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Parties: Mr L Zhao (Appellant) The Queen (Respondent)

Representation: Counsel Mr K Archer (Appellant) Mr J White (Respondent)

Solicitors Kamy Saeedi Law (Appellant) ACT Director of Public Prosecutions (Respondent)

File Number: ACTCA 65 of 2017 Decision under appeal: Court/Tribunal: ACT Supreme Court Before: Robinson AJ Date of Decision: 14 December 2017 Case Title: R v Zhao Citation: [2017] ACTSC 385

THE COURT:

1. On 14 December 2017 the appellant was sentenced to a term of 5 years’ imprisonment for three offences of trafficking in methylamphetamine and one offence of trafficking heroin. The sentences imposed by the primary judge were as follows:

Count 1 Traffic in methylamphetamine on 15 2 years 3 months’ imprisonment October 2015 commencing 14 July 2016 and expiring 13 October 2018

Count 2 Traffic in heroin on 15 October 2015 16 months’ imprisonment commencing 14 July 2016 and expiring 13 November 2017

Count 3 Traffic in methylamphetamine 3 years 2 months’ imprisonment between 30 April 2016 and 15 July commencing 14 January 2017 and 2016 expiring 13 March 2020

Count 4 Traffic in methylamphetamine on 14 2 years 6 months’ imprisonment July 2016 commencing 14 January 2019 and expiring 13 July 2021

2. All four offences arose under s 603(7) of the Criminal Code 2002 (ACT), and carry a maximum penalty of 10 years’ imprisonment.

3. The appellant appealed from the sentences imposed by the primary judge. The Notice of Appeal originally specified four grounds of appeal, but two of these were abandoned at the hearing of the appeal. The grounds upon which the appeal was conducted were:

(a) the primary judge erred in failing to adequately take into account the appellant’s plea of guilty; and

(b) the primary judge erred in providing too much accumulation between the sentences for Counts 3 and 4.

The nature of the appeal

4. The appellant accepts that the imposition of a sentence for a criminal offence is a discretionary judgment, so that the principles enunciated in House v The King (1936) 55 CLR 449 (House v The King) at 505 apply. The appellant must demonstrate error on the part of the primary judge, or convince us that error may be inferred from the sentences imposed. The appellant submits that identifiable errors were made by the primary judge in imposing sentence. The facts

5. A Statement of Facts was placed before the primary judge at the sentence hearing. As we understand it, there was no challenge by the accused to the contents of that Statement. On 15 October 2015 police executed a search warrant at premises rented by the appellant at the Canberra suburb of Page. In the course of that search police located the following:

Item description ACTGAL analysis result

Kitchen

1. Brown partially crystallised liquid in Crystalline part of substance weighed saucepan on stovetop 90.662 g and contained methylamphetamine at 75.6 per cent. Brown liquid part of substance weighed 111.1 g and contained methylamphetamine at 47.1 per cent

2. Clip seal bag containing crystalline 8.506 g of substance containing substance on bench methylamphetamine and pseudoephedrine

3. Clip seal bag containing white 0.465 g of substance containing crystalline substance on table methylamphetamine and amphetamine

4. Three (3) clip seal bags containing 0.304 g of methylamphetamine white crystalline substance in plastic container on table

5. Black fabric containing black cylinders Methylamphetamine detected in residue and white powder residue on bench

6. Plastic funnel containing filter paper Methylamphetamine detected in the and crystalline residue on bench residue

7. Ceramic bowl containing crystalline Methylamphetamine and residue on bench pseudoephedrine detected in the residue

8. Digital scales, tins of acetone and Traces of methylamphetamine, heroin, hydrochloric acid, and clip seal bags monoacetylmorphine and acetylcodeine on table on weight plate of scales

Hall Cupboard

9. Clip seal bag containing fine white 1.867 g of methylamphetamine crystals in shoe box

10. Clip seal bag containing fine 0.110 g of methylamphetamine crystalline substance in shoe box

11. Small clip seal bag containing fine 0.613 g of substance containing heroin, white powder located in green shoe monoacetylmorphine and acetylcodeine box

12. Fine white powder wrapped in silver 0.388 g of substance containing heroin, foil located in shoe box monoacetylmorphine and acetylcodeine 13. Heat-sealed plastic bag containing 0.815 g of substance containing heroin, white powder located in black bag monocetylmorphine, acetylcodeine and caffeine

13. Tissue containing plastic bag with 26.998 g of substance containing heroin, tightly packed white powder, located monocetylmorphine and acetylcodeine in black bag

14. Chux cloth containing three plastic 168.330 g of substance containing heroin, bags of tightly packed white powder monocetylmorphine and acetylcodeine located in a black bag

Lounge Room

16. Nine (9) clip seal bags each 123.279 g of methylamphetamine containing white crystalline substance in bottom drawer of bedside table

17. Two (2) clip seal bags containing 22.342 g of methylamphetamine and white crystalline substance in 3.480 g of substance containing cigarette packet in second drawer of methylamphetamine and bedside table pseudoephedrine

18. Four (4) clip seal bags containing 0.302 g of methylamphetamine white crystalline substance in top drawer of bedside table

19. The total amount of substances containing methylamphetamine located in the course of the search weighed 358.9 g. This was the basis of Count 1 on the indictment. The primary judge found that the value of this methylamphetamine was $76,907.00. The total amount of substances containing heroin located in the course of the search weighed 197.1 g. This was the basis of Count 2 on the indictment. The Statement of Facts stated that the appellant trafficked in the methylamphetamine by possessing it with the intention of sale. It also stated that the appellant trafficked in the heroin by guarding and/or concealing it with the belief that someone else would sell it. The appellant was not present at the time that the search was conducted, and it appeared that nobody was permanently living in the premises. The appellant was not immediately arrested.

20. As a result of surveillance of the appellant, police identified 14 occasions on which the appellant sold methylamphetamine to other people in the period between 30 April 2016 and 15 July 2016. The total quantity of methylamphetamine sold by the appellant in these transactions was over 665 g. This was the basis of Count 3. The primary judge found that the total sales of methylamphetamine regarding this Count was in the order of $142,500.00.

21. On 14 July 2016 police executed a search warrant at the appellant’s house in the Canberra suburb of McKellar. Police located substances containing methylamphetamine weighing 521.9 g. This was the basis of Count 4. The Statement of Facts stated that the offender trafficked in this drug by possessing it with the intention of sale. The primary judge determined that the value of this methylamphetamine was $111,835.00.

22. The appellant was arrested on 14 July 2016 and remained in custody until he was sentenced on 14 December 2017. The appellant was initially charged in the Magistrates Court on 15 July 2016 in relation to what became Counts 3 and 4. He entered pleas of not guilty to those charges. On 17 October 2016 in the Magistrates Court he was charged with what became Counts 1 and 2, to which he also pleaded not guilty. He was committed for trial on 22 February 2017. His trial was set to commence in the week commencing 28 August 2017. After negotiations between the appellant’s lawyers and the Director of Public Prosecutions on 9 August 2017, the appellant indicated that he would plead guilty to the four charges, which finally occurred on 16 August 2017.

The primary judge’s reasons

10. The primary judge determined that the appellant was a seller of drugs to other on-sellers. This was consistent with the appellant’s counsel’s description of the appellant as “a dealer to street dealers”. The primary judge noted that the lowest recorded sale by the appellant was of the value of $6,000.00, and the highest recorded sale was of the value of $36,000.00. The primary judge concluded that it was not possible to know where precisely the appellant sat in the hierarchy of suppliers, but he was certainly a person above a street dealer but not a person who manufactured or imported the drugs. The primary judge found that the appellant was motivated by profit, even though he may have used illicit drugs himself.

11. After considering the history of the charges, the primary judge stated with regard to the appellant’s pleas of guilty, at [4]:

12. These late pleas of guilty nevertheless have utility even in the face of a strong Crown case and I will allow approximately 10% discount for this fact. (See R v Toumo’ua [2017] ACTCA 9)

13. The primary judge recognised that the totality principle was engaged in sentencing the appellant for these four offences. He dealt with that issue from [39] to [42] of his reasons, which we will set out in full:

14. The High Court recognised the principle of totality in Mill v The Queen (1988) 166 CLR 59. At 62-63, the joint judgment said: The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp. 56-57, as follows (omitting references): The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is "just and appropriate". The principle has been stated many times in various forms: "when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong["]; "when cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences". See also Ruby, Sentencing, 3rd ed. (1987), pp. 38-41. Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred. 40. The passage of time has not developed any firmer guidelines as to how this process described in the text book passages adopted by the High Court should be undertaken with transparency. As Basten JA recently observes in Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301 at [28]: Where the law permits, as in this case, the imposition of an aggregate sentence, the somewhat arbitrary process of adjusting individual sentences or adjusting the degree of concurrency is avoided, at least in the absence of any need to specify those effects with arithmetical precision. Nevertheless, the substantial issue remains as to what is properly described as a fair, just, proportionate or appropriate sentence for the whole of the offending. That problem arises where the sentence has been selected for each individual offence and principles governing the degree of concurrency or accumulation have been applied, but the overall period is one which offends some instinctive sense of fairness and justice. 41. The question of totality arises in this case. I have structured an overall sentence reflecting the criminality and offending involved and taken into account that the severity of a sentence is not simply the product of a linear relationship. This is explained by Malcolm CJ in in R v Clinch (1994) 72 A Crim R 301 at 306-307: In other words the severity of a sentence increases at a greater rate than any increase in the length of the sentence. Thus, a sentence of five years is more than five times as severe as a sentence of one year. Similarly, while a sentence of seven years may be appropriate for one set of offences and a sentence of eight years may be appropriate for another set of offences, each looked at in isolation. Where both sets were committed by the one offender a sentence of 15 years may be out of proportion to the degree of criminality involved because of the compounding effect on the severity of the total sentence of simply aggregating the two sets of sentences. 42. In this case there can be concurrency between the first and second counts reflecting the fact that both methylamphetamine and the heroin were the dealers [sic] stock on hand at that point of time. It is not possible to apply this reasoning rationally to the third and fourth counts. It is only possible to rely upon degrees of concurrency to avoid a disproportionate result for the offending.

The appellant’s submissions

13. The appellant submitted that the primary judge was wrong to characterise the pleas of guilty as late and to accordingly discount the otherwise appropriate sentences by only 10 per cent. The appellant submitted that a discount of at least 15 per cent was appropriate in the circumstances of the case. He submitted that this was consistent with the position put by the Crown at sentence. We noted that in written submissions made by the Crown to the primary judge, it was stated “[t]he Crown accepts that in the context of negotiations which commenced approximately 3 weeks before trial, the plea of guilty was relatively early and had significant utilitarian value.” We note that limited material seems to have been placed before the primary judge concerning the nature of these negotiations. Before us, counsel for the appellant stated that the negotiations had resulted in the Crown putting its case with regard to Count 2 differently, in that it changed the basis upon which it alleged that the appellant trafficked in heroin from an allegation of possession for the purpose of supply to an allegation that he was guarding and/or concealing the substance with the belief that someone else would sell it.

14. In support of his submission, the appellant referred us to the decision of this Court in Miller v The Queen [2018] ACTCA 21, where Wigney J (with whom Murrell CJ and Elkaim J agreed in this regard) set out the principles relevant to determining the appropriate discount for a plea of guilty at [73] to [74]:

15. This Court has generally adopted the approach taken in New South Wales, as reflected in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383, in respect of the appropriate discount for a plea of guilty: Monfries v The Queen [2014] ACTCA 46; R v Toumo’ua [2017] ACTCA 9 (‘Toumo’ua’). That approach recognises that the appropriate range for a discount is 10 to 25%, and that there are two considerations or circumstances which will generally affect the utilitarian benefit of the plea and, therefore, the appropriate level of discount: first, the time at which a plea is entered; and second, the complexity of issues about which evidence would otherwise have to be gathered. The primary consideration is the timing of the plea, though what is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination of the sentencing judge. 74. It was, however, recognised in Toumo’ua that there are specific differences between the sentencing regimes in the Australian Capital Territory and New South Wales. Section 35 of the Sentencing Act is far more prescriptive than its New South Wales counterpart. Whereas the relevant New South Wales provision requires the court to have regard to the fact and timing of the plea, and the circumstances in which it occurred, s 35 of the Sentencing Act requires the Court to also have regard to considerations such as the seriousness of the offence, whether the guilty plea was related to negotiations between the prosecution and defence about the charges, and the effect of the offence on the victims and their families. Importantly, s 35(4) of the Sentencing Act also requires the Court to have regard to the strength of the prosecution case, at least where the Court considers that the prosecution case is “overwhelmingly strong”. The Court in Toumo’ua said the following about s 35(4) of the Sentencing Act (at [67]-[71]): In NSW, the strength of the prosecution case is not taken into account when determining the sentencing discount, and is only relevant to contrition and remorse: R v Sutton [2004] NSWCCA 225 at [12]. In Thomson, the Court decided that, while the strength of the prosecution case had no bearing on the utilitarian value of the plea of guilty and the associated discount, where a plea of guilty amounted to a “recognition of the inevitable” because it was entered in the face of an overwhelming prosecution case, then this consideration strongly informed whether contrition was genuine: at [137]–[139]. In this jurisdiction, demonstrated remorse is a relevant and discrete sentencing consideration to be taken into account under s 33(1)(w) of the Sentencing Act. Presumably, the strength of the prosecution case may inform the issue of remorse. But in contradistinction to the position in New South Wales, in this jurisdiction the sentencing court is precluded, pursuant to s 35(4) of the Sentencing Act, from allowing a “significant reduction” for a plea of guilty if the prosecution case is “overwhelmingly strong”. The rationale for importing this consideration into s 35, which is otherwise largely focused on the timing of the plea of guilty and its associated utilitarian value, is unclear. The Explanatory Statement does not elaborate on the purpose of including s 35(4). In Coggan v R [2013] ACTCA 49 at [20], the Court explained that even an overwhelming prosecution case required an enormous amount of work and it was not unknown for an apparently overwhelming prosecution case to fail. In any event, in cases involving a strong but not “overwhelmingly strong” prosecution case, there is no reason to reduce the discount given for the utilitarian value of a plea of guilty. In Monfries at [44] Murrell CJ (with whom Burns and Ross JJ agreed on this point) said: Despite the terms of s 35(2)(d) and (4) of the Sentencing Act, it has been held that the utilitarian value of a guilty plea may be recognised in the face of a strong prosecution case.

16. The appellant submitted that the approach taken by the primary judge revealed error in that the primary judge assessed the utilitarian value of the pleas of guilty in the context of a strong Crown case. He submitted that whilst s 35(4) of the Crimes (Sentencing) Act 2005 precludes a court from allowing a “significant reduction” in sentence for a plea of guilty if the prosecution case is “overwhelmingly strong”, the primary judge had not made a finding that the Crown case was overwhelmingly strong, and there was no other suggestion that the strength of the prosecution case had diminished the utilitarian value of the appellant’s pleas.

17. With regard to the appellant’s second ground of appeal, concerning the degree of accumulation of sentences imposed with respect to Counts 3 and 4, the essential submission made by the appellant was that the facts and circumstances regarding both charges revealed an ongoing course of conduct, such that the sentence imposed for Count 3 comprehended the criminality of the offence in Count 4, or did so to such a degree as to warrant a greater level of concurrency. In other words, the appellant submitted that the events underpinning Counts 3 and 4 constituted a single course of criminal conduct comprising two technically identified crimes: see Attorney-General v Tichy (1982) 30 SASR 84 at 93.

The Crown’s submissions

17. The Crown drew our attention to s 35 of the Crimes (Sentencing) Act 2005 (ACT), which addresses discounts for guilty pleas. The section provides:

35 Reduction of sentence—guilty plea (1) This section applies if— (a) an offender pleads guilty to an offence; and (b) based on the information currently available to the court, the court considers that there is a real likelihood that it will sentence the offender to imprisonment. (2) In deciding how the offender should be sentenced (if at all) for the offence, the court must consider the following matters: (a) the fact that the offender pleaded guilty; (b) when the offender pleaded guilty, or indicated an intention to plead guilty; (c) whether the guilty plea was related to negotiations between the prosecution and defence about the charge to which the offender pleaded guilty; (d) the seriousness of the offence; (e) the effect of the offence on the victims of the offence, the victims’ families and anyone else who may make a victim impact statement. Note For who may make a victim impact statement, see s 49. (3) The court may impose a lesser penalty (including a shorter nonparole period) on the offender than it would otherwise have imposed if the offender had not pleaded guilty to the offence. (4) However, in deciding any lesser penalty, the court must not make any significant reduction for the fact that the offender pleaded guilty if, based on established facts, the court considers that the prosecution’s case for the offence was overwhelmingly strong. (5) For subsection (2) (b), the earlier in the proceeding that the guilty plea is made, or indication is given that it will be made, the lesser the penalty the court may impose. (6) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence. (7) In this section: available documents, in relation to the offence, means any of the following: (a) any written statements or admissions made for use as evidence at a trial that would have been admissible as evidence at the trial for the offence; (b) depositions taken at any committal proceeding for the offence; (c) any written statements or admissions used as evidence in any committal proceeding for the offence; (d) any other relevant written documents. defence means— (a) the offender; or (b) any lawyer representing the offender. established facts means facts established by— (a) evidence given at the trial; or (b) available documents; or (c) admissions by the offender; or (d) submissions made by the prosecution or defence.

18. The Crown submitted that in the Australian Capital Territory (ACT), utilitarian value of a plea of guilty is relevant to the assessment of an appropriate sentencing discount. It referred us to the decision of this Court in Cranfield v The Queen [2018] ACTCA 3 where the Court stated that the utilitarian value of a plea of guilty is “largely concerned with the timing of the plea and related benefit to the justice system” (see also to similar effect Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 at [33]) (Monfries). The Court in Monfries went on to summarise the principles relating to discounts for pleas of guilty as follows, at [37] to [39]:

19. In any event, following Cameron, the approach in Thomson was maintained in NSW on the basis that legislation had amended the common law. In R v Sharma (2002) 54 NSWLR 300, at [50]–[53], Spigelman CJ (with whom the other four members of the bench agreed) said: The Crimes (Sentencing Procedure) Act states that a court must, not may, take into account a plea. Furthermore, what is required to be taken into account is both “the fact” of the plea and “when” it was made. If a lesser penalty is not to be imposed then the court must give reasons. The statutory reference to “the fact” of the plea, as the matter required to be considered, does not direct attention to the subjective intention of the person pleading guilty. Nor, in my opinion, is the element of timing, reflected in the reference to “when” a plea was made, a reference only to subjective elements. The mandatory language of s 22 of the Crimes (Sentencing Procedure) Act must be followed whether or not by doing so the Court can be seen to discriminate, in the sense that word was used in the joint judgment in Cameron, against those who put the Crown to proof. The Court must take the plea into account even if there is no subjective intention to facilitate the administration of justice. However, viewed objectively, there will always be actual, as distinct from intended, facilitation of the administration of justice by reason of the fact of the plea. The use of the word must and the reference to “the fact” of the plea, strongly suggest that the Parliament was not concerned only with subjective elements. The actual facilitation of the administration of justice was to be regarded as relevant by sentencing judges. 38. In relation to the amount of the discount that should be allowed for the utilitarian value of a plea of guilty, in R v Dib [2003] NSWCCA 117 at [5]–[6] Hodgson JA (with whom Barr J agreed) remarked: If a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been made at the earliest opportunity. There is in any event no entitlement to a 25% discount; and the fact that in this situation there are less advantages to the administration of justice can justify a smaller discount. This approach may mean that in some cases an offender may obtain a lower discount just because the prosecuting authorities initially brought a greater charge than that ultimately pursued, so that the delay in the plea of guilty was not the offender’s fault. But this is consistent with the nature of the discount as being at least in part a recognition of practical advantages, and not merely a recognition of mitigation of culpability. 39. In Burrows v The Queen (2007) 181 A Crim R 333 at [29], Tobias JA (with whom Latham J and Mathews AJ agreed) said: In R v Thomson; R v Houlton at 419 [160] it was held that the utilitarian value of a plea to the criminal justice system is to be generally assessed in the range of a 10-25% discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea for as a general rule the earlier the plea, the greater the advantage to, and the benefits to be derived by, the criminal justice system as a whole. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge.

20. With regard to the appellant’s submission that the discount for the utilitarian value had to be assessed in the light of the negotiations which resulted in the reduction of the number of charges and the restatement of the basis upon which Count 2 was put by the Crown, the Crown referred to the decision of this Court in R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo’ua), where the Court said at [77]:

21. … in this case the negotiations secured an amended indictment that was more favourable to the respondent in that it contained fewer charges, but there was no substantial change in the subject matter covered by the charges. For the reasons explained in [55]–[56], the respondent was entitled to the benefits of being sentenced on the negotiated charges, but there was no additional entitlement to a s 35 discount on the basis that the pleas of guilty were entered at the earliest reasonable opportunity; the timing of the plea was to be assessed by reference to the charge date, not the date when the indictment was finalised after negotiation.

22. Earlier in Toumo’ua, at [56], the Court said:

23. … s 35(2)(c) supports a focus on the utilitarian value that is associated with the timing of a plea of guilty. An offender can benefit either from a substantial discount for the utilitarian value of an early plea, or from a lower sentence flowing from a lesser charge or fewer charges following negotiations, but should not usually benefit in both ways.

24. The Crown submitted that it was appropriate for the primary judge to allow a 10 per cent discount for the appellant’s pleas of guilty, given the timing of the pleas and the fact that the appellant benefited from being sentenced for a reduced number of charges following negotiations.

25. With regard to the appellant’s submission that the primary judge had impermissibly taken into account the strength of the Crown case in determining the discount to be allowed for the appellant’s pleas of guilty, the Crown submitted that the primary judge’s approach was consistent with the statement of principle expressed by Murrell CJ (with whom Burns and Ross JJ agreed on this point) that “[d]espite the terms of s 35(2)(d) and (4) of the Sentencing Act, it has been held that the utilitarian value of a guilty plea may be recognised in the face of a strong prosecution case.” The Crown further submitted that there was nothing to indicate that the primary judge had reduced the discount given for the utilitarian value of the appellant’s guilty pleas because of his finding that there was a strong Crown case.

26. The ultimate submission of the Crown was that a discount for a guilty plea is an exercise of discretion by a sentencing judge, and no error had been demonstrated on the part of the primary judge in setting a discount of 10 per cent, and that it could not be said that such a discount was unreasonable or plainly unjust.

27. Turning to the appellant’s second ground, alleging error in the accumulation of sentences for Counts 3 and 4, the Crown observed that the determination of the degree of accumulation is a matter of discretion, and on appeal error must be demonstrated in the sense contemplated in House v The King. The Crown submitted that the relevant principles in relation to the fixing of sentences for multiple offences were summarised in the following passage from O’Brien v The Queen [2015] ACTCA 47 at [26]:

28. The relevant principles in relation to the fixing of sentences for multiple offences and the consideration of totality are also well settled. They include the following: (a) When sentencing for multiple offences, the sentencing judge must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Pearce v The Queen (1998) 194 CLR 610 at 623-624. (b) The principle of totality requires the sentencing judge to review the aggregate sentence, look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences: Mill at 63. (c) A countervailing factor is the need to ensure that there does not emerge a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences: R v Wheeler [2000] NSWCCA 34 at [36]. The Court must avoid any suggestion that what is being offered is a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]; R v MAK (2006) 167 A Crim R 159 at [18]. (d) Where offences are discrete and independent, the sentence for one offence cannot comprehend and reflect the criminality of the other. In such circumstances, the sentences should be at least partly cumulative; otherwise there is a risk that the total sentence will not reflect the total criminality of the two offences. Where, however, the offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent: Cahyadi v The Queen (2007) 168 A Crim R 41 at [27].

29. The Crown also referred us to the decision in R v Jarrold [2010] NSWCCA 69 at [56]:

30. On numerous occasions this Court has explained that sentences are not to be made concurrent simply because of the similarity of the conduct or because it may be seen as part of the one course of criminal conduct: see generally R v XX [2009] NSWCCA 115. The question to be asked is, can the sentence for one offence encompass the criminality of all the offences?

31. The Crown submitted that Counts 3 and 4 represented separate acts of criminality, each involving the appellant trafficking significant amounts of illicit drugs. It observed that Count 3 involved an ongoing course of conduct in which the appellant trafficked quantities of methylamphetamine, amounting to 665 g, to multiple buyers on 14 occasions over a period of approximately 10 weeks, whereas Count 4 involved the storage of a significant quantity of methylamphetamine for future sale. Consideration

Ground of appeal (a)—the discount for the appellants pleas of guilty

27. The appellant’s submission that his pleas of guilty should have been treated as early pleas by the primary judge should be rejected. Leaving aside the question of negotiations with the Crown, the appellant’s pleas were formally entered 12 days before his trial was listed to commence. From a chronological perspective, these were clearly late pleas. To the extent that the appellant’s negotiations with the Director of Public Prosecutions resulted in him pleading guilty to a rolled-up count (Count 3) rather than 14 separate counts of trafficking methylamphetamine, this was to the benefit of the appellant, and for the reasons expressed by this Court in Toumo’ua and set out at [20] above he was not entitled to benefit from a more favourable indictment achieved by negotiation, as well as a significant discount for an early plea of guilty.

28. The appellant’s submission that the negotiations with the Crown had resulted in the Crown presenting Count 2 on a different basis is also not a ground for concluding that his pleas of guilty should be treated as early pleas. The appellant was at liberty to enter a plea of guilty to Count 2 on the basis that he admitted all of the elements of that charge, but to challenge the basis upon which the Crown alleged that he had trafficked in the heroin located at the Page property. During the course of submissions on the appeal, the appellant’s counsel stated that the appellant did not adopt this course for forensic reasons. The fact that the appellant apparently perceived a forensic advantage in maintaining his plea of not guilty to Count 2, and to all the other charges, whilst negotiating the basis upon which he would plead to Count 2, is no reason to treat his plea of guilty on that charge, let alone the other charges, as early pleas.

29. We do not accept that the primary judge fell into error, as suggested by the appellant, by taking into account the strength of the Crown case in determining the extent of the discount to be afforded by reason of his pleas of guilty. A fair reading of the primary judge’s sentencing comments places it beyond doubt that his Honour was not suggesting that the level of discount to be afforded for the pleas of guilty was linked to the strength of the prosecution case. What his Honour said, in fact, was that the discount for the utilitarian value of the appellant’s pleas was not affected by the strength of the prosecution case. This is consistent with accepted principle: R v Sutton [2004] NSWCCA 225; 41 MVR 40 and Toumo’ua.

30. The appellant has not demonstrated any error on the part of the primary judge in the exercise of his discretion in granting a discount of 10 per cent for the appellant’s pleas of guilty.

31. Before leaving this ground of appeal, we note that the appellant submitted that a discount of at least 15 per cent would have been consistent with the submissions made by the Crown at sentence. We acknowledge that in written submissions provided by the Crown on the sentence hearing, it was stated that in the context of the negotiations which had occurred “the plea [sic] of guilty was relatively early and had significant utilitarian value”. Two things may be said with regard to the appellant’s submission. First, this was not a submission that a discount of any particular magnitude would be appropriate in the circumstances of the case. Such a submission would have been inappropriate: Barbaro v The Queen [2014] HCA 2; 253 CLR 58. Secondly, the primary judge was not obliged to accept the Crown’s submission that these were relatively early pleas of guilty, or at least not to do so by providing any particular level of discount: Miller v The Queen [2018] ACTCA 21 per Wigney J. Ground of appeal (b)—the accumulation between Counts 3 and 4

32. The appellant’s submission with regard to this ground of appeal is based upon the proposition that the sentence imposed on Count 3 was sufficient to encompass the criminality of the conduct which formed the basis of both Counts 3 and 4. This submission was based largely on the proposition that the evidence revealed a continuing course of conduct on the part of the appellant in trafficking in drugs, and that the sentences imposed for the two charges should have been concurrent, or substantially concurrent. For the reasons that follow, we do not accept that submission.

33. In R v XX [2009] NSWCCA 115; 195 A Crim R 38, the offender was charged with offences of supplying not less than the large commercial quantity of methylamphetamine (Count 1) and supplying not less than the large commercial quantity of ecstasy (Count 2). Each offence was alleged to have occurred on 14 February 2007, and each offence carried a maximum penalty of life imprisonment. On each charge, the sentencing judge imposed a non-parole period of 5 years’ imprisonment, with an additional period of two years’ imprisonment, each such sentence to be served concurrently. In the course of his sentencing remarks, the sentencing judge stated that the offences should be treated as part of one criminal episode occurring on one day, and the sentences should be served concurrently. In upholding a Crown appeal, the Court of Criminal Appeal (Hall J, with whom Tobias JA and Kirby J agreed) said at [52]:

34. There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively: see Cahyadi v Regina (2007) 168 A Crim R 41 per Howie J at 47. However, a number of propositions relevant to the consideration of that issue may be derived from the case law. They include the following:- (1) It is well established that questions of accumulation are, subject to the application of established principle, discretionary. What is important is that, firstly, an appropriate sentence is imposed in respect of each offence; and, secondly, that the total sentence imposed properly reflects the totality of the criminality: Regina v Wilson [2005] NSWCCA 219 at [38] per Simpson, Barr and Latham JJ agreeing. (2) In Regina v Weldon; Regina v Carberry (2002) 136 A Crim R 55, Ipp JA at [48] stated that it is “not infrequent that, where the offences arise out of one criminal enterprise, concurrent sentences will be imposed” but his Honour observed that “this is not an inflexible rule” and “[t]he practice should not be followed where wholly concurrent sentences would fail to take account of differences in conduct”. (3) The question as to whether sentences in respect of two or more offences committed in the course of a single episode or a criminal enterprise or on a particular day should be concurrent or at least partly accumulated is to be determined by the principle of totality and the relevant factors to be taken into account in the application of that principle. See observations in this respect of Howie J in Nguyen v Regina [2007] NSWCCA 14 at [12]. (4) In applying the principle of totality, the question to be posed is whether the sentence for one offence can comprehend and reflect the criminality of the other offence. See generally Regina v MMK [2006] NSWCCA 272 at [11] and [13], Cahyadi (supra) at [12] and [27] and Vaovasa v Regina [2007] NSWCCA 253. (5) If the sentence for one offence can comprehend and reflect the criminality of the other, then the sentences ought to be concurrent, otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the totality of the two offences: Cayhadi (supra) per Howie J at [27]. (6) If not, the sentence should be at least partially cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality: Cayhadi (supra) per Howie J at [27]. (7) Whether the sentence for one offence can comprehend and reflect the criminality of the other calls for the identification and an evaluation of relevant factors pertaining to the offences. These will include the nature and seriousness of each offence. … (9) Where two offences committed during the course of a single episode are of a completely different nature and each individually involved significant or extreme gravity, it is likely that some accumulation will be necessary to address the criminality of the two: Nguyen (supra) per Howie J at [13]. (10) Possession of two different kinds of drugs may not be regarded as one episode of criminality in a case of “deemed” supply: Luu v Regina [2008] NSWCCA 285 at [32]. (11) The fact that the evidence of two offences (eg, documentary evidence or the presence of drugs) are located by police at or in the one place is not a relevant factor in favour of concurrent sentences:- “… The fact that the evidence of a number of discrete offences is located in the one place is completely irrelevant to any question of how the sentences for those offences should be imposed.” (Cahaydi (supra) at [26])

35. In Luu v R [2008] NSWCCA 285 the offender pleaded guilty to two offences of “deemed supply” of drugs, one relating to heroin and one relating to methylamphetamine. Partly concurrent and partly consecutive sentences were imposed. On appeal the offender submitted that the two charges were connected as the drugs were to be used in the offender’s business as a drug dealer, and were only the subject of two charges because there were two different drugs involved. In rejecting that submission, the Court (Giles JA, Latham J and Mathews AJ) said at [32]:

36. Possession of the two different kinds of drugs giving rise to the “deemed supply” offences is not properly regarded as one episode of criminality. There were two deemed supplies, as there would be two (or more) actual supplies were the different drugs to be sold to two (or more) purchasers in the course of the applicant’s drug dealing.

37. In the present case Count 3 encompassed 14 past incidents of the appellant supplying methylamphetamine to others. The amount supplied was 665 g, a considerable amount valued at $142,500.00. Count 4 encompassed the appellant’s “stock in trade” as at 14 July 2016, amounting to 521.9 g of methylamphetamine with an estimated value of $111,835.00. This stock in trade was to be used by the appellant in future sales. Each supply of methylamphetamine by the appellant was a separate criminal act, as each individual purchaser was supplied on different days. As we have noted, the appellant received a benefit by having all of these transactions rolled into one charge. The possession of the further 521.9 g of methylamphetamine for future sale was a separate criminal act, calling for a significant degree of extra punishment. This position is not altered by the fact that the appellant was carrying on the business of a drug dealer in 2016.

38. The sentence imposed on Count 4 was only consecutive upon that imposed on Count 3 to the extent of 16 months. In effect, when both Counts 3 and 4 are considered together, the appellant received a sentence of 4 years 6 months’ imprisonment for trafficking in 1.186 kilograms of methylamphetamine, a sentence that does not appear unreasonable. In our opinion the appellant has not demonstrated any error on the part of the primary judge in fixing the degree of accumulation between the sentences imposed on Counts 3 and 4.

Conclusion

37. The appeal must be dismissed.

I certify that the preceding thirty-seven [37] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

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