Zahed v R

Indicative sentences

1. It is appropriate to set out the indicative sentences nominated by the primary judge now: 1. For Count 1: After allowing discounts of 10 percent for the applicant's plea of guilty XXXXXXXXXXXXXXXXXXXXXXX a sentence of 3 years and 3 months' imprisonment with a non-parole period of 2 years and 2 months; 2. For Count 2: After allowing discounts of 10 percent for the applicant's plea of guilty XXXXXXXXXXXXXXXXXXXXXXX a sentence of 7 years' imprisonment with a non-parole period of 5 years and 4 months; 3. For the third charge, taking into account the matters on the Form 1: after allowing discounts of 25 percent for the applicant's plea of guilty XXXXXXXXXXXXXXXXXXXXXX a sentence of 6 years and 9 months' imprisonment with a non- parole period of 4 years and 6 months. As the Crown submitted, it is evident from these matters that his Honour arrived at the aggregate sentence by notionally incorporating a relatively high degree of accumulation, given the completely separate and discrete criminality involved in each offence (Crown written submissions [8]).

Grounds of appeal

1. The applicant seeks leave to appeal on four grounds of appeal, the gravamen of which I will summarise as follows: Ground 1: His Honour erred in principle by mistaking the threshold quantity for a large commercial quantity of methylamphetamine for count 2 as 500 grams, rather than 1 kilogram; Ground 2: This ground relates to count 1. It is said that the primary judge mistook the facts by concluding that the applicant had an "important function or role in the process of manufacture"; Ground 3: This too, relates to count 1. It is parity point relating to the sentence passed on a co-offender BH, who received a lesser sentence than the applicant; Ground 4: This ground applies to the sentence indicated for each offence. The ground asserts that the primary judge's discretion miscarried by failing to XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

Ground 1

1. The Crown concedes Ground 1 (Written Submission [19]; 4.25 - .30T). The Crown also concedes that it follows from this that it is necessary for the Court to re-exercise the sentencing discretion in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]; whether or not the error is material. The sentencing "discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit" (Kentwell, [42]).
2. This being so, other than for the purpose of assessing whether the Crown's concession is properly made, there is little point in considering the other grounds of appeal, and the arguments advanced by the parties in relation to them, except as contentions and submissions informing, to the extent to which they are persuasive, the re-sentencing of the applicant.
3. I have no doubt that the Crown's concession was properly made. The Count 2 offending was said to have occurred between 5 March 2012 and 28 March 2012. The offending was detected by police who attended the applicant's home to arrest him for the Count 1 offending and to execute a search warrant. In the kitchen police located, and seized, a bag containing a number of plastic containers of various substances making up 1087.7 of methylamphetamine. Two finger prints on the bag were forensically examined and identified as the applicant's.
4. As at the date of the applicant's arrest, the large commercial quantity of methylamphetamine specified in Schedule 1 to the Drug Misuse and Trafficking Act 1985 (NSW) was 1 kilogram. By dint of the Drug Misuse and Trafficking Amendment (Methylamphetamine) Regulation 2015, the threshold was reduced to 500 grams with effect from 1 September 2015.
5. In the course of his reasons for sentence (White Book ("WB") at p. 30) the primary judge said: So far as the objective seriousness of (the Count 2 offending), this involves knowingly taking part in the supply of a large commercial quantity. In this case, the quantity is roughly double the threshold of 500 grams which was obviously for supply, and [the applicant] was clearly implicated in the possession and supply beyond reasonable doubt. Clearly this is a very serious offence. The amount is significant and there is no other conclusion … than that [the applicant] played a significant part in the intended distribution of this amount. It is difficult to go beyond the proposition that he was in possession of that amount. There are simply no surround circumstances to place him in any particular position, in any hierarchy or possible hierarchy.
6. In Greentree v R [2018] NSWCCA 227 Beech-Jones J (Hoeben CJ at CL and McCallum J agreeing), said at [45]: There is no doubt that, overall, in addressing count 1 the sentencing judge acted on a misapprehension concerning the amount necessary to constitute a large commercial quantity of methylamphetamine was (sic). To do so was to act on a "wrong principle" [House v the King (1936) 55 CLR 499; [1936] HCA 40 at p 505] in the same or analogous way that a sentencing judge who identifies the wrong maximum sentence acts on a wrong principle. In those circumstances and subject to the consideration that his Honour imposed an aggregate sentence, it follows that the sentencing discretion miscarried (Kentwell v R at [42]). Further, in circumstances where the indicative sentence for count 1 was a large proportion of the aggregate sentence, it follows that ground 1(c) must be upheld and the sentencing discretion must be re-exercised afresh (Kentwell id). The indicative sentence for Count 2 here is the longest of the three indicative sentences.
7. As I am satisfied that the Crown's concession that Ground 1 has been made good was properly made it is necessary for the Court to re-sentence the applicant in accordance with Kentwell. This does not mean, of course, that the application for leave to appeal has been successful. That will depend upon whether having re-exercised the discretion the Court is of the opinion that a lesser sentence was warranted in law.

Facts relevant to sentencing

1. The facts relevant to the applicant's offending were set out in an Agreed Statement of Facts running to some 20 pages in respect of Counts 1 and 2 and a second Agreed Statement of Facts relevant to the third charge. His Honour summarised the agreed facts in his reasons for sentence. I will provide my own summary relevant to the purposes of the appeal. I think it important to say again that although there were three serious charges dealt with at the same time for sentencing purposes, the criminality involved in each offence was quite separate.
2. In early 2012, police were investigating a suspected clandestine methylamphetamine laboratory operating from premises in Catherine Field occupied by one of the co-offenders. Although the indictment for Count 1 averred conduct between 23 January 2012 and 14 February 2012, it was an agreed fact that there was no evidence of any involvement by the applicant in the enterprise which involved six co-offenders until 2 February 2012.
3. Police operations in February 2012 initially provided strong evidence to suggest that the buildings on the property were utilised as a laboratory for the purpose of the manufacture of prohibited drugs, particularly methylamphetamine. Subsequent inspection for the purpose of the execution of a search warrant by chemicals operations police located numerous items used in the connection of the manufacture of methylamphetamine including chemical ingredients, glassware, trays, buckets containing liquids, a distillation apparatus, a separation funnel apparatus and other items. Lawful interception of the mobile telephones of the various co-offenders, including the applicant, enabled police to place the applicant near the closest cell tower to the property on a number of occasions. On 3 February 2012, the applicant was recorded participating in a conversation about procuring bags of ice for cooling the water to be pumped through a condenser during a drug extraction process. There are a number of other conversations relevant to the involvement of the applicant and relevant, more broadly, to the process of manufacture. The intercepted conversations reveal a concern among the co-accused that the manufacturing process was taking longer than it should have.
4. While the applicant was absent from Sydney and Melbourne the arrest of two co-accused occurred on 15 February 2012. Further police operations resulted in the arrest of the remaining co-accused, including the applicant on 28 March 2012. Among this number was BH, the co-accused about whom the applicant raises his parity complaint.
5. I have related already some of the detail about Count 2. It was during the execution of the search warrant that the drug recovered, the subject of Count 2, was found in four plastic takeaway type containers inside the bag containing the applicant's fingerprints. Each of these containers was found to contain methylamphetamine together with other substances, but the purity was relatively low ranging from 2.9% to 10.8%. As I have said, the total weight involved was 1087.7g.
6. Only a comparatively small amount of methylamphetamine was recovered from the Catherine Field premises. However, the amount of precursor chemicals and the scale of the operation evinced an intention to manufacture in excess of the prescribed large commercial quantity of methylamphetamine. Not all of the necessary chemicals for use in the manufacturing process were located at Catherine Field, but others were recovered from other premises associated with the co-offenders.
7. The Crown acknowledged that it could not prove that any final product had been yet manufactured when the laboratory was closed down by investigating police.
8. It was an agreed fact that the applicant took steps in the manufacturing process with knowledge that it was intended to produce methylamphetamine cut with other substances in an amount greater than 1 kilogram, which was the large commercial threshold when the offending occurred.
9. Electronic and other surveillance indicated that the applicant was present on the premises on 2, 3, 10, 11 and 12 February 2012. The Crown said that he performed manufacturing activities including supervising part of the process, providing some of the precursor drug and participating in the manufacturing process itself, including by the provision of necessary ice as coolant.
10. The applicant's role was in issue at first instance but his case was that he was an occasional adviser.
11. It's perhaps convenient to record here that at the time of the offending the subject of Counts 1 and 2, the applicant was subject to a bond under s 9 of the Sentencing Act imposed by the Burwood Local Court on 28 April 2011 for firearms offences and the offence of having goods the proceeds of crime in his custody.
12. The learned primary judge made the following findings as to the applicant's role (WB 29): Whilst it is difficult to precisely identify his role, it would appear that he was only involved for a relatively short time, although it appears that he had some form of consultative role and some form of active participation. He had, therefore, an important function or role in the process of the manufacture. In my view, this places him in a position below that of HH, KH and MH. His participation was relatively fleeting. However, it is clearly more serious than BH. I adopt what I said in respect of the overall seriousness of the offence in the sentencing remarks in relation to the co-offenders. The offence was a serious offence in which the combination continued for some time and the object was the production of a very significant quantity of methylamphetamine which of course is reflected in the factors involved in the charge.
13. BH had been sentenced by the primary judge on 19 June 2015 (WB 241). His Honour found that each of the co-offenders including BH performed acts in relation to the manufacturing process knowing that the manufacture was intended to produce more than 1 kilogram of a substance containing methylamphetamine. His Honour remarked that BH was originally a driver for the principal co-offender. He then started to monitor and report back to the principal on the progress of the manufacture. His Honour found that his involvement "is at the lowest level of offending in terms of the seriousness of it" (WB 247). He made the following findings: I accept the proposition that initially he was merely undertaking what might be referred to as social driving for his cousin and that he became drawn into the commission of the offence, in part it would appear by a sense of obligation. However, it is quite clearly from the objective circumstances, the phone taps and the DNA evidence that he was, towards the end of the process, intimately involved in progressing the manufacture and reporting back about it. In those circumstances his initial involvement seems to have been peripheral, however, by the time that he was detected on the phone intercepts and by the time the matter was coming to a head he was clearly significantly involved … I accept also that practically speaking, his disability would have meant that he was of little utility apart from as a watcher and reporter in the general process and manufacture. The disability referred to is chronic pain from a "largely debilitating back injury" (WB 246). I would understand his Honour's finding to be that the back injury incapacitated BH from performance of the physical activities involved in operating a drug laboratory.
14. After his arrest the applicant remained in custody on remand until 11 October 2012 when he was granted conditional bail by this Court on very strict terms including the provision of a very large surety. The s 9 bond to which I have referred expired on 27 April 2013.
15. The facts relevant to the third charge may be summarised by saying that in January 2014 police commenced a controlled operation XXXX XXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. The undercover officer and the applicant moved away to a private area of the restaurant where the applicant opened the backpack and directed the undercover officer to remove the drugs which the latter did. The applicant then directed the undercover officer to put the agreed sum of $235,000 into the backpack which was also done. They then left that private area. The offender and a colleague left the restaurant in possession of the purchase money, walking to the nearby premises.
16. Police determined to serve a firearms prohibition order ("FPO") granted under Part 7 of the Firearms Act 1996 (NSW) on the applicant on 24 March 2014. The FPO authorised a search of the premises occupied by the applicant.
17. The applicant was offered the opportunity to witness the search which he declined, quitting the premises. During the search police found the firearm parts and ammunition I have referred to above and equipment of a type associated with the supply of drugs. The FPO search was suspended while police applied for and were granted a search warrant. They returned to the premises and resumed their search. During this phase of the search the indictable quantity of prohibited drugs the subject of the first offence on the Form 1 were recovered.
18. I reiterate that when this offending of March 2014 occurred, the applicant was on bail for Counts 1 and 2. After he quit the premises during the search, the applicant absconded to Western Australia. A warrant was issued for his arrest on 28 March 2014. While in Western Australia, the applicant committed further offences and was arrested on 13 May 2014. He was convicted and sentenced by the District Court of Western Australia in relation to his offending in that State on 11 September 2014 to concurrent sentences of 6 months and 1 day. On 16 September 2014, he was extradited from Western Australia to New South Wales.
19. When dealing with the criminality involved in the third charge, the primary judge said (WB 31): … it is possible to speculate about what the offenders real role in the hierarchy was. Ultimately only his actions are reliable in the determination of his criminality. It was quite clear that he was in a significant position of trust. And that he was entrusted with an extremely valuable commodity and somewhat less than a quarter of a million dollars in moneys which was swapped for the commodity (sic). Therefore, one can readily conclude that the offender was a person who was given responsibility and he played a pivotal role in the transaction [a co-offender] was also given possession of [the drugs], albeit in the company of [the applicant] in the house. The conclusion I draw is that [the applicant's] conduct places him above [the co-accused] and roughly equal to [a second co-accused] but no higher. The learned primary judge rejected the suggestion the applicant became involved in this supply to help a friend. His Honour found that the applicant was significantly involved "and it is undoubted that his reward would have been financial" (WB 32).

Subjective circumstances

1. The applicant was born in March 1983. He was therefore 29 when arrested for the offending in Counts 1 and 2, and 31 when the offending in the third charge occurred. He was 32 when sentenced and is now 36. He is married with two children.
2. The applicant was born in Sydney, one of six children. He was raised by his parents in the family home. His father was a butcher who is now retired. The applicant claimed that all of his siblings have criminal records and that adverse contact with law enforcement was normal in his developmental years (WB 294).
3. The applicant was examined for the purpose of the proceedings on sentence by a Consultant Forensic Psychologist, Ann Lukas. Her report of 30 September 2015 was tendered (Exhibit 1). The applicant told Ms Lukas that his upbringing was, in her expression I assume, "somewhat chaotic". His father was a strict disciplinarian who disciplined the children by beating them. The psychologist observed that the violent and chaotic upbringing would have had a negative effect upon the applicant.
4. He said he had been incarcerated for his offending as a juvenile from about the age of 15 years. He did not complete schooling beyond Year 11 and he was an average to poor student. He had not worked since leaving school other than in one job as a machine operator lasting less than 2 years.
5. He claims to have commenced using cannabis from the age of 13 years progressing to cocaine and MDMA and Xanax.
6. Psychological testing indicated a substance abuse disorder and antisocial personality disorder. The psychologist opined that the applicant "appears to have become desensitised to violence both through his exposure in the home as a child and later through his associates". She did not regard him as presenting "with symptoms of a diagnosable mood or anxiety disorder". He required rehabilitative services to overcome "cognitive distortions" including dichotomous thinking which she regarded as a factor in his offending (WB 300).
7. The applicant has a bad criminal record going back at least to the age of 16 in 1999. For offending occurring on 28 March 1999 involving aggravated break and enter and commit felony with a dangerous weapon he was sentenced by the District Court on 15 June 2000 to a term of imprisonment of 4 years with a non-parole period of 2 years to be served in a juvenile detention centre. For offending which occurred on 12 December 1999 involving malicious wounding with intent to inflict grievous bodily harm and throwing an explosive substance with intent he was sentenced to two concurrent terms of imprisonment of 7 years with a non-parole period of 3 years and 6 months, again, to be served in a juvenile detention centre. On appeal to this Court, leave to appeal was granted, but the appeal was dismissed.
8. On 13 December 2006, he was sentenced by the Campbelltown District Court for offending which occurred on 25 August 2014 to 5 years imprisonment with a non-parole period of 3 years and 3 months. This offending included take and drive conveyance without consent, assault occasioning actual bodily harm in company, demanding property with menaces, and robbery in company.
9. The offending for which he received a s 9 bond to which he was subject in March 2012 was imposed by the Burwood Local Court on 28 April 2011 and, as I have already said, related to firearm offences as well as goods in custody.
10. Of the applicant's subjective case, the primary judge was prepared to accept that he had suffered a significantly troubled background, was brutalised in the family environment and was prepared to take into account "to a degree" deprivation in accordance with Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; presumably attenuating the applicant's moral culpability. Acknowledging his substance abuse issues, the primary judge was not prepared to accept that the applicant was an addict involved in selling to feed his own habit. He was not persuaded that there was any psychological or psychiatric condition contributing to the offending. His Honour noted that given what Ms Lucas said about his dichotomous thinking and his adoption of the moral code of criminals in gaol, prospects of rehabilitation were problematic, although there were pro-social factors in his life including his family. His Honour found special circumstances because of the need for him to undergo drug rehabilitation in the community and to avoid or reduce the risk of the applicant becoming "totally institutionalised". In the event his Honour altered the statutory ratio so that the non-parole period was around two-thirds of the total sentence.
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14. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. In respect of the three offences, thee clearly has to be an element of accumulation. There also has to be significant attention paid to issues of parity.... Therefore, I am limited in respect to the first offence and the third offence by the issues in respect of parity. In sentencing the offender, there has to be a significant degree of general deterrence and specific deterrence. All of the offences are very serious and the offender committed them serially and in circumstances of aggravation.
15. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.

Resentencing

1. I have already referred to Ground 1. For the purpose of resentencing, I will take into account that the primary judge's error was obviously material to his thinking, to the extent to which that is relevant. Clearly, the quantity of the drug involved has some relevance to seriousness, but it is well recognised that it is an error to place too great an emphasis on this factor. Weight must be considered in the context in all relevant facts of the case. Obviously prohibited drugs of or in excess of a specified weight are an element of the graded offences under the legislation. But in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Gleeson CJ, Gummow, Hayne and Callinan JJ said at [33]: A serious fallacy in his Honour's reasoning is that it assumes that any case involving more than 250 g of heroin is likely to be a worse case than any case involving only 250 g or less. That cannot be so in the virtually absolute terms in which his Honour puts it. Little imagination is required to envisage a case involving a relatively small quantity of heroin, as being of very great seriousness, for example, supply to create an addiction in an infant.
2. Quantity therefore is not to be treated as the decisive factor. In Wong v The Queen, Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64, at [67] - [71], Gaudron, Gummow and Hayne JJ accepted "the particular amount of narcotic involved can have significance in fixing the sentence that is to be imposed upon an offender." Weight is not the chief factor involved.
3. I think that it must be said that in passing sentence for Count 2, his Honour did refer to the applicant's actual criminality which is that he "played a significant part in the intended distribution of this amount". His comments in this regard, however, suggest that he placed particular, but not the sole, emphasis upon the consideration that he calculated the amount as double the threshold for the large commercial quantity. And His Honour distinguished this from the third offence saying of that offending, "the amount is over the commercial quantity, but only over by a fractional amount" (WB 30).
4. When considering the contribution of the offending represented by Count 2 to the full range of factors informing the application of the instinctive synthesis in resentencing the applicant, once one reduces, and corrects, the significance of the weight actually involved and its relationship with the statutory threshold, particularly bearing in mind his Honour's finding, "there are simply no surrounding circumstances to place him in any particular position, in any hierarchy or possible hierarchy", it may be that there is a strong case for reducing the indicative sentence, which as I have said, was the longest of the indicative sentences stated. This is particularly so when one then bears in mind the relativities between Count 2 and the third charge.

Grounds 2 and 3

1. I will deal with the applicant's arguments encapsulated in Grounds 2 and 3 together. These are relevant to the appropriate indicative sentence for Count 1, as it happens, the shortest of the indicative sentences stated by the primary judge. As I have stated, the applicant's complaint is about the sentence passed by the primary judge on BH on 19 June 2015 of 2 years and 11 months with a non-parole of 1 year and 6 months.
2. It is not necessary in this case to provide any great exposition of the parity principle and its place in the law of sentencing. It suffices to refer to Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49. French CJ, Crennan and Kiefel JJ (at [28] - [32]) explained that the parity principle is an aspect of the equality before the law. Their Honours said: It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. Their Honours went on to state that when deciding an appeal against the severity of a sentence on the ground of unjustified disparity, a court of criminal appeal will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders (at [32]).
3. Here the applicant's submissions were based upon a two-pronged attack: first, that the primary judge mistook the facts relevant to parity by finding that the applicant had a more important function or role in the process of manufacture than the co-offender; and secondly, by finding that the quality of the applicant's role was "more serious" than that of the co-offender.
4. There are difficulties in accepting these arguments. First, both seek to impugn the correctness of findings of fact by a sentencing judge. The relevant test requires the applicant to demonstrate that the finding made was not open: Biddle v R [2017] NSWCCA 128 at [73]. Secondly, even to the extent to which Ground 3 may be understood as calling into question the relative assessments of objective seriousness of the respective offending of the co-accused, that matter too depends upon the applicant showing that the impugned characterisation made by the sentencing judge is not open: Mulato v R [2006] NSWCCA 282 at [37], McClellan CJ at CL; [46] - [47], Simpson J (as her Honour then was).
5. Thirdly, it is not necessary for a sentencing judge to categorise the involvement of each of the co-offenders in a hierarchy of offending represented by the organisation of a criminal enterprise: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [14]. As Gleeson CJ, Gaudron, Hayne and Callinan JJ stated in Olbrich, the utiIity of the exercise of categorisation is limited by the extent to which the material facts are known. The categorisation process while convenient is not essential "regardless of whether [it] is possible or appropriate".
6. These matters, as is common, proceeded before the primary judge essentially by way of statements of agreed facts. Although their matters were not heard at the same time, his Honour had the considerable advantage of being the sentencing judge in respect of each of these co-offenders. I have set out his reasoning in relation to parity above and I will not repeat it here (at [25]-[26] above). I am not satisfied that his Honour's categorisation, so far as there was material informing that process, was not open to him. His Honour set out so far as there was material from which he could draw an inference, the acts of each of these relevant co-offenders and the features of their participation in the scheme. There were significant differences between them. In broad terms his Honour was satisfied that the applicant had a consultative or higher level involvement and BH a lower level involvement like that of a watcher or labourer.
7. Moreover, there were very significant differences between them. The co- offender faced no other charges. He was only a little younger than the applicant, but he had no criminal record to speak of. His only matter was driving with an illicit drug present in his blood for which he was dealt with by the imposition of a bond under s 10 Sentencing Act of 12 months duration. Their respective criminal record was a very considerable difference between them.
8. Moreover, his Honour accepted that the co-offender's chronic back pain would make his time in custody more difficult and that he had very good prospects of rehabilitation. His Honour made no express finding of the prospects of rehabilitation in the case of the applicant, but the general tenor of his reasons are that he had well founded reservations about this topic.
9. I am not satisfied that his Honour's assessment of the facts and the seriousness of the offending of each of the applicant and the relevant co-offender for the purpose of application of the parity principle were in error. There were very significant differences in their subjective cases. I would re-sentence the applicant on the basis that the facts as found by his Honour in regard to these matters are correct.

Ground 4 XXXXXXXXX

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2. I have set out the relevant passage from his Honour's judgment at length above. I must say it strikes me that his Honour approached the question with considerable care. Not expressly, but in substance the primary judge referred to the factors to which his attention was directed XXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.
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4. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. I am of the view that his Honour's approach was correct and the result unimpeachable on this score.

Re-sentence

1. I appreciate that in re-exercising the sentencing discretion in accordance with Kentwell this Court is not restricted to the mere correction of error. Necessarily given the nature of the hearing before this Court, the focus has been on whether the matters complained of by the applicant resulted in a sentence which was not warranted by law. Except in one respect (ground 1) I am not persuaded that the errors have been made out.
2. The applicant was convicted and sentenced for three serious drug offences, one of manufacture and two of supply each of which attracted a maximum penalty of life imprisonment and a standard non-parole period of 15 years. His very poor criminal record for serious offending deprived him of the benefit of leniency. His subjective circumstances were not otherwise compelling. I agree with the primary judge that the childhood deprivation in this case did not call for much by way of mitigatory effect. And I am satisfied that the allowances his Honour made in respect of the pleas of guilty XXXXXXXXX were appropriate and should not be departed from.
3. I am inclined to the view that his Honour's error about the threshold in relation to Count 2 led him to provide an indicative sentence for that matter which was infected by the error conceded by the Crown. I would not vary his Honour's indications in respect of Count 1 and Charge 3, but I would reduce the indication for Count 2, which in my view should result in a somewhat lesser aggregate sentence.
4. When one corrects his Honour's error, which in my view consists of not only misstating the statutory threshold but, with respect, overemphasising the role weight has to play as a factor relevant to sentencing, it becomes clear that the most serious offence of the three principal matters, especially having regard to the offences on the Form 1, is the third charge. A need for internal consistency leads me to conclude that the indicative sentence for Count 2 should be reduced.
5. Bearing in mind that each of the offences is a standard non-parole period offence, I provide the following indicative sentences: 1. For Count 1: 3 years and 3 months with a non-parole period of 2 years and 2 months; 2. For Count 2: 5 years and 6 months with a non-parole period of 3 years and 10 months; 3. For Charge 3: 6 Years and 9 months with a non-parole period of 4 years and 6 months (taking into account the Form 1 offences).
6. In indicating these sentences, I have borne in mind his Honour's finding of special circumstances, which has not been challenged and with which I agree. I would impose an aggregate sentence of 10 years with a non-parole of period 6 years and 6 months.
7. It follows that I am of the view that a lesser sentence than that passed in the District Court is warranted. The orders I propose are: 1. Grant leave to appeal; 2. Appeal allowed; 3. Quash the sentence passed in the District Court on 4 November 2016 and instead sentence the applicant to an aggregate sentence of imprisonment, having a non-parole period of 6 years and 6 months, commencing on 18 March 2014 and ending on 17 September 2020 with an additional term of 3 years and 6 months, commencing on 18 September 2020 and expiring on 17 March 2024. The applicant will be eligible for parole after the expiration of the non-parole period on 17 September 2020.

Amendments 27 September 2022 - Previous non-publication order revoked on 27 September 2022. 13 August 2024 - Redactions in the interests of the administration of justice made by and with the consent of the parties. 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: 13 August 2024