Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Plaisted v R [2015] NSWCCA 287 Hearing dates: 21 August 2015 Date of orders: 19 November 2015 Decision date: 19 November 2015 Before: Basten JA [1]; Wilson J [11]; RS Hulme AJ [34] Decision: By majority (i) Grant leave to appeal; (ii) Allow the appeal; (iii) Quash the sentence imposed by Garling ADCJ; (iv) Sentence the Applicant to imprisonment for a non-parole period of 7 years commencing on 5 May 2011 together with a balance of term of 4 years commencing on 5 May 2018. (v) Record as the date upon which it appears to the Court that the Applicant will become for eligible for parole, 5 May 2018. Catchwords: CRIMINAL LAW – appeal against sentence – Drug Misuse & Trafficking Act 1985 (NSW) – objective seriousness of offence – offender involved in transport of drugs for syndicate CRIMINAL LAW – appeal against sentence – whether sentence manifestly excessive – whether primary judge failed to distinguish between two offenders and to give sufficient recognition to differences between respective situations Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 44; Pt 4, Div 1A Drug Misuse and Trafficking Act 1985 (NSW), s 25 Criminal Appeal Act 1912 (NSW) Cases Cited: AMZ v R [2013] NSWCCA 6 Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 Green v R [2011] HCA 49; (2011) 244 CLR 462 Kentwell v R [2014] HCA 37; (2014) 252 CLR 601 Koh v R [2013] NSWCCA 287 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 Category: Principal judgment Parties: Regina (Crown) Robert Plaisted (Applicant) Representation: Counsel: Mr H Baker (Crown) Mr W Hunt with Ms J Paingakulam (Applicant) Solicitors: Director of Public Prosecutions (Crown) Nyman Gibson Miralis (Applicant) File Number(s): 2011/147501009 Publication restriction: No Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 20 May 2013 Before: Garling ADCJ File Number(s): 2011/147501009 Judgment 1. BASTEN JA: In circumstances sufficiently explained by R S Hulme AJ, the applicant was sentenced on 20 May 2013 for two offences involving knowing participation in the supply of not less than the large commercial quantity of a prohibited drug. Count 1 involved an amount of approximately 22kg of methylamphetamine; count 2 involved a little over 1kg of heroin. 2. Because the transaction involving the heroin took place on the same date as one transaction involving methylamphetamine, the sentence on count 2 was wholly concurrent with the sentence imposed for count 1. As it involved a non-parole period of two years imprisonment, with a further term of two years, it is (and will remain) wholly subsumed within the sentence on count 1. It was not apparent from the notice of appeal, or the submissions in support of the appeal, that any challenge was raised as to the sentence on count 2. It may be assumed that there was no application for leave to appeal against that sentence. 3. With respect to the sentence on count 1, there was no suggestion that the maximum term (life imprisonment) would have been available, or should have any marked relationship with the sentence imposed on the applicant. Nevertheless, the relevant table to Pt 4, Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Procedure Act") prescribes a standard non-parole period of 15 years. That guideline is of limited assistance in respect of an offence of knowing participation in supply of a prohibited (drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW)) because of the wide range of conduct which can be caught by such an offence. There will often be (as there was in this case) a need to take into account sentences imposed on other offenders involved in the same criminal activity. 4. The potential variety of the conduct caught by such an offence also renders the sentencing statistics for this offence less helpful than usual. 5. As more fully explained by R S Hulme AJ, the sentencing judge (Garling ADCJ) gave careful attention to the sentence imposed on a co-offender, AMZ, which had been upheld on appeal by this Court: AMZ v R [2013] NSWCCA 6. Although both were intimately involved in the course of criminal conduct, the relevant comparison demonstrated more elements of difference than of similarity. The sentencing judge appropriately accepted that the overall culpability of the applicant was well below that of AMZ. His starting point was thus 19 years, as compared with 29 years for AMZ. (The sentence was then reduced by 25% for an early guilty plea.) Rounding down, the result was a sentence of 14 years imprisonment. Applying the statutory formula set out in s 44 of the Sentencing Procedure Act, the judge noted that the result would be a non-parole period of 10.5 years. Given his finding of special circumstances, that was reduced to 9 years with a balance of term of 5 years. 6. Ground 1 of the proposed appeal asserted that the sentencing judge had erred in his assessment of the objective seriousness of the applicant's role in the offending. That ground depended on three factors. 7. First, reference was made to the apparent confusion in the language used by the sentencing judge, referring to the offender's role as both "substantial" and as "a minor one." I agree with Wilson J and would place no weight on this factor. The reference to the role being minor occurred as a comparison with the role of the principal who, it was suggested, might enjoy "enormous profits" and live a "luxury lifestyle". There was no suggestion that the applicant enjoyed such benefits. 8. Secondly, there was the language by which the judge assessed the role of the applicant in relation to AMZ. It was submitted that, whilst differences were noted, the overall assessment suggested a degree of equivalence which was not warranted by the facts. AMZ undoubtedly played a far more significant role, as personal assistant to the principal, than did the applicant. There is substance to this criticism, although taken alone it should be approached with caution. 9. The third element involved the numerical starting points for the sentence calculations. This was an important consideration because AMZ obtained a major discount for assistance provided to the authorities which prevented any useful comparison between the sentences actually imposed. Apart from the difference in their respective roles, allowance had also to be made for an additional course of conduct undertaken by AMZ, in which the applicant was not involved and which involved a further 6kg of methylamphetamine. It was suggested that the 29 year starting point for AMZ should be reduced by some five years to account for the additional criminal conduct. If that were done, the equivalent starting point for AMZ was 24 years, to be compared with 19 years with respect to the applicant. On that approach, the applicant received a sentence equating his culpability to 80% of that of AMZ. That disparity, it was submitted, was inadequate. 10. The second and third factors in combination demonstrate that the exercise of discretion miscarried in this case. It follows that the sentence imposed was excessive and should be reduced. I agree with the orders proposed by R S Hulme AJ. 11. WILSON J: The applicant seeks leave to appeal against sentence imposed upon him in the District Court of New South Wales on 20 May 2013. Despite the passing of almost two and a half years since the date on which sentence was passed, the application has been made within the extended time allowed to the applicant by the Registrar. The application is brought pursuant to s.5 of the Criminal Appeal Act 1912. 12. If granted leave, the applicant seeks to advance two grounds of appeal against the sentence imposed upon him, being: 1. The sentencing judge erred in his assessment of the objective seriousness of the applicant's role in the offending; and 2. The sentence is manifestly excessive. 1. The general facts of the applicant's crimes and of his personal circumstances have been set out in the judgment of RS Hulme AJ. His Honour concluded that both grounds have been made out. I do not agree with that conclusion and make the following, relatively brief, comments. Ground 1: The sentencing judge erred in his assessment of the objective seriousness of the applicant's role in the offending 1. The applicant's complaint relies upon a needlessly semantic reading of the judgment of the sentencing judge which considers sentences or phrases extracted from the judgment in isolation of the context in which the relevant portion was made. On the basis of that approach it is contended that his Honour's remarks were "neither accurate nor consistent" in the way that the applicant's offending conduct was assessed. 2. The foundation of the applicant's complaint is, in large part, two remarks by the sentencing judge which, when divorced from their original context, give the appearance of inconsistency. At p9 of his judgment ("ROS"), his Honour said, "In reality, this offender's role, as with the other man, was a minor one." 1. At p10 of ROS, "He played a substantial role in this syndicate." 1. Whilst these comments may give the appearance of inconsistency when extracted as discrete sentences, viewed in context there is no inconsistency. The first of the sentences considered the applicant's role as against the principal of the syndicate, a man described by his Honour as a charismatic individual who moved in a world awash with money and luxury. When compared to the role of the principal, there was no error in categorising the one as major and the other minor. 2. His Honour was clearly at pains to consider the role of the applicant as compared not just to the principal, but to the other offenders sentenced for their respective roles in it. The use of differing assessments of the applicant's criminality comes about as part of that exercise. It should be unsurprising that an offender's role may be expressed to be a minor one in comparison with one offender, but more significant when compared with the role of another, lesser, offender, or when considered as a whole. 3. The second of the sentences extracted by the applicant from his Honour's remarks was an expression of the applicant's overall role in the syndicate in which he was knowingly involved, and represented his Honour's assessment of the applicant's criminality having taken all relevant features into account. In my opinion the conclusion of the sentencing judge, that the applicant's overall role in the syndicate was a significant one, was well open on the evidence before the sentencing judge. 4. The applicant played a role of considerable importance in what was a high level criminal syndicate involved in the inter-state distribution and sale of large amounts of prohibited drugs. He used his knowledge of and expertise and contacts in the field of interstate truck transport to move large amounts of the type of amphetamine known as "ice", and heroin. The applicant did this for no other motivation than greed. 5. I do not consider the assessment made by the sentencing judge of the applicant's role in the commission of these very serious offences as either inconsistent or inaccurate. His remarks when read as a whole, as they should be, represent a reasoned and fair assessment. 6. I would not grant leave to advance this ground. Ground 2: The sentence is manifestly excessive 1. This ground relies upon an assertion that the sentencing judge was wrongly influenced by the sentence imposed upon another of the co-offenders, known as AMZ, and as a consequence imposed a sentence which was manifestly excessive. 2. The applicant contends that his role was a much lesser one than that of AMZ, and it was wrong to use the sentence imposed upon AMZ as a "starting point" in calculating that imposed upon him. 3. Parity was an important consideration when determining the sentence to be imposed upon the applicant. As noted when considering ground 1, the sentencing judge was cognisant of the importance of the principle of parity, and made a careful assessment of the applicant's role in the commission of the offences, which he compared to the roles of the other offenders, each of whom had already been sentenced. In giving consideration to the circumstances relating to the co-offenders, his Honour was doing no more than he was obliged to do. 4. The applicant's role was assessed as falling below that of AMZ, who acted as a "personal assistant" to the principal, and whose role was more extensive than that of the applicant. Insofar as the sentencing judge had regard to the sentence imposed upon AMZ (and upheld by this Court in AMZ v R [2013] NSWCCA 6) when determining the sentence to be imposed upon the applicant, it was in accordance with the principles set out in Green v The Queen [2011] HCA 49; (2011) 244 CLR 462. 5. The applicant relies upon sentencing statistics derived from the Judicial Information Research System to support his claim that the sentence imposed upon the applicant was wrongly inflated. By reference to statistics for the period October 2007 to September 2014 (referable to 16 individuals) the applicant argues that the fact that only he and AMZ received sentences in excess of 12 years is indicative of error. 6. Such an argument must be rejected. Statistics can say nothing about the exercise of the sentencing discretion in a particular case, and whether that discretion has miscarried. Statistics may demonstrate the range of sentences imposed relative to a particular offence in a given period, but they cannot demonstrate why a particular sentence within that range was fixed as it was. 7. The range of sentence against which an individual case is most appropriately measured is that set by the maximum penalty specified for the relevant offence; in this instance, the maximum penalty for each of the applicant's tow crimes was life imprisonment. The other relevant yardstick is the standard non-parole period (SNPP); here a period of 15 years imprisonment: Koh v R [2013] NSWCCA 287. 8. When viewed against the maximum penalty of life imprisonment, and the substantial SNPP that applied, the sentence imposed upon the applicant is in no way extraordinary. 9. In my opinion the sentence imposed upon the applicant was neither unreasonable nor unjust: Dinsdale v The Queen [2000] HCA 54: (2000) 202 CLR 321 at [325]. The sentencing discretion is a broad one, as stated in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [27]: "Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies." 1. Here, the sentencing judge gave careful attention to considerations of parity; he assessed the objective gravity of the applicant's crime, and gave proper weight to the applicant's subjective circumstances. Favourably to the applicant, he made a finding of special circumstances pursuant to s.44 (2) of the Crimes (Sentencing Procedure) Act 1999, reducing the non-parole period below that otherwise dictated by statute; and he allowed complete concurrency of sentence for the two sentences in circumstances where – contrary to the applicant's assertion – it was open to him to conclude that the criminality of one offence was not wholly reflected by the sentence imposed for the other. 2. I do not regard error as having been established and I would not grant leave to argue this ground. 3. RS HULME AJ: On 20 May 2013, the above named Applicant for leave to appeal was sentenced by Garling ADCJ in respect of two charges of knowingly take part in the supply of a large commercial quantity of drugs. One offence involved the supply of 21.807 kilograms of methylamphetamine ("ice") between 26 November 2010 and 15 February 2011 and in respect of that offence, the sentence imposed was imprisonment for 14 years including a non-parole period of 9 years, both such periods commencing on 5 May 2011. 4. The second charge involved the supply of 1.05 kilograms of heroin on 17 December 2010. In respect of that offence he was sentenced to imprisonment for four years including a non-parole period of two years, both such periods also dating from 5 May 2011. 5. The maximum period of imprisonment prescribed for each of the Applicant's offences is imprisonment for life. A standard non parole period of 15 years has been prescribed. 6. The circumstances of the Applicant's offending were that a syndicate would source substantial amounts of ice and heroin in Sydney, arrange for those drugs to be transported to Perth and cash from the sale of the drugs in Perth to be then transported back to Sydney. The principal of the syndicate appears to have been a man Yazdani. Another person, AMZ, fulfilled the role of Yazdani's personal assistant. The role of the Applicant, who was an employee of Watsons Express Transport, was to arrange the transportation of drugs from Sydney to Perth. Communication between the offenders was commonly via "Phantom Secure" Blackberry mobile phones. 7. On 26 November 2010, an employee of Watsons Express Transport attended the McDonald's restaurant at Revesby in a car registered to the Applicant's wife in order to take delivery of a lockable "Tuff Case". When it became apparent that the Tuff Case did not fit into the boot of the Applicant's wife's car, the Watsons Express Transport employee swapped cars with AMZ. Later that day the Applicant assisted in placing the Tuff Case into a Watsons Express Transport truck and drove it to the Yagoona rail yard where, together with other contents of the truck, the Tuff Case was loaded onto a train bound for Perth. The drugs involved in this operation, forming part of the quantity encompassed by the first charge, were 6 kilograms of methylamphetamine. 8. On 17 December 2010, a waterproof yachting bag was forwarded to Watsons Express Depot by AMZ. There the Applicant took the package to the Tasfreight Depot from where it was transported to Melbourne. The Applicant arranged for a truck driver to pick up AMZ in Melbourne and drive him to Perth after collecting the bag from the Tasfreight Depot. The drugs involved on this occasion were 6 kilograms of methylamphetamine also forming part of the quantity encompassed by the first charge and 1.05 kilograms of heroin, the drugs the subject of the second charge. 9. On 15 February 2011, at the request of Yazdani, the Applicant arranged for a truck to attend and pick up two suitcases from a residence in Bondi. Sometime later the truck was stopped by police and the suitcases confiscated. The drugs involved on this occasion, and forming the balance of those the subject of the first charge, were 11.4 kilograms of methylamphetamine. (The individual quantities do not total the 21.807 kilograms which was the quantity with which the Applicant was said to be involved. However, in the circumstances of the case, the difference does not matter.) 10. It was not suggested that the Applicant knew of the weights of each of the parcels although he knew that each exceeded 1 kilogram. Nor was it suggested that the Applicant knew there were two different drugs involved on 17 December 2010. His Honour however concluded that the Applicant had a lot more knowledge of the drugs and the amount of drugs than he was prepared to admit. 11. The Applicant was arrested on 5 May 2011. Prior to the subject offences, he had a minor criminal record in Western Australia, New South Wales and South Australia for offences of stealing, driving with a mid-range PCA and failing to adhere to the limits on driving hours. 12. Turning to subjective matters, the Applicant was born in 1981. The sentencing judge accepted that he had a very difficult upbringing. He started using illegal drugs at age 11 or 12 and alcohol shortly thereafter. He became and continued to be a heavy drinker until his arrest in 2011. He gambled heavily. He commenced work at age 15 and, because he was effectively his own boss, was in virtually continuous employment until his arrest. 13. It is not clear when the Applicant's drug use stopped. He told the author of a Pre-Sentence Report that it had stopped when his daughter, said to be 8 in 2011, was born. Elsewhere he is said to have been under the influence of drugs at the time of some of the conversations incidental to the drug dealing the subject of the charge. 14. The evidence as to the Applicant's remuneration was conflicting. At one stage the Applicant said that he was promised $2,500 per load, but paid less. At another he indicated that he had managed to pay off a very substantial debt. However, the Applicant had none of the trappings of wealth. He, and his wife and daughter, were living in part of the Watsons Transport Company premises the Applicant had adapted for the purposes. Subsequent to his arrest his wife of some 7 years left him, taking their daughter interstate. Garling ACDJ recorded that the Applicant had realised that the abuse of drugs and alcohol had wasted his life. 15. The Applicant pleaded guilty to both charges and was held entitled to a 25% discount for doing so. His Honour found special circumstances. 16. The Applicant's grounds of appeal were: 1. The sentencing judge erred in his assessment of the objective seriousness of the Applicant's role in the offending. 2. The sentence is manifestly excessive. Ground 1 1. The above account of the Applicant's offending is taken from an Agreed Statement of Facts and reflects what, according to the evidence, the Applicant did. Garling ADCJ's characterisation of the Applicant's role is not so clear. His Honour certainly did recognise the existence of differences between the offenders, remarking, inter alia, that the starting point for the sentences imposed on AMZ was 29 years while that in respect of the Applicant's sentence was 19 years. However, other passages give cause for concern that the recognition was not adequate, particularly when regard is had also to the fact that AMZ faced an extra charge and the differences in roles. 2. At various stages through his remarks on sentence his Honour observed: The offender's role was to arrange transport of the drugs from Sydney to Perth. The facts supplied to me show that AMZ played a substantial role in the syndicate. – AB 11.9 … AMZ is more involved in this syndicate than the offender. They both play an important role but AMZ played the greater part … - AB 12.5 I borrow from what his Honour, Judge Berman said in part as it mirrors what I need to say. That AMZ and, indeed in this case, the offender did it for money. He was only seduced by an older and more charismatic person who introduced him into a world in which enormous sums of money and large quantities of drugs were packaged and transported across the country so that enormous profits could be made and luxury lifestyles could be lived. In reality this offender's role, as with the other man, was a minor one. – AB 13.8 He [the Applicant] played a substantial role in this syndicate. It was not the role of one who would be unaware of some of the details. – AB 14.9 1. It is impossible to reconcile his Honour's descriptions of the Applicant's role as "minor" and "substantial". 2. Furthermore, there can be no doubt that his Honour's remarks reflect a most unusual degree of attention to AMZ. They also display an equating of the situations of AMZ and the Applicant that was not always justified. Thus in passages from his Honour's remarks set out above, while reference is made to AMZ having a greater role, the terms "substantial" and "minor" role" are applied to both. 3. In fact AMZ's role was very substantially greater than the Applicant's. In sentencing AMZ, Berman DCJ remarked that while AMZ acted at the direction of others and did not exercising any independent judgment, his role was much higher in the hierarchy than a mere courier. His activities included:- AMZ drove Mr Yazdani around while the latter was engaged in drug dealing; AMZ tested drugs for Mr Yazdani; AMZ bought containers in which to package drugs, was present when drugs were packaged and assisted in that regard; He assisted in the cutting of drugs; He collected and transported drugs; He was sent to Perth to recover drugs that seemed to have become mislaid, succeeding in this endeavour; He transported large amounts of cash, on one occasion at least, $500,000 from Perth to Sydney; He disguised himself and rented premises to be used as a safe house. 1. The Applicant's role was far less. I doubt if it can be summed up in one word. It was significant in that transport of the drugs to Perth was an essential element in the operation. However, the Applicant's activities were no more than that and did not merit the description "substantial role in this syndicate". 2. In the result, Ground 1 is made out. Ground 2 1. Although not strictly within the terms of this ground, a substantial component of the argument in respect of it – and an argument responded to by the Crown – was that Garling ADCJ was induced to impose too high a sentence on the Applicant in consequence of the attention his Honour gave to the sentence that had been imposed on AMZ and his Honour's desire to achieve parity between the two offenders and a failure to give sufficient recognition to the differences between their respective situations. 2. To some degree I have dealt with this aspect when considering the first ground. But the failure is also apparent when his Honour came to reflect on the offenders' subjective circumstances. His Honour remarked "both had similar difficulties in the past". That statement did not reflect his Honour's earlier statement that the Applicant "had a very difficult upbringing… He started using illegal drugs at eleven or twelve years of age. He started to use alcohol and did not stop using drugs and alcohol until he went into custody" and what Berman DCJ had said of AMZ, "He had a good upbringing by parents who loved and supported him". 3. I do not ignore the fact that AMZ seems to have had other problems and seems to have fallen out with his parents not long before, or perhaps after, his offending. However, there was no basis for Garling ADCJ's statement that "both had similar difficulties in the past". 4. AMZ was also sentenced in respect of 6 offences, compared to the Applicant's two. AMZ's offences were:- (i) Participating in a criminal group. (ii) Supplying 6 kilograms of ice. (iii) Supplying another 6 kilograms of ice. (iv) Supplying a large commercial quantity of heroin. (v) Supplying a third 6 kilograms of ice. (vi) Supplying 11.4 kilograms of ice. 1. The drugs, the subject of the third to sixth charges were those which were also the subject of the charges against the Applicant. Understandably the first offence was not regarded as increasing AMZ's criminality but the second offence, with which the Applicant was not concerned, certainly did so. 2. But the ground of appeal was that the sentence was manifestly excessive, not that there was a lack of parity. While the matters to which I have so far referred might explain any excess that exists in the sentence, the issue remains whether there was manifest excess. 3. In light of my conclusion in respect of the first ground, I do not need to decide this question. In Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 the High Court decided that once relevant error was shown it became the duty of this Court to form its own view as to a proper sentence. Error has been shown and accordingly I proceed as the High Court dictated. 4. In that independent assessment I would not impose a sentence as great as Garling ADCJ did. Certainly the quantity with which the Applicant was involved calls for a substantial sentence but the limited nature of his role, the fact that it is impossible to conclude that he derived any large profits from his participation, and his, in Garling ADCJ's words, "very difficult upbringing", lead me to the conclusion that the appropriate sentence is one including a non-parole period of 7 years with a balance of term of 4 years. 5. I make it clear that in so concluding I have used as yardsticks or guides the maximum penalty and standard non-parole period that Parliament has provided. I have also taken into account Garling ADCJ's finding of special circumstances and the reasons that led to that finding. Those factors still exist and justify a similar finding by this Court. 6. Accordingly, the orders I propose are: (i) Grant leave to appeal; (ii) Allow the appeal; (iii) Quash the sentence imposed by Garling ADCJ; (iv) Sentence the Applicant to imprisonment for a non-parole period of 7 years commencing on 5 May 2011 together with a balance of term of 4 years commencing on 5 May 2018. (v) Record as the date upon which it appears to the Court that the Applicant will become for eligible for parole, 5 May 2018. ******** 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 November 2015