Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: ZZ v R [2024] NSWCCA 25 Hearing dates: 19 February 2024 Date of orders: 28 February 2024 Decision date: 28 February 2024 Before: Harrison CJ at CL at [1] Dhanji J at [2] Huggett J at [68] Decision: (1) Grant leave to appeal. (2) The sentence imposed in the District Court on 24 November 2022 for the offence of supply of a prohibited drug, 3,142.96 grams of tetrahydrocannabinol is quashed and in lieu thereof the applicant is sentenced to a term of imprisonment for 11 months comprising a non-parole period of 6 months and a balance of term of 5 months commencing on 25 October 2021. The non-parole period with respect to this sentence expired on 24 April 2022. The total term expired on 24 September 2022. (3) Pursuant to s 59(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) the commencement date of the sentence imposed in the District Court on 24 November 2022 for the offence of attempt to possess a border controlled substance, being 1,559.7 grams of methamphetamine, the substance having been unlawfully imported, is varied. The sentence of 4 years and 6 months with a non-parole period of 2 years and 8 months is to commence on 25 October 2021. (4) The earliest date on which the applicant may be released is 24 June 2024. Catchwords: CRIME – appeals – appeal against sentence – Commonwealth and State offences - whether a mathematical error made when considering or applying the totality principle – whether sentence for the State offence is manifestly excessive – leave to appeal granted – resentence Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Judiciary Act 1903 (Cth) Weapons Prohibition Act 1998 (NSW) Cases Cited: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002(2002) 56 NSWLR 146; [2002] NSWCCA 518 Bott v R [2023] NSWCCA 255 Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162; 224 A Crim R 204; DH v R [2022] NSWCCA 200] Director of Public Prosecutions (Cth) v Maxwell [2013] VSCA 50; 228 A Crim R 218 El Kheir v R [2019] NSWCCA 288 Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 Huang v R [2017] NSWCCA 312 Hughes v R (1983) 49 ALR 110; 10 A Crim R 125 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 Salama v R [2023] NSWCCA 141 The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 Category: Principal judgment Parties: ZZ (Applicant) Rex (Respondent) Representation: Counsel: T Quilter (Applicant) C Tran (Respondent) Solicitors: Aboriginal Legal Service (Applicant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2021/302195 Publication restriction: Orders made on 19 February 2024 pursuant to s 10 of the Court Suppression and Non-publication Orders Act 2010 (NSW) requiring the respondent to be identified by way of a pseudonym "ZZ" until further order. Decision under appeal Court or tribunal: Penrith District Court Jurisdiction: Criminal Date of Decision: 24 November 2022 Before: K Robinson DCJ File Number(s): 2021/302915 JUDGMENT 1. HARRISON CJ at CL: I agree with the judgment of Dhanji J and with the orders he proposes. 2. DHANJI J: The applicant, ZZ, seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by Robinson DCJ in the District Court at Penrith on 24 November 2022. 3. The applicant pleaded guilty in the Local Court to one Commonwealth offence one State offence, as follows: Sequence 9: Attempting to possess an unlawfully imported border-controlled drug, namely methamphetamine, between about 21 and 25 October 2021, with the quantity attempted to be possessed being a commercial quantity, namely 1,559.7 grams, contrary to s 307.5(1) of the Criminal Code (Cth) (maximum penalty of life imprisonment and/or 7,500 penalty units); and Sequence 6: Supplying a prohibited drug, namely 3,142.96 grams of tetrahydrocannabinol ("THC"), on or about 25 October 2021, an amount which is not less than the large commercial quantity applicable, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) ("the DMTA"), (maximum penalty of life imprisonment and/or a fine of up to 5,000 penalty units; a standard non-parole period of 15 years applies to that offence). 1. The commercial quantity of methamphetamine for the purposes of sequence 9 is 2 kilograms. The large commercial quantity of THC, for the purposes of sequence 6 is 2 kilograms. 2. In sentencing for the State offence, two further State offences were taken into account on a Form 1 document: Sequence 3: Possessing a prohibited weapon on 25 October 2021, namely an extendable baton, without being authorised to do so by a permit; contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW) (maximum penalty of 14 years imprisonment); and Sequence 4: Possessing a prohibited drug, also on 25 October 2021, namely 18.6 grams of testosterone, contrary to s 10(1) of the DMTA (maximum penalty of two years imprisonment and/or a fine of up to 20 penalty units). 1. After the application of a combined discount of 40 percent, comprised of 25 percent for the applicant's early plea of guilty, and 15 percent for his past assistance, her Honour sentenced the applicant to the following terms of imprisonment: Sequence 6: 2 years and 4 months, comprising a non-parole period of 17 months and a balance of term of 11 months commencing on 25 October 2021; Sequence 9: 4 years and 6 months with a non-parole period of 2 years and 8 months, commencing on 24 April 2022. 1. The following table sets out the offences, sentences and starting points: # Offence Provision Starting Point (before 40% discount) Sentence Drug Misuse and Trafficking Act (DMTA) (NSW) s 25(2). 2 years 4 months (NPP 17 months). 6 Supply prohibited drug – large commercial quantity (3142.96 grams of THC). Max: Life. 3 years 10 and a half months Starting: 25.10.21 SNPP: 15 years. 3 Possess prohibited weapon (extendable baton). Weapons Act 1988 (NSW) s 7(1). N/A Taken into account for seq 6. (Form 1) Max: 14 years. 4 Possess drug (18.6 grams of testosterone). DMTA s 10(1). N/A Taken into account for seq 6. (Form 1) Max: 2 years. 9 Attempt to possess a border controlled substance (commercial quantity, being 1559.7 grams of pure methamphetamine), the substance having been unlawfully imported. Criminal Code (Cth) ss 307.5(1) and 11.1(1). 7 years 6 months 4 years 6 months (NPP 2 years 8 months). Max: Life. Starting: 24.4.22 1. As can be seen, the sentence for the State offence was backdated to 25 October 2021, which was the date of the applicant's arrest. The sentence for the federal offence commenced six months later. As such, the overall effective sentence is 5 years imprisonment. The effective non-parole period is 3 years and 2 months. 2. The applicant seeks leave to appeal on the following grounds: "Ground 1: The sentencing judge made a mathematical error when considering or applying the totality principle. Ground 2: The sentence for the state offence is manifestly excessive." Factual background 1. A statement of agreed facts was tendered during the sentencing proceedings in relation to the applicant. Those facts disclosed the following series of events. 2. On 11 October 2021, the Australian Border Force intercepted a consignment containing methamphetamine ('the consignment') which arrived in Sydney from Malaysia. The consignment contained 16 picture frames, four of which concealed a total of 1,559.7 grams of pure methamphetamine. The methamphetamine was substituted for an inert substance. 3. On 22 October 2021, the applicant, using a false name, contacted DHL, the delivery company, to enquire about the status of the delivery. He was told the consignment would likely be delivered on 25 October 2021. 4. On the morning 25 October 2021, after the applicant had again telephoned DHL to make enquiries about the parcel, the substituted consignment was delivered to the front door of an address at Cambridge Park. The applicant had been waiting for several hours in a car parked under a tree about 50-100 metres away from that address. Two minutes after the package was delivered, the applicant drove around the block once as a counter-surveillance measure, before parking outside the relevant premises and approaching the front door. He then collected the parcel, placed it on the backseat of his car, and drove to his home where he was arrested. The applicant provided police with consent to search his home, including his bedroom. In the course of this search, police located and seized the following relevant items: 1. A mobile phone containing relevant messages. 2. An extendable baton, located in the applicant's bedroom. 3. Three vials containing a total of 18.6 grams of liquid testosterone, located inside the TV cabinet in the applicant's bedroom. 4. Sixty-eight packets of "THC lollies" (46 packets were found on the applicant's bed and 22 packets located in the fridge). The total weight of the lollies was 3,142.96 grams, but the purity was unable to be tested. 1. On the afternoon of 25 October 2021, the applicant was interviewed by police. He told police that he collected the consignment to pay off a $10,000 drug debt. He said he "had no idea" what was specifically contained in the consignment and that he would not have done it if he knew what was in it. He agreed that in hindsight it made sense that the package contained drugs. 2. The messages on the applicant's mobile phone, seized by police, showed communication from 21 to 25 October 2021 with a person referred to as "Typewriter". The messages showed Typewriter gave the applicant instructions about communicating with the delivery company and collecting the package. Proceedings on Sentence 1. Sentencing proceedings were conducted on 18 November 2022. 2. The Crown bundle contained a notice of committal, amended court attendance notices, the Form 1 document, statement of agreed facts and the applicant's New South Wales criminal record and custodial history. The applicant's record showed that, in 2019, charges of assault occasioning actual bodily harm and damaging property were dismissed pursuant to s 10 of the Crimes Sentencing Procedure Act 1999 (NSW) ("CSPA"). In 2021, he was placed on a conditional release order without conviction for assaulting a police officer. Two offences of possession of a prohibited drug were dealt with pursuant to s 10 of the CSPA. He was later breached on the conditional release order and fined. In 2021, he was fined for offences of intimidation and contravening an apprehended violence order. 3. The applicant was 21 years old at the date of the offence and 22 years old as at the date of sentence. Tendered on his behalf were a report of clinical neurologist, Dr Molly Schafer dated 30 September 2022, a report of forensic psychiatrist, Dr Adam Martin dated 19 November 2019 (prepared for an earlier matter), three historic reports of paediatric neurologist, Dr Russell Dale dated 23 April 2009, 24 September 2009 and 30 August 2011, and four historical reports of consultant paediatrician, Dr Rory McCarthy dated 6 May 2010, 25 November 2013, 01 July 2015 and 24 February 2016. The applicant also provided admission documents from The Hills Clinic dated 10 September 2021 and 18 October 2019. 4. The applicant gave evidence at sentence. He adopted the contents of Dr Schafer's report as accurate. The following aspects of the applicant's subjective circumstances are taken from the report of Dr Schafer and the sentencing judge's reasons. 5. The applicant is of Aboriginal descent. He grew up in Sydney with his parents and younger sister. His parents have remained supportive throughout his legal proceedings. 6. The applicant received early diagnoses of Type 1 diabetes and ADHD, conditions which led difficulties at school. Dr Schafer made the following observations in relation to the applicant's disrupted education: "5.3 … [the applicant's mother] noted that adverse interactions between his ADHD and diabetic medication prevented him from being able to take the ADHD medication on a consistent basis. As a result, his schooling was characterised by a [vicious] cycle of difficulty focussing in the classroom, poor academic results followed by escalating disruptive behaviour until he was expelled from school prematurely before completing Year 10." 1. After leaving school, the applicant commenced but did not complete two apprenticeships, and engaged in casual employment in landscaping, carpentry and roofing. 2. The applicant reported being sexually abused both at school and, at the age of 15, in the workplace. 3. The applicant's parents divorced when he was 17 years of age, which caused him to feel distress and anxiety. Around this time, the applicant saw a counsellor, which continued on occasion until he was 19 years of age. 4. The applicant commenced drinking alcohol at age 13. He reported a continuing pattern of binge drinking significant amounts of alcohol thereafter. He reported cannabis use from his mid-teens onwards, increasing around the time of his parents' divorce, and remaining heavy. From the age of 18, he reported daily use of cocaine, regular MDMA use, and the abuse of prescription medication and other prohibited substances. The applicant denied any history of opioid or methamphetamine use. 5. The applicant undertook two one-month periods of rehabilitation at The Hills Clinic. The first was from 18 October 2019 and the second from 10 September 2021. Admission documents confirm the applicant's disclosure of substance abuse, anger issues, and mood instability. 6. In relation to the federal offence, her Honour accepted the applicant's evidence that he had agreed to collect the parcel in order to resolve a drug debt of approximately $10,000. Consistently with this, her Honour found the applicant's involvement was over a limited period of time during which he was acting on the instructions and at the direction of at least one other person who had approached him to participate in the offending. Her Honour found the applicant was reckless as to the prospect the package contained a border controlled drug. While her Honour accepted he was not aware of the identity of the particular drug or its quantity, she did not accept his evidence that he believed it may have been cannabis. Given his limited involvement, and the quantity of the drug (which, while twice the minimum threshold for a commercial quantity, was still towards the lower end of quantities often encountered) her Honour found the offence fell "comfortably below the nominal mid-range for offending of this its type". 7. In relation to the State offence her Honour accepted the applicant's evidence that the drugs were for his personal use and providing to his friends for no material reward. Consequently, her Honour accepted the offence was not committed for "the purpose of obtaining significant financial gain and was reasonably unsophisticated". Her Honour noted the total weight was just over three kilograms which was "not far above" the minimum threshold for large commercial quantity of two kilograms. The purity could be reasonably inferred to have been very low, which also reduced the significance of the total weight of the drug. Her Honour described the offence as "falling towards the lower end of the range of seriousness for offences of its type" but not "at the bottom of the range". 8. Robinson DCJ noted the applicant's criminal history consisted of unrelated and less serious offending. Her Honour found him to be remorseful with reasonably good prospects of rehabilitation, those prospects being: "… contingent upon his ability to overcome, in particular, his longstanding dependence issues, and properly commit to and engage in long standing psychological treatment to address his underlying mood instability and history of trauma". His subjective circumstances were such as to reduce the weight to be given to specific deterrence while increasing the weight placed on rehabilitation. 1. With respect to the State offence, her Honour found special circumstances warranting a reduction of the ratio of the non-parole period to the head sentence. This was on the basis it was the applicant's first time in custody, his difficulties in custody due to the COVID-19 pandemic, and his need for rehabilitation. These considerations also informed the ratio of the non-parole period to the head sentence with respect to the total effective sentence. Ground 2 - the sentence for the State offence is manifestly excessive 1. It is convenient to deal with ground 2 first. This is because ground 1 is a complaint that the sentencing judge failed to give effect to her stated intention when dealing with the issue of totality. The complaint that the sentence for the large commercial supply matter is manifestly excessive attacks the sentence imposed for the offence, and its impact on the total sentence. If the applicant is successful in this complaint, it will be necessary to resentence the applicant, and in doing so to make an independent determination of the sentence to be imposed including as to the degree of concurrency with the federal sentence. Any issue as to adjusting the sentence to give effect to the sentencing judge's intention with respect to totality will, consequently, fall away. 2. No issue was taken with the applicant's attempt to impugn a single sentence imposed as a component of the total effective sentence imposed on him. There is, in my view, no impediment to him doing so: see Bott v R [2023] NSWCCA 255 at [76]-[77]. It may be necessary, nonetheless, when ultimately considering issues of totality, to consider the sentence imposed for the other offence or offences. 3. Turning to the question of whether the sentence imposed for the large commercial supply matter is manifestly excessive; the principles are well established. Those principles were confirmed in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] as follows: "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. • Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. • Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. • It is not to the point that this Court might have exercised the sentencing discretion differently. • There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. • It is for the applicant to establish that the sentence was unreasonable or plainly unjust." 1. Acknowledging the above principles, and the consequent difficulty for an applicant with respect to a complaint of manifest excess, I am of the view that the complaint is established in the present case. The maximum penalty and objective gravity 1. The maximum sentence for the offence, as noted above, is imprisonment for life. A standard non-parole period of 15 years has been provided. Against these, a sentence with a starting point of 3 years, 10 and half months may, without more, appear unremarkable, or even lenient. It is necessary however, to look at the individual case, both in terms of the objective gravity of the offending, and the circumstances of the particular offender. As has been stated many times, the proper approach to sentencing is to identify all the factors that are relevant to the sentence, consider their significance and then, applying what has been dubbed an "instinctive synthesis", to make a value judgment as to the appropriate sentence given all the factors of the case: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]. That synthesis takes place having regard to the "guideposts" provided by the maximum penalty and the standard non-parole period. The maximum penalty for an offence will take on greater significance as an offence approaches a "worst case" offence, as to which see The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48. Similarly, the standard non-parole period may take on greater significance where an offence is closer to the mid-range of objective seriousness, noting that subjective factors may impact on the relevance of the standard non-parole period even to a mid-range case. 2. My view of the present offence is that, while the maximum penalty and the standard non-parole period remained as guideposts, those guideposts were a long way off in the distance. In Elias v The Queen; (2013) 248 CLR 483; [2013] HCA 31 at [27] it was said that: "It is wrong to suggest that the court is constrained, by reason of the maximum penalty, to impose an inappropriately severe sentence on an offender..." 1. That observation is apposite in the present circumstances. The same observation can properly be made with respect to a standard non-parole period. 2. Dealing first with the objective gravity of the offence, it was, in my view, an offence at the low end of the range. More specific characterisation, including any distinction between possible expressions such as 'the low end' or 'at the lowest end' are unedifying. These are not terms of art: see Salama v R [2023] NSWCCA 141 at [47]-[49]; DH v R [2022] NSWCCA 200 at [60]; Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162; 224 A Crim R 204; at [88]. More helpful is an understanding of the factors leading to my characterisation. 3. Firstly, it is to be noted that the applicant's guilt was based on the possession of the drug for the purposes of supply. In the circumstances of this case, the nature of the applicant's possession has significance. 4. The sentencing judge accepted the applicant's evidence that he possessed the drug for the purposes of his own consumption, together with the supply to friends for no material reward. Under the DMTA he was deemed to be in possession for the purposes of supply on the basis of his possession of in excess of 3 grams of the drug: s 29 and Schedule 1 of the DMTA. On proof of such possession, in order to defend the charge, the onus fell to him on the balance of probabilities to establish he was not in possession of the drug for the purposes of supply, (or that it was possessed in accordance with a medical prescription): DMTA, s 29. There was no suggestion of the latter. With respect to the former, an intention to supply some part of the drugs in his possession, was sufficient to defeat the defence: see Hughes v R (1983) 49 ALR 110; 10 A Crim R 125, in the context of a slightly differently worded provision. (In the absence of challenge it is unnecessary to consider if this principle necessarily applies to a charge under s 25(2) of the DMTA where the amount that was intended to be supplied was less than the large commercial or commercial quantity possessed). Thus, the applicant's intention to supply only some subset of the drugs in his possession was not inconsistent with his plea. It was, nonetheless, significant that not all of the drugs in his possession were intended to be supplied. It is an unusual case of supply of a large commercial quantity of a prohibited drug that does not involve the supply (using the extended definition of the term) of the whole of the quantity charged. 5. It was not possible to quantify the amount of the drug in the applicant's possession for the purposes of supply given his admission was based on a future likelihood that he would on occasions share the lollies with friends. In his evidence he said he would often eat "packets of them" and had consumed three or four packets himself on the day he was arrested. He said there was between one and six lollies in a packet. There was, no doubt, that the applicant's offending, including the federal offence, was committed in the context of the applicant's significant drug use including cannabis and THC. The evidence suggests that a large proportion, probably the majority, of the drug was in the applicant's possession for his own use. The result was only some proportion and likely well less than half of the quantity possessed by the applicant was to be disseminated into the community. 6. The purity of the drug also impacted the amount of THC which was to be disseminated. The admixture provision in s 4 of the DMTA had the result that the total weight of the admixture, that is the lollies, was a "prohibited drug" within the meaning of the Act, with the result that the quantity was a large commercial quantity: see El Kheir v R [2019] NSWCCA 288 at [36]. Nonetheless, when sentencing, the purity of the drug is relevant to the objective gravity of the offence, impacting as it does the harm to the community and the potential financial gains for the offender: El Kheir at [40]. 7. Her Honour found the purity was "likely to have been very low". The respondent submitted that this did not amount to a finding on the balance of probabilities that the purity was very low, but rather was a finding the balance of probabilities that the purity was likely to have been very low. The respondent's submission takes, in my view, and overly technical view of the words used, ignoring the broader context. It is necessary to understand the task being performed by her Honour. That was to determine relevant facts based on the applicable standard of proof for the purposes of determining sentence. The purity of the drug was a relevant fact. The likelihood of that fact was not a relevant fact, other than to the extent that it informed the relevant fact. Her Honour should be taken to have been expressing a view as to a relevant fact. 8. Further, in any event, the only reasonable finding was that the purity was very low. The Crown did not tender any evidence of purity, the government analytical laboratory being unable to conduct such testing. The applicant's evidence, accepted by her Honour, was that a friend produced the lollies using 28 grams of THC in the entire batch, of which the applicant possessed an amount, which he settled on as less than half. The purity of the initial 28 grams is not known. Even if pure, less than 14 g of THC in over 3 kg of lollies is a concentration of less than 0.5 percent. The only other evidence was the applicant's evidence of their effect. He said they were "not very strong" with the result he would often eat a number of packets a day, although he also acknowledged he was a "fairly heavy user of cannabis". While this concession was relevant to the applicant's assessment strength of the drug, all of the evidence suggested it was very low. 9. This was a significant finding in the context of the present case. In particular, this was not a case where participants to a large commercial transaction involving significant sums happen to be dealing with a drug of less than a high purity. In such a case, while the actual amount of the drug being disseminated remains relevant, the nature of the dealing, including the financial gain, is such that the impact on the objective gravity of the offending will not be the same as that here. 10. The combination of the proportion of the lollies likely to have been shared, and the concentration of THC in those lollies, had the result that the amount of actual THC to be supplied was low, distinguishing this case from the ordinary case of large commercial supply. 11. Further distinguishing this case, is the absence of financial gain. Offences involving the supply of a large commercial quantity of a prohibited drug are generally commercial in nature. Indeed, financial gain has been accepted to be an inherent characteristic of such offences such that it cannot be taken into account as an aggravating factor (as specified in s 21A(2)(o) of the CSPA) unless the gain was considerably more than might be expected for such an offence: Huang v R [2017] NSWCCA 312. 12. The respondent submitted that the sentencing judge's finding that the offence was not committed for the purpose of obtaining "significant financial gain" was not to be equated with a finding of no financial gain. Her Honour, however, made the finding after indicating her acceptance of the applicant's evidence that, to the extent he was in possession for supply, it was "to friends for no reward". Her Honour's finding that there was no significant financial gain, understood in that context, merely acknowledged the potential for some non-significant gain, such as payment in kind, as a result of the applicant and his friends sharing what each brought to a gathering. In fairness to the respondent the submission was only faintly pressed. 13. Corresponding with the finding that the offence was not committed for financial gain, the evidence suggested the drug the subject of the charge was not of a value comparable to other drugs such as methamphetamine and cocaine. The only evidence on the issue was again that of the applicant. He said he had previously purchased THC lollies for between $10 and $20 a packet. There were a total of 68 packets. This suggests a retail value of between $680 and $1,360 dollars. The manner in which the drugs were kept and shared with the applicant's friends supported the conclusion the drug is not one in which there is a highly lucrative trade when compared with drugs such as methamphetamine and cocaine. The only evidence before the Court was that the rewards for trading in the particular drug are substantially lower than other prohibited drugs, impacting on the need for both general and specific deterrence: see Bott v R at [85]-[89]; Director of Public Prosecutions (Cth) v Maxwell [2013] VSCA 50; 228 A Crim R 218; at [33]-[36]. 14. Finally, again distinguishing this offence from the ordinary case of large commercial supply, and consistent with her Honour's conclusions as to how the drug was to be used, there was no sophistication to the offence. The larger amount of the drug was found in a bag on the applicant's bed, with a smaller quantity located in the fridge. 15. The combination of the above matters has the result that the offending was low on the scale of large commercial drug supply offences, and informs that assessment. Indeed, the objective gravity is lower than that for most commercial supply offences, and possibly supply offences in general, or at least those dealt with on indictment. The applicant's subjective case 1. In addition to the low objective gravity of the offence, the applicant presented a strong subjective case. This has been set out above. The key aspects of the case were that, at 21, he was a young offender. He had not previously been convicted in relation to drug related offending, (although he had received non-conviction orders in relation to possession of, presumably, small quantities of drugs). His record was, in context of the present offending, relatively minor, although he was on a conditional release order at the time the offences were committed. Her Honour found that there was "a strong interaction between [the applicant's] underlying conditions and his misuse of substances" which, "coupled with his age and apparent general immaturity … likely contributed to his offending behaviour". Her Honour, as a result, found general deterrence should be given less weight, and correspondingly greater weight should be given to rehabilitation. 2. The applicant's substance misuse was at the centre of his offending behaviour. The applicant was not unmotivated to address that addiction, having on two occasions admitted himself to The Hills Clinic for rehabilitation. Obviously, he returned to drug use. The use of, and return to, the abuse of drugs must be understood in the context of the applicant's addiction having its roots in past events which, coupled with the applicant's age, impacted his otherwise free choice with respect to that addiction: see R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 per Wood CJ at CL at [273]. The applicant's assistance, while proffered to obtain a discount, does suggest (in a manner that is not always the case) a genuine desire to break from past seriously criminally inclined associates. The nature of the supply offence, and the choices involved in the context of the applicant's addiction, are such that the applicant's subjective circumstances, and in particular his age, together with his addiction and its causes, were significant features of the sentencing exercise. He was found to be remorseful with "reasonably good" prospects of rehabilitation. The Form 1 matters 1. The offences of possession of a prohibited weapon (an extendable baton) and possession of a prohibited drug (18.6 g of testosterone) were to be taken into account on a Form 1. 2. Her Honour found that the low objective seriousness of the Form 1 matters was such that they would have only a "minimal impact on the overall sentence" imposed on the principal offence. Later her Honour acknowledged that any such impact, in accordance with the guideline judgment in General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002; (2002) 56 NSWLR 146; [2002] NSWCCA 518, was a result of the need to give greater weight to retribution and personal deterrence when sentencing for the primary offence. Given that the Form 1 matters, if dealt with on their own, were unlikely to attract custodial sentences, there is some unfairness in any term being extended on their account. That is not to say that her Honour did so. The exercise is not arithmetical. Rather, those matters formed part of the evidence before the Court upon which consideration was to be given to the weight to be attached to retribution and personal deterrence for the primary offence. The discount 1. The discount applied by the sentencing judge was 40 percent, it being a discount of 25 percent for the applicant's plea of guilty, and 15 percent for past assistance. There is no issue that the applicant was entitled to 25 percent for his early plea of guilty. Neither the applicant nor the respondent took issue with the allocation of a further 15 percent for past assistance. Nevertheless, as the applicant's appeal is against the sentence actually imposed, it is necessary for me to consider the appropriateness of the discount applied. I do not do this in a vacuum but in an adversarial context in which neither party has sought to disturb the sentencing judge's finding. In this context and having viewed the material, I accept the discount determined by her Honour was appropriate. (Indeed I could not find otherwise without alerting the parties to the potential that I might do so). The result is that the complaint is to be considered by reference to the starting point for the sentence of 3 years and 10 and a half months. Conclusion as to manifest excess 1. The respondent submitted that the absence of appropriate comparative sentences made it difficult to establish a "range" and consequently difficult to find the sentence was manifestly excessive. The absence of any established range places no constraint on this Court in determining whether the sentence imposed below was, or was not, manifestly excessive. Fundamentally, the applicant was entitled to be sentenced having regard to proper principle. As was explained by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Hili v The Queen [(2010) 242 CLR 520 at 535 ; [2010] HCA 45 at 535: "[t]he consistency that is sought is consistency in the application of the relevant legal principles". Those principles, in the context of drug supply were set out by this Court in Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 at [107]-[115] and are capable of application to all cases. What was said there tends to demonstrate the absence in this case of those factors ordinarily present in other cases which operate so as to demand stern punishment. When regard is had to the low objective seriousness of the offence combined with the applicant's subjective circumstances, with proper regard to the Form 1 offences, in my view, a starting point of three years, 10 and a half months imprisonment cannot be justified. The inference I draw is that there has been error, albeit the error is not identifiable. The sentence is manifestly excessive. Ground 1 - the sentencing judge made a mathematical error when considering or applying the totality principle 1. Given the view expressed above in relation to ground 2, it may be unnecessary to deal with ground 1. For completeness, and against the possibility mine is not a majority view, I will briefly deal with ground 1. 2. At the conclusion of her reasons, when imposing sentence the sentencing judge said: "For both offences before the Court, you are convicted. Dealing firstly with sequence 6, which is the State offence, taking into account the offences on the Form 1, and after application of the 40% discount, you are sentenced to a term of imprisonment consisting of a non-parole period of 17 months and a total term of two years and four months, which I deem to have commenced on 25 October 2021. The non-parole period for that offence expires on 24 March 2023 and your sentence expires on 24 February 2024. For sequence 9, being the Commonwealth offence, after application of the combined discount of 40%, you are sentenced to a term of imprisonment of four and a half years, consisting of a non-parole period of two years and eight months, and a balance of term of 22 months. I deem that sentence to have commenced on 24 April of this year, 2022. Your non-parole period will expire on 24 December 2024, and the total sentence will expire on 24 October 2026. The overall effect of the sentence is a total term of five years, representing an accumulation of six months and a non-parole period of three years. On my calculation the ratios between the individual sentences and the overall sentence is effectively 60%." 1. As can be seen, the sentences imposed with respect to the individual offences produced a sentence of 5 years with a non-parole period of 3 years and 2 months. This is inconsistent with her Honour's statement that the "overall effect of the sentence is total term of five years … and a non-parole period of 3 years". Either this statement was in error, or her Honour, in setting individual sentences did not give effect to her intention. The final sentence "on my calculation the ratios between the individual sentences and the overall sentence is effectively 60%" is ambiguous, the applicant submitting it referred to a 60 percent ratio with respect to the total (which demonstrated her Honour's intention had not been achieved), and the respondent submitting it was a reference to the individual sentences (in which case it was correct). While it cannot be known with certainty, I prefer the applicant's view. At this stage of her reasons her Honour had moved to the ultimate effect of sentences imposed. It does not make sense to have returned to a discussion of the individual sentences. Further, it is not easy to understand the reason for imposing individual sentences with ratios of approximately 60 percent, while imposing a higher ratio with respect to the total (although of course the last imposed sentence will often incorporate a disproportionately low non-parole period to provide an appropriate ratio for the total sentence). Finally, the total term of 5 years with a non-parole period of 3 years, as stated by the sentencing judge, is a more obvious sentence. Put another way, had her Honour in fact intended to impose a non-parole period of 3 years and 2 months, the very particular nature of such a non-parole period is such that it is unlikely she would have mistakenly pronounced it as 3 years. Resentence 1. Having regard to the sentence to be imposed with respect to the federal offence, there may have been a degree of pragmatism involved in the applicant's acceptance that there was no alternative to full-time imprisonment with respect to the State offence. Nonetheless, in the absence of argument on the question, I am prepared to proceed on that concession. Having regard to the matters discussed above, in relation to the offence of supply of a large commercial quantity of a prohibited drug, I would commence with a sentence of 18 months. For the reasons I have given, I would not depart from the discount of 40 percent allowed by the sentencing judge for the applicant's plea and past assistance. This results in a sentence, expressed in the nearest whole number of months, of 11 months. I would find special circumstances, as found by the sentencing judge, and set the non-parole period at the same ratio of 60 percent, which, rounding down, results in a non-parole period of 6 months. (For reasons which follow, I note the setting of a non-parole period is somewhat academic.) Totality 1. Reducing the sentence for the large commercial supply offence to that which is proposed, will, of itself, have no impact on the total effective sentence to be served by the applicant. That is the applicant's current sentence expires with the federal sentence (both as to non-parole period and total term). The federal sentence commences six months into the sentence imposed on the State offence. 2. The applicant's complaint with respect to the State sentence was both as to its length and as to its impact on the overall sentence. Irrespective of this specific complaint having been made, on reducing the sentence, and consequently the proportion of it that is concurrent with the federal sentence, is necessary to reconsider the issue of totality. The power to adjust a sentence, not itself the subject of complaint, on appeal on the quashing or varying of another sentence, is provided by s 59(1) of the CSPA, as picked up by s 68(1) of the Judiciary Act 1903 (Cth), given the adjustment is to a federal sentence. 3. In my view the sentence for the federal offence should be adjusted such that the sentences are served wholly concurrently, as was submitted by the applicant. The proper approach is to determine the proper sentence for each offence (or in this case the sentence subject to appeal), and in turn structure the sentences such that the overall sentence is "just and appropriate to the totality of the offending behaviour": Nguyen v The Queen (2016) 256 CLR 656 at [37]. Accordingly, in determining whether the sentences should be wholly concurrent, the question here is whether the sentence for the federal offence can encompass the criminality of both offences: Nguyen v The Queen at [37]; Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]. 4. The federal offence is, as stated above, 4 and a half years with a non-parole period of 2 years and 8 months, arrived at from a starting point of 7 and a half years. While imposed in the context of a serious offence, this is a substantial sentence, particularly having regard to the applicant's role in the offending and his subjective case. While the State offence involved separate criminality, it also, to a large extent reflected the circumstances of the applicant which led to his involvement in the more serious offence. Given that, and the length of the federal sentence, the federal sentence is sufficient to encompass the totality of the applicant's criminality. 5. Before leaving the issue of resentence, I note that it is not appropriate to adjust the non-parole period for the federal offence, despite the sentencing judge's intention (as discussed in the context of ground 1), having regard to the other orders I propose. Removal of the impact of the State offence achieves the sentencing judge's stated intention to impose a non-parole period that is approximately 60 percent of the total. That is an appropriate ratio. Orders 1. I propose the following orders: 1. Grant leave to appeal. 2. The sentence imposed in the District Court on 24 November 2022 for the offence of supply of a prohibited drug, 3,142.96 grams of tetrahydrocannabinol is quashed and in lieu thereof the applicant is sentenced to a term of imprisonment for 11 months comprising a non-parole period of 6 months and a balance of term of 5 months commencing on 25 October 2021. The non-parole period with respect to this sentence expired on 24 April 2022. The total term expired on 24 September 2022. 3. Pursuant to s 59(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) the commencement date of the sentence imposed in the District Court on 24 November 2022 for the offence of attempt to possess a border controlled substance, being 1,559.7 grams of methamphetamine, the substance having been unlawfully imported, is varied. The sentence of 4 years and 6 months with a non-parole period of 2 years and 8 months is to commence on 25 October 2021. 4. The earliest date on which the applicant may be released is 24 June 2024. 1. HUGGETT J: I agree with Dhanji J and the orders he proposes. ********** Amendments 28 February 2024 - Amendment to paragraph numbering 28 February 2024 - Typographical error on coversheet and to order 2 [67] - typographical error in order 2 15 July 2024 - [38] - italicised case name 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: 15 July 2024