Youkhana, Jerome v R

Facts 6The charges arose from the applicant supplying ecstasy to an undercover police officer during 2008. The charge of ongoing supply concerned him doing so on four occasions between 18 June and 4 August 2008. On the first occasion, 18 June, he met the officer at a cafe in Oxford Street, Darlinghurst. The supply of 100 ecstasy tablets was negotiated. The applicant obtained the tablets from Mr Ta, who was parked in a car nearby, and returned to the cafe. He delivered them to the officer, who paid $2500 for them. 7The three subsequent occasions were on 24 July, 31 July and 4 August, on each occasion in a street at North Bondi. On the second occasion, the applicant again supplied 100 tablets for $2500. On the third occasion, 500 tablets were supplied for $8500, and on the last occasion, 500 tablets for $8000. In all, 1200 tablets were sold for $21,500. The total weight was just under 328 grams, and the purity ranged between 21.5 and 28 per cent. 8Numerous text messages were exchanged between the applicant and the officer in early August concerning the price for supplying a larger quantity of tablets. On 6 August 2008 the applicant sent the officer a text advising that he had "found out a number from the boys they said they could do it at 14.5 each let me know if you want to get them" . 9The officer met the applicant and Ta at a cafe at Bronte on 1 September 2008. Ta was introduced as the applicant's supplier. A conversation ensued concerning a supply of between 1000 and 2000 tablets to the officer. 10On 7 September 2008 the officer contacted the applicant and negotiated the supply of 1000 tablets for $17,000. The applicant confirmed that the tablets would be sourced from Ta. 11Arrangements were made for the three men to meet at a McDonalds Restaurant at Stanmore on 9 September 2008 where Ta agreed to sell the officer 1000 tablets. He did not have the tablets with him, however, and attempted to coax the officer to go to an address in Glebe to collect them. The agreed facts state that the transaction did not take place "due to a high police presence in the area". 12The officer contacted the applicant on 30 September 2008 and arranged to meet him in order to buy 1000 tablets. They met in a carpark at North Bondi on 2 October 2008 where the applicant provided the officer with 1000 tablets in exchange for $17,000. 13The applicant was arrested immediately following the exchange. His backpack was searched and a plastic bag containing 10 ecstasy tablets was found. It was this which led to the second charge of supply of an indictable quantity (possession for the purpose of supply). The 1000 tablets were found to contain a little under 284 grams of ecstasy of a purity of 17.5 per cent. 14Ta was sentenced by a different judge (his Honour Judge Blackmore SC) before the applicant was dealt with. He pleaded guilty to a charge of supplying an indictable quantity of ecstasy and a further charge of supplying a commercial quantity of the drug. The first arose from his part in the transaction with the undercover officer at the Darlinghurst cafe on 18 July 2008, and the second from his offer to supply 1000 tablets to the officer at the meeting at Stanmore on 9 September 2008. On the first charge, he was sentenced to imprisonment for a fixed term of 8 months, to date from 2 October 2008. On the second charge, he was sentenced to imprisonment for 2 years and 3 months, with a non-parole period of 1 year and 3 months, to date from 2 January 2009. The aggregate sentence was imprisonment for 2 years, with an effective non-parole period of 18 months.

Subjective Features 15The applicant was aged 19 at the time of the offences and had no previous criminal convictions. The sentencing judge regarded his youth and prior good character as two of three significant mitigating factors to be taken into account. 16The third mitigating factor his Honour considered was that the applicant had been diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD") in the mid-1990s. He had been treated by a number of practitioners including a speech pathologist and a developmental paediatrician. Various reports which were tendered in the sentence proceedings led the judge to accept that the applicant had experienced a delay in his educational, emotional and social development. 17There was evidence, which the judge accepted, that the applicant was addicted to cocaine at the time of the offences. He had commenced using cannabis at the age of 14 and progressed to cocaine at the age of 16. He was also using other drugs, including amphetamines, and anabolic steroids to assist his physical development. 18A forensic psychologist, Mr Tim Watson-Munro, provided an opinion that a combination of the applicant's addiction to cocaine and his immaturity was a significant causative influence upon his criminal behaviour. 19The applicant's mother gave evidence that as a consequence of his ADHD he had limited capacity to concentrate on any given task; he was almost always in a rage; and he was impossible to manage. Reports by a developmental paediatrician indicated that such behaviour had been exhibited by the applicant for many years. 20The judge found these reports and conclusions difficult to reconcile with the facts concerning the applicant's involvement in drug supply activity. He noted that the commission of the offences "required a degree of sangfroid, planning and persistence". 21The judge accepted, however, that the applicant's emotional and intellectual maturity were both affected and delayed by his ADHD. He also found there to be an "interplay between the consequence of his Attention Deficit Hyperactivity Disorder and drug abuse". In this context, he referred to the well known passage in the judgment of Wood CJ at CL in R v Henry & Ors [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [273] concerning the circumstances in which a drug addiction may be a mitigating factor. 22The judge concluded that he would reduce the sentences he would otherwise have imposed on account of the applicant's age, prior good character and the interrelated effects of his ADHD and drug addiction. 23Other favourable findings made by the judge were that there were good prospects of rehabilitation (there had been a marked improvement in his behaviour, maturity and literacy skills whilst in gaol); genuine remorse; and early pleas of guilty which warranted a 25 per cent reduction of sentence for their utilitarian value.

Comparison with the sentencing of Hai Hong Ta 24I have already noted that Ta was sentenced for his involvement in the first of the four transactions which constituted the applicant's ongoing supply offence. Accordingly, Ta was charged in respect of the sale of 100 tablets (22 grams) of ecstasy for $2500. His offence was against s 25(1) of the Act which exposed him to a maximum penalty of 15 years imprisonment. On the other hand, in the four transactions in the ongoing supply offence, the applicant sold a total of 1200 tablets (about 328 grams) of ecstasy for $21,500. Pursuant to s 25A(1), he was exposed to a maximum penalty of 20 years imprisonment. 25Clearly, on those facts alone a significantly more severe sentence in the applicant's case was warranted. The sentences imposed were 8months (Ta) and 2 years (applicant). Obviously there were differences in the subjective cases of each offender but there was nothing that would justify the imposition of a lesser sentence in the applicant's case for this offence on account of the sentence imposed upon Ta. 26For the commercial supply offence, Ta was sentenced to imprisonment for 2 years and 3 months. In assessing the seriousness of this offence, Blackmore DCJ took into account that:

• the offence involved an offer to sell as opposed to an actual sale;
• the weight of the drug was likely to have been within a range of 200 to 300 grams, with the commercial quantity for ecstasy being 125 to 500 grams;
• no drugs were disseminated; and
• the quantity involved in this transaction greatly exceeded those involved in Ta's usual dealing in drugs, and so it was "a once only event which was engendered" by the request of the undercover officer. 27Blackmore DCJ concluded that the offence "falls well below" the middle of the range of objective seriousness. 28Subjective matters taken into account in the assessment of Ta's sentences were:
• early pleas of guilty (25 per cent reduction for utilitarian value);
• relatively lengthy criminal history, although the offences were "generally minor", being all dealt with in the Local Court by way of fines and probation;
• he was 27 years of age, born in Hong Kong to Vietnamese refugee parents and raised in Australia in circumstances of some difficulty;
• he had used prohibited drugs since his teenage years and had become addicted;
• he admitted to having been dealing in drugs for three years prior to his arrest but only to support his own addiction;
• he was in a stable relationship with a woman who continued to support him;
• he was intelligent, articulate and had a desire to rehabilitate;
• there were "quite good" prospects of rehabilitation; and
• there were special circumstances warranting an increase of the parole period of the sentence.

Dealing with the appeal 29Mr Averre, counsel for the applicant, provided the Court with a "Parity Table" in which he sought to compare salient features of the applicant's case with those of Ta's case. 30Apart from drawing attention to the different offences and sentences, he identified the differences in ages (20 compared to 27 at the time of sentencing) and criminal histories (nil compared to "relatively lengthy ... (but) generally minor"). 31In the applicant's case there was a finding that the objective seriousness of the offences was "somewhat below the middle range", whereas in Ta's case it was "well below mid-range". 32Reference was made to the findings made in the applicant's case to which I have earlier referred concerning his youth, prior good character and the interrelated effects of his ADHD and drug addiction. These were contrasted with Ta's more mature age and the description of him as intelligent and articulate. 33Reliance was also placed upon certain remarks of the sentencing judge concerning the respective roles played by the applicant and Ta in the offences. They included the following references to submissions which he accepted and conclusions he formed:

• the applicant was not the moving force;
• the principal was Ta;
• Ta was "the guiding mind behind this offender's criminal conduct";
• "Ta was the more important character in these crimes"; and
• the applicant's role "was little more than that of a courier between Ta and the eventual purchaser of the drugs". 34With respect, most of these findings are not borne out by the statement of agreed facts which was the only evidence before the judge in which the circumstances of the offences were described. (The applicant gave evidence but his only reference to the offences was to confirm that he agreed with the statement of facts). 35What is described in the agreed facts is that Ta provided the drugs to the applicant in relation to the first transaction. There is no mention of him having any involvement in the next three transactions, although there is a basis to infer that he was the source of the drugs supplied on those occasions as well. At the meeting with the undercover officer on 1 September 2008, Ta was introduced as the applicant's supplier. 36The transaction which was proposed, but did not proceed, on 9 September 2008 was to have involved Ta supplying the tablets to the officer. 37The final event, the supply of 1000 tablets to the officer by the applicant on 2 October 2008, was preceded by the officer ringing the applicant three days earlier to, in effect, place the order. There is no reference to Ta in relation to this transaction at all, although the inference is available that it was a product of the negotiations in which he had been involved a month earlier. 38There is nothing in the agreed facts, or elsewhere in the evidence, as to Ta guiding, directing, controlling or the like, the activities of the applicant. Nor is there anything to support a conclusion that he was a conduit or "courier" between Ta and the undercover officer. The most that can be said is that the applicant was a supplier to the officer and that he sourced his drugs from Ta. 39The test for determining the existence of a sense of grievance because of disparity is objective, not subjective: Regina v Pan [2005] NSWCCA 114 at [34] per Johnson J. Submissions for the applicant placed significant reliance upon these findings of fact by the sentencing judge. When it is appreciated that they were not based upon the evidence, the support they were said to add to the contention that the applicant has a legitimate sense of grievance falls away. 40Counsel for the applicant referred to the sentencing judge's reference to Ta being charged with offences "which carried lesser maximum penalties" than the offences for which the applicant was charged, the submission being made that this was incorrect. This submission lost some of its force when some confusion in the written submissions as to the maximum penalties under sections 25(1) and 25A(1) was clarified. Beyond that, in my view his Honour was simply indicating that there was a difference in Ta being charged with two offences with maximum penalties of 15 years and 20 years respectively and the applicant being charged with three offences with maximum penalties of 20 years, 15 years and 20 years respectively. 41A further submission was that it was "an error to approach the sentencing of the co-offender as irrelevant on the basis that the offer to supply was in some way automatically less serious than any actual supply". It is well settled that no generalised statement can be made about the relative seriousness of differing forms of supply: McKibben v R [2007] NSWCCA 89 at [16] per Howie J. The problem with this submission is that it has no foundation. The sentencing judge did not state that he regarded the sentencing of Ta as irrelevant on any basis. 42Another aspect in comparing the two sentences is the finding made by Blackmore DCJ that whilst Ta was involved in the supply of drugs on a regular basis, the 1000 tablets he offered to supply to the undercover officer was out of keeping with the quantities he usually supplied and was only "engendered" by the request of the officer. This is in contrast to the applicant's case where he actually supplied 1000 tablets (284 grams) after having already supplied the officer with 1200 tablets (328 grams), albeit in 4 transactions. 43Notwithstanding the various differences between the two cases, counsel for the applicant maintained that the disparity in the sentences is too great and that the applicant is left with a legitimate sense of grievance. 44There was no contention that the sentences passed upon the applicant were manifestly excessive. A complaint of disparity usually proceeds upon an acceptance that the sentence imposed is not otherwise erroneous: Lewins v R [2007] NSWCCA 189 at [7] per Howie J. Counsel for the respondent even submitted that the two year sentence for the ongoing supply offence, which was totally subsumed within the sentences for the other offences, was unduly lenient. 45It was also submitted for the respondent that any grievance held by the applicant could not be a legitimate one because the sentences imposed upon Ta were excessively lenient. Before considering that submission, it is useful to refer to general principles that apply when a question of parity is raised on appeal. I am grateful for the most useful summary recently provided by McColl JA in Gill v R [2010] NSWCCA 236: [53] The fundamental principles underlying the parity principle are well established. It is "an aspect of equal justice [which] requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them": Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 (at 301) per Dawson and Gaudron JJ. Mere disparity between sentences imposed on co-offenders is not of itself a ground for the intervention of an appellate court, rather the difference between the sentences must be manifestly excessive so as to engender a justifiable sense of grievance: Lowe v The Queen (at 610) per Gibbs CJ; (at 611) per Mason J; (at 624) per Dawson J (with whom Wilson J also agreed); Postiglione v The Queen especially per Kirby J (at 338). Appellate intervention is only justified where the applicant demonstrates "gross", "marked", "glaring" or "manifest" disparity: England v R; Phanith v R [2009] NSWCCA 274 (at [61]-[67]) per Howie J (McClellan CJ at CL and Fullerton J agreeing). [54] Before a Court of Criminal Appeal can interfere with the exercise of the sentencing discretion, it must first identify an error in the sense referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 (at 505): Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 (at [3]) per Gleeson CJ and Hayne J; (at [21]) per Gaudron and Gummow JJ; R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 (at [74] - [79]) per Spigelman CJ (Mason P, Grove J and Newman AJ agreeing); see also (at [99]) per Sully J. [55] The principle which underlies intervention in a case of unacceptable disparity between sentences is that inconsistency in punishment may lead to an erosion of public confidence in the administration of justice. It is also accepted, however, the multiplication of manifest errors may also lead to an erosion of public confidence in the administration of justice, hence the frequent judicial observations about "the unattractiveness of responding to one wrong decision by making another wrong decision": R v Rexhaj (New South Wales Court of Criminal Appeal, 29 February 1996, unreported) per Gleeson CJ (Powell JA and Ireland J agreeing). [56] Consistently with Gleeson CJ's observation in Rexhaj it has been held that the exercise of the Court's s 6(3) discretion may be affected by a view being formed that a stage has been reached at which the inadequacy of the lower sentence is so grave that any sense of grievance engendered can no longer be regarded as a legitimate one, and a reduction of an otherwise appropriate sentence to remove that disparity becomes an affront to the proper administration of justice: Chen, Siregar, Ismunandar & Lau [2002] NSWCCA 174; (2002) 130 A Crim R 300 (at [289]) per Heydon JA, Sully and Levine JJ; see also Josefski v R [2010] NSWCCA 41 (at [65]) per Howie J (James and Davies JJ agreeing). [57] Application of the parity principle takes into account that different sentences may reflect different degrees of culpability or the co-offenders' different circumstances and, that if that is done appropriately by the sentencing judge, the notion of equal justice is not violated: Postiglione v The Queen (at 301) per Dawson and Gaudron JJ. [58] Finally, it should be understood that considerable obstacles are faced by an applicant seeking to invoke the parity principle in circumstances where the sentencing judge was fully aware of sentences imposed upon a co-offender, and the reasons for those sentences, and indicates in the sentencing remarks why the judge is departing from the co-offender's sentences: Tatana (at [28]). 46The present case is not one in which "like should be treated alike" ( Postiglione v The Queen ). There should have been a greater sentence imposed upon the applicant, notwithstanding his more favourable subjective case. Counsel for the applicant accepted that this was so. The question is whether the difference between the sentences is manifestly excessive ( Lowe v The Queen ). 47Counsel for the respondent submitted that the findings made by Blackmore DCJ in relation to Ta were "unduly generous" and that the sentence he imposed was "unjustifiably low". On this basis it was submitted that the Court "may resolve not to intervene". The following passage from the judgment of Wood CJ at CL in R v Kairouz [2005] NSWCCA 247 was cited: [45] The Court of Criminal Appeal in this state has reserved a discretion not to intervene, or to intervene to only a limited degree, where it is apparent that the sentence under comparison was unjustifiably lenient, and that to reduce the sentence under appeal, so as to provide an equality of outcome, would result in a sentence that would amount to a repetition of error and an affront to the administration of justice: R v Ismunandar and Siregor [2002] NSWCCA 477 at [31] to [32] and see also R v Diamond NSWCCA 18 February 1993, R v Hopper NSWCCA 19 November 1998, R v Tisalandis [1982] 2 NSWLR 430, and R v Li. 48Counsel for the applicant responded with reference to the judgment of Adams J in Truong v R [2009] NSWCCA 122; (2009) 195 A Crim R 192. I note, however, that the other members of the Court (McClellan CJ at CL and James J) did not join in agreement with the analysis of parity principles by Adams J. With respect, more authoritative are some of the sources to which his Honour referred. 49R v Kollas & Mitchell [2002] NSWCCA 491; Regina v Pan , above, and Lewins v R , above, are each authority for the proposition that the Court has a discretion and is not bound to intervene if a sentence offends the parity principle. A reason for not intervening is if the sentence imposed upon the co-offender is manifestly inadequate and intervention would "produce a sentence disproportionate to the objective and subjective criminality involved": see, for example, Regina v Pan at [35] per Johnson J; Wilson v R [2008] NSWCCA 245 at [39] per Price J. The rationale was described in the authorities referred to by McColl JA in Gill v R, above, as "the unattractiveness of responding to one wrong decision by making another wrong decision", or, "the inadequacy of the lower sentence is so grave that any sense of grievance engendered can no longer be regarded as a legitimate one, and a reduction of an otherwise appropriate sentence to remove that disparity becomes an affront to the proper administration of justice". 50I have earlier indicated my view that the disparity in the sentences of 8 months for Ta's indictable supply offence and 2 years for the applicant's ongoing supply offence does not warrant the latter sentence being reduced. In any event, because it was completely subsumed in the other sentences, any reduction would have no practical effect upon the overall term that was imposed. The more important consideration is the sentence that each offender received for the commercial supply offence, 2 years and 3 months in Ta's case and 7 years in the applicant's case. That is a marked disparity. 51There is merit in the Crown's submission as to the leniency of the sentence imposed upon Ta for the commercial supply offence. Blackmore DCJ regarded the fact that the offence was constituted by an offer, or agreement, rather than an actual supply as a significant matter leading to his determination that the offence was "well below" the middle of the range of objective seriousness. 52In Vu v R [2006] NSWCCA 188, Hall J listed a number of factors which are relevant to the assessment of the seriousness of an offence of offering to supply: [89] In terms of offering to supply factors which will often be relevant in determining the objective seriousness of an offence under s 25(2) of the Act will include:-
• The terms of the offer, in particular, as to the quantity of a drug, its price, etc.
• Whether a particular offer is an isolated one or whether it occurs in the context of an ongoing supply of prohibited drugs.
• Whether, and if so, the extent to which the offer is motivated by reasons of commercial gain or greed.
• Whether the offeror at all material times had the intention to fulfil the offer.
• Whether the offeror had the capacity to fulfil the offer to supply.
• Whether the offeror attempts to fulfil the offer. If not, whether any failure to perform was the result of a decision by the person concerned not to supply or whether it was due to some intervening or extraneous circumstances. 53In Ta's case the offer occurred in the context of regular drug dealing. He had both the intention and the capacity to fulfil the offer and it was only because of extraneous circumstances that he did not. Blackmore DCJ referred to the first factor but not to the others. They were important in the assessment of the seriousness of the offence. 54The sentence imposed for this offence would indicate that by finding that the offence "falls well below" the middle of the range of objective seriousness, his Honour had in mind that it was at, or near to, the bottom of the range. It is difficult to see how an offence involving a genuinely intended offer to supply between 200 and 300 grams of ecstasy (the commercial quantity threshold being 125 grams), where the offeror has the capacity to fulfil the offer but does not do so only because of extraneous circumstances, can be regarded as being at such a low level of seriousness. 55The limited utility of sentencing statistics is well recognized: see, for example, Wong v The Queen; Leung v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [59] per Gaudron, Gummow and Hayne JJ. It has been said, however, that they may be useful in determining whether a sentence is manifestly inadequate (or excessive): per Spigelman CJ in R v Bloomfield (1998) 44 NSWLR 734 at 739. 56The Judicial Commission sentencing statistics for offences against s 25(2) of the Drugs Misuse and Trafficking Act involving ecstasy, where the standard non-parole period applies, indicate that the 67 sentences imposed in the period February 2003 to June 2009 have ranged from 18 months to 12 years. 80 per cent of cases have involved sentences ranging from 3 years to 7 years and the median sentence was 5 years. The sentence of 2 years and 3 months imposed upon Ta falls in the bottom 8 per cent. The statistics lend weight to the Crown's proposition that the sentence was unduly lenient. 57In my view, the disparity between the sentences of 2 years and 3 months and of 7 years is too great to be disregarded because of the undue leniency extended to Ta. There should be intervention, but limited (per Kairouz , above) to reducing the sentence to the bottom of the range that properly reflects the objective and subjective criminality of the applicant. This would recognise both that there is a marked disparity in the sentences and that the legitimacy of the applicant's sense of grievance, viewed objectively, is tempered by the inadequacy of the sentence imposed upon Ta. The 7 year sentence for the commercial supply offence should be reduced by 18 months. Bearing in mind that the standard non-parole period did not apply but remained relevant as a guide, I am of the view that the non-parole period should be reduced to one of 2 years and 6 months. 58The effect of the orders I propose is that the overall term will be reduced from one of 8 years with a non-parole period of 4 years to one of 6 years and 6 months with a non-parole period of 3 years and 6 months. I accept the sentencing judge's assessment that there are special circumstances warranting a longer parole period. The period I propose is more than adequate to meet the objectives that his Honour contemplated. 59I propose the following orders: 1.Leave to appeal granted. 2.Appeal allowed. 3.Confirm the sentences for the offences of supplying an indictable quantity of a prohibited drug and of supplying a prohibited drug on an ongoing basis. 4.Quash the sentence imposed for the offence of supplying a commercial quantity of a prohibited drug and in lieu, sentence the applicant to imprisonment with a non-parole period of 2 years 6 months and a balance of the term of the sentence of 3 years. The sentence is to date from 2 October 2009. The applicant will be eligible for release on parole upon the expiration of the non-parole period on 1 April 2012. The total term of the sentence is to expire on 1 April 2015.

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