Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Ozan v R [2021] NSWCCA 231 Hearing dates: 9 July 2021 Decision date: 29 September 2021 Before: McCallum JA at [1]; Rothman J at [2]; Ierace J at [21] Decision: (1) Grant leave to appeal; (2) Allow the appeal; (3) Quash the sentence imposed in the District Court. In lieu, sentence the applicant to an aggregate term of imprisonment of 4 years commencing on 25 February 2021 and expiring on 24 February 2025, with a non-parole period of 1 year, expiring on 24 February 2022. Catchwords: CRIME – Appeals – Appeal against sentence – Where applicant sentenced in New South Wales for supply prohibited drug and recklessly deal with proceeds of crime – Where applicant was serving lengthy sentence in Western Australia for supply and attempted supply of prohibited drug – Where Sentencing Act 1995 (WA) mandated an unusually high ratio of the non-parole period to the total sentence – Where the sentencing judge partially accumulated the non-parole period resulting in an increase by 6 months – Where the applicant had made good rehabilitative progress in prison – Whether the sentencing judge erred in partially accumulating the non-parole period in circumstances in which the statutory ratio had already been exceeded and the applicant had made good rehabilitative progress – Principle of totality – Application of Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 Legislation Cited: Crimes Act 1900 (NSW), s 193B Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 44, Pt 4, Div 1A Drug Misuse and Trafficking Act 1985 (NSW), s 25 Misuse of Drugs Act 1981 (WA), ss 6, 33 Sentencing Act 1995 (WA), s 93 Cases Cited: Arnold v R [2011] NSWCCA 150 Attorney-General v Tichy (1982) 30 SASR 84 Dunn v R [2007] NSWCCA 312 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jackson v R [2010] NSWCCA 162 Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 Ozan v The State of Western Australia [2013] WASCA 27 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 R v Ibrahim [2005] NSWCCA 43 R v LWP [2003] NSWCCA 215 R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 R v Todd [1982] 2 NSWLR 517 Warwick v R [2016] NSWCCA 183 Category: Principal judgment Parties: Yavuz Ozan (Applicant) Regina Representation: Counsel: In person (Applicant) E Wilkins SC (Respondent) Solicitors: Solicitor for Public Prosecutions (Respondent) File Number(s): 2011/19410 Decision under appeal Court or tribunal: District Court Date of Decision: 15 May 2020 Before: Arnott SC DCJ File Number(s): 2011/19410 Judgment 1. McCALLUM JA: I agree with Ierace J. 2. ROTHMAN J: I have had the opportunity of reading in draft the reasons for judgment of Ierace J. I agree with the orders proposed by his Honour. I wish to make some comment on some aspects of the reasons. 3. The provisions of ss 44(2) and 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW) relate to a ratio of the remainder of a sentence to the non-parole period and prescribes that the ratio must not exceed one-third, unless the sentencing court finds special circumstances. As Ierace J remarks it does not proscribe a lower ratio. 4. This Court has often, but not universally, intervened in a sentence in which the non-parole period was greater than 75% of the head sentence. It has also intervened where the sentencing judge, having found special circumstances, other than accumulation, warranted a less than 75% non-parole period, fixed the non-parole period without seemingly taking into account the effect of accumulation. In those cases, this Court has been concerned to ensure that good reason exists for a longer than usual non-parole period. 5. I do not accept that it is an error of law or principle to fix a non-parole period that has the effect that its total effective proportion of the head sentence is greater than 75%. I do accept that it should not be done unless there is good reason. 6. In this case, the sentencing judge considered there was good reason, being, the determination that there should be additional punishment for the additional criminal culpability. The circumstance that the non-parole period is significantly longer than 75% of the total head sentence is a result of the application of the different sentencing regime that applies in Western Australia. 7. In general terms, the Western Australian sentencing practice, compared to this State, is that less severe head sentences are imposed of which a higher proportion is the non-parole period. Hence, in this case, the head sentence imposed in Western Australia may have been less severe than the head sentence that would have been imposed for the same offences in NSW. It is unnecessary to comment on the comparisons of the length of the non-parole period, except that, were a head sentence of that length imposed in NSW, it is likely that the non-parole period would have been shorter. 8. The sentence now under appeal, imposed in NSW by the sentencing judge, may be the subject of intervention by this Court only on one of the well-known bases adumbrated in House v The King (1936) 55 CLR 499; [1936] HCA 40. There must be identifiable or manifest error. 9. An identifiable error is a mistake of law; acting on a wrong principle; allowing extraneous or irrelevant matters to be used in determining the sentence; mistake of fact; or the failure to take account of a material consideration: House, ibid, at 505 (Dixon, Evatt and McTiernan JJ). Manifest error occurs when the result of the exercise of the sentencing discretion is "unreasonable" or "plainly unjust", from which the Court on appeal can infer that there has been a failure properly to exercise the sentencing discretion, even though the failure is unable to be identified. 10. The task imposed on sentencing judges is a difficult one, requiring the evaluation of both objective seriousness and the subjective circumstances of the offender to achieve the purpose of sentencing. It has been described as intuitive or instinctive synthesis: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25. 11. The task in which this sentencing judge was involved was further complicated by a combination of the requirement to apply the principle of totality and not to seek to address any perceived difference of approach to sentencing between this State and Western Australia. 12. As Ierace J comments, by reference to authority, the subsequent sentencing exercise must regard the earlier sentence as an appropriate exercise of the discretion: R v MAK; R v MSK (2006) 167 a Crim R 159; [2006] NSWCCA 381 at [99] (Spiegelman CJ, Whealy and Howie JJ). It is not for the subsequent sentencing judge to "correct" or adjust a perceived error or difference in the earlier sentence, particularly where, as in this case, the sentencing judge was dealing with a sentence confirmed by an intermediate court of appeal: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 at [135]. Nor is it for a subsequent sentencing judge to seek to impose a numerical equivalence in sentencing regimes in different jurisdictions. Consistency is achieved by the consistent application of sentencing principles: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [48]. 13. The necessary question then is how the Court identifies the error by the sentencing judge that warrants intervention. In my view, the error is difficult to discern. Ordinarily, additional criminal conduct warrants additional punishment: Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57. However, as the High Court there makes clear, there can be no double punishment for the same conduct and the principle of totality must apply: Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70. 14. At one stage, in the course of the development of sentencing principles, it was submitted that the principles embodied in the judgment in Pearce, supra, overtook the principles embodied in Mill, supra. The High Court, however, rejected that approach: Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15 at [2] (Gleeson CJ). The learned Chief Justice, in those reasons for judgment, then cited relating to double punishment and the issue of totality, a more expansive version of the following passage from the South Australian Supreme Court: "According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty. But such a logic could never hold. When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet. But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct. … The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. … Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient." (Attorney-General v Tichy (1982) 30 SASR 84 at 92-93 (Wells J), cited with approval in Johnson at [4] (Gleeson CJ). 1. Sentencing judges must be afforded as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected: Johnson, supra, at [26] (Gummow, Callinan Heydon JJ, with whom Gleeson CJ agreed). 2. The earlier Western Australian sentencing exercise involved the imposition of sentences for similar offences and involved offences arising out of the one course of criminal conduct, being the supply of methylamphetamine and profiting therefrom. The sentencing judge in NSW imposed an aggregate sentence. In my view, the error of the sentencing judge in the approach to the earlier Western Australian sentence was fundamental. 3. It involved the sentencing judge arriving at a result from a wrong premise. The ordinary rule that each offence should be reflected in additional punishment gives way to some obvious exceptions. By definition, it gives way to the principle of totality. For example, it gives way when fixing an aggregate sentence. It gives way when totality is otherwise implemented by the serving of some sentences wholly or partly concurrently. It also gives way, when appropriate, to totality that is required to be implemented in circumstances such as that with which the sentencing judge was faced. 4. Here, the sentencing judge's primary task was to fix an appropriate sentence and then to structure it in a manner that reflected the totality principle, as if all of the sentences were being imposed at once. In that situation, priority is not to be given to the notion of additional punishment for a further or additional offence, or for additional conduct. 5. The non-parole period set in the earlier sentencing process was more than sufficient to reflect the overall criminality of all the offences, including the NSW offence. 6. For the foregoing reasons, and for the reasons given by Ierace J for the re-sentencing exercise, I join in the orders proposed by Ierace J. 7. IERACE J: The applicant, Yavuz Ozan, seeks leave to appeal against an aggregate sentence imposed on him in the District Court by his Honour Judge Arnott SC ("the sentencing judge") on 15 May 2020 for two offences, which were that he: 1. Supplied a prohibited drug (210.2g of methylamphetamine) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW), which had a maximum penalty of 15 years imprisonment (the "supply prohibited drug" offence); and 2. Recklessly dealt with the proceeds of crime, contrary to s 193B(3) of the Crimes Act 1900 (NSW), which had a maximum penalty of 10 years imprisonment (the "proceeds of crime" offence). Neither offence had a standard non-parole period, as referred to in Div 1A of Pt 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the CSP Act"). 1. The applicant appeared in this Court without legal representation. The application was filed out of time, so that leave for the applicant to file his application is required. The respondent does not oppose an extension of time being granted if the appeal is found to have merit. 2. The sentencing judge imposed an aggregate sentence for the two offences of 4 years imprisonment, commencing on 24 February 2021 and expiring on 23 February 2025, with a non-parole period of 1 year 6 months. The applicant is eligible for release to parole on 23 August 2022. The indicative sentences were, for the "supply prohibited drug" offence, 4 years imprisonment and, for the "proceeds of crime" offence, 9 months imprisonment. 3. As of the date of sentence, the applicant was serving a sentence of imprisonment that had been imposed in the District Court of Western Australia for two offences concerning the supply of methylamphetamine. That overall sentence was for a period of 14 years imprisonment, which commenced on 25 February 2010 and which will expire on 24 February 2024, with a non-parole period of 12 years, which will expire on 24 February 2022 ("the Western Australian sentences"). The effect of the aggregate sentence on the applicant's incarceration is that his non-parole period consequent to the Western Australian sentences is effectively extended by 6 months and his total sentence by 12 months. 4. The applicant contends that the sentences for the New South Wales offences are manifestly excessive, by reason of the sentencing judge having insufficient regard to the principle of totality in respect of the Western Australian sentences. The Western Australian proceedings 1. In a joint operation between the police forces of New South Wales and Western Australia, on 25 February 2010, the applicant was arrested in Western Australia and charged with two drug supply offences, being that: 1. On 4 December 2009, he supplied a prohibited drug (2.675kg of methylamphetamine) contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA), which had a maximum penalty of 25 years imprisonment and/or a fine of $100,000 (the "supply a prohibited drug" offence); and 2. On 25 February 2010, he attempted to supply a prohibited drug (4.983kg of methylamphetamine), contrary to s 6(1)(c), read with s 33(1), of the same Act, which had the same maximum penalty (the "attempting to supply a prohibited drug" offence). 1. The applicant was committed for trial jointly with five co-accused, who were charged with possessing, attempting to possess or attempting to supply a prohibited drug, being methylamphetamine, on 4 December 2009 and/or on 25 February 2010. The applicant entered pleas of guilty to his two counts a week before the trial was set to commence. He was sentenced in the District Court of Western Australia by Scott DCJ on 19 December 2011, following a hearing of disputed facts on sentence. An appeal by the applicant against his sentences was dismissed by the Court of Appeal of Western Australia, constituted by Martin CJ, Buss and Mazza JJA: Ozan v The State of Western Australia [2013] WASCA 27. 2. The facts upon which the applicant had been sentenced were succinctly set out in the appeal judgment of Buss JA. In relation to the "supply a prohibited drug" offence, as related by his Honour, those fact were as follows: "10 During November and December 2009, Mr Milenkovski made an arrangement with Lei Zhang and Hakan Ayik, who were drug suppliers, for a large quantity of methylamphetamine to be concealed in a motor vehicle and for the vehicle to be transported from Sydney to Perth on a truck. 11 During November 2009, the appellant, who resided in Sydney with his wife, purchased a motor vehicle in which the methylamphetamine was to be concealed. He used a false name in purchasing the vehicle. He delivered the vehicle to a transport company and, using a false name, arranged for it to be transported on a truck from Sydney to Perth. 12 On 24 November 2009, the motor vehicle left Sydney in the custody of the transport company. 13 On 4 December 2009, the appellant, using a false name, travelled from Sydney to Perth on a commercial airline flight. 14 On arrival in Perth, the appellant collected the motor vehicle from the transport company and drove it to a hotel car park. He removed the methylamphetamine and left the vehicle in the car park. Later, police searched and seized the vehicle. Blood was located in the vehicle. A partial DNA profile, which matched the appellant's profile, was obtained from the blood. 15 After removing the methylamphetamine from the motor vehicle, the appellant, using a false name, booked a room in another hotel. He paid for the room with cash. The appellant met Mr Da San Martino and delivered the drugs to him. Later that day, the appellant returned to Sydney on a commercial airline flight. 16 On the same day on which the appellant delivered the methylamphetamine to Mr Da San Martino, the police searched Mr Da San Martino's residence. They discovered the drugs, which were hidden in a barbecue in a shed. The drugs comprised 2.675 kg of methylamphetamine with a purity ranging between 17% and 19%. The drugs had a value of about $1,300,000. Forensic analysis of one of the bags containing the drugs revealed blood which gave a partial DNA profile matching the appellant's profile." 1. The facts in relation to the "attempting to supply a prohibited drug" offence were related by Buss JA as follows: "17 During February 2010, Mr Milenkovski arranged another illicit drug transaction with Mr Zhang and Mr Ayik. Once again, the transaction involved concealing a large quantity of methylamphetamine in a motor vehicle and transporting the vehicle from Sydney to Perth on a truck. 18 The appellant was also responsible, on this occasion, for purchasing a motor vehicle in which the methylamphetamine was to be concealed and delivering the vehicle to a transport company. The appellant performed these functions, again using false names. 19 On 15 February 2010, the motor vehicle left Sydney in the custody of the transport company. 20 In Adelaide, police intercepted the motor vehicle and located 4.983 kg of methylamphetamine, with a purity ranging between 53% and 69%, in a spare tyre. The value of the drugs, at that level of purity, was about $2,489,000. The police replaced the drugs with an inert substance. The vehicle continued its journey to Perth. 21 On 25 February 2010, the appellant, using a false name, travelled from Sydney to Perth on a commercial airline flight. 22 On arrival in Perth, the appellant collected the motor vehicle from the transport company and drove it to a car park in Bayswater. He then travelled by taxi to North Perth where he handed the keys of the vehicle to Mr Bi. Mr Bi met with Mr Kitis and gave him the keys. Mr Kitis drove the vehicle, in convoy with Mr Tanevski, to his brother's house where the inert substance (which they believed to be methylamphetamine) was removed and stored. 23 Later on 25 February 2010, the appellant was arrested by the police. He had in his possession numerous items of false identification and other incriminating documents." 1. Scott DCJ found that the applicant's role in respect of each offence was "above a courier", in view of the steps the applicant took in the operation and the value of the drugs that were entrusted to him. He was aged 27 at the time of sentence. His only prior offences were minor traffic matters. He had completed Year 12 at High School and two and a half years of a Diploma in Network Engineering at University. He had no reported history of using illicit substances. Scott DCJ found that the applicant was entitled to a discount for the utilitarian benefit of his pleas of guilty, despite the fact that they were made late in the proceedings. His Honour also took into account the hardship occasioned by the applicant serving his sentence away from his family, in particular, his wife, with whom he was close. 2. For the offence of "supply a prohibited drug", the applicant was sentenced to 2 years imprisonment, reduced from 9 years in the application of the totality principle, and for the "attempting to supply a prohibited drug" offence, he was sentenced to 12 years imprisonment. The sentences were to be served cumulatively, thereby comprising a total sentence of 14 years imprisonment, backdated to commence on the date of his arrest, 25 February 2010. A parole eligibility order was made pursuant to s 93(1)(b) of the Sentencing Act 1995 (WA), which provided that if the term of imprisonment served is more than 4 years, the prisoner is to be released to parole when he or she has served 2 years less than the term. On that basis, the applicant is eligible to be released to parole on 24 February 2022. Background to the New South Wales offences 1. On the evening of the day of the applicant's arrest in Western Australia, New South Wales police executed a search warrant on the Sydney residence of the applicant and his wife, seizing 210.2g of methylamphetamine in two resealable plastic bags, one containing 196.5g and the other 13.7g. The content of the larger bag was tested for purity, which was found to be 20.5 per cent. 2. Police found bundles of cash in a safe on the premises, totalling $37,200, of which the sum of $27,900 was the subject of the "proceeds of crime" offence. 3. Other items were located which were indicia of drug supply: 32 mobile phones; a number of SIM cards; scales; and items of false identification. 4. The applicant was charged with the New South Wales offences when he was transferred to New South Wales. He was formally bail refused in respect of the charges on 16 October 2019. Evidence at the sentence hearing 1. The applicant was aged 25 at the time of his arrest in 2010 and 35 at the time of sentence in 2020. A statement by his wife was tendered. She stated that they married in 2006. While the applicant was on remand in Western Australia, she moved to Perth, residing there for almost a year before returning to Sydney, after which she travelled to Perth to visit him on average three to four times a year. In October 2019, at his request, the applicant was transferred to the New South Wales prison system to serve the balance of his sentence, which resulted in him losing the minimum security classification that he had enjoyed in prison in Western Australia. 2. The applicant tendered a series of documents generated by the Western Australian Department of Justice, Corrective Services for the period 30 July 2010 until a month before his transfer to New South Wales, which occurred in October 2019. A five-page document titled "Offender Notes" provided a brief outline of the applicant's progress within the Western Australian prison system. Earlier entries refer to warnings being given for relatively minor disciplinary matters, such as wearing thongs in a kitchen area rather than shoes and socks (April 2011); not keeping his cell at an appropriate level of hygiene (April 2012); and being 50 minutes late returning from a recreational session (February 2013). An entry in 2015 noted that his application for an interstate transfer had been approved. From that time, there are no negative entries and some that are quite complementary, such as one from June 2016: "This note is to acknowledge the exceptional effort and hard work that [the applicant] carried out during the recent bunk bed project in Acacia. 80 bunk beds were manufactured and installed into various residential blocks in a very short time frame and [the applicant] was either involved in the manufacture [and/or] installation of the bunk beds and associated shelving, he fully supported the trade instructors in their tasks and often by working through lunch times to ensure the deadlines were met. This effort was above and beyond what would normally be expected." 1. A seven-page assessment of the applicant's suitability for "external activities or work camps", completed in 2019, noted that he "Rarely comes to the attention of staff. Is always polite and compliant. Interacts well with other inmates". 2. The material tendered by the Crown included the remarks on sentence by Scott DCJ concerning the applicant's Western Australian offences. Judge Scott referred to the items seized in the execution of the search warrant in Sydney: "When you were arrested the police seized a number of items which are detailed in paragraphs 36 and 37 of the statement of material facts. They included false motor driver's licences, more than 30 mobile telephones, numerous SIM cards, cash in excess of $37,000, 196.5 grams of methylamphetamine … at 20.5 per cent purity and 13.7 grams of methylamphetamine of a purity unknown in respect to which those charges have been dealt with in Sydney. … You say that the $37,000 was your wife's money and was provided as gifts at your wedding in accordance with the Turkish custom. The State says this was likely cash related to the sale of drugs. … … As far as the cash is concerned, your wife … gave evidence. She said the cash found in the safe was hers; the safe was hers; it was her combination and all of the $37,000 was gifted to her in accordance with the Turkish custom at your wedding. The State bears the burden of satisfying me beyond reasonable doubt that the cash was drug related. I am sceptical about the assertion that this cash came from monetary gifts donated at your wedding. However, I cannot discount or reject the evidence of your wife. As a consequence, I am not satisfied beyond reasonable doubt that the cash was not hers and that it was drug related. … Your wife said that the electronic scales found in the wardrobe were hers, that she used them to weigh diet food and they were in the wardrobe because there was limited storage in the kitchen. … As to your association with prohibited drugs, counsel for the State says that the 196.5 grams of methylamphetamine which were found at your house was unlikely to have been in your house for the reason referred to by your counsel, namely that you had been instructed to take the methylamphetamine to Perth when you travelled in February 2010 but you refused to do so and left it at home. Counsel for the State asks rhetorically why it would be that anyone would ask you to carry that amount of methylamphetamine on your person on a plane when the very point of you travelling to Perth under an assumed name was to take possession of the vehicle which was carrying nearly five kilograms of high-purity methylamphetamine. As to the set of electronic scales which were found, the State says that the explanation given by your wife is implausible. This was the same wardrobe in which the 196 grams of methylamphetamine were located. … As to the 196.5 grams of methylamphetamine found in your house, I do not need to make any finding adverse to you. You have been punished for the offence in New South Wales. The sentences I am to impose on you are not affected by that matter one way or the other." 1. There is no explanation in the material as to why Scott DCJ had the impression that, by the time of the sentence for the Western Australian offences, the applicant had already been sentenced in relation to the quantity of methylamphetamine found in the applicant's apartment on the day of his arrest. The sentencing judge's remarks on sentence 1. The sentence was delivered ex tempore. The sentencing judge recounted the facts in respect of the New South Wales and Western Australian offences. In relation to the "supply prohibited drug" offence, his Honour noted that the quantity involved was well in excess of the indictable amount (5g) and close to a commercial quantity (250g). The applicant's role was "well above" that of a courier and fitted the description of a "mid-level drug dealer". The objective seriousness of that offence fell "well into the middle of the range" for that type of offence. 2. As to the "proceeds of crime" offence, the sum involved was significant. Reasonable inferences were that it was from drug dealing and motivated by financial gain, although his Honour was unable to determine whether it was the proceeds of one or multiple drug deals. The charged mental element of recklessness was less serious than the alternative of "knowing" that it was the proceeds of crime. The sentencing judge concluded that it fell "well below the middle of the range" of objective seriousness for like offences. 3. As to subjective considerations, the applicant's only prior criminal convictions, other than a relatively minor driving matter (driving while suspended), were the two Western Australian offences. The sentencing judge noted that the applicant did not give evidence, but that "a bundle of documents" had been tendered on his behalf, which his Honour relevantly summarised: "[The applicant] had a supportive upbringing. He completed Year 12 at school. He partly completed a Diploma in Network Engineering at university. During his time in custody in Western Australia he was isolated from his family and friends who lived in New South Wales, however, he kept in contact with them through, for example, Skype, visits and telephone calls. His attitude and behaviour in custody has been positive. Part of his time in custody was as a farm hand. He has been subject to random drugs tests over many years in custody which have been negative. While he was on remand in Western Australia his wife moved to Perth. She lived there for a year after which she returned to Sydney. She nonetheless travelled often as she could to Perth to see him. She remains supportive of him to this day and is present in court during this sentencing hearing. They are anxious to commence a family upon his release from custody. Prior to his arrest [the applicant] had a good work history. He has qualifications as an IT Technician and worked for a number of businesses including Bankwest. On 17 July 2019 his interstate transfer application to New South Wales was approved and in October 2019 he was moved to Sydney. His wife in her letter to the court states he has a job as a landscape gardener upon his release from custody." 1. The sentencing judge was unable to make a finding as to whether the applicant had "demonstrated remorse for his offending" but concluded that his prospects of rehabilitation were reasonable. 2. A need for assistance in reintegrating back into the community warranted a finding of "special circumstances" pursuant to s 44(2) of the CSP Act, and thus an adjustment of the ratio of 75 per cent of the non-parole period to the balance of the term of the sentence ("the statutory ratio"). 3. The ratio of the non-parole period of 1 year 6 months to the aggregate sentence of 4 years was 37.5 per cent. The ratio of the adjusted overall non-parole period of 12 years 6 months to the total sentence of 15 years was 83 per cent. 4. Following delivery of the sentence, the sentencing judge said: "My intention has been to add 6 months on to his existing non-parole period". Ground of appeal 1. The applicant filed two grounds of appeal. Prior to the hearing, he advised the Court Registry that he would withdraw a ground, leaving one in contention: "The sentencing judge erred in relation to the principle of totality by adding 6 months to an existing custodial sentence imposed by the District Court of Western Australia for charges that are linked to the index charges. Therefore the overall custodial sentence is manifestly excessive considering the comparative sentencing cases in New South Wales." The issue of totality: the sentence hearing and remarks on sentence 1. The Crown submitted in writing to the sentencing judge, conformably with the principle stated in Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 at 66, that: "… [t]he sentencing exercise ought to be approached as if the offender was being sentenced for all offences (parole and index offences) at the same time." 1. As to the appropriate degree of concurrency, the Crown stated: "When considering the index offences and the [Western Australian] offences, there is clearly a connection between the type of offending and the time in which the offences were committed. This connection supports a level of concurrency with the [Western Australian] sentence. However, it is submitted that a wholly concurrent sentence would not reflect the separate criminality of the index offences. This outcome would give the impression that no penalty is imposed for additional offences." (citation omitted) 1. Counsel for the applicant noted in his written submissions on sentence that the ratio of the non-parole period to the total of the Western Australian sentences was approximately 85 per cent and that, had the sentencing occurred in New South Wales, the Court would have had the legislative authority to vary the statutory ratio by finding special circumstances. Two potential bases of such a finding would have been that it was the applicant's first time in custody (Arnold v R [2011] NSWCCA 150 at [34]) and the need to minimise the risk of institutionalisation (Jackson v R [2010] NSWCCA 162 at [24]). 2. Counsel for the applicant continued: "The offending for which the offender is to be sentenced was part of the operation concerning the offences for which he has been sentenced. The offences in [New South Wales] and Western Australia were part of the one enterprise. The offending detected in [New South Wales] following the execution of the search warrant at [the applicant's] home took place on the same day he was arrested in Perth in relation to an attempt to supply methylamphetamine, an offence with which he was subsequently charged and sentenced. The totality principle serves to ensure that an offender is not subjected to 'a crushing sentence' not in keeping with his record and prospects. It is submitted that a sentence that does not disturb the existing date [the applicant] first becomes eligible for parole would be just and appropriate in all the circumstances." (citation omitted) 1. At the sentence hearing, during the course of oral submissions, the sentencing judge articulated his approach to the issue of totality: "This is a classic case involving the principles in the High Court case of Mill, and that is the issue in this case … … … the proper approach is to ask what would be likely to have been the effective head sentence and non-parole period if [the applicant] had been sentenced at the one time. So I look at the totality of the criminal behaviour and ask what is the appropriate sentence for … all the offences. That can be achieved in one of two ways. The favoured approach is to set an appropriate head sentence and non-parole period and to backdate it to overlap with the Western Australian sentence, or another way, but it's a less favourable way, is to reduce the non-parole period below that which would have otherwise been appropriate. But both approaches are permissible so that is the issue about which I need help from both of you." 1. Counsel for the applicant maintained in his oral submissions that the sentences should not result in a longer effective non-parole period, although a longer head sentence would coincidentally provide an extended period of supervision over his reintegration into the community, which would be beneficial following his lengthy term of imprisonment. The Crown indicated that it did not wish to be heard against that submission, adding by way of clarification of its written submissions that it did not propose any addition to the non-parole period: "[Crown]: Your Honour, I don't wish to be heard against my learned friend's submission in that regard. … HIS HONOUR: In what regard? [Crown]: Insofar as the existing non-parole period as far as the Crown's position would adequately reflect the criminality of all the offences which your Honour is obviously required to assess at this point. However, extending the head sentence further would give effect to the principles of totality meaning that the additional criminality involved in the present offences don't go unpunished. And I would note my friend's submission that for such a substantial amount of time as has already been spent in custody, with a very lengthy non-parole period, that in my submission there would be no need to extend that further. HIS HONOUR: The only trouble I've got with that is that he was sentenced in Western Australia for a certain degree of criminality. When you add on the New South Wales element there is added criminality. If I was to make the non-parole period no longer than it already is it would represent no punishment at all. [Crown]: I understand your Honour's position - it is a tricky situation. I would expect that the additional period on parole would serve as some additional punishment for the index offences. Yes, I guess that would be my submission in regards to the additional punishment that would be imposed. I do note my friend's submission that if being sentenced under New South Wales law for an offender's first time in custody that special circumstances would on the face of it seem readily available. I think that should also factor in your Honour's approach to this sentencing exercise." 1. In the remarks on sentence, in relation to the principle of totality, the sentencing judge said: "When sentencing an offender serving an existing sentence the overall sentence must be 'just and appropriate' to the totality of the offending behaviour. A court must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences? See Mill … at 66-67. As was said by the High Court in Mill at 63: '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.' So where an offender is serving an existing sentence, as is the case here, the proper approach is to ask what would be likely to have been the effective head sentence and the non-parole period if the offender had been sentenced at the one time. A court must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences." The applicant's written submissions 1. In written submissions to this Court, the applicant referred to the statement of principle in Mill to the effect that the sentencing judge should ask: "… what would be likely to have been the effective head sentence imposed if the applicant had committed all … offences … in one jurisdiction and had been sentenced at one time." (emphases omitted) 1. The applicant referred to a table of comparative sentences, attached to his submissions, for the offence of supplying a large commercial quantity of amphetamine or methylamphetamine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985, which at the time of the applicant's offences, was at least 1kg. He submitted that it established that the non-parole period that was fixed for the Western Australian sentences was "well above" the range for like offences in New South Wales. That being so, the applicant submitted: "Considering the principle of totality if [the applicant] was to be sentenced for all the charges including the index charges and the charges from [Western Australia] at the same time in [New South Wales] he would not have [received] a non-parole period of twelve and a half years. … Therefore it is [the applicant's] submission that the 6 months period added by his [Honour] to the non-parole period of the [Western Australian] sentence is manifestly excessive." The respondent's written submissions 1. In response, the respondent noted that the Court of Appeal of Western Australia had rejected the applicant's submission that the sentences imposed in that state were manifestly excessive and submitted that the fact that the rules of parole were less favourable than those in New South Wales did not point to error in the sentencing judge's exercise of his discretion. 2. The respondent took a different approach from that of the Crown at the sentence hearing, submitting that, had the sentencing judge not imposed an aggregate sentence that was partly cumulative with the Western Australian sentences, the sentence would essentially represent no additional punishment and thus fail to reflect the separate criminality of these offences, which was significant. The applicant's written submissions in response 1. The applicant elaborated on his earlier submission, suggesting it was essential for the sentencing judge to have regard to what he submitted to be the "manifest excessiveness" of the Western Australian sentences compared to sentences for like offences imposed in New South Wales, as part of the exercise of determining the appropriate sentence. 2. The applicant hypothesised that, had he been sentenced for the New South Wales offences by the District Court of Western Australia at that time, "it is … not proven" that the Western Australian Court would have handed down a longer sentence. 3. The applicant submitted that he was being sufficiently punished by the sentences imposed in Western Australia: "… there is enough punishment imposed considering that any more punishment may jeopardise [the applicant's] prospect of rehabilitation and re-joining his family and society. In addition to that, [the applicant] elected to be extradited to [New South Wales] to deal with the charges where he was remanded in [a] maximum security prison and his progression has been strictly limited to [a] tougher review program managed by [the Serious] Offender Review Council." 1. Finally, the applicant referred to his progress in terms of his rehabilitation and submitted that the sentencing judge had not taken it into account in fixing the sentence. The parties' oral submissions 1. The applicant relied on his written submissions. The respondent appropriately confined its submissions to responses to questions asked by the Court, in view of the applicant not being legally represented. The respondent stated that, following checks, it conceded that the applicant had been "a good prisoner" and that he has "good prospects of rehabilitation". Consideration 1. When imposing a sentence on an offender who has already been sentenced by another judge, the subsequent judge is obliged by authority to determine the appropriate sentence for all the offences, assuming for that purpose that they fell for sentence in the one sentencing exercise: Mill at 63. In this way, the appropriate sentence is determined for the second set of offences, although it may be structured in different ways, as was noted in Mill and by the sentencing judge. This Court has previously observed that in such a sentencing exercise, the subsequent judge must regard the first sentence as an appropriate exercise of the first judge's discretion: R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [99]; Warwick v R [2016] NSWCCA 183 at [31]. 2. As noted, the sentencing judge expressed concern that not increasing the non-parole period may convey an impression that the offences, although serious, did not warrant any additional punishment. However, even if the non-parole period for the New South Wales offences was entirely concurrent with the existing non-parole period, the ratio to the adjusted total sentence of 80 per cent (12 years non-parole period to a total sentence of 15 years) would still have exceeded the statutory ratio. 3. Both parties had expressly addressed the sentencing judge's concern by noting the high ratio (85.7 per cent) of the non-parole period of the Western Australian sentence to the total sentence. As noted, the Crown had not wished to be heard against the applicant's submission that it was appropriate to not extend the non-parole period by reason of the applicant's demonstrated rehabilitation and lengthy period of incarceration already served, and that an increase in the total sentence would adequately reflect the additional criminality encompassed in the offences. 4. In his remarks on sentence, the sentencing judge did not articulate his reasoning in formulating a single sentence for the combined Western Australian and New South Wales offences of 15 years and arriving at an overall non-parole period of 12 years 6 months, which constituted a ratio of 83.3 per cent. Nor did his Honour expressly address the submission that an appropriate result was to not increase the non-parole period because of the applicant's demonstrated rehabilitation. 5. In R v Todd [1982] 2 NSWLR 517, in a passage quoted with approval in Mill at 64, Street CJ (Moffitt P and Nagle CJ at CL agreeing) said, at 519-520: "… where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach — passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner." See also Warwick at [33] per Adamson J (Payne JA and R A Hulme J agreeing). 1. The sentencing judge made only passing reference to the material that was relevant to the applicant's progress over the 10 years of his imprisonment to that time: "His attitude and behaviour in custody has been positive. Part of his time in custody was as a farm hand. He has been subject to random drugs tests over many years in custody which have been negative." 1. The absence of express consideration of that material or a reference to the issue of the applicant's rehabilitation over that extended period of imprisonment leaves open the possibility that it was not taken into account in the formulation of sentence. His Honour's sole finding as to the issue of the applicant's rehabilitation was as to his future prospects, there being no assessment of his demonstrated progress to date: "I consider he has reasonable prospects of rehabilitation and not reoffending. The reason for this is that he has a supportive wife with plans for the future to which I have referred." 1. The sentencing judge found special circumstances in the sense referred to in s 44(2) of the CSP Act, and accordingly reduced the statutory ratio. The manner in which his Honour determined to apply considerations of totality was by reducing the ratio of the aggregate non-parole period to the aggregate sentence to 37.5 per cent and partial concurrence with the Western Australian sentences. 2. Section 44(2) of the CSP Act provides as follows: "44 Court to set non-parole period … (2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision)." 1. Although s 44(2) expressly allows a sentencing court to reduce the statutory ratio, it is silent to it being increased. In Dunn v R [2007] NSWCCA 312, Hoeben J (as his Honour then was; Handley AJA and Smart AJ agreeing), referred to the sub-section and said: "40 … I appreciate that the section does not create a statutory norm in relation to the proportion of the non-parole period as against the total term of the sentence and that special circumstances are required only where the proportion is to be less than three quarters. Nevertheless general sentencing principles suggest that where there is a departure from the statutory ratio there should be some reason provided … 41 It has been held by this Court that where one or more sentences are made cumulative upon another sentence so as to produce a non-parole period which is in excess of the statutory ratio that of itself may amount to special circumstances …" 1. There are many instances of intervention by this Court where the sentencing court has handed down a cumulative sentence that had the effect of increasing the statutory ratio, in circumstances where the sentencing judge had not explained, or even referred, to that consequence: see, for example, R v LWP [2003] NSWCCA 215 and R v Ibrahim [2005] NSWCCA 43. 2. Although the sentencing judge did not explain why he partially accumulated the non-parole period in circumstances where the statutory ratio was already exceeded, his reasoning may be inferred from the preliminary view he expressed in the course of the oral submissions at the sentence hearing, namely, that a degree of accumulation was necessary to reflect the additional criminality of the New South Wales offences. 3. However, it was a significant exercise of discretion to exceed the statutory ratio further by partial accumulation of the non-parole period. To do so without explanation in circumstances in which, firstly, the statutory ratio was so significantly exceeded (83.3 per cent), secondly, the applicant's submission that the overall non-parole period not be increased was unopposed and, thirdly, the evidence of the applicant's rehabilitation over the intervening 10 years of imprisonment had not been considered, in my view, caused the sentencing exercise to miscarry and constituted an error. As noted in Todd, an application of the principle of totality where there has been an extended period of imprisonment between the original sentence and the subsequent sentencing exercise warrants an examination of the offender's rehabilitative progress and may, in appropriate circumstances, result in marked leniency. Re-sentence 1. That being so, in my opinion, it is necessary for the Court to re-sentence the applicant: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. 2. It is appropriate to consider the Western Australian and New South Wales offences globally in order to determine the appropriate sentences for the two New South Wales offences. 3. In relation to the Western Australian offences, I have regard to the quantity and quality of methylamphetamine involved (a combined amount of just under 7.5kg at an average purity of about 60 per cent); the maximum penalty that applied to each offence (25 years imprisonment and/or a fine of up to $100,000); the lateness of the pleas; and that a dispute as to the facts for sentence, involving an allegation of duress, was resolved in favour of the Crown. 4. As to the New South Wales offences, in determining the objective seriousness of the "supply prohibited drug" offence, I have regard to the maximum penalty, which is imprisonment for a period of 15 years. The quantity (210.2g), although an indictable amount, was approximately four-fifths of a commercial quantity (250g). The purity of 93 per cent of the methylamphetamine was 20.5 per cent. The methylamphetamine was seized from the applicant's residence, in which were also located 32 mobile phones; multiple SIM cards; scales; and false identification documents. Those indicia of supply suggest that the applicant was operating as a mid-level drug dealer. I would conclude, as did the sentencing judge, that the objective seriousness of the offence falls into the mid-range for offences of that type. 5. As to the "proceeds of crime" offence, I note that the sum of $27,900 was in cash and located in the same premises from which the methylamphetamine and indicia of supply were seized. I conclude, particularly in the absence of evidence of any other explanation, that the currency was the proceeds of supplying prohibited drugs. I would place the objective seriousness of this offence at well below the mid-range of objective seriousness, which coincides with where it was fixed by the sentencing judge, primarily because of the sum involved. Offences of this kind typically involve sums, or goods to the value, of hundreds of thousands of dollars and more. 6. I am of the view that, having regard to the seriousness of the offences, only a sentence of imprisonment is appropriate: s 5(1) of the CSP Act. I note that the applicant entered pleas of guilty while the matters were in the Local Court, entitling him to the full utilitarian benefit of his guilty pleas, being a reduction of the sentence that otherwise would have applied, by 25 per cent. 7. I note the applicant's absence of a criminal record other than his driving offence and the Western Australian offences. I take into account the applicant's progress and rehabilitation whilst in prison in Western Australia and in New South Wales. I note that over that period of about 11 years thus far, there has not been a single significant disciplinary breach by the applicant and that, in recent years, he has attracted complimentary assessments from prison authorities for his positive attitude in performing his prison duties. I conclude that he has achieved the maximum rehabilitative benefit of his incarceration. 8. As to the applicant's future prospects of not re-offending, I note that he and his wife have maintained their relationship in spite of their significant physical separation and are keen to resume cohabitation and start a family. I also note that employment upon his release has been arranged and the respondent's acceptance that the applicant has good prospects of rehabilitation. Nevertheless, reintegration into the community will be challenging for the applicant. That factor, and this being the first time that the applicant has been subject to a sentence of full-time imprisonment, warrant findings of special circumstances pursuant to s 44(2) of the CSP Act. 9. The various purposes of sentencing are set out in s 3A of the CSP Act: "3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows— (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community." 1. As to s 3A(b), the sentence should reflect general deterrence, although in my view there is little need for specific deterrence in view of the salutary effect of the sentence that the applicant is presently serving for offences of a similar nature that were committed around the same time. For the same reason, a sentence that extends the applicant's incarceration beyond the present non-parole period of 12 years is unlikely to better protect the community (s 3A(c)). 2. It is apparent from the remarks on sentence of Scott DCJ that, although the applicant was not sentenced by the District Court of Western Australia for the New South Wales offences, the sentencing court was cognisant of them and made findings of fact in relation to the applicant's possession of the methylamphetamine that were adverse to his interests in those proceedings. 3. I would fix an aggregate sentence of 4 years for the two offences, the indicative sentences being 4 years for the "supply prohibited drug" offence and 9 months for the "proceeds of crime" offence. I note that these are the same periods fixed by the sentencing judge. 4. The sentences imposed in Western Australia for the two offences committed in that state were fixed according to a sentencing scheme that differs quite significantly from that which applies in this state as to how the non-parole period is fixed. Had all four offences been the subject of a sentencing exercise in this state, the non-parole period would have been no more than 75 per cent of the total sentence and probably less, because of the application of s 44(2) of the CSP Act. I am bound to accept the sentences imposed in Western Australia. A proportionate sentence handed down by this Court could not reduce the ratio of the overall non-parole period to the overall sentence to, or less than, the statutory ratio. 5. In those circumstances, by way of an application of the principle of totality, I would backdate the aggregate sentence to commence on 25 February 2021 and to expire on 24 February 2025 and fix an aggregate non-parole period of 1 year, to expire on 24 February 2022. 6. A sentence that is structured to extend the overall sentence would, in my view, constitute adequate punishment by holding the applicant accountable for the offences, denounce his conduct and recognise the harm done to the community. The consequent extended period of supervision when the applicant is released would aid the applicant's rehabilitation by assisting him to navigate the challenges of community reintegration and thus indirectly enhance the protection of the community. 7. The complete concurrency of the aggregate non-parole period with that of the non-parole period of the Western Australian sentences recognises the futility of an extended period of incarceration in terms of specific deterrence and rehabilitation, beyond the 12 years that he is presently serving and at the same time does the least offence to the statutory sentencing regime that applies in this state. Orders 1. Accordingly, I would propose the following orders: (1) Grant leave to appeal; (2) Allow the appeal; (3) Quash the sentence imposed in the District Court. In lieu, sentence the applicant to an aggregate term of imprisonment of 4 years commencing on 25 February 2021 and expiring on 24 February 2025, with a non-parole period of 1 year, expiring on 24 February 2022. ********** 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: 29 September 2021