Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Grover v R; Grover v R [2014] NSWCCA 315 Hearing dates: 25/09/2014 Decision date: 19 December 2014 Before: Hoeben CJ at CL at [1]; Fullerton J at [2]; R A Hulme J at [78] Decision: Daniel Grover 1.Leave to appeal granted. 2. Appeal allowed. 3. The sentence imposed on Count 1 of the first indictment, "the possession count", is confirmed. 4. Sentences imposed on each of Counts 1, 2 and 3 on the second indictment (being the supply counts of 24 May 2011, 11 June 2011 and 2 August 2011 respectively) are quashed and the following sentences are imposed in substitution: a.On Count 1, a sentence of imprisonment of 9 years and 6 months with a non-parole period of 5 years and a balance of term of 4 years and 6 months. The non-parole period is to commence on 3 August 2012 and to expire on 2 August 2017. b.On Count 2, a sentence of imprisonment of 9 years and 6 months with a non-parole period of 5 years and a balance of term of 4 years and 6 months. The non-parole period is to commence on 3 August 2013 and to expire on 2 August 2018. c.On Count 3, a sentence of imprisonment of 9 years and 6 months with a non-parole period of 5 years and a balance of term of 4 years and 6 months. The non-parole period is to commence on 3 August 2014 and to expire on 2 August 2019. 5. The applicant will be eligible for release to supervised parole on 2 August 2019. Brian Grover 1.Leave to appeal granted. 2. Appeal allowed. 3. The sentence imposed on Count 1 of the first indictment, "the possession count", is confirmed. 4. Sentences imposed on each of Counts 1, 2 and 3 on the second indictment, being the supply counts of 24 May 2011, 11 June 2011 and 2 August 2011 respectively, are quashed and the following sentences are imposed in substitution: a.On Count 1, a sentence of imprisonment of 9 years with a non-parole period of 4 years and 6 months and a balance of term of 4 years and 6 months. The non-parole period is to commence on 3 August 2012 and to expire on 2 February 2017. b.On Count 2, a sentence of imprisonment of 9 years with a non-parole period of 4 years and 6 months and a balance of term of 4 years and 6 months. The non-parole period is to commence on 3 August 2013 and to expire on 2 February 2018. c.On Count 3, a sentence of imprisonment of 9 years with a non-parole period of 4 years and 6 months and a balance of term of 4 years and 6 months. The non-parole period is to commence on 3 August 2014 and to expire on 2 February 2019. 5. The applicant will be eligible for release to supervised parole on 2 February 2019. Catchwords: CRIMINAL LAW - appeal against sentences - possession of pseudoephedrine as a precursor intending that it be used by another person in the manufacture of a prohibited drug - supply of pseudoephedrine as a prohibited drug - whether sentencing judge erred in assessment of objective seriousness - whether sentences individually and in aggregate manifestly excessive - parity - principles of totality Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW), ss 24A(1)(a), 24A(3), 25(2) Cases Cited: Barbaro v R; Zirilli v R [2014] HCA 2; 305 ALR 323 DS v R [2014] NSWCCA 267 Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 House v The King [1936] HCA 40; 55 CLR 499 Ibrahim Jidah v R [2014] NSWCCA 269 Kaminic v R [2014] NSWCCA 116 Pham v R [2010] NSWCCA 208 R v Cousins [2002] NSWCCA 340; 132 A Crim R 444 R v El Helou [2010] NSWCCA 111 R v Jalalaty [2010] NSWSC 1561 R v Nguyen [2006] NSWCCA 369; 166 A Crim R 124 R v Phan & Ors [2009] NSWDC 181 R v Standen [2011] NSWSC 1422 Tran [2014] NSWCCA 32 Wilson v R [2014] NSWCCA 266 Yousef Jidah [2014] NSWCCA 270 Category: Principal judgment Parties: Brian Edward Grover (1st Applicant) Daniel Stephen Grover (2nd Applicant) The Crown (Respondent) Representation: Counsel: D Barrow (1st Applicant) T Game SC (2nd Applicant) G Rowling (Crown) Solicitors: One Group Legal Pty Ltd (1st Applicant) Giddy & Crittenden (2nd Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2011/41930; 2011/249466 2010/408561; 2011/249498 Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-05-16 00:00:00 Before: English DCJ File Number(s): 2011/41930; 2011/249466 2010/408561; 2011/249498 Judgment 1HOEBEN CJ at CL: I agree with Fullerton J. 2FULLERTON J: On 16 May 2013, the applicants, Daniel Grover and Brian Grover, were sentenced in the District Court after pleading guilty to multiple counts on separate indictments. 3The first indictment charged both applicants with one count of possession of a precursor, namely pseudoephedrine, intending that it be used by another person in the manufacture of a prohibited drug, namely methylamphetamine, contrary to s 24A(1)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) ("the possession count"). That offence attracts a maximum penalty of 2,000 penalty units or imprisonment for a term of 10 years, or both. 4A "precursor" is defined in s 24A(3) of the Drug Misuse and Trafficking Act as "a substance specified or described in the regulations as a precursor for the purposes of this section". Schedule 1 of the Drug Misuse and Trafficking Regulation 2011 stipulates that "pseudoephedrine" is a precursor for the purposes of s 24A(1)(a) of the Act. 5The possession count with which Daniel Grover was charged was committed between 30 May 2009 and 8 February 2010. The possession count with which Brian Grover was charged was committed between 15 June 2009 and 25 February 2010. 6On the second indictment both applicants were charged with three counts of supply of a prohibited drug, also pseudoephedrine, contrary to s 25(2) of the Drug Misuse and Trafficking Act in an amount not less than the large commercial quantity ("the supply counts"). A large commercial quantity of pseudoephedrine supplied as a prohibited drug attracts a maximum penalty of $500,000 and/or life imprisonment to which a standard non-parole period of 15 years applies. A large commercial quantity of pseudoephedrine is specified at 5 kilograms. The offences the subject of both indictments 7The possession count concerned the applicants' possession of pseudoephedrine, in the form of cold and flu tablets, which Daniel Grover obtained from various pharmacies between 30 May 2009 and 8 February 2010, and which Brian Grover obtained in the same way between 15 June 2009 and 25 February 2010, with the intention that the pseudoephedrine (the active ingredient in the tablets) would be extracted by another person and used in the manufacture of methylamphetamine. On some occasions, packets of cold and flu tablets were purchased on the presentation of false New South Wales driver's licenses, the applicants' photographs being displayed attached to false names. On other occasions, the tablets were purchased by the applicants on presentation of genuine documents of identification. 8Daniel Grover was charged with possession of 95 packets of the tablets and Brian Grover with possession of 73 packets of the tablets. 9Both applicants were charged with the possession count on 3 February 2011 and released on bail. 10Soon thereafter, police were alerted to the fact that Daniel Grover was attempting to obtain a further quantity of cold and flu tablets. A telephone intercept warrant was applied for and granted on 23 May 2011. The applicants' conversations with each other, and with co-offenders, were monitored from that time. 11The first supply count involved the supply of pseudoephedrine on 24 May 2011 in an amount not less than the commercial quantity applicable to that prohibited drug, namely 24 kilograms. The cold and flu tablets had been stolen by persons unknown from GlaxoSmithKline Pty Ltd, a pharmaceutical company who manufactured the medication in Australia for sale in the Middle East. The tablets the subject of this supply were not recovered. 12The second and third supply counts, committed on 11 June 2011 and 2 August 2011 respectively, also involved the supply of pseudoephedrine in 24 kilogram consignments of cold and flu tablets stolen from the same company. 13In each of the second and third supply counts, the tablets were seized by police and analysed. Although the total weight of the tablets varied referable to the number of individual tablets in each consignment, the difference in the two consignments was insignificant for sentencing purposes. The combined weight of the tablets the subject of the second count was 22,761.4 kilograms. The combined weight of the tablets the subject of the third count was 24.029 kilograms. Since the tablets the subject of the first count were not intercepted, the precise weight of that consignment, particularised in the charge as 24 kilograms, was not the subject of further refinement. The sentences imposed Daniel Grover 14After allowing for a 20 per cent discount for the pleas of guilty, Daniel Grover was sentenced on the possession count to a fixed term of imprisonment for 2 years and 6 months, to commence on 3 August 2011 and to expire on 2 February 2014. For each of the supply counts, he was sentenced to imprisonment for 14 years with a non-parole period of 8 years. The sentences on the supply counts were partially accumulated on each other and on the sentence for the possession count. 15After a finding of special circumstances, a total effective sentence of imprisonment of 17 years with a non-parole period of 11 years was imposed. Brian Grover 16After allowing for a 20 per cent discount for the pleas of guilty, Brian Grover was also sentenced to a fixed term of imprisonment for 2 years for the possession count, to commence on 3 August 2011 and to expire on 2 August 2013. For each of the supply counts, he was sentenced to imprisonment for 13 years and 6 months with a non-parole period of 7 years and 6 months. These sentences were also accumulated by twelve months on the possession count and partially accumulated on each other. 17After a finding of special circumstances, a total effective sentence of imprisonment for 16 years and 6 months with a non-parole period of 10 years and 6 months was imposed. 18The applications for leave to appeal against sentence are confined to the sentences imposed on each of the three supply counts. The grounds of appeal 19Daniel Grover relied upon two grounds of appeal as follows: (1)Her Honour erred in her assessment of the objective seriousness of the offences; and in her assessment that the offending comprehended by the supply counts was of a high order and above the mid-range of objective seriousness. (2)The sentences individually and in aggregate are manifestly excessive. 20Brian Grover relied upon the same two grounds of appeal and, in addition, that: (3)He has a justifiable sense of grievance as a consequence of the sentences imposed upon Daniel Grover. (4)Her Honour failed to observe principles of totality. The evidence on sentence 21The Crown tendered an agreed set of facts which were set out extensively in the remarks on sentence. For present purposes, it is sufficient for the facts to be summarised as follows. 22The three supply counts shared the following common features: (1)Each count involved the supply of approximately 24 kilograms of pseudoephedrine in the form of cold and flu tablets that had been stolen; (2)The tablets were to be transported from Sydney to Brisbane via third parties with the applicants' cousin, Matthew Grover, as the intended recipient; and (3)Each count was committed whilst the applicants were on bail for possessing pseudoephedrine as a precursor. The first supply count 23On or about 23 May 2011 an agreement was reached between the applicants and Matthew Grover for 24 kilograms of the tablets to be delivered to him at a prearranged meeting point in Coffs Harbour at an agreed price of $100,000. The applicants sourced the stolen tablets for that purpose. A co-offender, Matthew Soames, collected the tablets from an unknown source and stored them in his house overnight. The tablets were contained in two supermarket bags. Matthew Soames was instructed by Daniel Grover to weigh the bags. Each bag weighed 12 kilograms. As Matthew Soames was unable to travel to Coffs Harbour it was agreed that his father, William Soames, would transport the tablets. 24On 24 May 2011, William Soames travelled to Coffs Harbour. The applicants and Matthew Grover were in dispute over the fact that the loose tablets had not been packaged into 3 kilogram bags as stipulated by Matthew Grover. On receipt of the two packages, Matthew Grover weighed the tablets and gave William Soames $100,000 to be given to the applicants. William Soames was paid $500. 25Matthew Grover subsequently telephoned Brian Grover to confirm that the 24 kilograms of tablets had been received and that $100,000 had been given to William Soames. Soames was arrested by police on 11 August 2011 and charged with supplying 24 kilograms of pseudoephedrine. The tablets were not recovered. He was sentenced to imprisonment for 6 years with a non-parole period of 3 years and 6 months. The second supply count 26On 11 June 2011, another 24 kilograms of the stolen tablets were packaged in preparation for supply in 3 kilogram packages. On this occasion Brian Grover directed Matthew Soames to collect the tablets from the home of another person for on-supply to Matthew Grover. He was stopped by police on the Pacific Highway, north of Newcastle. The tablets were seized. Matthew Soames was charged with knowingly taking part in the supply of 24 kilograms of pseudoephedrine by his father on 24 May 2011, and supplying a large commercial quantity of pseudoephedrine on 10 June 2011. He was sentenced to imprisonment for 10 years with a non-parole period of 6 years. 27The applicants were aware that the tablets had been intercepted. The third supply count 28Approximately two months later, another consignment of 24 kilograms of tablets was prepared for supply by the applicants. The prearranged meeting point for that supply was a car park in St Clair, with the tablets to be delivered by a third person acting on instructions from, and under the supervision of Daniel Grover. The intended recipient was Damien O'Brien, who acted on behalf of Matthew Grover. 29Before the transfer was complete, police arrested Daniel Grover. The tablets were seized. Brian Grover was arrested shortly thereafter. The expert evidence 30The evidence relied upon by the Crown in the agreed facts was supplemented by the tender of a statement of Detective Sergeant Cadden, an ad hoc expert in the manufacture of prohibited drugs. He gave evidence as to the chemical composition of the tablets seized (the subject of the second count) based on information supplied by the manufacturer of the tablets. He derived what he described as the "theoretical potential yield" of pure pseudoephedrine in a chemical extraction process under optimum conditions, from which he then derived a "theoretical potential yield" of methamphetamine. He also gave evidence of the wholesale value of methamphetamine. 31The results of that analysis were as follows: (1)Each tablet weighed approximately 0.635 grams; (2)Each tablet contained 0.03 grams of pseudoephedrine; (3)The level of purity of pseudoephedrine in each tablet was 4.724 per cent; (4)The gross weight of the tablets would contain 1076 grams of pure pseudoephedrine; (5)On the assumption that the yield from the processing of the pseudoephedrine had been 89 per cent, a theoretical yield of 958 grams of pure pseudoephedrine would be derived; (6)On the assumption that the yield from the further processing of the pure pseudoephedrine had been 76 per cent, 728 grams of methylamphetamine would be derived; (7)The wholesale value of 728 grams of methylamphetamine is between $285,200 and $432,000; and (8)The theoretical street value of 728 grams of methylamphetamine is between $364,000 and $728,000, although the value may be much higher due to the addition of inert agents. I note that (7) involves an error in calculation (transposed in her Honour's sentencing remarks) and that the wholesale value is between $120,120 and $182,000. 32These results were extrapolated by the sentencing judge in the assessment of the objective seriousness of each of the three supply counts. The criminal records and pre-sentence reports 33The Crown also tendered the applicants' antecedent criminal records and pre-sentence reports. 34Daniel Grover's criminal record included driving offences, various offences of dishonesty, and relatively minor offences of violence. He was also convicted of possessing a precursor intended for use in the manufacture of prohibited drugs in September 2005 and was sentenced to 18 months imprisonment with a non-parole period of 8 months. 35Brian Grover's criminal record also included driving offences and various offences of dishonesty. He had no previous convictions for drug offences and had not previously served a sentence of imprisonment. 36It would appear that the differential of six months on both the effective head sentence and the non-parole period in the sentences imposed on the applicants is to be accounted for by what the sentencing judge found to the greater significance attaching to the need for the sentence to reflect general deterrence and specific deterrence in the sentence imposed on Daniel Grover by reason of his prior criminal record. The applicants' subjective circumstances 37A range of documentary evidence was tendered on behalf of each applicant, including psychologists' reports, an affidavit from the applicants' father and other family members, and certificates evidencing their engagement with educational programs whilst on remand. Both applicants gave evidence on sentence, as did their mother. Brian Grover's subjective case 38The sentencing judge noted that Brian Grover was 31 at the time of the commission of the offences. At the time of sentence he was in a stable relationship and the father of an infant daughter who was born after he entered into custody. He left school at the end of Year 9 and had a stable work record since that time. At the time of his arrest he was operating a business previously operated by his parents to allow them to retire. As a consequence of his imprisonment, his parents have resumed the operation of the business. He claimed he had a gambling addiction; that he was $2,000 in debt and that he was ignorant of the processes involved in drug manufacture. In the opinion of his psychologist, the applicant was appropriately described as a "probable pathological gambler" with an associated diagnosis of "impulse control disorder". 39The applicant had successfully completed the "Best Bet Program" by the time of sentence and had demonstrated a willingness to engage in further intervention for relapse prevention. The reporting psychologist considered him to be an excellent candidate for therapeutic intervention in post-release attendance programs offered by Mission Australia. 40He was considered by the author of the pre-sentence report to be genuinely remorseful and that he would require a low level of intervention upon his eventual release. Daniel Grover's subjective case 41Daniel Grover was 35 at the time of sentence. He has three children from three relationships. A teenage son was living with the applicant's parents. He also left school at the end of Year 9 after which he obtained employment as a forklift driver and, when not working in that capacity, worked in his parents' business. Prior to his arrest he was operating a takeaway food business. He developed an addiction to alcohol at the age of 18 and began using amphetamines on a monthly basis two years prior to entering custody. In the opinion of the reporting psychologist, he will have difficulty addressing his dependency on alcohol without appropriate intervention. Daniel Grover also asserted that he had a gambling problem. A number of problematic personality traits were identified by the reporting psychologist. 42In his pre-sentence report, Daniel Grover was assessed as suitable for a medium level of intervention by the Probation and Parole Services. He had also undertaken courses and counselling whilst on remand. Her Honour noted that his response to supervision in the past had been satisfactory. The facts found for sentencing purposes and the challenge to them 43The sentencing judge regarded the applicants' moral culpability as of "a very high order". She described their conduct as suppliers of large commercial quantities of pseudoephedrine in the following way: "... sourcing large quantities of cold and flu tablets containing pseudoephedrine; liaising with the ultimate purchasers in Queensland; agreeing on price; organising couriers; packaging the drugs and arranging for their delivery." 44Her Honour regarded those arrangements as well planned and orchestrated, and that the applicants were motivated solely by financial reward. She declined to make a finding that Brian Grover's gambling debt operated in mitigation. 45When considering the sentences imposed on co-offenders (including William Soames and others) and their roles in the criminal arrangement, her Honour described the applicants as being: "... well up that chain ... capable of accessing significant quantities of bulk pseudoephedrine, arranging for its collection, warehousing by others albeit only overnight, negotiating price, the place of delivery, the courier and receiving or anticipating receiving significant sums of money upon the successful completion of the deals ...". 46After dealing with the offending the subject of the possession count (which may be disregarded for present purposes) her Honour noted that both applicants were charged and released to bail in respect of that offending on 3 February 2011 and that within a very short time they reoffended by supplying a large commercial quantity of pseudoephedrine as a prohibited drug, conduct which was repeated over successive months despite the fact that the tablets the subject of the first supply count in May 2011 attracted police interest, a matter which was well known to the applicants given the arrest of a co-offender. 47The fact that all three supply counts were committed while the applicants were on bail rendered the offending on each count more serious. One of the questions raised by the appeal was whether that factor, together with the fact that the applicants pleaded guilty to multiple counts of supply of a large commercial quantity of pseudoephedrine (with Daniel Grover having a prior conviction for dealing in pseudoephedrine), distinguished the authorities to which her Honour referred in her sentencing remarks for comparative purposes. 48In considering the impact of the evidence of the police expert directed to ascertaining the potential for the pseudoephedrine to be exploited in the manufacture of methamphetamine, her Honour held that the community would be exposed to "potentially disastrous consequences" by the distribution of the methylamphetamine (the product of the manufacturing process) and that the profits to "criminals" as "considerable". (It was no part of the Crown case on sentence that the applicants would derive a share of the profit from the manufacture of the methylamphetamine and its supply at either a wholesale or street level.) 49In her Honour's assessment, the extent of harm to the community resulting from each of the supply counts was informed by the potential yield of 728 grams of methylamphetamine per consignment of 24 kilograms of impure pseudoephedrine, which she referred to as exceeding a large commercial quantity of that drug. On appeal, the Crown conceded that was an error, a large commercial quantity of methamphetamine being 1 kilogram not 0.5 kilograms under the Drug Misuse and Trafficking Act. 50The applicants submitted that this error (which may have been transposed from Pham v The Queen [2010] NSWCCA 208 where at [43] Simpson J referred to 0.5 kilograms of methylamphetamine as constituting a large commercial quantity of that drug - the Schedule to the Drug Misuse and Trafficking Act specifies 1 kilogram as a large commercial quantity) contributed to her Honour's erroneous finding that each of the supply counts were positioned above the mid-range of objective seriousness. They also submitted that the sentencing judge failed to appreciate that the actual quantity of pure pseudoephedrine in the tablets the subject of each count was substantially below the 1.25 kilograms threshold for a commercial quantity of that drug. Counsel submitted that, although the charge of supply of a large commercial quantity was properly laid in reliance on the admixture provisions in the Drug Misuse and Trafficking Act, the purity of the individual tablets remains a critical consideration for sentencing purposes since, unlike other prohibited drugs under Schedule 1 to the Act, the tablets are not susceptible to being cut and on-sold to end users. Their only value as a prohibited drug is the pure pseudoephedrine that may be extracted from them. 51The Crown submitted that her Honour's error in the appointment of a large commercial quantity of methamphetamine at 0.5 kilograms has not been shown to have erroneously influenced her assessment of the objective seriousness of the supply counts. What was relevant was the potential yield of a significant quantity of methylamphetamine, and the potential for harm that is generated from that quantity of drug being disseminated to end-users. In the Crown's submission, that fact, coupled with the role each of the applicants performed as principals in the supply of the large commercial quantities of pseudoephedrine over a three month period, properly attracted a finding of offending above the mid range. 52The applicants submitted that there were other errors in the sentencing judge's approach to the question of the extent of harm which, taken together with the error in appointment of a large commercial quantity of methylamphetamine, had a compounding effect ultimately leading to the imposition of manifestly excessive sentences. 53These errors included what was said to be her Honour's undue emphasis on the potential yield of methylamphetamine when the applicants were not charged with manufacturing that drug or taking any step in the process of its manufacture. Insofar as the extent of harm is a material enquiry into the objective seriousness of the applicants' offending as suppliers of pseudoephedrine as a prohibited drug, in accordance with the approach in R v Cousins [2002] NSWCCA 340; 132 A Crim R 444 (a case which was concerned with the possession of pseudoephedrine as a precursor contrary to s 24A(1)(a) of the Drug Misuse and Trafficking Act where an element of the offence is that the pseudoephedrine was intended for use in the manufacture of a prohibited drug), it was submitted that her Honour failed to take sufficient account of the range of variables in the process by which methylamphetamine is manufactured which impacts on yield. In addition to the grossly inferior quality of the tablets the subject of each count, it was submitted what was also likely to be an unsophisticated manufacturing process added to the likelihood that the actual yield of pure pseudoephedrine would likely be considerably less than the optimum yield identified by the expert. It was submitted that because the gravamen of the applicants' offending must be gauged referable to the actual extent of harm, it was an error to regard the objective seriousness of their offending as above mid range, even accepting their role in acquiring the tablets and arranging for their on-supply. 54The applicants emphasised that the inferior quality of the tablets also operated to distinguish their offending from the three cases to which the judge referred in her sentencing remarks: R v El Helou [2010] NSWCCA 111; R v Phan & Ors [2009] NSWDC 181; and Pham v R [2010] NSWCCA 208. 55The applicants submitted that, were her Honour to have made an assessment of the extent of harm in each of the cases to which she referred, each of which involved purity levels of between 20 and 30 per cent, rather than disregarding them as being of limited assistance for comparative purposes, she would necessarily have concluded that the offending in each was objectively more serious than the applicants' offending although less severe sentences were imposed. This is said to be exemplified by the following summary: (1)El Helou [2010] NSWCCA 111 259.22kg @ 20% purity = 52.34kg pure pseudoephedrine (part of a consignment of 800kg). Following a plea of guilty he was sentenced to 10 years and 6 months with a non-parole period of 6 years and 6 months. After a successful Crown appeal, the sentence was increased to 12 years with a non-parole period of 8 years. (2)Pham [2010] NSWCCA 208 10.124kg @ 30% purity = 3.0372kg pure pseudoephedrine. Following a plea of guilty he was sentenced to 10 years with a non-parole period of 6 years. (3)Tran [2014] NSWCCA 32 10.124kg @ 30% purity = 3.0372kg pure pseudoephedrine. Following a plea of guilty he was sentenced to 10 years with a non-parole period of 6 years. (4)Phan, Nguyen, Phan and Olivieri [2009] NSWDC 181 43.9kg @ 21.33% purity = 9.365kg pure pseudoephedrine. For their involvement in the supply of a large commercial quantity of pseudoephedrine the following sentences were imposed on Dinh Phan, Nguyen and Olivieri. (Duc Phan was sentenced following a plea of guilty as a principal both in the importation of the drug supplied together with the importation of another consignment of pseudoephedrine in which none of the offenders was involved.) Nguyen was found to have played a secondary role to Duc Phan and was sentenced to 10 years and 6 months with a non-parole period of 8 years. Duc Phan was sentencded to 8 years with a non-parole period of 6 years and Olivieri was sentenced to 8 years with a non-parole period of 6 years. 56The applicants' counsel referred the Court to two additional cases involving the supply of a large commercial quantity of pseudoephedrine: R v Standen [2011] NSWSC 1422 and R v Jalalaty [2010] NSWSC 1561. 57The objective seriousness of the offending in Standen and Jalalaty was substantially more serious than the present case. The offenders conspired to import approximately 300 kilograms of pseudoephedrine through an elaborate scheme of concealing the pseudoephedrine in shipments of rice. Both offenders were convicted of conspiring to import a border controlled substance pursuant to s 307.11 of the Commonwealth Criminal Code. Standen was also convicted of conspiracy to pervert the course of justice and supply of a large commercial quantity contrary to s 25(2) of the Drugs Misuse and Trafficking Act (NSW). 58The sentencing judge held that Standen was a principal and senior to Jalalaty. His criminality was aggravated by his misuse of knowledge and contacts acquired through his position as Assistant Director of Investigations at the New South Wales Crime Commission. The objective seriousness of the supply offence was held to be above the middle of the range. The offender was sentenced to a head sentence of 22 years (with a non-parole period of 16 years) for the supply offence after a five-month trial. It should be noted that the sentencing judge took into account Standen's onerous custodial conditions, namely his being held in a Special Purpose Prison, in determining the length of his sentences. 59Jalalaty's role was to receive the shipment of rice in which the pseudoephedrine was concealed under the guise of his food importation and distribution business; to arrange for the clearance of the container with the rice and pseudoephedrine; and to sell the rice so as to give the importation the appearance of legitimacy. The conspiracy involved a high degree of planning and the offender was regarded by the Court as a principal. His plea of guilty and assistance afforded him a discount in the vicinity of 40 per cent. He was sentenced to 10 years imprisonment (with a non-parole period of 6 years), equating to an undiscounted sentence of 16 years and 8 months. 60The applicants' counsel submitted that Standen and Jalalaty provide significant support for the proposition that the undiscounted head sentence of 17 years and 6 months for each of the supply offences imposed on the applicants was manifestly excessive. 61Since hearing the appeal, the related cases of Wilson v R [2014] NSWCCA 266; DS v R [2014] NSWCCA 267; Ibrahim Jidah v R [2014] NSWCCA 269; and Yousef Jidah [2014] NSWCCA 270 have been determined. In each case the applications for leave to appeal were against the severity of a sentence imposed for the supply (or, in the case of Wilson, his knowing concern in the supply) of 603 kilograms of impure pseudoephedrine (in the form of 2,600,000 tablets), equating to 125 kilograms of pure pseudoephedrine. Each of the applicants was convicted after trial. Wilson's sentence appeal was dismissed. He was sentenced as a principal to a total term of 16 years and 2 months with a non-parole period of 10 years and 6 months. The sentences imposed on re-sentence of DS, Ibrahim Jidah and Yousef Jidah on parity grounds were as follows: (1)DS was sentenced to imprisonment for 14 years and 6 months with a non-parole period of 9 years and 6 months. His involvement in the supply extended over some months in advance of the shipment of drugs arriving from Thailand. He coordinated the release of the drugs for supply and supervised others in that process. (2)Ibrahim Jidah was sentenced to imprisonment for 12 years and 6 months with a non-parole period of 8 years and 6 months. Together with his brother, Yousef, he was involved over a period of days in providing transportation of the drugs after they were unpacked in the expectation they would be distributed to a third party or parties for exploitation in the manufacture of methamphetamine. (3)Yousef Jidah was sentenced to imprisonment for 10 years with a non-parole period of 6 years. 62Finally, it was submitted that, contrary to her Honour dismissing the three authorities cited in her sentencing reasons as being of limited or no utility for comparative purposes, an appropriate sentencing range can in fact be gauged by reference to them, and the other cases to which the applicants referred on the appeal, thereby providing a measure against which to examine the sentences imposed by his Honour with a view to demonstrating that they are each manifestly excessive (see Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 at [54] and Barbaro v R; Zirilli v R [2014] HCA 2; 305 ALR 323 at [28] and [41]). Consideration 63On the appeal, the primary submissions of counsel directed to what were said to be the unjustifiably severe sentences on each of the supply counts, was tracked to the combined effect of error in the specification of the commercial quantity of methylamphetamine; a failure on the part of the sentencing judge to make a qualified finding of the extent of harm referable to the inferior quality of the tablets; and her Honour's flawed analysis of the authorities for comparative purposes such that, even after accounting for the feature of aggravation with each supply offence committed whilst the applicants were on bail, an assessment of objective seriousness of a "high order" (above the mid range) was not open on the evidence. 64In the written submissions of counsel for Brian Grover and adopted by senior counsel for the Daniel Grover, the role of the applicants as suppliers was described as "opportunistic middlemen" who attempted to profit from their access to tablets stolen from a pharmaceutical company. On the hearing of the appeal, it was not submitted that her Honour's narrative description of the applicants' roles as suppliers was not available on the evidence, but rather that to ascribe to their conduct offending above the mid range was an error. 65In Kaminic v R [2014] NSWCCA 116, I endorsed what has been repeatedly emphasised by this Court, namely that a characterisation of the degree or extent of objective seriousness is classically within the province of the discretion of the sentencing judge and, absent an error of the kind identified in House v The King [1936] HCA 40; 55 CLR 499, it is a discretionary exercise not susceptible to appellate review. In this case, I am persuaded that the error identified by counsel in her Honour's nomination of a large commercial quantity of methylamphetamine, and what I am persuaded was an uncritical approach to quantification of the extent of harm, has resulted in error in her Honour's assessment of objective seriousness. Although this was serious, flagrant and repeated criminal offending by the applicants as suppliers of large quantities of stolen medications which they knew were to be used for the purposes of manufacturing significant quantities of methylamphetamine, absent error of the kind identified, it would seem to me to be properly characterised as mid range offending. 66I am also satisfied that the sentences imposed on each of the supply counts is manifestly excessive. Despite the limitations on the use that can be made of extrinsic material when challenging a sentence as manifestly excessive, and accepting that neither sentencing statistics nor past sentencing decisions fix a range within which a sentence might or should fall, even less that sentences imposed in other cases dictate whether a sentence under challenge is beyond the exercise of a permissible sentencing discretion (see Barbaro at [28] and [41]), when the whole of the circumstances that have informed sentences imposed in the past are reviewed and where it is clear that in many cases a markedly less severe sentence has been imposed for objectively more serious offending, I am satisfied the sentences imposed on the applicants are manifestly excessive, in the sense that they are both individually and after accumulation "unreasonable or plainly unjust". The ground of appeal that complains of a breach of totality principles is, in essence, a complaint about manifest severity. 67I am not persuaded that the challenge advanced by Brian Grover to his sentence on parity grounds has been made out. Notably, that challenge is limited to what is said should have been a more marked measure of leniency afforded to him relative to his brother because, unlike his brother, he did not have a criminal record for drug offending and had not been sentenced to imprisonment. Brian Grover did, however, have a criminal record with a number of offences of dishonesty and what her Honour considered was a mixed response to community supervision. These are matters her Honour was entitled to take into account in considering affording him a measure of leniency less than what might have been afforded him relative to his brother were he a person of prior good character. A differential of six months is not so marked or glaring as to attract intervention. 68The issue of parity will need to be revisited on re-sentence when the sentencing discretion is to be exercised afresh. Re-sentence Daniel Grover 69On re-sentence, the applicant Daniel Grover relied upon an affidavit from David Giddy, solicitor. Mr Giddy testifies to the applicant having received no adverse disciplinary or conduct reports throughout the period of his remand and to date as a sentenced prisoner. Of the various records and reports obtained by him from Corrective Services, Mr Giddy says they: "... typically and variously described [the applicant] as 'polite', 'respectful', 'causes no problems', 'follows all directions' and is a 'good worker, with a good work ethic' who 'works well with minimal supervision'." 70On re-sentence, the applicant Brian Grover relied upon an affidavit from his solicitor, Baraa Saddiq, which was principally directed to the applicant's mother's poor health, including ongoing anxiety and severe depression consequent upon all three of her male adult children serving custodial sentences. I note she is currently maintained on anti-depressant medication and consults with her general practitioner and psychologist regularly. 71I do not consider that Mrs Grover's understandable concern at the difficulties her sons are confronted with as sentenced prisoners, and the adverse effect on her health, is sufficiently exceptional to justify any substantial reduction in the sentence of either applicant (see R v Nguyen [2006] NSWCCA 369; 166 A Crim R 124 at [27] per James J, Hidden and Hislop JJ agreeing). Brian Grover 72The applicant Brian Grover also swore an affidavit in which he testified to having been in continuous employment in various positions since his incarceration, his most recent and current position being within the Cultural Centre at Junee Correctional Centre. I accept that role is a trusted position affording him greater freedom that other inmates co-existent with his responsibility for arranging scheduled social events and activities. 73He said he attempted to enrol in a computer course but, because he was classified as a low-risk offender, he was ineligible and claims not to be eligible for any other training courses. If this be the fact, it is regrettable. 74His parents remain supportive of him. He has an ongoing close relationship with them and speaks to them on average three times a day. Due to their age and precarious financial situation, and the distance from suburban Sydney to Junee Correctional Centre, they only visit once every six to seven weeks. The applicant's relationship with his one-time de facto partner has been effectively terminated by reason of his incarceration such that he has little contact with his infant daughter, having only seen her three times this year. This has had a profound emotional impact on the applicant. 75This material reinforces the finding of special circumstances and that the rehabilitation of both applicants is well advanced. It does not, however, operate in mitigation of sentence. In addition, I see no basis for disturbing the partial accumulation of the sentences (and was not urged to by the applicants' counsel), and do not propose to disturb the differential of six months her Honour allowed on parity considerations. 76For the reasons already given, I consider the offending the subject of each of the supply counts by each of the applicants as in the mid range. After taking into account their subjective circumstances, I consider an appropriate sentence on each of the supply counts committed by Daniel Grover to be imprisonment for 9 years and 6 months with a non-parole period of 5 years and those committed by Brian Grover imprisonment for 9 years with a non-parole period of 4 years and 6 months. After partially accumulating the sentences, the total effective sentence imposed on Daniel Grover is 12 years and 6 months with a non-parole period of 8 years and for Brian Grover a total effective sentence of 12 years with a non-parole period of 7 years and 6 months. 77The orders I propose are as follows: Daniel Grover (1)Leave to appeal granted. (2)Appeal allowed. (3)The sentence imposed on Count 1 of the first indictment, "the possession count", is confirmed. (4)Sentences imposed on each of Counts 1, 2 and 3 on the second indictment (being the supply counts of 24 May 2011, 11 June 2011 and 2 August 2011 respectively) are quashed and the following sentences are imposed in substitution: (a)On Count 1, a sentence of imprisonment of 9 years and 6 months with a non-parole period of 5 years and a balance of term of 4 years and 6 months. The non-parole period is to commence on 3 August 2012 and to expire on 2 August 2017. (b)On Count 2, a sentence of imprisonment of 9 years and 6 months with a non-parole period of 5 years and a balance of term of 4 years and 6 months. The non-parole period is to commence on 3 August 2013 and to expire on 2 August 2018. (c)On Count 3, a sentence of imprisonment of 9 years and 6 months with a non-parole period of 5 years and a balance of term of 4 years and 6 months. The non-parole period is to commence on 3 August 2014 and to expire on 2 August 2019. (5)The applicant will be eligible for release to supervised parole on 2 August 2019. Brian Grover (1)Leave to appeal granted. (2)Appeal allowed. (3)The sentence imposed on Count 1 of the first indictment, "the possession count", is confirmed. (4)Sentences imposed on each of Counts 1, 2 and 3 on the second indictment, being the supply counts of 24 May 2011, 11 June 2011 and 2 August 2011 respectively, are quashed and the following sentences are imposed in substitution: (a)On Count 1, a sentence of imprisonment of 9 years with a non-parole period of 4 years and 6 months and a balance of term of 4 years and 6 months. The non-parole period is to commence on 3 August 2012 and to expire on 2 February 2017. (b)On Count 2, a sentence of imprisonment of 9 years with a non-parole period of 4 years and 6 months and a balance of term of 4 years and 6 months. The non-parole period is to commence on 3 August 2013 and to expire on 2 February 2018. (c)On Count 3, a sentence of imprisonment of 9 years with a non-parole period of 4 years and 6 months and a balance of term of 4 years and 6 months. The non-parole period is to commence on 3 August 2014 and to expire on 2 February 2019. (5)The applicant will be eligible for release to supervised parole on 2 February 2019. 78R A HULME J: I agree with Fullerton 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: 19 December 2014