XY (A Pseudonym) v R

Judgment

1. KIRK JA: I agree with Wright J.
2. HARRISON J: I agree with Wright J.
3. WRIGHT J: By notice of appeal filed on 13 June 2022, the applicant, XY, seeks leave under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against a sentence imposed on 11 June 2021 by Acting Judge Blackmore SC in the District Court of New South Wales at Sydney.

Background

1. On 9 May 2019 in the Local Court, the applicant was committed for trial in the District Court in relation to 19 charges. The trial was listed to commence on 16 March 2020.
2. On 22 November 2019, the applicant pleaded guilty to one count of supplying not less than a commercial quantity of a prohibited drug, one count of supplying not less than a large commercial quantity of a prohibited drug, two counts of possessing a firearm without authority and one count of possessing property reasonably suspected of being the proceeds of crime. He also asked that six other offences on a Form 1 be taken into account.

Sentence imposed in District Court

1. The sentence proceedings were heard before Blackmore SC ADCJ and, on 11 June 2021, an aggregate sentence of imprisonment for a period of 7 years and 6 months, commencing on 7 July 2019 and expiring on 6 January 2027 with a standard non-parole period of 5 years expiring on 6 July 2024, was imposed on the applicant.
2. His Honour said that the aggregate sentence was "made up of the following sentences" which were said to have been "partially accumulated to make up the aggregate sentence": Count Offence Maximum Penalty and SNPP Indicative Sentence and NPP 3 Supply prohibited drug (methylamphetamine), not less than the commercial quantity (288.6g) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) Maximum penalty: 20 years 2 years, 3 months SNPP: 10 years NPP: 18 months 4 Supply prohibited drug (methylamphetamine), not less than the large commercial quantity (991.4g) contrary to s 25(2) of the Drug Misuse and Trafficking Act - with 6 offences taken into account on the Form 1 Maximum penalty: Life imprisonment 6 years SNPP: 15 years imprisonment NPP: 4 years 5 Possess shortened firearm (.42 calibre sawn-off Beretta Monoblock double barrel shotgun) without authorisation contrary to s 62(1)(b) of the Firearms Act 1996 (NSW) Maximum penalty: 14 years imprisonment 1 year, 9 months SNPP: N/A 6 Possess prohibited pistol (F5 automatic machine pistol), without authorisation contrary to s 7(1) of the Firearms Act Maximum penalty: 14 years imprisonment 1 year, 6 months SNPP: 4 years NPP: 1 year 7 Possess property (AUD $288,470) in circumstances where there are reasonable grounds to suspect that the property is the proceeds of crime, contrary to s 193(1) of the Crimes Act 1900 (NSW) Maximum penalty: 5 years imprisonment 1 year, 3 months SNPP: N/A

1. The six offences on the Form 1 taken into account in respect of count 4 were: 1. Receiving a Toyota Prado reasonably suspected of being the proceeds of crime contrary to s 193C(2) of the Crimes Act; 2. Not taking reasonable steps to ensure firearms were safely kept contrary to s 39(1)(a) of the Firearms Act; 3. Possessing instructions for the manufacture of methylamphetamine contrary to s 11C(1) of the Drug Misuse and Trafficking Act; 4. Possessing a prohibited drug (71.6 g of testosterone) contrary to s 10(1) of the Drug Misuse and Trafficking Act; 5. Possessing ammunition without authorisation contrary to s 65(3) of the Firearms Act; 6. possessing a prohibited weapon (knuckle dusters) without authorisation contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW).

Grounds of appeal

1. In the applicant's notice of appeal filed, within time, on 13 June 2022, he seeks leave to appeal against the sentence imposed by Blackmore SC ADCJ on two grounds: "Ground 1 The sentencing judge erred in applying the sentencing discount to the aggregate sentence and not the indicative sentences Ground 2 The sentence imposed was manifestly excessive"
2. In order to consider these grounds, it is necessary to review the remarks on sentence in some detail.

Remarks on sentence

1. The learned sentencing judge commenced his remarks by identifying the offences for which the applicant was being sentenced, including the offences on the Form 1, together with the applicable maximum penalties and standard non-parole periods. It was noted that the relevant facts had been agreed and his Honour set out his findings based on the agreed facts at some length. The findings may be summarised adequately for present purposes as set out in the paragraphs which follow.

Facts of the offending

1. Between May and November 2017, the applicant was the subject of a police investigation concerning the supply of prohibited drugs, in particular methylamphetamine. Recorded conversations between the applicant and an associate established that the applicant was well ingrained in the milieu of drug dealing in and around Coffs Harbour.
2. As to one of the offences on the Form 1, prior to August 2017, the applicant was owed a debt arising from the supply of drugs of approximately $25,000 by the owner of a 2016 Toyota Prado. When the applicant went to the owner's house with an associate, the owner of the vehicle handed it over to the applicant in satisfaction of the debt. The applicant required the owner subsequently to sign the relevant transfer paperwork as well as a note which said "Beyond no doubt there was no stand over tactics used in the sale of this Toyota Prado". Approximately 10 days later, the applicant texted the owner asking him to sign a document because the applicant said that the police thought that he "stood over [the owner] with a firearm or something and took it [the vehicle]".
3. In relation to count 3, supplying a prohibited drug not less than a commercial quantity, on 12 September 2017, the applicant made arrangements for another person to acquire drugs from the applicant. The next day the applicant and the person met up at the applicant's home and the applicant supplied to that person a package containing methylamphetamine for which the person was to pay the applicant $20,000 at a later time. The other person intended to on-supply the drugs for $22,000. When the person left the applicant's home and was driving towards Port Macquarie, he was stopped by police who searched his car and discovered a cryovac sealed bag beneath the driver's seat which contained 288.6 g of methylamphetamine of 37.5% purity. The person had purchased the same quantity for $20,000 from the applicant on two previous occasions and had sold the drugs for $22,000. On one of those occasions, the person used the money he received to pay the applicant.
4. As to counts 4, 5, 6 and 7 and some of the remaining offences on the Form 1, during August and September 2017, the applicant had conversations captured by surveillance device and telephone intercept in which he told various people that he had a drum buried in bushland. On 25 October 2017, police located the drum in an area of bushland approximately 5 km from the applicant's home. The drum contained: 1. seven freezer bags containing 991.4 g of methylamphetamine of 57% purity; 2. a .42 calibre sawn off Berreta monobloc double-barrel shot gun which was unloaded; 3. a shortened .22 calibre Gevarm self-loading semi-automatic rifle with a magazine attached and modified to duplicate the appearance of a submachine gun (which was described as "F5 automatic machine pistol" in the indictment); 4. three boxes of .22 calibre cartridges and a firearm scope; and 5. 29 bundles of Australian currency totalling $288,470.
5. As at 25 October 2017, the applicant was not the holder of a licence or permit authorising the use or possession of firearms or prohibited firearms. Neither of the firearms found in the drum was registered nor had the applicant taken all reasonable precautions to ensure the safe storage of them.
6. As to other offences on the Form 1, on 1 November 2017, police searched the applicant's home and located, in his bedroom, inter alia: 1. five pages of handwritten instructions for manufacturing methylamphetamine; 2. vials containing steroids; 3. a set of silver knuckle dusters.
7. On 1 November 2017, the applicant was arrested and participated in an electronically recorded interview but declined to answer any questions regarding the allegations.
8. The sentencing judge found that the applicant was a principal in a one-man enterprise of supplying large quantities of methylamphetamine, exercising control over the sale of drugs and securing the profits. His supplies were found to be at a high level, usually selling 10 ounces at a time for $20,000, which his Honour described as "wholesaling drugs which were then being on-sold into the community". His Honour found a degree of organisation was involved, such as concealing drugs in a drum, but it was not particularly sophisticated.

Objective seriousness

1. Blackmore SC ADCJ's conclusions as to the objective seriousness of the offending can be summarised as follows: 1. Count 3, which involved supplying just over the commercial quantity, "would fall below the middle of the range"; 2. Count 4, a deemed supply of about double the large commercial quantity sold for profit, fell "around the middle of the range of seriousness"; 3. Each of counts 5 and 6, which involved possessing unauthorised weapons but no evidence of use, fell "below the middle of the range of seriousness"; and 4. Count 7, relating to possession of a very significant amount of money reasonably suspected of being the proceeds of crime, was said to fall "at least in the middle range of objective seriousness."
2. It can be noted at this point that there was no challenge to any of these findings or conclusions of the sentencing judge.
3. His Honour was alive to the risk of double counting and over penalising arising out of the circumstances of the case and said: "As each of the offences amounts to indicia of supply and can legitimately be taken into account as increasing the seriousness of the principal offence of supplying a large commercial quantity of drugs, caution must also be exercised in not double-counting them and over-penalising the [applicant] as a result. The offences should be viewed as part of his overall business of commercial supply and as such they aggravate the seriousness of the principal offence. There should be individual penalties attaching to each offence but they can be largely subsumed within the penalty for the principal offence by some relatively modest accumulation of sentence."
4. Turning to the offences on the Form 1, the sentencing judge concluded that they required "a significant increase in penalty that is to be applied to the principal offence of large commercial supply while still bearing in mind that that the offences appear to be part of the indicia of supply with respect to that offence."

Criminal record

1. The applicant's significant criminal record was found to disentitle him to any leniency on sentence and to give rise to a need for the sentence to demonstrate the principle of specific deterrence.

Offences committed while on parole

1. It was noted that the offences were committed while the applicant was subject to a parole order which aggravated the seriousness of the offending and it was held that, as with all offences involving drug supply, the principle of general deterrence was of particular significance on sentence.

Applicant's subjective case

1. The sentencing judge then turned to consider the applicant's subjective case.
2. It was noted that the applicant was a 38-year-old single man who had had a difficult childhood suffering from asthma and being hospitalised on a number of occasions. His illness interfered with his education and his parents separated when he was in early adolescence. The applicant's father and brother both suffer psychiatric conditions and, after his parents' separation, he went to live with his mother. The applicant was asked to leave school for smoking cannabis and he did not receive any recognisable qualification from his education.
3. As to his employment, it was noted that he did assist his mother in her pie baking business and at one time began operating a tyre and mechanical business, which continued for a number of years. He also operated a car dealership and a panel beating shop at a time when he was supplying drugs. When he was arrested at that time, these businesses were closed, his assets were frozen and he could not meet his then present debts.
4. The sentencing judge recorded that the applicant had one significant relationship which resulted in a child who unfortunately died at birth and the relationship ultimately faltered. It was noted that he had re-partnered by at least 2017. It was said that, since 2016, he has been in and out of prison regularly but keeps in constant contact with his mother with whom he is close and whose cancer diagnosis has been a cause of concern for him.
5. His previous drug use, which included the use of heroin from around the age of 25, was said to have assisted him with managing his long-standing anxiety and depression. His Honour noted that the applicant now appeared to be drug-free but was willing to undertake drug rehabilitation. In these regards the sentencing judge concluded: "The [applicant's] difficult childhood and his present anxiety and depression, which can be identified as being related back to childhood, do entitle the [applicant] to some recognition on sentence. It should reduce to some extent the need for the sentence to reflect specific deterrence. It should also be acknowledged that these conditions make it more difficult for the [applicant] when he is incarcerated."
6. The sentencing judge then referred to a spinal injury which the applicant attributed to working whilst in custody. Although initially it was found that appropriate medical treatment in custody was not forthcoming that situation had since been rectified. Nonetheless, it was held that "a back injury causing pain will likely be a factor that will make incarceration more difficult for the [applicant] and it is a factor that I should take into account on sentence, which I do."
7. His Honour then referred to the applicant using his time in custody productively to study successfully to support his hope when ultimately released of pursuing a professional career. It was accepted that his prospects of rehabilitation would be greatly assisted if he had the opportunity to engage in a professional career when released.
8. The sentencing judge noted in some detail the circumstances relating to the timing of the applicant's plea of guilty and ultimately concluded, in relation to the discounts for the plea and for some assistance that a combined discount of 50% was appropriate. There was not challenge to that finding in this Court.

Special circumstances

1. His Honour made a finding of special circumstances based upon the applicant's willingness to undertake drug rehabilitation and his need for further psychological treatment when released.
2. It was recorded that the sentencing judge took into account the factors in s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act) .

Sentence

1. After considering the above, his Honour then imposed an aggregate sentence of imprisonment for 7 years and 6 months with a non-parole period of 5 years. It was held that the sentence should commence on 7 July 2019, in light of the applicant's time spent in custody in relation to other offending.
2. His Honour then explained: "The period of seven years and six months is made up of the following sentences: Supply large commercial quantity count 4, taking into account the Form 1 offences, six years imprisonment with a non-parole period of four years and a parole period of two years. Supply commercial quantity of drug, a total of two years and three months, and the non-parole period will be 18 months, and the parole period will be nine months. In respect to the offence of possess shortened firearm there is a total sentence of one year and nine months. In respect to the offence of possess prohibited pistol a sentence of 18 months with a non-parole period of one year. Dealing with the proceeds of crime the total sentence is one year and three months imprisonment. Each of those sentences will be partially accumulated to make up the aggregate sentence."

Ground 1

1. The first ground of appeal was that sentencing judge erred in applying the sentencing discount to the aggregate sentence and not the indicative sentences.

Submissions

1. The applicant referred to s 53A of the Sentencing Procedure Act and relied on the authorities, including Weiss v R [2020] NSWCCA 188 at [69]-[70] and the other cases there cited, which establish that applying the discount to the aggregate sentence, rather than the indicative sentences, is an error requiring this Court to intervene and re-sentence.
2. In support of the submission that the sentencing judge applied the combined discount of 50% for the plea of guilty and for assistance to the aggregate sentence, the applicant drew attention to the sentencing judge's words that "had these matters gone to trial … an aggregate sentence of at least 15 years imprisonment would have been applied" and noted that the aggregate sentence imposed was 50% of 15 years, being 7 years and 6 months. Thus, it was submitted that 15 years was the undiscounted starting point and the discount had been applied to the aggregate sentence.
3. It was also observed that his Honour did not expressly state what discount he applied to each indicative sentence and it was thus submitted that there was no ambiguity as to whether the discounts had been applied to the indicative sentences. It was then submitted that it followed that the process adopted by the sentencing judge did not comply with s 53A of the Sentencing Procedure Act. It was also submitted in effect that where the reasons of the sentencing judge were unclear it was necessary to engage in a process of trying to discern how his Honour arrived at the aggregate sentence and this supported the conclusion that the sentencing discretion has miscarried.
4. The Crown submitted that the sentencing judge did not adopt the erroneous approach of applying the discount to the aggregate sentence rather than the indicative sentences because the indicative sentences, without any accumulation, would total only 12 years and 9 months and if the 50% discount was applied to each of those indicative sentences it would yield only a total of 6 years and 4½ months (without any accumulation), which is less than the aggregate sentence of 7 years and 6 months. The Crown therefore submitted that the applicant's contention was an "absolute mathematical impossibility".
5. The Crown submitted that the sentencing judge followed the correct procedure and first applied the 50% discount to the indicative sentences before partially accumulating them to make up the aggregate sentence. Further, the Crown submitted that when the remarks were read as a whole it was clear that this was what had occurred and error was not established.

Consideration

1. The first ground of appeal raised the question of whether the sentencing judge erred in applying the sentencing discount to the aggregate sentence and not the indicative sentences.
2. An aggregate sentence may be imposed under s 53A of the Sentencing Procedure Act. That section relevantly provides: "53A Aggregate sentences of imprisonment (1) A court may, in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each. (2) A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a written record of, the following - (a) the fact that an aggregate sentence is being imposed, (b) the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence. … (5) An aggregate sentence of imprisonment is not invalidated by a failure to comply with this section."
3. The relevant principles in relation to the imposition of an aggregate sentence were not in dispute in the present case. Some of these were helpfully summarised by N Adams J (Macfarlan JA and Lonergan J agreeing) in Weiss v R at [69]-[70] as follows: "69. The imposition of an aggregate sentence is provided for in s 53A of the Sentencing Act. Section 53A(2)(a) provides that when an aggregate sentence is to be imposed the court must indicate to the offender that such a course is being taken and s 53A(2)(b) provides that the court must indicate to the offender "the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence." These notional sentence indications are often referred to as "indicative sentences". Part 3 of the Act includes ss 22 and 23 which concern discounts for pleas of guilty and assistance to authorities respectively. Thus, the Sentencing Act provides that the application of discounts is to the indicative sentences, rather than the aggregate sentence. 70. A number of decisions of this Court have held that applying the discount to the aggregate sentence, rather than the indicative sentences, is an error requiring this court to intervene and re-sentence: Berryman v R [2017] NSWCCA 297 at [29]; PG v R [2017] NSWCCA 179 at [74]-[94]; Elsaj v R [2017] NSWCCA 124 at [56]; Vaughan v R [2020] NSWCCA 3 at [92] and Ibbotson (a pseudonym) v R [2020] NSWCCA 92."
4. Recently, it has been reiterated that the requirement to apply discounts for a plea of guilty and for assistance to authorities to the indicative sentences recorded in accordance with s 53A(2)(b) follows from the words "(after taking into account such matters as are relevant under Part 3 or any other provision of this Act)" used in that paragraph: TS v R [2022] NSWCCA 222 at [306] (Fullerton and Garling JJ). No submission was made to the contrary by either party.
5. In the present case, the sentencing judge said "[t]he period of seven years and six months is made up of the following sentences" and then listed individual sentences, with non-parole periods in cases where the offence had a standard non-parole period, for each of the counts for which the applicant was being sentenced and concluded "[e]ach of those sentences will be partially accumulated to make up the aggregate sentence."
6. While his Honour did not describe the individual sentences listed as "sentences that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence" or "indicative sentences", this is clearly what they were intended to be. It is not necessary to repeat the words of the statute or use any particular terminology in complying with s 53A(2)(b), although it may be helpful to do so in order to avoid misunderstanding in particular cases.
7. These indicative sentences totalled 12 years and 9 months and the sentencing judge said that they would be "partially accumulated to make up the aggregate sentence", thus yielding the aggregate sentence of 7 years and 6 months. His Honour's comment is properly understood as referring to notional not actual accumulation. When an aggregate sentence is imposed, there is no actual accumulation of indicative sentences; the sentencing judge simply determines the aggregate sentence by assessing what is appropriate to reflect the totality of criminality in all of the offending: Aryal v R [2021] NSWCCA 2 (Aryal) at [46] (RA Hulme J, Johnson and Wilson JJ agreeing); Vaughan v R [2020] NSWCCA 3 at [90] (Johnson J, Macfarlan JA and R A Hulme J agreeing) and [117] (R A Hulme J). A fair reading of the remarks on sentence as a whole and the fact that there was no specification of commencement dates for the individual sentences listed by his Honour indicate that the accumulation in the present case was only notional.
8. Furthermore, his Honour's observation that the offences for which the applicant was being sentenced were "very serious offences [and] … had these matters gone to trial, and having regard to other factors which I have referred, an aggregate sentence of at least 15 years imprisonment would have been applied", in my view, reflected a general assessment of the totality of the criminality involved rather than the determination of a specific starting point for the aggregate sentence prior to the application of the 50% discount. The words "at least" make that clear.
9. Finally, it cannot be the case, as the applicant contended, that the combined discount of 50% was not applied to yield the indicative sentences. If the 50% discount were applied to the individual sentences as listed by his Honour, they would total only 6 years and 4½ months, without any accumulation. This is less than the aggregate sentence of 7 years and 6 months actually imposed and is inconsistent with the sentencing judge's statement that the indicative sentences were "partially accumulated to make up the aggregate sentence". The appropriate understanding of his Honour's remarks is that the 50% discount was applied to yield each of the indicative sentences, as required by s 53A(2)(b), and those indicative sentences were notionally partially accumulated to reflect the totality of the criminality involved in all of the offences thus yielding the aggregate sentence of 7 years and 6 months.
10. For these reasons, I would reject the first ground of appeal which was to the effect that the sentencing judge wrongly applied the discount to the aggregate sentence and not the indicative sentences.

Ground 2

1. The second ground of appeal was that the aggregate sentence was manifestly excessive.

Submissions

1. After referring to the principles concerning aggregate sentences and manifest excess, the applicant submitted in essence that the question for the Court was whether the sentence imposed was within the available range or, put in other words, unreasonable and plainly unjust.
2. The applicant referred to Brereton JA's approach in Chartres-Abbott v R [2021] NSWCCA 239 at [23] to assessing an aggregate sentence where a discount for a plea of guilty was applied to the indicative sentences, and submitted that this approach was particularly useful in this case where "a notional aggregate sentence [of 15 years] was indicated by the sentencing judge (albeit in error)".
3. It was submitted that the aggregate sentence of 7 years and 6 months was plainly unjust given that it implied a notional starting point, before the combined 50% discount, of 15 years' imprisonment. Further in relation to the actual sentence imposed, it was submitted that a proper consideration of the seriousness of the total offending and the applicant's subjective case demonstrated that the aggregate sentence was manifestly excessive.
4. The applicant, while noting the limitations on the usefulness of statistics in sentencing matters, provided a copy of the Judicial Commissions statistics for the offence of supplying a large commercial quantity of a prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act. It was submitted that the statistics revealed that "a head sentence of 15 years for such an offence would fall within the top 9% of cases" and that the notional starting point of 15 years in the present case was inconsistent with the sentencing judge's findings made in regards to the objective seriousness of the applicant's offending and his subjective case.
5. In addition, the applicant relied upon comparative sentences in two types of cases: (1) four cases involving large commercial supply of methylamphetamine and firearms offences; and (2) five cases involving large commercial supply of methylamphetamine or other drugs in much larger quantities than the present case. It was submitted that the "implied starting point" for the sentences for the first type of offending of "12 to 14 years imprisonment" were "very significantly less than the present case of 15 years", even though the quantity of drugs in those cases was larger than in the present case. As to the second type of offending, it was noted that, while quantity alone is not determinative, those cases were said to involve much larger quantities of drugs yet the implied starting points were only "in the order of 12 to 16 years". It was then submitted that "a divergence between quantities supplied as great as those exhibited … must, at some point, reflect a divergence in the sentences imposed on those offenders."
6. The Crown referred to the principles concerning when a sentence might be found to be manifestly excessive and the utility of statistics and comparable cases. It was submitted that the aggregate sentence of 7 years and 6 months with a non-parole period of 5 years was not manifestly excessive having regard to the following factors: 1. the applicant was being sentenced for five different offences as well as other offences on a Form 1; 2. the applicant was the principal in the wholesale supply of drugs in circumstances which rendered general deterrence an important consideration; 3. the significant amount of money located in the applicant's drum, which demonstrated the extent of the applicant's drug supply business; 4. the applicant's record of convictions and his being on conditional liberty at the time of the offending; 5. the plea discount afforded to the applicant, which was uncontested; 6. the finding of special circumstances leading to a departure from the statutory non-parole period ratio; and 7. the unchallenged finding of the sentencing judge that the applicant had weapons which could be used should the need arise.
7. It was noted that the offences for which the applicant was sentenced included count 4, the deemed supply of almost twice the threshold for a large commercial quantity, which was assessed as being "around the middle of the range" of objective seriousness. It was submitted that, to the extent that there was utility in examining the indicative sentences in this context, the indicative sentence of 6 years with a non-parole period of 4 years after the 50% discount could not be said to be manifestly excessive having regard to: the notional starting point before the discount of 12 years with an 8 year non-parole period; the objective seriousness of the offence; and, the legislative guideposts of a maximum penalty of life and a standard non-parole period of 15 years. Furthermore, it was noted that the aggregate sentence was only 1 year and 6 months more than the indicative sentence for count 4.
8. In relation to the applicant's tables of comparative cases, it was submitted that these cases did not support the applicant's contention that the aggregate sentence in this case was manifestly excessive.
9. In particular, as to the sentences for the first type of comparative cases relied upon by the applicant, those which involved supply of a large commercial quantity of methylamphetamine with firearms offences, the Crown submitted, in effect, that the limited number of cases and the identified differences between those cases and the present case meant that there was no particularly useful comparison to be made. More specifically in relation to R v Muhmud [2010] NSWCCA 219, which involved the lowest notional starting point of 12 years, that case was submitted to be a "particularly poor" comparator given the low quantity and purity of the methylamphetamine, the different type of role of the offender, the different level of objective seriousness of the offending and the favourable finding as to the offender's purpose in possessing firearms which were all unlike the present case.
10. As to the second type of comparative cases, the Crown submitted, while the quantity was a very material consideration in assessing overall seriousness of a prohibited drug supply offence it was not the sole or chief factor, citing Wong v the Queen (2001) 207 CLR 584; [2001] HCA 64, and what was more important was the role of the offender and the level of participation, relying on Sahyoun v R [2020] NSWCCA 87 at [95]. It was submitted that the five cases of the second type relied on by the applicant did not involve a principal supplying at the wholesale level and did not support the contention that the aggregate sentence in this case was manifestly excessive.

Consideration

1. The principles relating to manifest excess are well established and were recently summarised by Bell P (as the Chief Justice then was) with Gleeson JA agreeing in He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 (He v Sun) at [41]-[42]. It is not necessary to repeat here all of what was said there. It is sufficient to observe that intervention by this Court on a ground that a sentence is manifestly excessive is only warranted where it can be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. Generally, for an applicant to succeed on a ground asserting manifest excess, it must be established that the sentence was unreasonable or plainly unjust.
2. Where an aggregate sentence is imposed, as in this case, the operative sentence is the aggregate sentence and it is this sentence which must be shown to be manifestly excessive if an applicant is to succeed on such a ground of appeal. Indicative sentences are not themselves amenable to appeal but they may be a guide as to whether the aggregate sentence reflects error: Benn v R [2023] NSWCCA 24 (Benn) at [81] (Gleeson JA, N Adams and Ierace JJ agreeing) citing JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40].
3. In an appeal from an aggregate sentence on the ground of manifest excess, a principal focus is whether the aggregate sentence appropriately reflects the totality of the criminality involved: Aryal at [49]-[50], citing JM v R at [14].
4. As to reliance on sentencing statistics and previous cases, it is important to bear in mind that a history of sentencing can establish a range of sentences that have in fact been imposed but that history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. Nonetheless, past sentences can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed or impugned sentence: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 (Hili) at [54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) expressly approving Simpson J's comments in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303]‑[305].
5. Most importantly, however, recording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 (Wong) at [59] (Gaudron, Gummow and Hayne JJ). The "unifying principles" are to be discerned in light of the whole of the circumstances that have given rise to the past sentences that are being considered: Hili at [54].
6. In relation to comparing past aggregate sentences with an impugned aggregate sentence, which have each been the subject of a discount for a plea of guilty or for assistance or both, difficulties arise because any discount is by law applied to the indicative sentences and not the aggregate sentence. Nonetheless, it is useful, if not indeed essential, to have a practical means of taking into account the effect on an aggregate sentence of any discount which was relevantly applicable, if past sentences are to provide guidance to appellate courts and stand as a yardstick against which to examine an impugned sentence, as the High Court envisaged in Hili at [54] and other cases. Nonetheless, for the reasons given in BB v R [2021] NSWCCA 283 at [64]ff (Wilson J, Bathurst CJ and Wright J agreeing), using the discount applied to the indicative sentences to calculate a notional "starting point" for an aggregate sentence must be approached with caution.
7. As explained by N Adams J in Davidson v R [2022] NSWCCA 153; 100 MVR 336 at [239]-[245], strictly speaking when an aggregate sentence is imposed and the offender is entitled to a discount the only precise quantification of the overall undiscounted sentence is the sum of the undiscounted indicative sentences before the application of the totality principle. If a notional undiscounted aggregate sentence is calculated by removing the percentage discount which was applicable to the indicative sentences from the actual aggregate sentence, all that can be obtained is a "rough estimate" or "rough guide" as to the notional undiscounted aggregate sentence. N Adams J said in Davidson at [245]: "For my part, I would proceed on the basis that although the undiscounted sentence is 87 years and 4 months [the total of the undiscounted indicative sentences in that case] before the application of the totality principle, it is permissible to use 37 years' imprisonment [the notional undiscounted aggregate sentence] as a rough estimate of the actual undiscounted sentence. The approach is taken purely for the purpose of a shorthand comparison acknowledging that it may be a few years out either way. The precise figure cannot be known because one of the purposes of the enactment of s 53A was to remove the requirement of sentencing judges to state the start and finish dates of each sentence thus the precise nature of the application of the totality principle cannot be identified. But it seems to me that there needs to be some way to nominate approximately what a particular undiscounted aggregate sentence is for the purpose of comparison. I note that Hamill J and Leeming JA took the approach that this can be done as a 'rough guide' in Moananu [Moananu v R [2022] NSWCCA 85]. That is all it is: a rough guide."
8. In the present case, since the aggregate sentence was 7 years and 6 months and the applicant was found to be entitled to a combined discount of 50% in respect of each offence for which he was sentenced, the "rough guide" as to the notional undiscounted aggregate sentence is 15 years imprisonment.
9. The applicant relied on statistics produced by the New South Wales Judicial Commission's Judicial Information Research System (JIRS) support the submission that "a head sentence of 15 years would fall within the top 9% of cases". These statistics were contained in a bar chart labelled "Aggregate/Effective - Terms of Sentence/ All Offenders" and were in respect of offences described as "Drug Misuse and Trafficking Act / s 25(2) - supply or knowingly take part in supply, prohibited drug (non-cannabis leaf) - large commercial qty - SNPP (item 19) post Muldrock" being "Sentences from 24 September 2018 to 31 March 2021". The chart also stated "CAUTION: all data rounded upwards in the graphs; eg a term of 7 months would be shown as '12m'".
10. The chart indicated that sentences of 12 years or less accounted for 92.3% of the 250 "Aggregate/Effective" sentences covered and 5.4% of the sentences were greater than 12 years and less than 16 years. There was, however, no data provided as to: 1. whether the offender in any case had the benefit of any discount for a plea of guilty or assistance and, if so, what percentage discount; 2. the number or nature or objective seriousness of the various offences in respect of which each of the "Aggregate/Effective" sentences was imposed; 3. the quantity of drugs involved or the role of the offender in the offence or offences contrary to s 25(2) of the Drug Misuse and Trafficking Act which were included in the offences for which each of the "Aggregate/Effective" sentences were imposed; and 4. the subjective circumstances of the offender in each case.
11. This chart is an illustration of the type of statistics which the High Court referred to in Wong at [59]: "The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were." (emphasis in original)
12. The most that the chart relevantly established was that 55.3% of the 250 "Aggregate/Effective" sentences covered by the chart were 7 years or less. It follows that the aggregate sentence of 7 years 6 months imposed in the present case would fall within the top 44.7% of such "Aggregate/Effective" sentences.
13. In my view, these JIRS statistics did not provide any proper basis for concluding that the aggregate sentence of 7 years and 6 months in the present case was outside the range of available sentences so as to bespeak any error or that the sentence was unjust or plainly unreasonable.
14. Next, the applicant relied on four cases involving a combination of large commercial supply of methylamphetamine and firearms offences as comparable cases. These were: Huang v R [2019] NSWCCA 144; R v Mahmud [2010] NSWCCA 219; a case with the medium neutral citation [2019] NSWCCA 102; and Chartres-Abbott v R [2021] NSWCCA 239. There was no information provided as to whether these four cases were representative of the full range of cases in which sentences were imposed for this combination of offences.
15. In Huang v R [2019] NSWCCA 144, the offender was resentenced by this Court to an aggregate sentence of 10 years and 6 months for two counts only: (1) supplying not less than a large commercial quantity, namely 5.4 kg, of methylamphetamine; and (2) possessing a prohibited firearm. In relation to the drug offence, a further five offences were taken into account on a Form 1: dealing with the proceeds of crime (approximately $1.26 million); supplying a prohibited drug; possessing a prohibited drug; possessing ammunition without a licence; and, not keeping a firearm safely. The offender was entitled to a discount of 25% for his plea of guilty. It had been found that the offender was "near the apex of a group engaged in the supply of prohibited drugs". The important subjective factors included: the offender's relatively young age and his having no prior convictions in Australia or Taiwan. The "rough guide" for the notional undiscounted aggregate sentence in that case was 14 years. By way of contrast, the "rough guide" as to the notional undiscounted aggregate sentence in the applicant's case was 15 years. The applicant was, however, sentenced for five offences with six additional offences taken into account on a Form 1; the applicant was found to be the principal of a wholesale drug supply enterprise; the applicant was not relatively youthful; the applicant's offences were committed while on conditional liberty; and the applicant had a substantial record including prior offences of supplying a large commercial quantity of a prohibited drug and possessing a shortened firearm. Accordingly, a comparison of the aggregate sentence in Huang with that in the present case does not suggest that the applicant's aggregate sentence was outside the available range or unjust or unreasonable, as the applicant contended, especially having regard to the differing objective and subjective features and the similarity of the "rough guides" in each case.
16. R v Mahmud [2010] NSWCCA 219 involved a Crown appeal which resulted in the offender being resentenced by this Court as follows for two counts only: (1) imprisonment for 5 years with a non-parole period of 3 years and 9 months for possessing more than three prohibited firearms, taking into account on a Form 1 three offences of possessing a prohibited weapon, three offences of not keeping a firearm safely and two offences of possessing ammunition without a licence; and, (2) imprisonment for 9 years with a non-parole period of 6 years and 6 months for supplying a large commercial quantity, 1.78 kg (when the threshold for a large commercial quantity was 1 kg), of methylamphetamine with only 2 to 2.5% purity. The offender was entitled to a discount of 17.5% for his plea of guilty. The sentences were accumulated by 1 year, leading to a total effective sentence of 10 years. It was submitted that this meant that the "starting point" for the effective sentence was "12 years (approx.)". It can also be noted that the offender was sentenced on the bases that: his role was in the nature of a warehouse keeper for the drugs; he "merely had a fetish for firearms and that his possession of the firearms and weapons were not directly associated with his possession of the large quantity of drugs": at [19]; and, it appeared that the offender had no criminal history in relation to drugs. Furthermore, it was said, at [86], that "[i]n the case of the drug offence an appropriate starting point is 11 years". Given the objective and subjective circumstances of the present case, which have been referred to elsewhere in this judgment (and do not need to be repeated here), including the fact that the applicant supplied almost twice the quantity of the applicable threshold for a large commercial quantity, consideration of the "rough guide" of approximately 12 years in Mahmud also does not indicate that the applicant's aggregate sentence was outside the available range or manifestly excessive. Furthermore, the fact that a starting point of 11 years was adopted for the drug offending in Mahmud suggests that the undiscounted indicative sentence for the large commercial supply offence (count 4) of 12 years in the present case was not, in all the circumstances, outside the range of available sentences.
17. The case with medium neutral citation [2019] NSWCCA 102 was only published on Caselaw on a restricted basis. As a result of orders made by the Court of Criminal Appeal on 27 September 2022, certain matters relating to that case cannot be published. It is sufficient to note for the purposes of the present proceedings that the offender was sentenced to an aggregate sentence of 10 years with a non-parole period of 6 years and 6 months for three counts: (1) knowingly taking part in the manufacture of a large commercial quantity of methylamphetamine with an indicative sentence of 3 years and 3 months; (2) supplying a large commercial quantity, 1.0877 kg, of methylamphetamine with an indicative sentence of 5 years and 6 months; and, (3) supplying a large commercial quantity of cocaine with an indicative sentence of 6 years and 9 months. Four further offences on a Form 1 (comprising one supply of an indictable quantity of a prohibited drug offence and three firearms offences) were taken into account in relation to the third count. The offender pleaded guilty at different times to these offences. The purity of the 1.0877 kg of methylamphetamine was relatively low, ranging from 2.9% to 10.8%. At the time of the offending in the first two counts the offender was subject to a bond under s 9 of the Sentencing Procedure Act. As to the offender's role in the supply of methylamphetamine, it was found that "there are simply no surrounding circumstances to place him in any particular position, in any hierarchy or possible hierarchy": at [53]. The offender was found to have "a bad criminal record" but it did not appear to have involved serious drug offending and it was held that his subjective circumstances "were not otherwise compelling" and "his childhood deprivation … did not call for much by way of mitigatory effect": at [41], [68]. The supplying cocaine count was found to be the most serious offence. It can be noted that there was a difference in the discount to be applied in relation to counts 1 and 2 compared to count 3. As a result, the calculation of even a "rough guide" as to the undiscounted aggregate sentence was difficult, if not impossible, and any attempt to compare it with the "rough guide" as to the undiscounted aggregate sentence in the present case would be effectively meaningless. Although it appears that the offender's undiscounted indicative sentence for the second count was lower than the applicant's undiscounted indicative sentence for count 4, this alone would not establish that the applicant's aggregate sentence was outside the range of available sentences or was unjust or plainly unreasonable, especially having regard to the differing circumstances of each case and each offender and other sentences imposed for the same type of offending in other cases.
18. In Chartres-Abbott v R [2021] NSWCCA 239, the offender was resentenced by this Court to an aggregate sentence of 10 years with a non-parole period of 6 years for five counts: (1) supplying a large commercial quantity (888.79 g) of methylamphetamine; (2) supplying a commercial quantity (368.8 g) of heroin; (3) supplying a commercial quantity (372.63 g) of methylamphetamine; (4) possessing a shortened firearm (a Sportco .22 rifle) without authority; and, (5) possessing a shortened firearm (a Sterling .22 rifle) without authority. The applicant was entitled to a 25% discount for his guilty plea. The "rough guide" as to the notional undiscounted aggregate sentence in that case was 13 years and 4 months. The relevant circumstances of that case included that it was not possible to determine with precision where in the hierarchy the offender resided but his involvement was said to be "significant": at [7]. The offender was a long-time user of the drug supplied and this was said to distinguish him from a supplier solely for commercial gain. In addition, it can be noted that the offender in that case suffered from long-term deficits, in particular with regards to processing speed, learning, and memory, because of a very severe earlier traumatic brain injury which would render his imprisonment more onerous. He had only very minor offences on his record after his release to parole in 1990 until the offences in 2019 for which he was being sentenced. He did not apparently have any prior drug supply or firearms offences on his record. He was found to be unlikely to reoffend given his advanced age on release. When the subjective and objective circumstances of the offending and the offender and the "rough guide" of 13 years and 4 months in Chartres-Abbott are compared with the relevant circumstances and the "rough guide" of 15 years in the present case, it does not appear to me that it could properly be concluded that the aggregate sentence in the present case was outside the available range or unjust or unreasonable.
19. In addition, the applicant relied on five cases which it was submitted involved substantially larger quantities of methylamphetamine than the present case. However, this submission was incorrect in relation to one of the cases relied upon as explained below. These cases were: 1. Tiew v R [2020] NSWCCA 234 where the offender was sentenced to imprisonment for 14 years and 6 months for one count of supplying a large commercial quantity, 67.477 kg, of methylamphetamine. A discount of 10% was allowed for a late plea of guilty. Accordingly, the undiscounted sentence was slightly more than 16 years and 1 month. The offender had no previous history of criminal activity and his involvement in the offending was not related to his own use of the illicit drug. His role was described as being "the interface between the syndicate and its customer" (at [23]) which indicated supply at a lower level than wholesale supply. A comparison of the sentence in Tiew with the aggregate sentence in the present case and with the undiscounted indicative sentence for count 4 for the large commercial supply of 12 years, having regard to the different circumstances of each case, does not suggest that the aggregate sentence of 7 years and 6 months or the undiscounted indicative sentence for count 4 in the present case were outside the range of available sentences or that they were unreasonable or plainly unjust. 2. Vigo v R [2009] NSWCCA 98 where the offender was sentenced to a term of 16 years for one count of supplying a large commercial quantity, in excess of 40 kg, of methylamphetamine. The offender was not entitled to any discount and his role was described as having "bought significant quantities of drugs from [other suppliers] for the purpose of sale to drug users": at [3]. It was not clear whether the offender had any relevant prior convictions or any significant subjective circumstances that mitigated the sentence. In so far as anything useful for the purposes of the present case can be discerned from the sentence of 16 years in Vigo, it is that the undiscounted indicative sentence for the count 4 large commercial supply offence of the applicant, namely 12 years, was not outside the range of available sentences. Further, Vigo does not indicate that the aggregate sentence in the present case was manifestly excessive. 3. R v Li [2014] NSWCCA 327 where the offender was resentenced on a Crown appeal to an effective term of 10 years imprisonment for two counts: (1) knowingly taking part in the supply of a large commercial quantity, 24.9782 kg, of methylamphetamine, taking into account an offence on a Form 1 of knowingly dealing with the proceeds of crime; and, (2) conspiring to supply a large commercial quantity, 5 kg, of methylamphetamine. The offender was entitled to a discount of 15% for pleas of guilty. The sentence for the conspiracy offence was made wholly concurrent with the sentence for the supply offence. In the agreed facts the offender's role was described as a "courier" (at [30] and [56]) and it was found that he had no prior convictions (at [35]) and had determined to withdraw from the criminal syndicate before he was arrested and that he had a subjective case that entitled him to some leniency (at [57]). The undiscounted sentence for the supply offence was 11 years and 9 months approximately. In light of the sentences imposed and the different circumstances in the present case, Li provides no significant support for the conclusion that the undiscounted sentence for the count 4 large commercial offence or the aggregate sentence in the present case were outside the relevant range or were unjust or plainly unreasonable. 4. Toole, Kurt v R [2014] NSWCCA 318 (Toole) where the offender was sentenced to an effective total term of 10 years and 9 months for three counts to which he had entered early guilty pleas entitling him to a discount of 25%. The three counts were: 1. supplying 17.2 kg of cannabis leaf for which the sentence was 2 years and 9 months; 2. supplying a large commercial quantity, 1.0055 kg, of methylamphetamine for which the sentence was 9 years and 9 months with a non-parole period of 6 years. It can be noted that the applicant submitted that the quantity of methylamphetamine involved was 18 kg (perhaps confusing it with the cannabis leaf) when in fact the relevant amount of methylamphetamine was slightly over 1 kg, see [11(2)], [22], [99] and [127] of the judgment. In addition, at [24], the sentencing judge "observed that the quantity of methylamphetamine, the subject of one of the charges against Kurt, 'just scrapes into the large commercial quantity range and that, of course, is highly relevant to his culpability in terms of the sentence to be imposed.'"; and 3. entering land with intent to commit an indictable offence for which the sentence was 3 years. In relation to the supplying a large commercial quantity of methylamphetamine offence the undiscounted sentence was 13 years. This suggests that the undiscounted indicative sentence of 12 years for the count 4 large commercial supply offence in the applicant's case (where the quantity was almost two times more than the relevant threshold) was not outside the range of available sentences. Similarly, when the differences in the circumstances between the two cases are taken into account and the notional undiscounted effective sentence in Toole of 13 years and 9 months is compared with the "rough guide" as to undiscounted aggregate sentence in the present case of 15 years, it does not appear to me that the aggregate sentence in the present case was outside the available range or unreasonable or plainly unjust. 1. McLean v R [2020] NSWCCA 344 where the offender was sentenced for a single count of supplying a large commercial quantity (18.85 kg) of methylamphetamine to imprisonment for 12 years and 7 months with a non-parole period of 8 years and 7 months, after a 10% discount for a plea of guilty. The undiscounted term was 14 years approximately. The purity of the drugs was high, there was a reasonable degree of planning involved but the offender could not be described as a principal within the group but played a more subordinate role. Once again, I do not accept that, when the differences in the circumstances between the two cases are taken into account, the undiscounted term of 14 years in McLean establishes that the aggregate sentence in the present case of 7 years and 6 months (after the 50% discount had been applied to the indicative sentences) was outside the available range or unreasonable or plainly unjust. In addition, when the 14 year undiscounted sentence in McLean is compared to the undiscounted indicative sentence of 12 years for count 4 (taking into account the 6 offences on the Form 1) in the present case, it can be concluded that the indicative sentence was not outside the available range.
20. At this point, it can be observed that the table of comparative cases and sentencing outcomes set out at [99] in Toole indicates that for quantities of methylamphetamine ranging from 1.005 kg to 6.04 kg and for different types of roles, the undiscounted sentences ranged from 10 years to 20 years. This provides further confirmation that the undiscounted indicative sentence for count 4 of 12 years and the "rough guide" for the undiscounted aggregate sentence in the present case of 15 years were not outside the available range of sentences and were not unjust or plainly unreasonable.
21. Although the applicant relied upon nine cases, there did not appear to me to be any successful articulation of what should be seen as the unifying principles which those disparate sentences might reveal, as the High Court referred to in Wong at [59]. As a result, and for the other reasons given above, I do not accept that those nine cases established that the aggregate sentence in the present case was manifestly excessive.
22. Finally, I am satisfied that the aggregate sentence of 7 years and 6 months with a non-parole period of 5 years in the present case was within the range of available sentences having regard to the statutory guideposts of the maximum penalties and the standard non parole period, if applicable, the cases relied upon by the applicant and all the relevant circumstances, including most significantly the following factors: 1. the applicant was sentenced for five different offences, which carried maximum penalties of 20 years, life, 14 years and 5 years and, in certain cases, non-parole periods of 10 years, 15 years and 4 years; 2. there were, in addition, six offences taken into account on a Form 1; 3. the applicant was the principal in a one-man enterprise engaged in the wholesale supply of drugs; 4. the amount of methylamphetamine involved in count 4 was almost twice the threshold for a large commercial quantity; 5. the offending which constituted count 4 was found to be "around the middle of the range" of objective seriousness and that particular offence carried a maximum penalty of life imprisonment with a standard non-parole period of 15 years; 6. the $288,470 found in the drum indicated the substantial scale of the applicant's drug supply business; 7. although the offending did not involve the use of the firearms and ammunition in the drum, they could have been used had a perceived need arisen; 8. the applicant's criminal history included previous firearms possession and large commercial drug supply offences; 9. the applicant was on conditional liberty at the time of the offending; 10. while the applicant's subjective case did require some mitigation of the sentence it was not such as to justify a marked reduction in its severity; 11. the applicant had the benefit of the discount for his pleas of guilty and assistance and a finding of special circumstances in relation to the statutory ratio for the non-parole period to the parole period; 12. the aggregate sentence of 7 years and 6 months was only 1 year and 6 months more than the indicative sentence of 6 years for count 4 which demonstrated that the sentencing judge had indeed considered the totality of the criminality involved in all the offending and notionally partially accumulated the indicative sentences so as to avoid an excessive aggregate sentence and so as to impose an aggregate sentence which properly reflected the totality of the criminality.
23. For all of these reasons, I do not accept that the applicant has established that the aggregate sentence imposed by Blackmore SC ADCJ was manifestly excessive. Consequently, the applicant's second ground of appeal should be rejected.

Orders

1. This was not a case without any merit and the grounds of appeal were sufficiently arguable such that leave should be granted. Nonetheless, in my view, the appeal should be dismissed for the reasons I have given.
2. Accordingly, I propose that the orders of the Court should be: 1. The applicant has leave to appeal. 2. The appeal is dismissed.

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: 22 March 2023