster and Jones (NSWCCA, 3 August 1992, unrep); R v Chung (NSWCCA, 9 March 1994, unrep); R v David (NSWCCA, 20 April 1995, unrep); R v Hudd (NSWCCA, 5 December 1995, unrep); R v Baartman (NSWSC, Dunford J, 18 December 1988, unrep); R v Karageorge [1999] NSWCCA 213; R v Giam (No. 2) [1999] NSWCCA 378; R v Rozynski [2001] NSWCCA 257; Huntingdon v R [2007] NSWCCA 196 and Kerr v R [2008] NSWCCA 201. [30] These decisions confirm an approach that bare reliance on a period in custody for an unrelated matter, without more, is extraneous to the exercise of sentencing discretion for other matters. This is particularly so where there is a broken period of custody, as exists in this case. [31] If events occurred during the period in custody which could otherwise be called in aid of the offender's case on sentence, such as marital breakdown, loss of employment, development of illness or other aspects which could bear upon the person's subjective circumstances on sentence for offences later committed, then that may be relevant on sentence. R v Evans appears to be an example of this approach. [33] The Applicant did not submit before this Court that R v Niass, insofar as it related to the "credit in the bank" concept, was wrong or should not be followed. In these circumstances, the issue goes no further. [35] The New South Wales decisions in this area should be applied. A proper foundation has not been established for a conclusion that any decision under challenge was plainly wrong and should not be followed. In any event, these decisions appear to be based upon the particular circumstances of each case where the broad statement in R v Niass has been applied. Properly understood, no error is revealed in any of those decisions.
14. Whereas in R v Niass and Hampton v R the pre-sentence custody had occurred before commission of the offence for which sentence was passed, in the present case the 179 days of the applicant's remand on the unrelated charge occurred after he had committed the drug and firearms offences and while his trial for those charges, as it was then expected to be, was pending. The applicant's pre-sentence custody solely on remand for the unrelated charge is, in a sense, connected in time with the drug and firearms offences because it fell between the date of his arrest for those offences and the date of his sentence. That temporal connection is not significant. The legal basis for the pre-sentence custody is, in logic and in principle, the criterion of whether time on remand should count. Having regard to the sole legal basis of the 179 days in question on this appeal, being remand on the unrelated matter, that period is no more connected with the offences for which the applicant was sentenced by Grogin ADCJ than the periods of pre-sentence custody considered in R v Niass and Hampton v R were connected with the offences on which those applicants were dealt with. As expressed by Johnson and Bellew JJ in Hampton v R such unrelated pre-sentence custody is irrelevant "in and of itself", "without more". It is irrelevant in the absence of some other circumstance, such as a subjective impact along the lines of the examples referred to in Hampton v R at [29] and [31].
15. What has been said to this point is sufficient to explain why, upon this Court re-sentencing the applicant, commencement of his imprisonment will be backdated from 28 March 2018, when bail for the drug and firearms charges was revoked, for 284 days only, to allow for his initial remand on these charges immediately following arrest. Because grounds 2 and 4 are upheld and the Court will re-determine sentence upon the facts existing at the date of hearing the appeal, it is not necessary to decide whether evidence of an event that occurred after Grogin ADCJ had passed sentence, namely, the withdrawal of the unrelated charge, could be introduced in support of ground 5 had there been no other viable ground. However the applicant has advanced argument on this and sought to rely upon the decision of this Court in Little v R [2018] NSWCCA 63. We will therefore deal with the argument briefly.
16. If none of the applicant's other grounds had succeeded so that the Court was only concerned to review error in the decision of the sentencing judge based upon the facts that existed at the time of his decision, then the principle in R v Munday [1981] 2 NSWLR 177, if given full and unqualified effect, would preclude the introduction of fresh evidence concerning the withdrawal of the unrelated charge on 27 February 2020. In R v Munday Street CJ said (Moffitt P and Lee J agreeing): It has been made plain in this Court on many occasions that the Court is essentially charged with an appellate function involving the determination of whether a decision at first instance upon sentence was right or wrong, was excessive or inadequate, as things existed at the time it was passed. The review of a sentence in the light of subsequent events is the proper province of the executive Government and not of an appeal court.
17. This constraint has been applied and restated many times, often in relation to applicants for leave who have provided assistance to authorities after sentence has been passed. Some examples are R v Willard [2001] NSWCCA 6; R v MJM [2004] NSWCCA 66; JM v R [2008] NSWCCA 254. Fresh evidence tendered on applications for leave to appeal has been rejected on this basis with considerable strictness. The principle was the subject of detailed consideration by Simpson J (as her Honour then was) in Khoury v R [2011] NSWCCA 118 at [101]-[121]. Her Honour said this: [109] It may be thought that […] evidence of facts, circumstances and events that have arisen subsequently to the first instance decision would qualify as fresh evidence because it meets both critera [ie, undiscoverable at first instance and capable of having affected the outcome]. However, with respect to applications for leave to appeal against sentence, there is an additional, sometimes intractable, barrier to admissibility. Jurisdiction of this Court in sentencing matters derives from s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). The powers of the Court are spelled out in s 6(3) which is in the following terms: 6(3) ... the court, if it is of the opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal." [110] A fundamental pre-condition to the exercise of the power of the Court to quash a sentence and pass another sentence is the formation of the opinion that some other sentence is warranted in law and should have been passed. In other words, this Court, as a matter of law, cannot interfere with a sentence passed at first instance unless it has identified some error, either in the sentencing process or in the outcome of the sentencing process. That has this additional implication: axiomatically, evidence of events or circumstances or facts that have arisen entirely since sentencing cannot be taken into account, no matter how compelling they may be. If the facts did not exist at the time of sentencing, it cannot have been an error for the sentencing judge not to have taken them into account. In those circumstances, the impact on the sentence is a matter for the executive government: R v Munday.
18. At [114]-[115] Simpson J referred to exceptions to the application of R v Munday in cases where a factual circumstance existed at the date of sentence but its significance was not fully apparent and has been revealed by post-sentence events. Her Honour cited cases in which this had occurred in relation to medical conditions. Springer v R [2007] 289 was also referred to. There an exception was made where assistance provided to authorities seemed to be of little utility when sentence was passed but became very valuable and productive as a result of subsequent developments. In Springer v R at [3] McClellan CJ at CL listed a number of other exceptions to the principle.
19. In Little v R the applicant had been sentenced for an offence of take and detain. The sentence had not been fully backdated to allow for the applicant's remand on the charge because, during that remand, he had also been serving a sentence for driving offences. After sentence for the take and detain had been passed, the applicant's conviction on the driving charges was quashed and his sentence for those matters was set aside. The sole ground of appeal was that this post-sentence event revealed a miscarriage of justice in the failure fully to backdate the commencement of the sentence for the take and detain. That ground was upheld and the sentence was further backdated to give credit for more of the remand during which the quashed sentence on the driving charges had been served.
20. In Little v R the quashing of the sentence for the driving matters had a dual significance because the sentencing judge had applied the principle of totality in considering those matters together with the take and detain offence when fixing a sentence for the latter. For the purposes of the present appeal it is not necessary to consider whether evidence of the post-sentence outcome of an unrelated charge may be adduced on an application for leave to appeal in any wider range of circumstances than the exceptional situation in Little v R. It is notable that in Little v R the period of presentence custody for which the Court allowed further backdating was a period of remand for the take and detain offence for which the sentence under appeal had been imposed - a situation similar to that in R v Karageorge. The decision is of no assistance to the applicant in overcoming his fundamental difficulty on ground 5, namely, that during the period of pre-sentence custody that is in issue on this appeal he was not on remand for the drug and firearms charges for which Grogin ADCJ sentenced him.

Subjective circumstances

1. The applicant was aged 31 years when he committed the subject offences and 36 when he was sentenced. He had some quite serious driving offences on his record from the ages of 20 and 21. Thereafter up to the age of 24 he was convicted of obtaining money by deception, resisting police, entering enclosed land without lawful excuse, destroying property and being in possession of goods suspected of being stolen. In early 2005, at the age of 24, his offending first attracted a term of imprisonment when he was convicted of aggravated break and enter, for which he was sentenced to 4 years with a non-parole period of 2 years and 4 months. At around the same time he committed offences of possession of a prohibited firearm and ammunition, larceny and receiving stolen property. These also attracted terms of imprisonment. He was in custody for a total of 4 years between September 2005 and September 2009.
2. The applicant did not give evidence in the sentence proceedings and his subjective circumstances were conveyed to the learned judge through the medium of a psychologist's report. He claimed to the psychologist that he had been brought up in a reasonably stable family environment until the age of seven, at which time his father became a heavy user of heroin and was frequently incarcerated. His parents separated when he was 10 years old. He reported having had behavioural difficulties at school and having left at the age of 18 after some suspensions. He has had no real work history. He commenced abusing drugs at the age of 13 years and was a heavy user of cannabis up to the age of 22 when he was first imprisoned. He continued to have access to cannabis in gaol. He informed the psychologist that after his release from prison in September 2009 he resisted drug use until 2012, then commenced again and graduated to cocaine and methamphetamine. He claims to have a significant problem with gambling, in particular poker machines. He has not made any serious attempt at assisted rehabilitation with respect to either drugs or gambling.
3. The involvement of the psychologist in the sentence proceedings appears to have been superfluous, except as means of conveying the applicant's personal history second hand. The applicant has never previously seen a psychologist and has no history of any psychological or psychiatric disturbance. The hearsay account of his background is accepted in the absence of any contest about it. His criminal record disentitles him from lenience. His subjective circumstances are otherwise unremarkable. The applicant informed his psychologist that he was in a long-term relationship with a partner whom he had known from the age of about 18. They have two sons who were seven years and four years of age when he was sentenced and would now be nine and five, respectively. His subjective case included a letter from his partner who is supportive.
4. The applicant expressed to the psychologist regret with respect to the commission of the offences, recognition that they involved wrongdoing and considerable pain at the separation from his young children. The learned sentencing judge appears to have made no specific finding about remorse but it seems reasonable to sentence him upon the basis that he accepts responsibility for wrongdoing. Evidence has been tendered of the applicant's record of behaviour in prison, which is favourable and indicates that he has endeavoured to undertake some training. He has involved himself in work to the extent that it is offered and he thereby exhibits some prospects of rehabilitation. The learned sentencing judge fixed an aggregate non-parole period that represented 67% of the head sentence, reflecting an implicit finding of special circumstances. We would make the same finding having regard to the potential utility of a longer period on parole to assist the applicant's rehabilitation. Neither the Crown nor the applicant asked the Court to adopt a different ratio from that applied by the sentencing judge.

Objective seriousness

1. The objective seriousness of the applicant's offending has been canvassed above in the consideration of grounds 1 and 2. Counts 1 and 2, the manufacture and supply charges, are serious offences both in the midrange of objective gravity having regard to what we are satisfied beyond reasonable doubt was the applicant's role as a principal in operating the laboratory and in holding its product for supply. Without treating either of those offences as in any way aggravated by the possession of any of the firearms, their seriousness remains.

Differentiation between counts 3 and 4

1. Although it was open to his Honour to adopt the same indicative sentence for each of counts 3 and 4, upon re-exercising the discretion we adopt a slightly lower indicative sentence for count 4, primarily because the contribution to penalty deriving from the Form 1 offence in relation to that matter, charge C, may be regarded as measurably less than the contribution of charge B to the sentence for count 3.

Discount for assistance

1. In recognition of assistance by way of the surrender of firearms the applicant is entitled to discount of 5% pursuant to s 23 of the Crimes (Sentencing Procedure) Act, in addition to the 15% discount for his late pleas of guilty. No more than 5% can properly be allowed in the absence of any accompanying assistance with respect to identification of the provenance of the weapons or the offer of any evidence that would support prosecution of the person or persons who held these prohibited firearms until the time of the surrender.

Indicative sentences, aggregate and commencement date

1. In other respects we would arrive at approximately the same starting point indicative sentences as the learned judge did, for each matter. The following are the Court's indicative sentences, after applying a combined discount of 20%: Count 1: taking into account the Form 1, 9 years and 2 months with a non-parole period of 5 years and 8 months. Count 2: 6 years and 2 months with a non-parole period of 3 years and 10 months. Count 3: taking into account the Form 1, 3 years and 7 months with a non-parole period of 2 years and 4 months. Count 4: taking into account the Form 1, 3 years and 5 months with a non-parole period of 2 years and 2 months.
2. The applicant will be sentenced to an aggregate sentence of 13 years and 2 months with a non-parole period of 8 years and 10 months. The date of commencement will be 284 days before 28 March 2018, being the date upon which the applicant's bail on these charges was revoked. That commencement date is 17 June 2017.

Orders

1. The orders of the Court are as follows: 1. Leave to appeal against sentence granted. 2. Appeal upheld. 3. The aggregate sentence imposed by Grogin ADCJ on 27 February 2019 is quashed. 4. In lieu thereof the applicant is sentenced in respect of the four counts on the indictment dated 12 March 2018 to an aggregate term of 13 years and 2 months commencing on 17 June 2017 and expiring on 16 August 2030 with a non-parole period of 8 years and 10 months expiring on 16 April 2026. The applicant will be eligible for parole on 16 April 2026.

Amendments 09 December 2020 - para 67 change date to 17 June 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: 09 December 2020