Joshua - Ground 1
The Applicant was denied procedural fairness in that the sentencing Judge failed to warn those appearing for him that her Honour proposed to accumulate the sentences, contrary to the written submission of the Crown on sentence.
36The foundation for this ground lies in written submissions made by the Crown prosecutor below. The relevant passage was:
"Concurrency of sentences for drug trafficking:
Provided the totality of the offender's conduct is recognised, concurrent sentences could be imposed for the two roll-up drug trafficking offences given their intertwined nature and timing.
Ditto re the sentence for the deal with proceeds of crime offence given it too is intertwined with the drug trafficking."
37Appearing for the Applicants at first instance, Mr Peter Hastings QC made oral submissions which included:
"I don't take any real issue with what the Crown had put forward in the submissions certainly as to the applicable law and principles. I don't disagree with anything which is contained in the documents."
38Her Honour read the written submissions while on the bench and reserved her decision. No one said anything further on the topic of concurrency and accumulation.
39 In support of this ground the Court was referred to a number of prior decisions - Fairbairn v R [2006] NSWCCA 337; 165 A Crim R 434, Baroudi v R [2007] NSWCCA 48, Nair v R [2013] NSWCCA 79 - which have held, or in which it has been said, that there had been a denial of procedural fairness when a judge had, without notice, departed from an intimation he or she had made during the course of sentencing proceedings.
40Reference was also made to remarks of Kirby P, with whom Handley and Sheller JJA agreed, in Parker v DPP (1992) 28 NSWLR 282 at 296. His Honour said:
"It used to be said that 'silence' in a judge was 'a counsel of perfection': see, eg, R v Watson; ex parte Armstrong (1976) 136 CLR 248 at 294. However, at least in the case of a trial judge sitting without a jury, that view has now been disapproved by the High Court of Australia: see Vakauta v Kelly (1989) 167 CLR 568 at 571. Respectfully, I strongly endorse the view there expressed. Fair procedure requires, at least for important decisions and those critical to the determination of a case, that considerations of importance to the judicial officer's conclusions should be drawn to the notice of the parties affected or their representatives so that a fair opportunity is presented for contrary argument to persuade the judicial decision-maker to a different view."
41The remarks of the High Court in Vakauta v Kelly to which Kirby P referred were made in an appeal in a personal injury case and in the following context:
"In the course of an eloquent passage in his judgment in Reg v Watson; ex parte Armstrong, Jacobs J expressed the view that judicial 'silence' is 'counsel of perfection'. We respectfully disagree with the application of that observation to a trial judge sitting without a jury. It seems to us that a trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated."
42Parker v DPP was a case where, in the course of an offender's appeal from a deferral of sentence and fine imposed in the Local Court, a District Court judge, without notice of what he contemplated (which would have given the offender an opportunity to withdraw his appeal) imposed a custodial sentence. It was a situation where time honoured practice meant that a judge would not increase a sentence without notice.
43The circumstances in both cases are radically different from those in sentencing proceedings in the District Court. Not uncommonly a judge will have a number of cases before him, hopefully some or all of which will be disposed of during the day. The circumstances of each may be simple or complex. The Crown will often hand up written submissions which may deal with a few or, on the other hand, a myriad of issues and which may or may not contain concessions. Generally defence counsel, but not the judge, will have had those submissions in advance. The Crown may make concessions in the course of oral submissions.
44For a judge, who may wish to reserve because of the difficulties of a particular case, or so that he or she can deal with other cases in their list, in those circumstances to be obliged to read or listen to those submissions with a fine tooth comb, so that he or she can comprehensively identify any concessions and bring any with which he or she does or may disagree, to the attention of defence counsel, is to place a burden on the judge that the system cannot, and in my view should not, have to bear. The judge is there to read or listen to what is put before him or her and to decide, in light of the relevant statutory provisions and other law, the sentence appropriate to impose. The representatives of the parties have the obligation to raise matters that argue in favour of their respective clients, they can fairly be assumed to know them (or they should not be practising in the jurisdiction), and in sentencing proceedings I do not believe "fair procedure requires ... that considerations of importance to the judicial officer's conclusions should be drawn to the notice of the parties or their representatives".
45I do accept that if a judge gives a positive indication that he or she is disposed to adopt a particular argument or approach, and a party or legal representative in reliance on that indication, also adopts a particular course, then the judge will, because of his or her or own conduct, come under an obligation to warn of the possibility of any change of view. To maintain silence when the judge's view has changed is to mislead and is in character no different from representations that are or become misleading in other fields of activity. Thus, I have no difficulty in accepting the law as laid down in Fairbairn v R; Baroudi v R; and Nair v R.
46For these reasons I do not regard there having been a denial of procedural fairness. But there is another reason why this ground cannot succeed. The concession by the Crown was qualified. It used the expressions, "could be imposed" and "provided the totality of the offender's conduct is recognised". The first of these expressed a possibility. It did not say "should be imposed" or that no other course was open.
47In, to some extent, accumulating the sentences for the drug offences, her Honour was clearly demonstrating that she did not regard one of those sentences as properly reflecting the totality of Joshua's conduct. In those circumstances, what is now relied on as a concession by the Crown, accepted that her Honour was entitled to impose sentences not, or not wholly, concurrent.
48In these circumstances, I need not pursue the question whether there was any conceivable possibility that entirely concurrent sentences would not have been erroneous. As presently advised, I do not see how Joshua's criminality in supplying 95 kg of cannabis, often in transactions quite separate from those involving methylamphetamines, could possibly have been encompassed within a proper sentence for the methylamphetamine supply count.
Joshua - Ground 2
The applicant has a justifiable sense of grievance as a result of the disparity and lack of proper proportion between his sentence and the sentence imposed on the co-offender, Kurt Toole.
49As has been said, the sentences for the methylamphetamine charges were, for Joshua, 13 years including a non-parole period of 8 years, and for Kurt, 9¾ years including a non-parole period of 6 years. The effective total sentences and non-parole periods were each 1 year longer.
50In the argument made in support of this ground, no challenge was made to her Honour's findings summarised above. Rather was emphasis placed on the fact that Kurt had a more significant record, including offences of threatened or actual violence and that he had committed the subject offences whilst on conditional liberty. The gravity of the offence on his Form 1 was emphasised. These matters may be conceded.
51However, operating with considerable force in the other direction, is the difference in roles of the Applicants as found by her Honour and the difference in quantities in the methylamphetamine charges. In support of the contention that quantity is not the principal determinant in fixing an appropriate sentence, counsel for Joshua relied on R v Stanbouli [2003] NSWCCA 355; 141 A Crim R 531 at [102] and Melikian v R [2008] NSWCCA 156 at [42]. I have no difficulty in accepting what is said in those paragraphs. The whole of them is important. In R v Stanbouli I said:
"And although a majority of the High Court has said that weight is not the chief factor to be taken into account in fixing a sentence - see Wong v R (2001) 207 CLR 584 at [67], their Honours also made it clear that weight is material. Given the terms of the legislation and the fact that the extent of the illegal profit and the degree of harm arising from an importation is liable to be roughly proportional to weight, it could hardly be otherwise."
52The passage from Melikian v R reads:
"It is well established that the quantity of the drugs is not the sole or even the principal determinant for sentencing in relation to drug offences. As was pointed out by Wood CJ at CL in Regina v MacDonnell (2002) 128 A Crim R 44 at [33]:
'What is more important is the role of the offender, and the level of his or her participation in the offence; subject of course to the fact that, in relation to supply offences under State law, there is a gradation of seriousness reflected by an increase in penalty as the quantity of drug involved moves into those levels which answer the descriptions of a commercial quantity, or of a large commercial quantity.'"
53Joshua was running a commercial operation. No doubt an increase in quantity increased his profit as it undoubtedly increased the extent of the harm, or prospect of the harm, that has led to the unlicensed methylamphetamine trade being rendered illegal. Dealing as Joshua did in roughly six times the quantity that was the subject of the charge against Kurt, required a substantially higher sentence. Given the differences in quantities and in the roles of the Applicants as found by her Honour, I see no error in the disparity between the sentences imposed. A fortiori is this so when her Honour provided detailed findings and reasons for the difference, findings and reasons which have not been challenged - see R v Swan [2006] NSWCCA 47 at [71].