Woods v R

Court of Criminal Appeal (NSW)|2020-07-22|Before: Bathurst CJ, Garling J, Wright J

Solicitors: Hanna Legal (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2017/00229228 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: [2019] NSWDC 401 Date of Decision: 17 June 2019 Before: Buscombe DCJ File Number(s): 2017/00229228

Sentences imposed by the District Court

On 17 June 2019, Buscombe DCJ imposed a total effective term of imprisonment of 7 years, commencing on 27 July 2017, with a non-parole period of 5 years. That total effective term was the result of two individual sentences and a single non-parole period imposed for the federal offences and an aggregate sentence and non-parole period imposed for the state offences.
The sentences for the federal offences were as follows: Seq Federal offence and maximum penalty Sentence 1 Importing, between 24 November 2014 and 29 March 2017, a marketable quantity of a border controlled drug, 24.78 g of MDMA and 14.05 g of cocaine, contrary to s 307.2(1) of the Criminal Code (Cth), for which the maximum penalty is 25 years' imprisonment and/or 5,000 pu 3 years commencing on 27 July 2017 and expiring on 26 July 2020. 20 Importing, between 26 July 2017 and 2 August 2017, a marketable quantity of a border controlled drug, 257.25 g of MDMA, contrary to s 307.2(1) of the Criminal Code (Cth) for which the maximum penalty is 25 years' imprisonment and/or 5,000 pu 5 years and 3 months commencing on 27 April 2018 and expiring on 26 July 2023.

The single non-parole period fixed for the federal offences, as required by s 19AB(1) of the Crimes Act 1914 (Cth), was 4 years commencing on 27 July 2017 and expiring on 26 July 2021.
For the state offences, an aggregate sentence of 4 years 6 months commencing on 27 January 2020 and expiring on 26 July 2024 was imposed, with a non-parole period of 2 years 6 months commencing on 27 January 2020 and expiring on 26 July 2022.
In accordance with s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act), the sentencing judge indicated that he would have imposed the following sentences, had he not imposed an aggregate sentence for the state offences: Seq State offence and maximum penalty Indicative sentence 12 Ongoing supply, between 17 May 2017 and 6 June 2017, of 45.44 g of MDMA contrary to s 25A of the Drug Misuse and Trafficking Act 1985 (NSW), for which the maximum penalty is 20 years imprisonment and/or 3,500 pu 3 years 6 months (with Seq 11, a further contravention of s 25A of the Drug Misuse and Trafficking Act by supplying 10.55 g of MDMA in April and May 2017, taken into account on a Form 1) 22 Supply, on 27 July 2017, of a prohibited drug, 34.67 g of cocaine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW), for which the maximum penalty is 15 years imprisonment and/or 2,000 pu 2 years 6 months 26 Supply, on 27 July 2017, of a prohibited drug, 25.3 g of psilocin, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW), for which the maximum penalty is 15 years imprisonment and/or 2,000 pu 2 years 8 months

As can be seen, the sentencing in the present case involved a certain degree of complexity because of the multiple federal and state offences.

Application for leave to appeal and grounds of appeal

The applicant filed his application for leave to appeal against sentence on 11 March 2020 and the grounds of appeal on which he seeks to rely are: "1. The overall term of imprisonment is manifestly excessive; and 2. The finding of special circumstances was not given practical effect in the sentence structure."
In order to address these grounds it is necessary to consider the sentencing judge's remarks on sentence in some detail.

Remarks on sentence

Initially in his remarks on sentence, Buscombe DCJ noted that the applicant adhered to his guilty pleas and set out the relevant charges and maximum penalties for the offences charged.
Based on the agreed facts before the sentencing judge, it was found that the applicant was involved in the importation of marketable quantities of 3,4-methylenedioxymethamphetamine or MDMA, and of cocaine, through the "dark net". The applicant had set up various post boxes leased solely by him, including ones at Kellyville, Rose Hill and North Richmond and, in doing so, had provided his own residential address and relevant identification.
The learned sentencing judge found that the sequence 1 offence, the first of the federal offences, involved five separate importations in items of mail. The presence of prohibited drugs in those items was identified at the Clyde International Mail Centre and the drugs were seized at the Centre. The importations were as follows: 1. The first importation occurred on 24 November 2014. The item was sent from the United Kingdom, was addressed to the applicant at his residential address and contained 1 g of MDMA. 2. The second importation occurred on 29 June 2016. The item was sent from the Czech Republic, was addressed to the applicant at his residential address and contained 18.8 g of MDMA. 3. The third importation occurred on 8 March 2016. The item was sent from the United Kingdom, was addressed to the applicant at his residential address and contained 13.5 g of cocaine. 4. The fourth importation occurred on 18 September 2016. The item was sent from the Czech Republic, was addressed to the applicant at his residential address and contained 4.98 g of MDMA. 5. The fifth importation occurred on 29 March 2017. The item was sent from the Netherlands, was addressed to the applicant at his residential address and contained 0.55 g of cocaine.
The second federal offence, sequence 20, involved two importations where the prohibited drugs were detected and seized at the Clyde International Mail Centre. The importations were as follows: 1. The first importation occurred on 26 July 2017. The item was sent from the United Kingdom, was addressed to the applicant at a post office box in Rose Hill and contained 117.48 g of MDMA concealed in a protein powder satchel. The purity of the drug was 76%, yielding a weight of 89.92 g. 2. The second importation occurred on 22 August 2017. The item was sent from the United Kingdom, was addressed to the applicant at a post office box in North Richmond and contained 139.77 g of MDMA. The purity of the drug was 71%, yielding a weight of 99.24 g.
His Honour recorded that on 27 July 2017, the day after the first importation in sequence 20, the applicant admitted that he had ordered the MDMA in that importation and confirmed that another order had been placed for 125 g that was due to arrive later. This order led to the second, sequence 20 importation.
The state offences, sequence 12 (with sequence 11 taken into account on a Form 1), sequence 22 and sequence 26 were found to have occurred as a result of a controlled operation and involved what is set out below. 1. Sequence 11 - On 12 and 20 April and 4 and 11 May 2017, an undercover officer purchased a total of 10.55 g of MDMA for $1,280 from the applicant's co-offender, with whom the applicant was in a relationship. The applicant knowingly supplied those drugs to the co-offender for the purpose of receiving a financial and material gain for each separate supply. 2. Sequence 12 - Between 17 May and 6 June 2017, two undercover officers purchased a total of 45.44 g of MDMA from the applicant on three separate occasions. The applicant knowingly supplied those drugs to the undercover officers for the purpose of receiving a financial and material gain for each separate supply. 3. Sequence 22 - After the applicant was arrested on 27 July 2017, his home was searched and 34.67 g of cocaine was found in a locked safe underneath his bed. The applicant had disclosed that an ounce of cocaine was in the safe and provided the PIN to open the safe. 4. Sequence 26 - On 27 July 2017, a plastic bag containing dried mushrooms was also found in the locked safe and this material contained 25.3 g of psilocin. The applicant told police in a subsequent interview that he had purchased the material online. While the quantity found exceeded the commercial quantity of psilocin, it was an agreed fact that the Crown could not prove beyond reasonable doubt that the applicant knew that the quantity exceeded the commercial quantity.
The learned sentencing judge also noted that there was evidence from the applicant's mobile telephone and computer involving a large amount of data recording his access to websites on the dark net. The applicant had identified the cost of various prohibited drugs and had used encrypted messaging.
On 27 July 2017, the applicant participated in an electronically recorded interview with police. He made a number of relevant admissions concerning obtaining the drugs over the internet, "policing" his post office boxes, knowing that his conduct was illegal, selling drugs and the nature of his relationship with his co-offender.
As to the objective seriousness of the federal offending, his Honour had regard to the matters listed in s 16A(2) of the Commonwealth Crimes Act and found as follows. 1. Sequence 1 was "well below a notional midrange offence", in light of the fact that: there were 5 separate importations over roughly 2½ years of two border controlled drugs; the applicant was the "principal organiser" in Australia; the importations were organised over the dark net; there was some level of planning involved but the parcels were addressed in the applicant's own name and addressed to his home address; the offending was done for financial gain; and, the quantities (as set out above) were well above the marketable quantity but well below the commercial quantity. 2. Sequence 20 was "a little less than a notional midrange offence", in light of the fact that: the applicant was "a principal" at the Australian end; the degree of organisation was similar to that in sequence 1; and, while the weight of the drug was only one factor, the offence was "far more serious" than sequence 1 "when regard is had to the [applicant's] role, the fact that at that time he was no longer a user of MDMA and the amount imported."
As to the state offences, the sentencing judge's conclusions as to objective seriousness were as set out below. 1. Sequence 12 was "a serious offence but well below a notional midrange offence", given that it involved: ongoing supply of 44.44 g of MDMA; the amount derived from the sale was relatively small; since financial gain was inherent in the offence that was not an aggravating factor; the drug did not enter the user market but that was unknown to the applicant; and, the quantity was well below the commercial quantity. It was also said that similar comments could be made about sequence 11, the presence of which on a Form 1 resulted in an increased sentence for sequence 12. 2. Sequence 22 was "well below a notional midrange offence", given that: the 34.67 g of cocaine was found in a safe at the applicant's premises; the amount was well below the commercial quantity; but, it was possessed for the purpose of supply. 3. Sequence 26 was "a little below the midrange level of objective seriousness for such offending", given that: the 25.3 g of psilocin was found in the safe under the bed; but, although the amount was a little over the commercial quantity, the applicant was not sentenced for supplying the commercial quantity as that was not the offence to which he pleaded guilty.
None of these findings as to the circumstances of the offending or as to the degree of objective seriousness was sought to be challenged in this application for leave to appeal.
Buscombe DCJ then turned to consider the applicant's subjective circumstances. Noting that the applicant had been born in 1994 and that he was only 20 at the date of the first importation in sequence 1, his Honour had regard to his relative youth.
It was found that the applicant had no criminal history and this entitled him to some degree of leniency. The time already spent in custody was noted and his Honour determined that the sentences were to be back dated to commence on the date of his arrest.
The sentencing judge accepted that the evidence before him supported a finding that the applicant was of general prior good character, which should lead to further leniency.
His Honour noted the documentary evidence which included a sentence assessment report, a report from a psychiatrist, Dr Nielssen, testimonials from family members and friends, a document from Dr Ambler concerning the applicant's younger sister and notes from his Corrective Services file. The applicant gave evidence during the proceedings on sentence and confirmed the background information contained in the documentary material.
It was noted that the applicant had support from his family and friends in court, that he was the eldest of four children and that one of his sisters had an intellectual disability. He was found to be close to, and supportive of, that sister. In particular, the sentencing judge took into account the impact of the applicant's incarceration on his sister in the general mix of factors that affected sentencing. Buscombe DCJ found that the applicant was brought up in a good and loving home and had no trouble at school, which he left before completing year 10 to work in the family's air conditioning business.
It was noted that, in custody, the applicant had worked as a sweeper with positive reports, his behaviour has been considered generally compliant and he got on well with officers and inmates.
The applicant's drug use was found to have included MDMA between the ages of about 17 and 20. After 20, he commenced using cocaine and ceased using MDMA.
His Honour noted that Dr Nielssen opined that there were no signs of neurological disorder but diagnosed a substance use disorder in remission. The applicant was not depressed when interviewed by Dr Nielssen.
In terms of his attitude to his offending, the sentence assessment report recorded that the applicant justified his offending but the sentencing judge gained the impression that he had some limited insight into the real seriousness of his offending.
It was noted that the applicant was assessed as having a medium to low risk of re-offending but Dr Nielssen's opinion was that he had good prospects of rehabilitation.
The sentencing judge found that, in his oral evidence, the applicant accepted full responsibility for his offences and, in relation to the state offences, did not seek to put blame on his co-offender. By the time of the importation of the MDMA in 2017, this was not for his use but solely for on-selling. The applicant's evidence was that he sold drugs to maintain his supply of cocaine and to supplement the family income, but there was no evidence that other members of the family were aware of this supplementing of their income. Overall, he was accepted as a witness of truth, albeit with limited insight into the serious nature of his offending.
In relation to both the federal and state offences, a discount of 25% was allowed for the utilitarian value of the early pleas of guilty and willingness to facilitate the course of justice.
It was held that there was some remorse, in addition to the early guilty pleas and the admissions made to police when interviewed. The applicant was found to have good prospects of rehabilitation and he was unlikely to re-offend, provided he is able to stay away from using prohibited drugs.
In relation to the state offences, it was found that his prospects of rehabilitation would be assisted if he had a longer period on parole than that provided by the statutory ratio of 75%, established by s 44 of the Sentencing Procedure Act. Having regard to that factor and the applicant's age and the fact that this was his first time in custody, the learned sentencing judge made a finding of special circumstances, for the purposes of s 44(2B) of the Sentencing Procedure Act in this case.
As noted above, it was held that it was appropriate to backdate the sentences to commence on the date of the applicant's arrest on 27 July 2017.
On the application for leave to appeal, there was no challenge to any of these findings made by the sentencing judge as to the applicant's subjective circumstances.
As to accumulation, Buscombe DCJ said: "In my opinion, there should be some accumulation as between the Commonwealth offences themselves as separate importations are involved. There should be some accumulation as between the Commonwealth and State offences given the different nature of the offending. The State ongoing supply offences occurred prior to the second importation offence. There should be, in my view, limited accumulation between the State offences. To some degree, the supply offences concerning the substances found at the offender's premises can be seen as being encompassed in the criminality involved in the ongoing supply offences."
His Honour then made reference to the objects of sentencing in s 3A of the Sentencing Procedure Act and how they applied in the present case. Similar comments were made concerning the applicable principles in relation to sentencing for the federal offences. The sentences recorded above were then imposed.
It can be noted that, after imposing the sentences, the learned sentencing judge said to the parties' legal representatives: "Can you just check the dates for me? I had my associate double check them but I would just like you to check them before we go." In response, the Crown said that the dates appeared correct.

Grounds of appeal

As has been noted above, the applicant sought to rely on two grounds of appeal: 1. the overall term of imprisonment was manifestly excessive; and 2. the finding of special circumstances was not given practical effect in the sentence structure.
The second ground of appeal involves the contention that the sentences were affected by specific error. In these circumstances, it is appropriate to deal with that ground before considering, to the extent necessary, the first, more general ground of appeal.

Ground 2

Ground 2 raised the issue of whether the finding of special circumstances made by his Honour in relation to the state offences was appropriately given practical effect to, in light of both the way in which the sentences for the federal and state offences were actually structured and the resulting ratio of the effective non-parole period to the effective head sentence overall.

Submissions

The applicant submitted that, although the sentencing judge had made a finding of special circumstances justifying a parole period of less than 75% of the sentence for the state offences, the practical effect of the overall sentence structure adopted in the present case was that there was only a very modest reduction of the effective, overall non-parole period by three months. This, it was effectively contended, amounted to "making a mockery" of the finding of special circumstances (to adopt the expression of Howie J in R v Sutton [2004] NSWCCA 225 at [30]) and amounted to an error of principle in the exercise of the sentencing discretion.
It was further suggested that the failure to give practical effect to the finding of special circumstances may have occurred because the impact of accumulation upon the ratio between the non-parole period and the overall sentence was not specifically considered.
In relation to this ground, the Crown submitted that the variation of the statutory ratio between the head sentence and the non-parole period for state offences was a discretionary matter and was confined by the need to ensure that the time an offender must spend in custody reflected all the circumstances of the offences and the offender. It was said that the sentence in the present case involved a mixture of state and federal offences and in relation to federal offences there was neither a statutory, nor a judicial, "norm" for the ratio between the non-parole period and the head sentence.
The Crown's effective contention was that, by reducing the overall non-parole period by 3 months compared to a non-parole period of 75% of the total effective sentence, the sentencing judge gave effect to the period of time considered appropriate to assist the applicant's prospects of rehabilitation and was an appropriate exercise of the judge's discretion. Thus, it was said that no error was disclosed in the present case.

Consideration

As noted above, this case involves a degree of complexity because the applicant was sentenced for both federal and state offences. The setting of non-parole periods for sentences for state offences is governed by s 44 of the Sentencing Procedure Act. For federal sentences, a non-parole period is required to be set, subject to certain exceptions which are not relevant for the present case, under s 19AB of the Commonwealth Crimes Act.

Non-parole period for the state offences

Section 44 of the Sentencing Procedure Act requires, subject to ss 45 and 46 (which are not relevant in the present case), a sentencing court, when sentencing an offender to imprisonment for state offences, to set a non-parole period. In particular, subsections 44(2A) and (2B) apply where an aggregate sentence of imprisonment is imposed. Section 44 relevantly provides: "(1) Unless imposing an aggregate sentence of imprisonment, when sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence). … (2A) Without affecting the requirement to set a non-parole period for a sentence, a court imposing an aggregate sentence of imprisonment in respect of 2 or more offences on an offender may set one non-parole period for all the offences to which the sentence relates after setting the term of the sentence. (2B) The term of the sentence that will remain to be served after the non-parole period set for the aggregate sentence of imprisonment is served must not exceed one-third of the non-parole period, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision). (2C) The court need not indicate the non-parole period that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence unless it is required to do so by section 54B. (3) The failure of a court to comply with subsection (2), (2B) or (2C) does not invalidate the sentence. …"
Consequently, in the present case after imposing the aggregate sentence of 4 years 6 months for the state offences, the sentencing judge was required to set a non-parole period and, under s 44(2A), this was permitted to be a single non-parole period.
Further, in accordance with s 44(2B) and in the absence of a decision that there were special circumstances, his Honour would have been required to set a non-parole so that the balance of the sentence did not exceed one-third of the non-parole period. In other words, absent special circumstances, the non-parole period should not have been less than 75% of the head sentence, or 3 years 4½ months, with a balance of the term being 1 year 1½ months.
In fact, however, Buscombe DCJ concluded that there were special circumstances based on: (a) the finding that the applicant's prospects of rehabilitation would be assisted if he had a longer period on parole than that provided by the statutory ratio; (b) the applicant's age; and, (c) the fact that this was his first time in custody. There was no challenge to his Honour's findings or conclusion in relation to the existence of special circumstances.
Since it was found that there were special circumstances, the sentencing judge was permitted by s 44(2A) and (2B), and did, impose a single non-parole period of 2 years 6 months, which was 55.6% of the head sentence. The balance of the term was 2 years. Thus, the non-parole period was reduced by 10½ months compared to the period if the statutory ratio had been applied. The reduction in the ratio from 75% to 55.6% indicates that his Honour intended the finding of special circumstances to have a substantial impact upon the length of time the applicant might be on parole.

Non-parole period for the federal offences

Sentencing for federal offences is dealt with in Pt 1B of the Commonwealth Crimes Act, which includes s 19AB. Subject to a number of exceptions which are not presently relevant, under s 19AB(1) a court must fix a single non-parole period in respect of federal sentences in the circumstances specified in the subsection. Section 19AB(1) provides: "(1) Subject to subsection (3), a court must fix a single non‑parole period in respect of a federal sentence or federal sentences if: (a) a person is convicted of a federal offence, or of 2 or more federal offences at the same sitting; and (b) the court imposes the sentence or sentences on the person; and (c) either or both of the following subparagraphs apply: (i) any of the sentences is a federal life sentence; (ii) the sentences, in the aggregate, exceed 3 years; and (d) when the court imposes the sentence or sentences, the person is not already serving or subject to a federal sentence."
In Pt 1B of the Commonwealth Crimes Act, there is no equivalent to s 44 of the Sentencing Procedure Act and there is, thus, no statutory requirement that the non-parole period for a federal sentence bear any particular ratio to the head sentence. Nor is there any similar, judicially established "norm" or starting point for the ratio which a federal non-parole period should bear to the head sentence, subject to special circumstances applicable to the particular offender: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [13] and [37] - [44]. A sentencing judge should determine the length of the non-parole period for a federal sentence by reference to, and by application of, the principles identified by the High Court in cases such as Bugmy v The Queen (1990) 169 CLR 525 at 530-532; [1990] HCA 18.
As noted above, Buscombe DCJ imposed two federal sentences. The first was 3 years commencing on 27 July 2017. The second was 5 years and 3 months commencing on 27 April 2018. Taken together, the applicant's effective federal sentence was 6 years, from 27 July 2017 to 26 July 2023. The single non-parole period set was 4 years. Thus, the ratio of the non-parole period to the effective head sentence was 66.7% for the federal offences. This ratio also indicates that the sentencing judge did not intend that the applicant should serve a non-parole period for the federal offences approaching 75% of the overall sentence.
There was no contention on this appeal that the learned sentencing judge had made any error in relation to setting the non-parole period for the federal offences.

Effect of accumulation of federal and state sentences

When the sentencing judge determined, however, the extent of accumulation as between the two federal sentences and the state aggregate sentence, it produced an effective overall sentence of 7 years with an effective non-parole period of 5 years. The ratio of the effective non-parole period to the effective head sentence was, therefore, 71.4%.

Have the judge's intentions been given appropriate effect?

It has been established in relation to the setting of a non-parole period for more than one state offence, after a finding of special circumstances, that: 1. an appropriate starting point when considering a ground of appeal asserting error in relation to the ratio of the overall non-parole period to the effective sentence is to ascertain "what can be gleaned of the judge's intention from the sentencing remarks": MD at [43]; Maglis v R [2010] NSWCCA 247 at [24] (Howie AJ, Handley AJA and Adams J agreeing)); 2. the focus should not be solely upon the percentage proportions that the non-parole and parole periods bear to the total term. The actual periods involved are equally, and probably more, important: MD v R [2015] NSWCCA 37 (MD) at [41] (Gleeson JA, Johnson and Hall JJ agreeing); Caristo v R [2011] NSWCCA 7 at [42] (R A Hulme J, Giles JA and Adams J agreeing)); and 3. intervention by this Court has generally been in situations where the sentencing judge has not given effect to a finding of special circumstances through inadvertence or miscalculation: MD at [42] and the examples referred to in Fina'i v R [2006] NSWCCA 134 at [31]-[40].
In the present case, there are multiple federal as well as state sentences. Nonetheless, in my view the same general principles should be applied in relation to the overall sentence involving both federal and state components, but bearing in mind that there is no statutorily or judicially established "norm" or starting point for the ratio between the non-parole period and the head sentence for federal sentences.
In relation to the state offences in this case, the single non-parole period of 2 years 6 months was 55.6% of the head sentence of 4 years 6 months. The balance of the term was 2 years. There was, thus, a reduction of 10½ months in the non-parole period compared to the period if the statutory ratio of 75% had been applied. Similarly, for the federal sentences, the ratio of non-parole period to the effective head sentence was 66.7%. This was equivalent to 6 months less than if a 75% ratio had been applied.
From these figures, it is beyond dispute that the sentencing judge considered that the special circumstances in the present case justified and required, in respect of the state offences, a significant downward departure in the order of 20% from the statutory ratio established by s 44(2B). Moreover, the non-parole period set for the federal sentences indicates that the sentencing judge did not accept that a non-parole period at or above 75% of the effective head federal sentence was appropriate in respect of the applicant and the relevant offences. The ratio for the overall federal sentence was about 9% below a 75% ratio.
Notwithstanding this, Buscombe DCJ imposed an effective non-parole period of 5 years and an effective overall sentence of 7 years, yielding a ratio of 71.4%. Such a non-parole period involved a reduction of only 3 months or slightly more that 3% below a 75% non-parole period for the overall, effective sentence.
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".
R v LWP [2003] NSWCCA 215 was a case where the sentencing judge made a finding of special circumstances and fixed sentences so that the non-parole periods were 66.6% of the head sentences. However, when the sentences were accumulated, the overall non-parole period was 75% of the effective head sentence. In the circumstances of that case, this Court was satisfied that the judge had intended to give effect to his finding of special circumstances in relation to the overall, effective sentence as well as in relation to the individual sentences. Since this had not been achieved, the sentences were quashed and the offender was re-sentenced.
The applicant's situation is similar to those in both Sutton and LWP. Having regard not only to the ratios expressed as percentages but also the actual periods involved in the sentences imposed by Buscombe DCJ, it appears clear to me that the sentencing judge's intention was that the ratio of the effective non-parole period compared to the overall sentence should be well below 75%. Unfortunately, this was not achieved, given the way in which the sentences were accumulated.
In the present case, the multiple federal and state offences meant that the sentencing exercise was not simple. As a result of this, when specifying the commencing dates for the various sentences and fixing the relevant non-parole periods, his Honour, either through miscalculation or inadvertence, did not achieve a ratio of non-parole period to the head sentence for all of the sentences, both federal and state, taken together which was substantially less than 75%. The effective reduction of the overall non-parole period by only three months confirms, in my view, that the judge's intention reflected in his finding of special circumstances was not given effect to in this case.
It is understandable how this might have occurred in the circumstances. Indeed, if the ratios could have been calculated and the inconsistency between the ratios for the individual federal and state non-parole periods and for the overall non-parole period ascertained, immediately after the sentences were announced, it would have been helpful if the legal representatives of the parties could have drawn the inconsistency to his Honour's attention.

Conclusion

For these reasons, it appears to me that the sentencing judge did not give effect to his intention that the overall, effective non-parole period should be significantly less than 75% of the overall, effective sentence. This was the result either of miscalculation or inadvertence when dealing with the accumulation of the sentences. As a result, the sentences imposed were affected by error, as contended under ground 2. I would uphold the appeal on this ground.

Ground 1

The applicant's submissions in relation to the first ground of appeal largely attributed the manifest excess of the "overall term of imprisonment" to the degree of accumulation adopted by the learned sentencing judge. The two federal sentences and the indicative state sentences were not said to be individually excessive. It was also submitted that the comparative cases relied upon by the applicant supported the submission that the overall sentence was manifestly excessive.
It has already been accepted that the way in which the federal and state sentences were accumulated led to the error identified in ground 2. In these circumstances, it is unnecessary to consider ground 1 further.

Is some other lesser sentence warranted in law?

Error having been established as contended under ground 2, it is appropriate to grant the applicant leave to appeal. The Court's duty is then to resentence unless, in the exercise of its discretion, it concludes that no other sentence, generally lesser, is warranted and should have been passed: s 6(3) of the Criminal Appeal Act and Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (Kentwell) at [42] (French CJ, Hayne, Bell and Keane JJ).
In exercising its discretion, the Court is required, not to assess whether and to what degree the errors influenced the original sentences but, rather, to exercise the discretion afresh, taking into account the purposes of sentencing and the factors required by law to be considered: Kentwell at [42] and [47].
Exceptional circumstances apart (and there is none in the present case), the appropriate sentence is to be determined on the material that was before the sentencing judge, the sentencing judge's unchallenged factual findings, and any relevant evidence of post-sentence conduct: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9].
The learned sentencing judge's findings in his remarks on sentence were not challenged in this appeal. They have been set out above and it is unnecessary to repeat them here. In particular, I have taken into account the nature and extent of the applicant's offending and I also accept the assessments by his Honour of the objective seriousness of each offence.
I also adopt and have taken into account the findings as to the applicant's subjective circumstances including: 1. the applicant's youth at the time of the offending; 2. his prior good character and lack of any prior criminal record; 3. the applicant's admissions to, and co-operation with, police during their investigations; 4. his lifestyle changes after his arrest and while on bail, including his being in continuous employment during this period; 5. the continued support of his family and friends and his relationship with his sister, upon whom his incarceration has had a particularly negative impact; 6. his employment while in custody; 7. his prospects of rehabilitation and the assessment that he was unlikely to re-offend, provided he is able to stay away from using prohibited drugs; and 8. the other relevant findings by the sentencing judge.
The documents annexed to the affidavit of Ms Wong, which was relied upon if the Court was required to resentence the applicant, included: 1. a statement of attainment from TAFE New South Wales dated 28 February 2020 recording that the applicant completed a course in providing first aid; 2. a certificate of completion dated 14 April 2020 recording that the applicant has met all the requirements to complete the 10-session EQUIPS Foundation Program of Corrective Services NSW; and 3. a certificate of achievement dated 28 May 2020 recording that the applicant completed the Gurnang Life Challenge Program.
Having regard to that material, I accept that the applicant has used some of his time in custody to complete courses which indicate that his prospects of rehabilitation have probably improved since he was sentenced and the likelihood that he will reoffend has diminished.
Having considered the available sentences, I am satisfied that no other sentences than sentences of imprisonment are appropriate in all the circumstances of the case, especially since the offending involved the importation into Australia of marketable quantities of border controlled drugs and the supply of prohibited drugs into the community.
I am satisfied, in relation to the state offences, that the applicant's prospects of rehabilitation will be assisted if he has a longer period on parole than that provided by the statutory ratio of 75%. In addition, given his relatively young age, the fact that this is his first time in custody and the need for some degree of accumulation in the sentences to be imposed, I find that special circumstances exist for the purposes of the state offences and s 44(2B) of the Sentencing Procedure Act.
To the extent that unifying principles and other assistance may be derived from comparable cases, I have taken into account the cases referred to by the parties in their submissions.
Like the learned sentencing judge, I am of the view that, in respect of each offence, the applicant is entitled to a discount of 25% for his early guilty pleas, including the utilitarian value of those pleas.
An aggregate sentence may be imposed for the state offences under s 53A of the Sentencing Procedure Act. An aggregate sentence may also be imposed for the federal offences under s 53A of the Sentencing Procedure Act, by virtue of s 68 of the Judiciary Act 1903 (Cth): Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301 at [141]-[146] (Price J, Basten JA and Walton J agreeing); (2017) 270 A Crim R 556, applying the reasoning in Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8.
I propose that separate aggregate sentences should be imposed for the federal offences and for the state offences. A degree of accumulation between the federal and state sentences is required, in my view, to reflect: (a) the fact that the criminality involved in the federal importation offences does not entirely encompass the criminality in the state supply offences; and, (b) the need to impose a sentence that is of an appropriate severity in all the circumstances, while at the same time giving effect to the finding of special circumstances. The individual sentences and the structure of the sentences are what I regard as appropriate having regard to the totality of the criminal behaviour.
In all the circumstances, objective and subjective, and in light of the applicable maximum penalties and the requirements of s 16A and other relevant provisions of the Commonwealth Crimes Act, I propose, for the federal offences sequences 1 and 20, an aggregate sentence of 6 years commencing on 27 July 2017 and expiring on 26 July 2023 with a non-parole period of 4 years expiring on 26 July 2021.
The sentences I would have imposed if an aggregate sentence were not imposed are: 1. sequence 1: 3 years imprisonment; and 2. sequence 20: 5 years imprisonment.
In relation to the state offences, having regard to the maximum penalties, the objective seriousness and nature of the offences and the subjective circumstances of the applicant and taking into account the purposes of sentencing in s 3A of the Sentencing Procedure Act and its other relevant provisions, I propose that an aggregate sentence of 4 years 6 months commencing on 27 April 2019 and expiring on 26 October 2023 with a non-parole period of 2 years 6 months expiring on 26 October 2021.
The sentences I would have imposed if an aggregate sentence were not imposed are: 1. sequence 12 (taking into account sequence 11): 3 years 6 months; 2. sequence 22: 2 years 6 months; and 3. sequence 26: 2 years 8 months.
The overall, effective sentence I propose, therefore, consists of a non-parole period of 4 years 3 months commencing from 27 July 2017 and expiring on 26 October 2021 and a head sentence of 6 years 3 months expiring on 26 October 2023. The earliest date on which the applicant will be eligible for consideration for release on parole is 27 October 2021.
Section 16F of the Commonwealth Crimes Act requires an explanation to be given of the purpose and consequences of fixing a non-parole period in the applicant's case. The sentences I propose mean that the applicant will be imprisoned for a period not less than the overall non-parole period which has been fixed. After that time, if he is considered suitable for release on parole, he will serve the balance of his effective sentence in the community. During that period on parole, if it occurs, he will be subject to conditions and supervision. If, without reasonable excuse, he fails to comply with his parole conditions or the lawful requirements of his supervisor, his parole will be cancelled and he will be taken back into custody to serve the balance of the effective sentence.
Some of the sentences and the effective, overall sentence I propose are less than the sentences and the effective, overall sentence imposed by Buscombe DCJ. In these circumstances, it is appropriate to allow the appeal, to quash the District Court sentences and to resentence the applicant.

Proposed Orders

Accordingly, the orders I propose are: 1. The applicant has leave to appeal. 2. The appeal is allowed. 3. The sentences imposed by the District Court on 17 June 2019 are quashed. 4. The applicant is sentenced as follows: 1. for sequences 1 and 20, an aggregate sentence of imprisonment for 6 years commencing on 27 July 2017 and expiring on 26 July 2023 with a non-parole period of 4 years expiring on 26 July 2021; and 2. for sequences 12 (taking into account sequence 11 on a Form 1), 22 and 26, an aggregate sentence of imprisonment for 4 years 6 months commencing on 27 April 2019 and expiring on 26 October 2023 with a non-parole period of 2 years 6 months expiring on 26 October 2021.
Thus, the overall, effective sentence consists of a non-parole period of 4 years 3 months commencing from 27 July 2017 and expiring on 26 October 2021 and a head sentence of 6 years 3 months expiring on 26 October 2023. The earliest date on which the applicant will be eligible for consideration for release on parole is 27 October 2021.

Endnote

The terms "federal offence", "federal offender" and "federal sentence" are defined in s 16(1) of the Crimes Act 1914 (Cth), for the purposes of Pt 1B of that Act, as meaning: "an offence against the law of the Commonwealth"; "a person convicted of a federal offence" and "a sentence imposed for a federal offence" respectively. 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: 28 August 2020

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