Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: PG v R [2024] NSWCCA 141 Hearing dates: 12 July 2024 Date of orders: 02 August 2024 Decision date: 02 August 2024 Before: Adamson JA at [1]; Wilson J at [2]; Faulkner J at [48] Decision: (1) Grant leave to appeal against the sentence imposed on 18 August 2023; (2) Dismiss the appeal; (3) Publication of the judgment is restricted to the parties, pending their advice to the Registrar, within 7 days from today, of any redactions that may be necessary to permit unrestricted publication. Catchwords: CRIME – appeal against sentence – where discount applied per s 23 Crimes (Sentencing Procedure) Act 1999 (NSW) – in addition to discount for early pleas of guilty – drug supply offences and firearms possession offence – determining appropriate s 23 discount – where sentencing judge suggested discount percentages at sentence hearing but applied different percentages at judgment – complaints relating to procedural fairness and failure to provide reasons Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 11, 23, 33 Criminal Appeal Act 1912 (NSW), s 5 Drugs Misuse and Trafficking Act 1985 (NSW), s 25 Firearms Act 1996 (NSW), ss 4C, 7 Category: Principal judgment Parties: PG (Applicant) Rex (Respondent) Representation: Counsel: I McLachlan (Applicant) E Wilkins SC (Respondent) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2021/00076101; 2022/00314186 Publication restriction: Publication initially restricted to the parties pending advice to the Court as to any redactions required prior to publication Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 18 August 2023 Before: McGrath SC DCJ File Number(s): 2021/00076101; 2022/00314186 JUDGMENT 1. ADAMSON JA: I agree with Wilson J. 2. WILSON J: By Notice of Appeal filed 16 May 2024, the applicant, PG, seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against an aggregate sentence of 4 years imprisonment, with a non-parole period ("NPP") of 2 years and 9 months imprisonment, that was imposed upon him on 18 August 2023 by his Honour Judge McGrath SC DCJ. The applicant was sentenced for a total of five offences which he had committed over two discrete periods. At the time of the second set of offending conduct, the applicant was at conditional liberty, having been granted bail pursuant to s 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW) with sentence pending for the first set of offending conduct. The sequence numbers ("seq"), offences, maximum penalties and any standard non-parole period ("SNPP") that applies, and the indicative sentences announced by the sentencing judge, are as follows. 2021 offences (H77972820) Sequence Offence Maximum Penalty Indicative Sentence 3 Supply Prohibited Drug (83.63 grams of methylamphetamine) 1 s 25(1) Drugs Misuse and Trafficking Act 1985 (NSW) 15 years imprisonment and / or a fine of 2000 penalty units 15 months imprisonment Taking into account a further such charge relating to 9.24 grams of methylamphetamine 4 Supply Prohibited Drug (170.1 grams of methylamphetamine) 15 years imprisonment and / or a fine of 2000 penalty units 15 months imprisonment s 25(1) Drugs Misuse and Trafficking Act 1985 (NSW) 2022 Offences Committed on s 11 Bail (H91311450) Sequence Offence Maximum Penalty Indicative Sentence 1 Supply Prohibited Drug (71 grams of heroin) 15 years imprisonment and / or a fine of 2000 penalty units 14 months imprisonment s 25(1) Drugs Misuse and Trafficking Act 1985 (NSW) 13 Supply Prohibited Drug (28.4 grams of methylamphetamine) 15 years imprisonment and / or a fine of 2000 penalty units 10 months imprisonment s 25(1) Drugs Misuse and Trafficking Act 1985 (NSW) 16 Possess Pistol (gel blaster replica Glock) 14 years imprisonment 8 months imprisonment with a NPP of 6 months S 7(1) Firearms Act 1996 (NSW) SNPP 4 years 1. The applicant had pleaded guilty to all offences. The 2021 offences were committed in the period 22 January 2021 until 17 March 2021, that being the date on which the applicant was arrested. He entered pleas of guilty in the Local Court on 19 January 2022 and was committed to the District Court for sentence. On appearing for sentence before the District Court on 12 April 2022, sentence was deferred on the applicant entering s 11 bail, which he did the following day. He was released to conditional liberty on 13 April 2022. 2. The 2022 offences were committed in the period 25 July 2022 to 25 August 2022, with the applicant being arrested for these offences on 20 October 2022. On 19 January 2023 he entered pleas of guilty to the 2022 offences and was committed for sentence. The matter came before Judge McGrath SC on 14 July 2023 for sentence hearing. The Proceedings in the District Court The Crown Case 1. The Crown tendered a statement of agreed facts relevant to each set of offences. The 2021 offences came under notice on 22 January 2021 when a police officer observed the applicant engaging in what appeared to be an exchange of cash for drugs. The exchange occurred inside a barber shop where the applicant was having his hair cut. The barber, Mr Z, handed the applicant a package and, following the applicant from the premises soon after, received a large bundle of cash from him. The exchange was recorded on CCTV. 2. On 28 January 2021 the applicant attended the same barber shop and had his hair cut by Mr Z. Once the cut was completed the two men left the shop together and walked to a nearby carpark. A police officer conducting surveillance on the men saw Mr Z hand the applicant a package, in exchange for an object given to him by the applicant. The exchange was again captured by CCTV. The same procedure was repeated on 7 February 2021, 11 February 2021, 18 February 2021, 24 February 2021, and 26 February 2021, with each exchange recorded by security cameras. 3. On 16 March 2021 a text message sent by the applicant to Mr Z was intercepted. It read: "Hay mate can u bring 3 premix 2 morrow c oldmate 4 one roll of white paint as well thanks". 1. The following day the applicant again went to Mr Z's barber shop and had his hair cut, with an exchange of objects between the two men again observed and recorded. After the applicant left the barber shop, with the package he received from Mr Z in his hand, he was arrested. When asked what was inside the bag he was carrying the applicant told the arresting officers that it was "three ounces of ice", or methylamphetamine. Inside the bag officers found three separately packaged bags of crystal, which was later analysed and determined to be 83.63 grams of methylamphetamine (sequence 3 of 2021). 2. The applicant was interviewed on arrest, recorded by a body worn camera operated by one of the arresting officers, and admitted having collected the drug earlier that day with the intention of selling it. He said he had not paid for the substance but had received it on credit with the expectation that he would pay the dealer (whom he refused to name) when he had sold the drug on to others. He said the 3 ounces of ice was worth $9000, being sold at $3000 per ounce. 3. The applicant acknowledged having sold about 6 ounces of methylamphetamine in the previous six weeks. This admission is reflected by sequence 4 of 2021, the supply of 170.1 grams. The applicant's acknowledgement of this course of offending was rewarded with a discount on sentence, further to that allowed in recognition of the early pleas of guilty. 4. The applicant had been living in a local hotel and, when his accommodation was searched, 9.24 grams of methylamphetamine was found which the applicant had in his possession for the purposes of supply. This offence is sequence 1 of 2021, which was before the sentencing court on a Form 1 document, to be taken into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act when the applicant was sentenced for the sequence 3 offence. 5. The second statement of agreed facts related to the 2022 offences. The applicant was associating with a couple who were under police surveillance for drug related activities, and he came under notice. Lawfully intercepted conversations between the applicant and Mr Y established that the applicant was supplying Mr Y with quantities of half an ounce, or 14.2 grams, of heroin at a charge of between $5000 and $6000, which Mr Y then sold on to others. 6. Sequence 1 of 2022, the supply of 71 grams of heroin, reflected five separate supplies by the applicant to Mr Y of heroin in an amount of 14.2 grams, with the individual sales taking place on 26 July 2022, 3 August 2022, 10 August 2022, 13 August 2022 and 24 August 2022. 7. On 20 October 2022 the applicant was observed by police in Fowler Street at Hamilton; he had just returned from Sydney. He was arrested and searched, with an amount of 28.4 grams of methylamphetamine found in his possession, with the intention of supply. This discovery was reflected by sequence 13 of 2022. When the applicant's accommodation in Fowler Street was searched soon after, a gel blaster replica Glock pistol was found. The applicant admitted possessing the Glock, which is a pistol as defined in s 4C of the Firearms Act 1996 (NSW). 8. The Crown also tendered the applicant's criminal history. It commenced in 1994 with offences of goods in custody and supplying a prohibited drug, penalised by the imposition of a recognisance. The applicant has subsequent convictions for numerous dishonesty offences, together with a startling number of offences of driving whilst disqualified, for which he has been imprisoned, and other driving offences. At the time of the 2021 offences the applicant was subject to an intensive corrections order ("ICO"). 9. A custodial history reveals additional criminal offences not noted in the criminal history, being convictions before the Supreme Court for contempt of court, recorded on 30 June 2005 and 25 March 2010, and with respect to which the applicant was gaoled on each occasion, for 12 months and 18 months respectively. 10. A sentencing assessment report ("SAR") had been requested, and its author confirmed the applicant's treatment for advanced cancer. Although the report noted that the applicant had some understanding of the circumstances that led him into offending, and had expressed shame for his conduct, it was noted that he had limited insight into his anti-social associates and "normalised" friendships with members of outlaw motorcycle gangs ("OMCG"). He had, however, expressed willingness to undertake a rehabilitation programme and recognised the need for it. He was assessed as presenting a medium level risk of recidivism. 11. The Crown also provided his Honour with the details of the sentences imposed upon co-offenders but, as parity is not in issue, it is not necessary to record that information here. Similarly, whilst there is an issue as to the application of discounts on sentence (to recognise the pleas of guilty and evidence relevant to s 23 of the Crimes (Sentencing Procedure) Act) allowed by the sentencing judge, there is no dispute as to the material upon which the discounts were assessed as available, and that evidence is not summarised here. 12. As at the applicant's appearance before Judge McGrath SC on 14 July 2023 he had spent a total of 559 days in custody (or residential rehabilitation, for which he was given some credit) with respect to either or both sets of matters, which was ultimately recognised by an appropriate backdate of the commencement date for the sentence imposed. The Subjective Case 1. When he appeared for sentence in April 2022 (then before Gartelman SC DCJ) the applicant gave evidence before the court. Having been born in January 1970 he told the court he was (then) aged 52 years. He disputed one aspect of the SAR, being the assertion that he was an associate of an OMCG, stating that he wanted to socialise only with positive people in future. 2. The applicant said that he had told the author of the SAR that he had never used ice, although he began to use cocaine at about the age of 30, and this had become a habit that he needed help to break. He also referred to sexual abuse endured as a child and his need for help with dealing with the ongoing distress of those events. The applicant said that he was ashamed and disgusted with himself, and viewed himself as a very poor role model for his four daughters. He told the sentencing court that a 2018 diagnosis of cancer had led to a substantial increase in his use of cocaine, and he had begun to sell drugs to fund his cocaine habit. He said: "I was so glad the police caught me when they did. I would've ended up dead by the amount of drugs I was consuming. And then what I've done to people and their families by me selling this putrid, putrid drug that I've sold to other people and absolutely just destroying their families, I'm just - I just can't even fathom how I could stoop that low. It's just mind-boggling, mate, that I could ever get to that. Absolutely disgusted, mate, disgusted. The shame that I've brought on my elderly mother and my four kids, mate, just absolutely disgusted. Filthy." 1. The applicant claimed not to have used drugs since entering custody but emphasised his urgent need for rehabilitation, telling the court he had sought out assistance through a nine month residential rehabilitation programme based in Newcastle, known as City Sleep Safe. Evidence was tendered as to the nature of the programme, and its availability to the applicant, with the applicant deposing that he desperately needed help if he was to cease using and selling drugs. 2. The applicant tendered a report from a psychologist, and information as to his diagnosis of and treatment for cancer. Since the ground of appeal advanced in support of this application is very confined, and relates to the discounts applied by the sentencing judge in fixing the sentence, it is not necessary to set out this evidence. Suffice to say that it was sufficiently compelling as to persuade the sentencing court to defer the imposition of sentence and grant the applicant bail from 13 April 2022, to permit him to enter a residential drug rehabilitation programme. 3. The applicant did not call any further evidence during the July 2023 sentence hearing. The Remarks on Sentence – in Brief 1. Sentence was imposed on 18 August 2023. His Honour accepted the facts as the parties had agreed them to be and concluded that, for each of the two courses of offending conduct, in 2021 and 2022, the applicant had operated as a dealer "somewhat, but not very much above the level of a street dealer". Although his Honour found that the applicant had sold drugs for financial gain, he accepted that the monies received were substantially used by the applicant to fund his own drug addiction. The offending was not sophisticated. His Honour concluded: "The offending here involves rather typical examples of unsophisticated and reasonably low-level drug supply undertaken by a man whose main motivation was obtaining funds to support his own drug addiction." 1. With respect to the firearms offence, his Honour was satisfied that the applicant's possession of the gel blaster was unconnected with his activities as a drug supplier. It was accepted that gel blasters are not prohibited in other state jurisdictions and can be legally used elsewhere for games. His Honour found the offence to be one of lesser seriousness. 2. A feature that his Honour determined must be treated as requiring an increase to the sentences that might otherwise have been imposed were the breaches of conditional liberty, the applicant having been subject to an ICO at the time of the 2021 offending, and s 11 bail at the time of the 2022 offences. In each instance the relevant order had been imposed to assist the applicant with rehabilitation. 3. In relation to mitigating features, the pleas of guilty attracted the maximum available discount. Particularly noting the breach of s 11 bail, his Honour was not prepared to treat the applicant's expression of remorse with anything other than caution. He accepted, however, that the applicant suffered from a major depressive disorder and post-traumatic stress disorder because of child sexual abuse he had suffered at the hands of a school teacher and a Catholic priest. His mental deterioration had led the applicant to abuse alcohol and illicit drugs, and to develop a destructive gambling addiction. It was accepted that there was a causative link between the mental conditions from which the applicant suffered, and his use of drugs, leading to some diminution in moral culpability. Further, the sentencing judge was satisfied that the applicant's health, including his ongoing need for treatment for cancer, would make time spent in a custodial environment more onerous. 4. The principle of specific deterrence had a role to play in the determination of sentence, as did the requirement for general deterrence to feature, albeit to a lesser extent than would have been the case for an offender not suffering from the applicant's mental disorders. The applicant's prospects of rehabilitation were considered to be guarded. 5. With respect to the s 23 issue, his Honour observed: "I will apply a combined discount for Mr [PG]'s pleas of guilty and under s 23. I have noted the Crown's submission as to a combined discount. I note that I must proceed in a way that does not result in a sentence which is unreasonably disproportionate to the sentence appropriate in all the circumstances." 1. Returning to the issue of the total combined discount for the pleas and assistance that was to be applied to the sentence, his Honour later noted: "When I set the indicative sentences, I will take into account the pleas of guilty and the Form 1 offence on the relevant offence. I will also apply the combined discount of which I have spoken to the indicative sentences. When I set the sentences, I confirm that a discount assessed at a combined 35% will apply to all offences except for the offence of the supply of 170.1 grams of methylamphetamine to which I will apply a discount of 40% off the otherwise appropriate sentence. I will announce the sentences that I have assessed as otherwise appropriate and then the sentences that I set. The resulting indicative sentences I announce will be rounded rather than representing strict mathematical precision." 1. The combined discounts were thus announced as 35% for all offences other than sequence 4 of 2021, with a total discount of 40% applied to that offence. The Application to this Court 1. Should leave to appeal be granted, the applicant seeks to advance one ground of appeal, with two "sub-grounds", articulated as follows: (1) His Honour erred in applying the discount for assistance, including: (a) Sub-ground 1: Denial of procedural fairness (b) Sub-ground 2: Failure to provide reasons 1. As noted, the sentencing judge accepted that the applicant was entitled to a 25% discount to recognise the early entry of pleas of guilty, together with a further discount pursuant to s 23, reflecting the applicant's admission to supplying drugs in circumstances not previously known to the police, and other evidence before the court as Ex. D. The sentencing judge noted that a combined discount to reflect those features was appropriate. 2. The applicant's complaint is that, the Crown having taken no issue with the quantum he submitted should be applied for the s 23 discount, his Honour thereafter applied a lesser discount, in circumstances where the applicant was not forewarned of that possibility so that he might have addressed it, and where no proper reasons were given for application of a lesser discount. 3. Neither of these contentions can be made good in my conclusion and, for the reasons that follow, although I would grant leave to appeal, I would dismiss the appeal. 4. During the course of the sentence hearing the applicant submitted to the sentencing judge that a 25% discount should be afforded to him because of his early pleas of guilty. In addition, it was argued that a s 23 discount in the order of 25% with respect to the 2021 offences and something in the range of 10-15% with respect to the 2022 offences was appropriate. The Crown did not dispute what was put on the applicant's behalf. 5. In response to the Crown's concession, his Honour observed: "Yes I still have to look and sit back to see the combined discount does not lead to - whilst the sentence will be disproportionate for the offending with the assistance discount factored in, it's not overly so." 1. The applicant submits that his Honour should be understood by that comment as intending to convey his acceptance that the proposed discount would not result in an "overly" disproportionate sentence. That submission distorts the ordinary and apparent meaning of what was said by the sentencing judge and cannot be accepted. It is plain that his Honour was referring to the obligation imposed upon the court by s 23(3) of the Crimes (Sentencing Procedure) Act which provides: 23 Power to reduce penalties for assistance provided to law enforcement authorities […] (3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence. 1. In effect, his Honour acknowledged the Crown's concession, but made clear that there remained an obligation on the court to "sit back" and ensure that the combined discount did not lead to a sentence that was "overly" disproportionate. As can be seen from his Honour's later remarks on sentence, that is precisely what the sentencing judge did. In his remarks his Honour said of this obligation: "12. When assessing the appropriate discount in cases such as this a sentencing judge must stand back and ask whether the resulting sentence is just and reasonable, not only to the offender but also to the community at large after taking into account the various statutory and common law principles and applying such discounts that arise on the particular facts: see SZ v R [2007] NSWCCA 19 at [5]. 13. I have considered a number of authorities in relation to the setting of such combined discounts, including Brown v R [2010] NSWCCA 73 at [38] and Haouchar v R [2014] NSWCCA 227 at [37] to the effect that a combined discount ought not normally exceed 40% unless an offender will serve their custody in more onerous conditions as a result of the assistance, of which there is no evidence here. 14. I note that it has been held that the advent of more standardised discounts, such as the utilitarian value of a guilty plea being as high as 25%, following the decision of R v Thomson and Houlton (2000) 49 NSWLR 383, means courts have less scope in giving a discount for assistance in cases of an early plea: SZ v R at [9]. The statutory fixed discounting scheme for the utilitarian value of a guilty plea in matters dealt with on indictment in Pt 3, Div 1A, Crimes (Sentencing Procedure) Act 1999 may operate to similar effect, but I am unaware of authority that actually confirms this." 1. His Honour went on to note that s 23(3) operated as a constraint upon the extent of any combined discount, having regard to the facts and circumstances of the case. 2. In assessing the quantum of the discounts his Honour concluded that the s 23 discount for all offences deserved to be 20%, with sequence 4 of 2021 meriting an additional 5% discrete discount to recognise the admissions the applicant made to previously undetected criminality; totalling 25%. Combined with the 25% discount for the pleas, the discounts amounted to 45%, and 50% for sequence 4 of 2021. 3. However, as his Honour noted those assessed discounts had still to face the constraint of s 23(3): "When I sit back and consider the constraint imposed by section 23(3) and the appropriate combined discount, I propose to afford [the applicant] a combined sentencing discount of 35%, and 40% for [Seq.4]. I have satisfied myself under section 23(3) that such discounts will not be unreasonably disproportionate to the nature and circumstances of the offences." 1. The applicant contends that his Honour was in error in reconsidering the discounts after their initial announcement, as the combined discounts of 45% and 50% embodied proper consideration of proportionality and were within an appropriate and principled range. 2. Having carefully considered his Honour's remarks, my conclusion is to the opposite effect. In noting the discount that would be applied but for the operation of s 23(3), the approach of the sentencing court was fully transparent, with the process his Honour undertook in reaching the indicative sentences that were announced by the court fully exposed to scrutiny. Neither can it be concluded that his Honour failed to give adequate reasons for the reduction in the discount in fact applied: his reasons were stated plainly, as extracted above at [43]. His Honour made an assessment of the value of the s 23 evidence and determined the discount that applied, prior to giving consideration to the constraint imposed by s 23(3). Considering the facts and circumstances of the case, all of which his Honour had set out in his remarks, he concluded that the discount must be reduced to avoid breaching the command given by s 23(3). The discounts in fact applied constituted the maximum discount available without producing sentences disproportionate to the nature and circumstances of the offending. 3. There was no error in that approach. Conclusion 1. The orders I propose are: 1. Grant leave to appeal against the sentence imposed on 18 August 2023; 2. Dismiss the appeal; 3. Publication of the judgment is restricted to the parties, pending their advice to the Registrar, within 7 days from today, of any redactions that may be necessary to permit unrestricted publication. 1. FAULKNER J: I agree with Wilson J. ********** 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: 07 August 2024