Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Yousef Jidah v R [2014] NSWCCA 270 Hearing dates: 10 and 11 April 2014 Decision date: 28 November 2014 Before: Bathurst CJ; Fullerton J; Davies J Decision: 1.Appeal against conviction dismissed. 2.Grant leave to appeal against sentence. 3.The sentence imposed in the District Court on 23 September 2011 on Count 8 on the indictment is quashed. 4.In lieu thereof, a sentence of imprisonment of 10 years is imposed, commencing on 11 May 2010 and expiring on 10 May 2020, comprising a non-parole period of 6 years and an additional term of 4 years. 5.The appellant will become eligible for release on parole upon the expiration of the non-parole period on 10 May 2016. Catchwords: CRIMINAL - appeal - conviction - whether the elements for offence of supplying prohibited drug were contained in offence of possessing precursor where precursor and prohibited drug the same - whether indictment gives rise to plea in bar or abuse of process or one conviction must be quashed to avoid double punishment as whole of criminality is encompassed in one offence - whether plea in bar exists requires consideration of what elements must be proved not what evidence might be called - supply offence had additional element of a commercial quantity - theoretically possible to know drug is precursor but not prohibited drug - laying of charges could not be abuse of process were offences different in important respects - charges reflect whole criminality of accused CRIMINAL - appeal - sentence - whether interrelated nature of supply and possession offences considered in determining objective seriousness of supply offence - whether in assessing objective criminality trial judge was obliged to find appellant only in possession of drug for purposes of supply - relevance of Crown case at trial CRIMINAL - appeal - sentence - fact finding of sentencing judge - whether reasonable for judge to infer appellant's knowledge of size of drug enterprise CRIMINAL - appeal - sentence - Muldrock error - conceded by Crown CRIMINAL - appeal - sentence - parity - need to re-sentence to ensure relativity of appellant's role is reflected where co-offenders more senior in drug enterprise were resentenced Legislation Cited: Clean Waters Act 1970 (NSW), s 16 Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 24A, 25, 33, 33AB and Sch 1 Sentencing Act 1991 (Vic), s 7 State Pollution Control Commission Act 1970 (NSW), s 17D Cases Cited: Blay v The Queen [2006] WASCA 248; (2006) 205 FLR 414 DS v R [2014] NSWCCA 267 Environment Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502 Hinchcliffe v R [2010] NSWCCA 306 Ibrahim Jidah v R [2014] NSWCCA 269 Lachlan Wilson v R [2014] NSWCCA 266 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Nahlous v The Queen [2010] NSWCCA 58; (2010) 77 NSWLR 463 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 R v Carey (1990) 20 NSWLR 292 R v Langdon and Langdon [2004] VSCA 205; (2004) 11 VR 18 R v Sessions [1998] 2 VR 304 Standen v Director of Public Prosecutions (Cth) [2011] NSWCCA 187; (2011) 218 A Crim R 28 The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383 Category: Principal judgment Parties: Yousef Jidah (Appellant) Crown (Respondent) Representation: Counsel: J S Stratton SC (Appellant) I D Bourke / M England (Crown) Solicitors: William O'Brien & Ross Hudson (Appellant) Commonwealth Director of Public Prosecutions (Crown) File Number(s): 2008/196406 Decision under appeal Before: Frearson SC DCJ File Number(s): 2008/196406 Judgment 1THE COURT: On a joint indictment presented on 23 February 2011, Lachlan Wilson, DS, Ibrahim Jidah, Yousef Jidah (the appellant) and Ryan Kapral were charged with a range of what might be described broadly as drug offences. ES, another person also involved in the alleged offences pleaded guilty. 2The charges against the appellant alleged contraventions of the Drug Misuse and Trafficking Act 1985 (NSW) (the DMT Act). The charges were as follows: "Count 8 Between about 13 August 2008 and 14 August 2008 at Sydney in the State of New South Wales and elsewhere, did supply a prohibited drug, namely pseudoephedrine, being not less than the commercial quantity and not less than the large commercial quantity applicable to pseudoephedrine. Contrary to s.25(2) Drug Misuse and Trafficking Act (NSW) Count 9 Between about 12 August 2008 and 14 August 2008 at Sydney in the State of New South Wales and elsewhere, did attempt to possess a precursor, namely pseudoephedrine, intended for use in the manufacture or production by Yousef JIDAH or another person, of a prohibited drug. Contrary to s.24A(1) Drugs Misuse and Trafficking Act (NSW)." 3Following a trial before Judge Frearson SC and a jury, the appellant was convicted on both counts. On Count 8 (the supply count) he was sentenced to imprisonment for a non-parole period of eight years and nine months with an additional term of four years and three months. On Count 9 (the possession count) he was sentenced to 15 months imprisonment to be served wholly concurrently with the sentence imposed on Count 8. 4The appellant has appealed against his conviction and seeks leave to appeal against the sentence imposed on the supply count. 5Lachlan Wilson, Ibrahim Jidah and DS were convicted by the jury of various offences relating to the same drugs as those the subject of the charges against the appellant. They also appeal against their convictions and seek leave to appeal against sentence. ES entered pleas of guilty to charges also involving the same drugs. He seeks leave to appeal against his sentence. 6All appeals and applications for leave to appeal against sentence were heard at the same time with the exception of the sentence appeal of ES. The relevant legislation 7Section 25(2) of the DMT Act provides as follows: "25(2) A person who supplies, or who knowingly takes part in the supply of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence." 8"Supply" is defined in s 3 of the DMT Act in the following terms: "supply includes sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things." 9"Prohibited drug" is defined in s 3 of the DMT Act as any substance other than a prohibited plant specified in Sch 1. Pseudoephedrine is specified in Sch 1. A large commercial quantity of that drug is 5.0 kg. 10Section 33(3) of the DMT Act provides that the maximum penalty for s 25(2), where the offence involved not less than the large commercial quantity, is life imprisonment, a fine of 5,000 penalty units or both. The standard non-parole period is 15 years imprisonment. 11Section 24A of the DMT Act so far as relevant provides as follows: "24A(1) A person who has possession of: (a) a precursor, or (b) a drug manufacture apparatus, intended by the person for use in the manufacture or production, by that person or another person, of a prohibited drug is guilty of an offence. ... (3) In this section: drug manufacture apparatus means an apparatus specified or described in the regulations as a drug manufacture apparatus for the purposes of this section. precursor means a substance specified or described in the regulations as a precursor for the purposes of this section." 12Pseudoephedrine is specified in Sch 1 of the Drug Misuse and Trafficking Regulation 2011 (NSW) (the DMT Regulations) as a precursor for the purpose of section 24A of the DMT Act. 13Section 33AB of the DMT Act provides that the maximum penalty for an offence under s 24A is a fine of 2,000 penalty units or imprisonment for 10 years or both. Factual background 14The facts relating to the charges against the appellant are set out in our judgment in the appeal of Lachlan Wilson (Lachlan Wilson v R [2014] NSWCCA 266 at [13]-[114]), particularly at [75]-[99] and it is not necessary to repeat them. The conviction appeal 15The appellant appealed against his conviction on the sole ground that the trial miscarried because he was charged with inconsistent verdicts. However, during the course of the hearing of the appeal the appellant was granted leave to amend this ground of appeal in the following terms: "On the facts of this case the conviction of the appellant on both Count 8 and 9 has led to a miscarriage of justice because the elements of Count 8 are contained in the elements of Count 9." 16The relief sought was that the conviction under Count 8 or Count 9 be quashed. The submissions 17The appellant submitted that it was impermissible to leave both counts to the jury. He referred to the statement by the prosecutor at the sentencing proceedings that both counts had been laid in case there was a "Carey type" defence. That was a reference to a decision of this Court, R v Carey (1990) 20 NSWLR 292, which held at 297 that "supply" within the meaning of the extended definition of "supply" in the DMT Act did not include the transfer of drugs to a person who the accused reasonably believed to be the owner. 18The appellant submitted the Carey defence was not raised at the trial as it was no part of his case that he believed that there were drugs in the boxes which he was involved in transporting, unpacking and resealing. 19The appellant accepted that each of the counts had different elements as well as common elements. He submitted the most significant difference was that the supply count had an element relating to the quantity of the drugs whilst the attempt possession count did not and that the two counts characterised the substances differently in that the supply count concerned pseudoephedrine specified in Sch 1 of the DMT Act as a prohibited drug and the possession count concerned that substance as a precursor in Schedule 1 of the DMT Regulations. 20The appellant noted that at the trial it was submitted that for the purpose of s 25(2) and s 24A of the DMT Act a substance could not be characterised simultaneously as a prohibited drug and a precursor. He accepted as a matter of definition the substance could be both but submitted that its characterisation depended on the intention of the person attempting to obtain possession under s 25(2), namely for the purposes of supply or the person in possession under s 24A intending that it be used for the purposes of manufacture of a prohibited drug. He submitted that, if the intention was manufacture, then it was a precursor but, if not, assuming the other elements are made out, it is a prohibited drug. He submitted it could not be both simultaneously. 21In his written submissions the appellant also submitted that the conviction on Count 8 should be quashed and the appellant resentenced on Count 9. As we have indicated earlier, at the hearing it was submitted that either Count 8 or Count 9 be quashed. 22Senior counsel for the appellant submitted that having regard to the extended definition of "supply" relied upon by the Crown as constituting the supply in this case, being an attempt to obtain possession for supply because of the substitution of an inert substance, all of the elements of the supply count were contained within the attempt possession count. He submitted that the Crown case for the possession count, under s 24A of the DMT Act, was that there was an attempt to obtain possession for the purpose of supplying to another for the purpose of manufacture. (That offence was also charged as an attempt because of the substitution.) He submitted that in that scenario all the elements of the supply count were contained within the s 24A offence. 23Senior counsel for the appellant pointed to the fact that in both his opening address and in the sentencing proceedings, the Crown Prosecutor made it clear that the Crown's case was not that the appellant or his brother were intending to take any steps themselves in the manufacture of a prohibited drug by their attempt to obtain possession of what they believed was in the 45 boxes, rather that they intended that at some unspecified place and time it would be manufactured by a person or people unknown. 24He also submitted that it could not make a difference that the supply count under s 25(2) of the DMT Act related to a prohibited drug and the possession count under s 24A related to a precursor as pseudoephedrine fell within both categories. He also submitted that the requirement of proof of a large commercial quantity for the supply count was irrelevant as there was no quantity specified for a breach of s 24A. 25Senior counsel for the appellant acknowledged that no application for a stay of either count had been sought at the trial, although the question of unfairness, by inclusion of both counts on the indictment, was raised by trial counsel and rejected by the trial judge. On the appeal, counsel accepted it would have been open to the Crown to bring the counts in the alternative but submitted, relying on what was said by this Court in Nahlous v The Queen [2010] NSWCCA 58; (2010) 77 NSWLR 463, that it was inappropriate to invite a conviction for two offences which involved the same criminality. He also referred to the decision of the Western Australian Court of Appeal in Blay v The Queen [2006] WASCA 248; (2006) 205 FLR 414 at [6] where McClure JA in somewhat similar circumstances expressed reservations about there being two convictions arising from the same set of facts. 26Senior counsel for the appellant sought to distinguish the case from the decision of this Court in Standen v Director of Public Prosecutions (Cth) [2011] NSWCCA 187; (2011) 218 A Crim R 28. He submitted that in that case there was a real doubt whether the proposed import was a prohibited drug or simply a precursor and that in those circumstances it was appropriate to lay the charges the subject of the indictment. He submitted that that was not this case. 27The other appellants, whose appeal was heard at the same time as this appeal, relied upon the same submission. However, on the question for relief, senior counsel for Lachlan Wilson submitted, without elaboration, that the inclusion of two counts in the indictment, in circumstances such as the present, led to the indictment being bad and as a consequence any conviction obtained as a result should be quashed. 28The Crown said that no submission was made at the trial in the terms of that made in this Court. It submitted that the argument raised below was that the two counts arose from the same acts and "a plea in bar" would be available "from one to the other". In these circumstances the Crown contended that leave was required under rule 4 of the Criminal Appeal Rules (NSW) to rely on this ground. 29The Crown pointed to the fact that the offences contained different elements. It submitted s 24A of the DMT Act required proof of a specific intent that the precursor that was possessed (or in this case attempted to be possessed) would be used to manufacture a prohibited drug, but not proof of any act of supply for that purpose. The Crown also pointed out that s 24A involves proof that the substance possessed was a precursor, whilst s 25 involves proof that a prohibited drug was to be supplied and further that the s 24A offence does not involve proof of any particular quantity of the substance, unlike the s 25(2) offence which requires proof of supply of a large commercial quantity. In these circumstances it was submitted that a conviction on one of the counts would not entitle the appellant to a plea in bar on the other. 30The Crown accepted that the unavailability of a plea in bar did not preclude the Court's power to prevent an abuse of process. However, it was submitted that a stay of proceedings would only be granted in extreme circumstances. The Crown pointed out that, as in Standen v Director of Public Prosecutions (Cth) supra, it was possible the jury might be satisfied of the elements of one count but not the other. The Crown pointed to the fact that the jury might be satisfied that the accused was in possession of a prohibited drug (or a precursor) but not satisfied he was aware of the quantity or, that in relation to the supply count, the accused might claim that he was a mere custodian relying on R v Carey supra. In these circumstances it was submitted there was no abuse of process to justify the grant of a stay. 31Counsel for the Crown submitted that the Crown case did not involve a specific allegation that the tablets were going to be used by a particular person to produce a prohibited drug and that the Crown's case did not preclude the possibility that the accused intended to pass the tablets on to some other person who might have had an intention to create a prohibited drug. In that context the Crown submitted that the appellant's submission that the Crown case was that the enterprise related to an intended manufacture of a prohibited drug using pseudoephedrine as a precursor and for that reason it was inappropriate to charge the supply count, was not made out. 32Counsel for the Crown submitted that the appellant's contention, that whether pseudoephedrine was to be characterised as a prohibited drug or precursor depended on the intention of the person in possession of it, was incorrect as it confused the physical element with the mental element of the offence. So much may be accepted, but it begs the question whether the counts in the present case were directed to the same criminality. 33Counsel for the Crown submitted that in relation to the possession count there is a remnant of criminality that is not in the supply count, namely, in the latter the jury did not have to be satisfied as to what was intended to be done with the substance. Consideration 34The elements of the offence under s 25(2) of the DMT Act, applicable to this case, were that the appellant attempted to obtain possession of what he believed to be a prohibited drug, for the purposes of supply in an amount not less than the large commercial quantity applicable to that drug. To establish the count, it was necessary for the prosecution to prove that the appellant attempted to take possession of the drug for the purposes of supply, knowing or believing that the substance in the 45 boxes was a prohibited drug of not less than a large commercial quantity. 35By contrast, the elements of the offence under s 24A of the DMT Act, as applicable to this case, were that the appellant attempted to possess a precursor, intending it to be used by another person in the manufacture of a prohibited drug. As we have observed, it was not contended by the Crown that the appellant intended to use the precursor for the manufacture of such a drug. The identity of that person (or those people) and where and when and how they were to be given access to the precursor was left open by the Crown. 36Thus, to establish the offence under s 24A of the DMT Act, the prosecution was required to prove that the appellant attempted to possess a substance he knew or believed to be a precursor with the intention of it being used by another person to manufacture a prohibited drug. 37The appellant accepted, correctly, that not all the elements of the possession count were subsumed in the supply count even in the circumstances of the present case. This was correct at least for the reason that any on-supply of the substance possessed (or attempted to be possessed) that may be comprehended under s 24A of the DMT Act had to be with the intention that it be used for the manufacture or production of a prohibited drug as distinct, for example, for the purposes of on-selling the precursors. 38Further, for the purpose of the supply count, it was unnecessary to prove that the drug in question was a precursor or that the appellant was aware or believed it was a precursor. It is sufficient if he knew or believed it was a prohibited drug. 39However, the appellant was not correct in submitting that all the elements of the supply count were subsumed in the possession count. First, for the possession count it was not necessary to prove the substance in question was a commercial quantity. Secondly, at least theoretically, the appellant could have been aware that the substance was a precursor but not a prohibited drug, perhaps because he was told it was not and believed that to be the case. It is true that this possibility would be highly unlikely where the drug was within both categories but nevertheless it does illustrate the different elements of the counts and, most critically, the different mental elements. 40In these circumstances a conviction or acquittal on one or the other of the counts would not give rise to a plea of autrefois convict or autrefois acquit. As was pointed out by the plurality in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [20], consideration of whether a conviction or acquittal would give rise to a plea in bar on another offence invites attention to what must be proved to establish the commission of each offence. That is, it invites attention to identifying those elements as distinct from what evidence might be called and what the witnesses would say (see also Gummow J at [63]). 41In R v Langdon and Langdon [2004] VSCA 205; (2004) 11 VR 18 the Victorian Court of Appeal considered the position in circumstances somewhat similar to this case. Relevantly, the appellants were convicted of trafficking a drug of dependence (amphetamine) and of being in possession of a drug of dependence (amphetamine). They were convicted on each count and appealed, one basis being that the possession charge was entirely subsumed in the trafficking charge. The Court of Appeal, following Pearce v The Queen supra, held that a plea in bar was not available (Gillard AJA at [46]-[50], Batt and Eames JJA agreeing). 42However, we accept that does not mean that the Court would not have the power to stay the charges if it were necessary to prevent an abuse of process (Pearce v The Queen supra at [29]). In Pearce v The Queen the appellant was charged with maliciously inflicting grievous bodily harm and breaking and entering a dwelling house and inflicting grievous bodily harm. The Court held that prosecuting both those charges did not constitute an abuse of process. The plurality stated at [31] that, because the offences were different in important respects, the laying of both charges could not be said to be vexatious or oppressive. They stated that to hold otherwise would be to preclude the laying of charges that reflected the whole criminality of the accused and would require him or her to be sentenced only for the offence charged, excluding consideration of any part of the conduct that could have been charged separately. 43These remarks are apposite to the present case. We have indicated above the difference in the offences. Further, as was pointed out by the Crown in its submissions, there may have been a defence available to the supply count which was not available to the possession count under s 24A of the DMT Act. The fact that such a defence ultimately was not raised does not make the bringing of the two counts vexatious and oppressive. 44A similar conclusion was reached by the Victorian Court of Appeal in R v Langdon and Langdon supra at [57]-[60]. 45The same approach was adopted by this Court in Standen v Director of Public Prosecutions (Cth) supra. In that case the appellant was indicted on three counts. The first count charged a conspiracy to import a substance intending to use any of it in the manufacture of a controlled drug and the second to knowingly taking part in the supply of a prohibited drug. An application that the second count be dismissed as an abuse of process was dismissed by the trial judge. His conclusion was upheld on appeal. Hodgson JA, who delivered the principal judgment of the Court, considered (at [23]) that there was a realistic possibility that the applicant knew the substance was a prohibited drug but not that it was a border controlled precursor. He also indicated that he was not satisfied that the whole of the relevant criminality would be captured by the first Count. In these circumstances he concluded that the bringing of both counts was not vexatious or oppressive. 46However, even if it is accepted that a plea in bar would not be available on the conviction or acquittal on one or other of the counts in the indictment and the inclusion of both counts on the indictment was not vexatious or oppressive, there remains the question whether, in the particular factual circumstances of the present case, the conviction and sentence on both counts exposed the appellant to double punishment, such that the conviction on one or the other of the counts should be quashed to avoid a miscarriage of justice. 47In Environment Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502, the question arose whether the respondent could be convicted of a charge under s 17D of the State Pollution Control Commission Act 1970 (NSW) having already been convicted of an offence under s 16 of the Clean Waters Act 1970 (NSW). The particulars of the offence relating to each charge were identical and the offences in substance were the same. The Court answered the question in the negative. Gleeson CJ, with whom Carruthers and Smart JJ agreed, dealt with the matter in the following terms at 510: "There are two possible ways of looking at the matter, both of which lead to the same conclusion. One way is to say that, in the circumstances of the present case, the offence against s 16 of the Clean Waters Act is in substance the same as the offence against s 17D of the State Pollution Control Commission Act. Counsel for the Environment Protection Authority sought to answer this by the following argument. He observed that, to take the present case as an example, the breach by Australian Iron & Steel of s 17D could properly be regarded as more serious than the breach of s 16 because, although exactly the same acts or omissions gave rise to each offence, the former involved an abuse of a licence and, in a sense, of a breach of trust. I find the moral distinction somewhat elusive, but, even if it is valid, it does not assist the Environment Protection Authority. If the analysis be correct, it simply shows that, in a case such as the present, a contravention of s 17D is an aggravated form of a contravention of s 16. As R v Dodd illustrates, that falls squarely within the established scope of the rule against double jeopardy. It was also submitted on behalf of the Environment Protection Authority that, since there are two different statutes and planning provisions involved, the Court has no choice but to obey the will of Parliament and give effect to both of them. The short answer to that submission is that the rule against double jeopardy, in its ordinary application, applies in relation to two or more statutory offences. Once again, R v Dodd was precisely such a case." 48In R v Sessions [1998] 2 VR 304, the accused was convicted of one count of rape and one count of recklessly causing serious injury. The offence arose from an incident when the accused was changing the eight month old victim's nappy. He became annoyed with her crying and pushed his index finger into her vagina causing part of the intestine to be extracted through the vaginal opening. The prosecution had charged both offences to avoid the possibility that any sentence imposed could infringe the principle laid down in The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383. The trial judge sentenced on the basis that the rape was constituted by the insertion of the accused's finger into the vagina to the slightest extent and the offence of recklessly causing serious injury was constituted by the continued forceful penetration. The appellant sought leave to appeal against his conviction for recklessly causing serious injury and against his sentence for rape on the ground that, by being charged with two offences for the same act, he was exposed to double jeopardy in relation to conviction and punishment. 49The appeal was allowed. The Court held that the appellant should have been sentenced for rape on the basis that his sexual penetration of the child caused the damage which in fact occurred, but that the conviction for the lesser count should be quashed. Hayne JA (as his Honour then was) said this was for three reasons. First, if the basic principle is that a single act or omission should not give rise to multiple punishment, conviction should not be recorded on both counts. He emphasised that conviction itself was a form of punishment (referring to s 7 of the Sentencing Act 1991 (Vic), the NSW equivalent is s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW)). Second, he emphasised that the serious injury to the victim could be taken into account in the sentence for rape and that, in the circumstances, the charging of the separate offence resulted in an illusory and un-useful distinction. Third, his Honour pointed out that the charging of separate offences was not required as the same physical acts were relied upon and the evidence on each count would have been identical if the plaintiff had pleaded not guilty to either or both of the offences. In these circumstance, his Honour held the accused was punished twice for the one act and the conviction on the second count should be quashed. 50R v Sessions supra was a case, as in Environment Protection Authority v Australian Iron & Steel Pty Ltd supra, where the whole of the criminality was encompassed in one charge. 51Although in Pearce v The Queen supra the Court concluded that a plea in bar could not arise and that the presentation of both charges was not vexatious or oppressive, the need to ensure that the offender was not doubly punished for the same act was emphasised. The Court pointed out at [40]-[49] that the problem would not necessarily be avoided by making the sentences concurrent. 52In R v Langdon and Langdon supra Gillard AJ said the question of whether there was double punishment must be approached as a matter of common sense. He concluded at [97] that, in the circumstances of that case, the act of possession was common to both the trafficking and the possession counts and there was double punishment. He stated at [117] that as there was no remnant of criminal conduct in the possession count, which had not been taken into account in the trafficking count, the only course was to quash the conviction. 53In Nahlous v The Queen supra, it was held that it was an abuse of process to charge a person with a principal offence and also dealing with the proceeds of crime flowing from that offence, as the receipt of money was an element of the original offence. The Court made the following remarks at [17]: "We appreciate that a person can by the one act commit two offences and, where the two offences address different aspects of the criminal conduct, there is nothing wrong with prosecuting the two offences or, subject to the principle of totality, with imposing separate sentences for the two offences. But in our view the receipt of the money as a result of the sale did not result in a separate act of criminality that warranted a separate charge and a separate penalty. We do not believe that there is anything in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 that conflicts with the view that we have taken as to the inappropriateness of the prosecution of the Code offence as well as the decoder offence (see particularly at 621[31]). We believe that in the circumstances of this case it was oppressive to charge the applicant with both the sale of the decoders and the receipt of the money as a result of the sale. That is because in our view the offence of sale encompassed the criminality of possessing the proceeds of the sale." 54Nahlous v The Queen supra may be contrasted with the other cases to which we have referred, in that it concluded that the laying of the charge of dealing with the proceeds of crime was vexatious and oppressive, as distinct from merely quashing the conviction to avoid double punishment. This was no doubt due to the fact that the principal offence looked at in isolation carried a far lesser sentence than the offence of dealing with the proceeds of crime (see at [20]). 55It is not necessary to determine whether the approach in Nahlous v The Queen supra is consistent with the other authorities to which we have referred. What is clear is that, in each of the cases, the particular conviction was quashed because the whole of the criminality arising out of the charged acts was encompassed in the other offence (see Hinchcliffe v R [2010] NSWCCA 306 at [25]-[28]). 56In the present case, as in Standen v Director of Public Prosecutions (Cth) supra, we do not think that the whole of the criminality for each offence is captured in the other. Whilst having regard to the evidence and the manner in which the case was conducted both offences may have involved an attempt to supply a prohibited drug, the s 24A offence does not capture the criminality involved in the supply of a large commercial quantity, for which the maximum penalty is life imprisonment, reflecting the seriousness with which Parliament regards that offence. Although there is more force in the proposition that the criminality involved in the offence under s 24A of the DMT Act is wholly captured by the supply offence under s 25(2), this ignores the fact that a separate element of the former offence (that the possession of the precursor was intended by the accused to be used in the manufacture or production by another person of a prohibited drug) is an element of criminality not encompassed in the s 25(2) offence. 57In these circumstances it is not appropriate to quash either conviction. It will of course be necessary in dealing with the appeal against the severity of the sentence to ensure that the appellant is not doubly punished for common elements of the offences. 58In the result the appeal against conviction should be dismissed. The sentence appeal 59The application for leave to appeal against sentence is limited to the sentence imposed on the supply count. For that offence a sentence of 13 years was imposed, comprised of a non-parole period of 8 years and 9 months and a balance of term of 4 years and 3 months against a maximum penalty of life imprisonment and a standard non-parole period of 15 years. 60Four grounds of appeal are relied upon. They are expressed in largely identical terms to the grounds relied upon by the appellant's brother, Ibrahim Jidah, who was sentenced in the same proceedings to a sentence of 15 years and 9 months, comprised of a non-parole period of 10 years and 3 months and a balance of term of 5 years and 6 months. The grounds of appeal are as follows: (1)His Honour failed to properly assess the objective seriousness of the supply count by failing to take into account the interrelated nature of that offence and the possession count. (2)His Honour erred by finding that the appellant knew that the size of the enterprise involved hundreds of kilograms of product. (3)His Honour erred by placing too much significance on the standard non-parole period. (4)The appellant is left with a justifiable sense of grievance given the sentences that were passed on his co-offenders. The facts found for sentencing purposes 61His Honour found that the objective seriousness of the appellant's offending was within the mid-range but at the very bottom of that range. He concluded that, while his role was subordinate to others (including his brother) and he had no planning role, he did make himself available over a number of days; he was not a mere courier and his involvement could not be described as opportunistic by reason of him having a courier van, since it was a van of that kind which suggested the driving from place to place was for legitimate purposes. He made the following additional factual findings: (a)The appellant was recruited by his brother to supply the van used to transport the boxes five days before they were collected; (b)He made follow up enquiries as to whether he was still required; (c)He met with ES on 13 August 2008; (d)He travelled in a convoy with his brother to collect the boxes from the auction house; (e)With DS he physically loaded the boxes into the van; (f)He transported the boxes towards Blacktown in a convoy with his brother following; (g)He drove the van in a particular manner for the purpose of ascertaining if he would be followed; (h)He offered to confront the people following him suspected of being police; (i)He suggested that the boxes be taken somewhere for the purpose of inspecting them; (j)He left his van with the boxes still on board at a shopping centre in Blacktown; (k)Thereafter he met with ES and subsequently retrieved the van and drove the boxes to the warehouse on the night of 13 August; (l)He engaged in a form of counter-surveillance by doing laps around the area which he reported to his brother; and (m)He met his brother on 14 August and returned to the warehouse to collect the unpacked boxes with a view to transporting them to another location. 62His Honour accepted the submission advanced on the appellant's behalf on sentence, that there was no direct evidence that the appellant had been told that the drugs would be in 45 of the boxes loaded into his van and transported by him, nor that he was involved in repacking the boxes nor that he had seen or handled any unsealed boxes. For those reasons, his Honour accepted that the appellant should only be sentenced on the basis of what the evidence proved he did in dealing with the boxes and what he knew of their contents. In that respect, his Honour was satisfied that the appellant knew (or believed) he was engaged to carry "some hundreds of kilos" of prohibited drugs. The appellant's subjective circumstances 63His Honour acknowledged the tender of what he described as a wealth of subjective material including a psychological assessment from Ms Danielle Hopkins. He noted the appellant's background and family history included that he has 2 older and 6 younger siblings and that he was subjected to harsh physical punishment as a child. He married in Lebanon at the age of 25 and was aged 33 at the time of sentence. He had, at that time, a daughter five years old and a son two years old. His daughter suffered severe burns in an accident with the result that he had been her full-time carer for a substantial period of time. His wife suffers from an adjustment disorder and a depressive illness following her husband's incarceration. This was confirmed in reports concerning her mental state tendered on sentence. 64His Honour accepted that the personal references tendered on the appellant's behalf described him as an honest person. 65The appellant completed Year 12 but failed most subjects. He was bullied at school as a result of having a cleft palate. He completed a four-year course in spray-painting at TAFE. 66His Honour concluded that, while there was no evidence of remorse, the appellant was unlikely to reoffend in the particular way for which he was convicted and that he had good prospects of rehabilitation. Ground 1: His Honour failed to properly assess the objective seriousness of the supply count by failing to take into account the interrelated nature of that offence and the possession count 67The first ground of appeal is, in a sense, related to the sole ground of appeal against conviction. His brother, Ibrahim Jidah, argued the same ground. The conviction appeals were dismissed (see pars [34]-[58] above and Ibrahim Jidah v R [2014] NSWCCA 269). 68In the sentence proceedings, an issue arose as to how the supply count and the possession count should be treated for sentencing purposes. The appellant argued that given the way the case was prosecuted at trial, not only did the two offences have significantly overlapping elements, the trial judge was obliged when sentencing to find that the appellant was only ever in possession of the large commercial quantity of pseudoephedrine (or what he believed was pseudoephedrine) for the purpose of supplying it to someone, for no reason other than to facilitate that person's manufacture of another prohibited drug (namely methamphetamine), and that he was not supplying the pseudoephedrine to the market, or to someone else who was intending to supply it to the market. 69Viewed in this way, the appellant submitted that the proper characterisation of his criminality on the supply count was that he had done no more than to have taken a preparatory step in the process of manufacturing another prohibited drug and, for that reason, his criminality was no more than, perhaps even less than, the intended recipient(s) of the pseudoephedrine who intended to use it for that criminal purpose. 70On that analysis, the objective criminality constituted by the appellant's role as a supplier of pseudoephedrine (being a prohibited drug) was said to be significantly less than other offences under the DMT Act, involving the supply of a large commercial quantity of a prohibited drug where the drug is intended to be marketed to end users. 71The appellant submitted that his Honour had wrongly inflated the objective seriousness of his conduct on the supply count by ignoring the use to which the pseudoephedrine would ultimately be put. 72We are not persuaded his Honour erred by treating the fact that the pseudoephedrine (a prohibited drug for the purposes of the supply count) was ultimately to be used in the manufacture of another prohibited drug (the mental element specific to possession of the pseudoephedrine on the possession count) as diminishing the objective gravity of his offending as a supplier. Nor are we satisfied that the fact that there was, or might have been, a number of intervening steps before the pseudoephedrine was exploited for manufacturing purposes, had any significant bearing upon the objective gravity of the offending constituted by the supply count, or that it diminished the objective criminality of what this appellant did as a supplier of the drug to any significant degree. 73As the Crown emphasised in its submission in this Court, it has always accepted that there was no evidence any particular person, including this appellant or his brother, had the means to manufacture an illegal substance for which the pseudoephedrine was to be used as a precursor. Moreover, the evidence in the Crown case did not permit any finding as to what was to happen to the pseudoephedrine at the point of delivery. Although it was conceivable that ES had the means to convert the pseudoephedrine into a huge quantity of methamphetamine to be supplied for wholesale purposes, it was equally open to find that ES was simply another link in the chain of supply, and that he intended that the pseudoephedrine would be sold or supplied at a wholesale level to others who would supply it to one or more manufacturers. 74In our view, it would have been an error for the trial judge in sentencing to have treated the appellant's criminality as a supplier of the pseudoephedrine (being a prohibited drug) for the purposes of his conviction under s 25(2) of the DMT Act, as if it were no more serious than his attempted possession of that substance as a precursor under s 24A. To have approached the matter in that way would have been to ignore the statutory regime provided for in the DMT Act. Where different penalties are provided against a range of specific conduct comprehended by drug possession, manufacture and supply, despite the fact that the prosecution elects to bring a number of charges with overlapping elements, similar criminal conduct may be represented in different offences. This is one such case. 75Ultimately, the gravamen of the criminality the subject of the supply count was the role the appellant performed as a supplier of a large commercial quantity of a prohibited drug to which a life sentence attaches to and to which a standard non-parole period of 15 years applies. In our view, his Honour's assessment of the criminality inherent in that conduct was neither appropriately, nor necessarily, diluted by the fact that the appellant also attempted to take possession of the same consignment of pseudoephedrine with the intent specific to the offence under s 24A of the DMT Act. 76We would dismiss the first ground of appeal. Ground 2: His Honour erred by finding that the appellant knew that the size of the enterprise involved hundreds of kilograms of product 77As concerns the weight of what the appellant believed to be prohibited drugs in the boxes he loaded and transported, his Honour found that, on the whole of the evidence, the only reasonable explanation for the appellant's conduct on 13 and 14 August 2008, after being recruited to provide his van five days earlier, was that the appellant believed he was engaged to carry "a gross quantity of some hundreds of kilos". The appellant submitted that his Honour could not have reached that finding on the available evidence beyond reasonable doubt and that the only conclusion legitimately open on the evidence was that the appellant knew that there are was "considerably more than the large commercial quantity" of 5 kg, being the minimum the jury would have to have been satisfied that the appellant knew he was attempting to possess for on-supply in order to return a guilty verdict on the supply count. 78The absence of any direct evidence of the extent of the appellant's knowledge did not mandate a finding that the quantity of the drugs he believed to be in the boxes should be limited to 5 kg. This finding was urged upon the trial judge in sentencing by the appellant's counsel and repeated on the appeal. The question is whether it was open to his Honour to make the finding that he did on the whole of the evidence, including the objective nature and scale of the enterprise and what the appellant did as a contribution to it. 79In reasoning to the conclusion that the appellant knew he was involved in a supply of a gross quantity of some hundreds of kilograms, his Honour relied upon the payload weight of the van with 2 passengers, being 788 kg and that it could carry 50 per cent more than that before "bottoming out". He noted that there was evidence that the van was fully laden and overloaded (the evidence revealed that the bottom of the van was in contact with the road at several points) and that a van of that carrying capacity would not have been required to transport a mere 5 kg. 80The appellant submitted that his Honour's reasoning was flawed in that only 45 boxes in the van contained the substituted pills, the balance obviously being loaded as a decoy or to camouflage the boxes the appellant believed to contain the drugs. It was submitted that there was therefore no evidence from which his Honour could reasonably infer that the appellant knew how many of the boxes were expected to contain the prohibited drugs. This submission completely ignores the fact that his Honour also noted that, when police arrested the appellant in company with DS and another man inside the warehouse, all 45 boxes were located: 4 on a hand trolley, 20 in the back of the van, 16 in a shipping container and 5 up against the back wall. Although his Honour did not refer to it, the evidence was that all but 5 of the 45 boxes had been opened and resealed. 81We would reject this ground. Ground 3: His Honour erred by affording too much significance to the standard non-parole period 82Consistently with our analysis of his Honour's sentencing reasons under this ground of appeal in Ibrahim Jidah's sentence appeal, and the Crown's concession in respect of both this appellant and his brother that a Muldrock error (see Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120) is demonstrated in his Honour's sentencing approach, this ground of appeal is made out (see Ibrahim Jidah v R [2014] NSWCCA 269 at [37]-[40]). Ground 4: The appellant is left with a justifiable sense of grievance on the proper application of parity principles 83Having resolved that DS should be re-sentenced to properly reflect the differences in the criminality of both ES and Lachlan Wilson as senior players in the syndicate, compared to DS's subordinate, but nonetheless important role, and that Ibrahim Jidah's sentence would need to be adjusted to ensure the relativity of his role was properly reflected in his sentence, it follows that this appellant will also need to be re-sentenced (see DS v R [2014] NSWCCA 267 and Ibrahim Jidah v R [2014] NSWCCA 269). Re-sentence 84On re-sentence, an affidavit by Ross Patrick Hudson, solicitor, was relied upon. He annexed various documents updating the appellant's custodial and family circumstances after been a serving prisoner for a number of years. In summary, the appellant is regarded by correctional staff members as polite and respectful. He was commended for his diligence in undertaking the Tertiary Preparation program. He has since completed that program and achieved outstanding results. 85Having regard to his Honour's findings of fact, and our own assessment of the criminal culpability of this appellant, relative to his co-offenders, including his brother who recruited him to be the driver, and having regard to the material relied upon on re-sentence, in addition to the material considered by his Honour as bearing upon the appellant's personal circumstances, we consider a sentence of imprisonment for 10 years, comprised of a non-parole period of 6 years, and an additional term of 4 years as the appropriate sentence. This preserves the finding of special circumstances made by the sentencing judge although the ratio between the non-parole period and the additional term has been altered slightly. We are satisfied that a minimum term of 6 years in custody for this appellant's offending, utilising the standard non-parole period of 15 years as a legislative guidepost, is an appropriate outcome in the re-sentencing exercise. Orders 86The Court makes the following orders: (1) Appeal against conviction dismissed. (2)Grant leave to appeal against sentence. (3)The sentence imposed in the District Court on 23 September 2011 on Count 8 on the indictment is quashed. (4)In lieu thereof, a sentence of imprisonment of 10 years is imposed, commencing on 11 May 2010 and expiring on 10 May 2020, comprising a non-parole period of 6 years and an additional term of 4 years. (5)The appellant will become eligible for release on parole upon the expiration of the non-parole period on 10 May 2016. ********** 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: 28 November 2014