Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: PC v R [2016] NSWCCA 137 Hearing dates: 20 November 2015 Date of orders: 15 July 2016 Decision date: 15 July 2016 Before: Simpson JA at [1] Johnson J at [2] Davies J at [3] Decision: (1) Leave to appeal granted. (2) Appeal upheld. (3) Quash the sentence of the District Court imposed on 17 October 2014. In lieu, sentence the Appellant as follows: (a) On count 2 sentence the Appellant to imprisonment for 15 years commencing 4 November 2011 and expiring 3 November 2026; (b) On count 1 and taking into account the matters on the s 16BA Schedule, sentence the Appellant to imprisonment for 17 years and 6 months commencing 4 November 2014 and expiring 3 May 2032; (c) The Appellant should serve a single non-parole period of 14 years and 6 months commencing 4 November 2011 and expiring 3 May 2026. Catchwords: CRIMINAL LAW – appeal against sentence – drug importation syndicate – importing a commercial quantity of border controlled drugs – two counts on indictment with three more imports on s 16BA Schedule - whether sentencing judge erred in characterising applicant's role – discount for assistance – late offer of assistance – assessed as low to medium value – applicant's youth and dysfunctional background – whether considered - concurrency and accumulation – totality principle – all imports part of a course of offending over short period of time – whether the extent of accumulation produced a crushing sentence – error demonstrated in extent of accumulation – need to re-sentence – parity considerations Legislation Cited: Criminal Code Act 1995 (Cth) Cases Cited: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 Engert v R (1995) 84 A Crim R 67 GJ v R [2014] NSWCCA 292 House v The King (1936) 55 CLR 499 Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 Olbrich v R [1999] 199 CLR 270 R v Lachlan [2015] NSWCCA 178 R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38 Category: Principal judgment Parties: PC (Applicant) Crown (Respondent) Representation: Counsel: P Boulten SC (Applicant) P McDonald SC (Respondent) Solicitors: Bannisters Lawyers (Applicant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2012/360781 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 17 October 2014 Before: Norrish DCJ File Number(s): 2012/360781 Judgment 1. SIMPSON JA: I agree with Davies J. 2. JOHNSON J: I agree with Davies J. 3. DAVIES J: The Applicant pleaded guilty to two offences as follows: Count 1: Importing a commercial quantity of a border controlled drug, namely methamphetamine on 15 October 2011, contrary to s.307.1(1) of the Criminal Code Act 1995 (Cth); and Count 2: Attempting to possess a commercial quantity of a border controlled drug namely, cocaine and methamphetamine on 25 October 2011, contrary to s 307.5(1) of the Code. 1. The maximum penalty for each such offence is life imprisonment. 2. Attached to the first count were the following five offences on a s 16BA Schedule: (1) Import commercial quantities of methamphetamine and cocaine on 21 April 2011; (2) Import commercial quantities of methamphetamine and cocaine on 16 August 2011; (3) Import commercial quantities of methamphetamine and cocaine on 30 September 2011; (4) Deal with the proceeds of crime namely $135,000 on 4 November 2011; and (5) Possess a commercial quantity of methamphetamine on 4 November 2011 that had been imported into Australia. The maximum penalty for offences (1), (2), (3) and (5) was life imprisonment and the maximum penalty for offence (4) was 20 years imprisonment. 1. He was sentenced by Judge Norrish QC in the District Court on 17 October 2014 as follows: Count 2: A sentence of 16 years and 6 months imprisonment commencing 4 November 2011 and expiring 3 May 2028; Count 1 and taking into account the five matters on the s 16BA schedule: a sentence of 19 years and 6 months imprisonment commencing on 4 November 2018 and expiring 3 May 2038. His Honour fixed a non-parole period of 18 years commencing on 4 November 2011 and expiring on 3 November 2029. 1. The total sentence was one of 26 years and 6 months imprisonment with a non-parole period of 18 years. 2. The Applicant now seeks leave to appeal on the following grounds: 1. His Honour failed to properly characterise the Applicant's role by inadequately taking into account the fact that the Applicant acted at the instruction and under the direction of a more senior offender. 2. The discounts for the Applicant's assistance were insufficient. 3. The total effective sentence did not give proper effect to the appropriate discounts for the Applicant's pleas of guilty and assistance. 4. His Honour gave inadequate weight to the Applicant's youth and immaturity. 5. His Honour gave inadequate weight to the Applicant's dysfunctional upbringing. 6. His Honour failed to have proper regard to the principle of totality when fixing the degree of accumulation between the two sentences. 7. His Honour's sentencing exercise miscarried because the Applicant has a justifiable sense of grievance as a result of the sentence imposed upon his co-offender, DB. 8. The individual sentences imposed in relation to both counts are manifestly excessive. 9. The total effective sentence is manifestly excessive. Facts concerning the offending 1. The following is a summary of the very detailed facts provided to the Sentencing Judge and considered by his Honour. As the Sentencing Judge did, I will deal with each of the importations in chronological order. 21 April 2011 (Item 1 on the s 16BA Schedule) 1. This count involved the importation of methamphetamine and cocaine sent from Canada by a "Matthew Smith" which was a fictitious name being the consigner of a number of importations. The importation arrived in Australia on or about 21 April 2011. 2. Within the imported goods were an ice maker and a trolley. They were described on the consignment notice with a combined value purportedly of Canadian dollars $4,550. This importation was never intercepted. 3. There were 20 packages of border controlled drugs removed from a metal frame that formed part of the consignment by the Applicant and a co-offender DB at an address at Canley Vale. The Applicant was aware the consignment was to arrive. He had provided details that would enable the consignee to be identified. He arranged to have it picked up, to unpack it and distribute what was contained within the consignment. 4. The Applicant took the packages in a suitcase, a sports bag and a backpack and handed them to an unidentified Asian male at Westfield Parramatta. He paid DB $1000 to assist him. 5. The consignment contained commercial quantities of methamphetamine and cocaine. 16 August 2011 (Item 2 on the s 16BA Schedule) 1. This was a consignment of a gas baking oven and a trolley with the consignee being Alice Thai Restaurant in the Australian Capital Territory. The freight forwarding company known as Toll Dnata was given a mobile phone number of a phone subscribed to a person called Sean Jones with an address in South Australia. The phone was, however, in the possession of the Applicant. 2. The delivery of the consignment was made to the home of DB's mother. The Applicant and DB removed the packages that were in the frame of the trolley. There were ultimately 12 packages each weighing one kilogram taken from inside the four sides of the frame. 3. These packages were put into a black suitcase which the Applicant later told DB he had taken to the city and distributed. The Applicant conceded by his pleas that the quantity of the drugs was more than the minimum quantity required for being a commercial quantity. 4. It was at about this time that DB made an overseas trip. At least part of the reason for the trip was the laundering of 235,000 euros by taking them from Hong Kong to Barcelona. The Applicant paid for DB's passport and ticket to Hong Kong, and gave him a Blackberry phone. He also gave him $A10,000 which was either a fee or a combination of fee and spending money. 5. The consignment contained commercial quantities of methamphetamine and cocaine. 30 September 2011 (Item 3 on the s 16BA Schedule) 1. The third consignment arrived in Australia from Canada on 30 September 2011. It was again addressed to the restaurant in Canberra. It comprised a steel roll cart, an ice maker and an ice storage bin. Those items were later found at a Wetherill Park warehouse in November 2011 when the police arrested the Applicant and another co-offender BA. 2. The fees paid at the Australian end were $1,333. The consignment contained a commercial quantity of methamphetamine and cocaine. The Applicant organised for the hiring of a truck on 28 September and another one on 4 October 2011 in anticipation of the importation. On 4 or 5 October 2011 the Applicant with DB's assistance, DB having returned from Barcelona by that stage, leased the warehouse at Wetherill Park where they were ultimately arrested. The Applicant organised the bond and the rent. The lease commenced on 17 October 2011. 3. The consignment contained commercial quantities of methamphetamine and cocaine. 15 October 2011 (Count 1) 1. This consignment arrived in Australia from Canada on 15 October 2011. The consignor was again "Matthew Smith". The consignee was the restaurant in Canberra. The consignment comprised a heavy duty steel trolley and a six burner gas range. The fees paid in relation to the assignment were $1,154. The consignment contained a commercial quantity of methamphetamine. 2. The Applicant hired a truck on 17 October 2011 and organised the hire of another truck on 19 October. The consignment arrived at the Wetherill Park warehouse on 19 October or shortly thereafter. 3. The Applicant and DB opened up a steel frame on which the oven was placed and removed 21 bags containing a white rock like substance. There were also clear bags containing a yellow coloured rock like substance. One of the bags was ripped and was repackaged. All of the bags were put into a car and taken to premises in Acacia Street Cabramatta where the Applicant lived. At those premises the bags were weighed and it was ascertained that each bag weighed about a kilogram. Those bags were placed into a black bag which the Applicant took into his room. DB, at the Applicant's direction, took an ounce of the white substance from one of the packages in the suitcase. 4. During that week the Applicant used DB and another man called Costa to act as some sort of security while he, the Applicant, delivered a significant sum of money, something between $850,000 and $1 million, to a person in the Riverview area who was not identified by the Applicant. 5. After the Applicant was arrested the police found a commercial quantity (5kg) of methamphetamine in a padlocked cupboard which came from this importation (Item 4 on the s 16BA Schedule) along with $135,700 (Item 5 on the s 16BA Schedule), electronic scales and money wraps in a bedroom used by DB but which the Applicant admitted belonged to him. The monies were a part of the proceeds of the importation that occurred on 15 October 2011. 6. In early or mid-October 2011 the Applicant approached BA to see if he was interested in obtaining an Australia Business Number. The Applicant understood BA was in need of money. He offered him $20,000 to assist which BA accepted, although BA was never paid the money. That ABN was connected to the last importation. 25 October 2011 (Count 2) 1. This consignment arrived from Canada on 25 October 2011. It consisted of one tractor grapple bucket or claw weighing approximately 790 kilograms. 2. The consignment was addressed to BA with an address in Canley Heights. The freight forwarder was said to be WL Global Logistics at Botany Bay. On 26 October 2011 BA, DB and the Applicant attended upon Global Logistics. BA paid $4,268 in cash which had been provided to him by the Applicant. BA provided his contact details including a mobile phone number. 3. Customs officers had intercepted this consignment, examined it, and located within it 24 rectangular bags containing a total of 24 kilograms of cocaine and 27 plastic bags containing 27 kilograms of methamphetamine. The pure weight of the drugs was 17.314 kilograms of pure cocaine and 20.548 kilograms of pure methamphetamine. The wholesale value of the cocaine was estimated at approximately $5.263 million with a street value of between $12.3 and $13.8 million. The wholesale value of the methamphetamine was estimated at $6.675 million with a street value of approximately $16.048 million. 4. Customs officers and officers of the Australian Federal Police replaced the drugs with controlled samples and placed a listening device in the grapple. The consignment was cleared and made available for collection on 2 November. 5. The consignment was collected by BA and DB. They thereafter drove the truck containing the consignment to the Applicant's address at Cabramatta. They were under surveillance. On 2 November the consignment was driven to the warehouse at Wetherill Park. The Applicant was observed to inspect the rear of the truck. 6. On 4 November when the consignment was being unpacked the listening device was found when an anomaly in the grapple bucket was identified. The Applicant sent a message on his Blackberry phone to AT, the person who was the ultimate organiser in South Australia. The message was, "We've been done". That enabled the receiver of the message to wipe the Blackberry remotely and make it useless for further investigation. 7. Shortly afterwards the Applicant, DB and two others were arrested. The Applicant did not provide any information to the police nor did he consent to be interviewed. However, some 18 months later in about May to July 2013 he provided information as referred to below. Subjective matters 1. The Applicant was born in South Australia. His parents separated when he was a baby although he lived with his father for a period of time between the ages of seven and twelve. His father suffered a form of mental illness. His father died when he was 16 years of age. At that time he was living with his mother but he left home at that time because he did not get on with her or with his stepfather. He left school prior to the completion of Year 12. 2. He first came before the Children's Court in South Australia when he was aged about 13 or 14 years. As the sentencing judge noted, his criminal history showed a lengthy attitude of disobedience of the law in various ways including acts of violence, damage to property, dishonesty, misuse of motor vehicles, public order offences and failure to comply with bail agreements. On 7 October 2009 he was given a 2 year suspended sentence bond in the South Australian Magistrates Court for four offences. He was still on that bond at the time of the commission of the first three offences in the s 16BA Schedule. 3. The Applicant moved to the Australian Capital Territory in late 2009 or early 2010 to commence a relationship eventually with the niece of the owner of the Thai restaurant which was the consignee of some of the importations concerned in the present offending. 4. In New South Wales he was convicted in March 2011 of damaging property and two counts of common assault. For the common assault charges he was placed on a 12 month section 9 bond to which he was still subject at the time of the present offending. 5. He had worked in various positions since leaving school with his longest period of employment being eight months with a bus company. He reported a gambling habit that commenced when he went to the ACT in 2009. This problem worsened when he came to Sydney and he was soon gambling between $1000 - $2000 daily. He was using illicit substances at that time. His involvement in the offending was said to be due to the financial rewards that he saw it produced and because of the difficulties he had in surviving on wages and benefits particularly with his gambling problem. 6. His drug use commenced when he was 16 years of age when he began using ecstasy regularly. In 2011 he commenced using cocaine on a regular basis. He also commenced using alcohol two months after his father's death. 7. The author of the pre-sentence report reported that the Applicant said that his father's death had a profound effect on him, and family members said that the Applicant had never properly addressed this. Ground 1: The Applicant's role Submissions 1. The Sentencing Judge said this in relation to the Applicant's role: I have already set out what the prisoner actually did and that summary of the evidence shows the important role the prisoner played in a managerial sense to manage the receipt and then the distribution of the drugs, and payment of them on various occasions. The prisoner obviously played a pivotal role in the organisation of people, the organisation of delivery and the like. So far as his possession of the cash and his possession of the 5kgs of methamphetamine, of course he is responsible for that. … Certainly his practice before had been to use cash that he had obtained from importations to provide funds for him to assist in paying for subsequent criminal activity. … He obviously had been recruited to do what he did and he was a key person in the distribution of the drugs. 1. His Honour also found that the co-offender BA's role was less than the Applicant's "to a considerable degree". His Honour found that the Applicant was "clearly" the most culpable in relation to the common charge in respect of which he and DB were convicted with DB "sentenced as a principal assistant". 2. The Applicant submitted that he was recruited by AT who he had met whilst he was still a youth in Adelaide at a time when the Applicant was leading a dysfunctional lifestyle. He submitted that it was AT who recruited him into the criminal activity and it was AT who paid the Applicant for particular matters as well as financed other aspects of the scheme. The Applicant submitted that he delivered the imported packages at the direction of AT who sent him messages on his Blackberry. All significant steps in the process were at AT's directions. The Applicant was only aged 20 years throughout the entire period of the offending conduct. AT was an established, sophisticated criminal with international criminal links. 3. The Applicant submitted that his Honour's Remarks gave little indication that he regarded the Applicant's subservience to, and manipulation by, AT as being of any great significance. His Honour's characterisation of the Applicant's managerial status did not truly reflect the degree to which he was answerable to and subject to direction by AT, and in that way mischaracterised the Applicant's culpability. Consideration 1. The Sentencing Judge referred to what was said by the High Court in Olbrich v R [1999] 199 CLR 270 and correctly assessed the Applicant's role by what he actually did in relation to the importations and not by simply designating him in a role such as courier or middleman. His Honour summarised the evidence concerning what the Applicant did. His determination that the Applicant played a pivotal role in the organisation was a finding easily open to his Honour on what was contained in the Agreed Facts and particularly from the Applicant's own evidence. 2. The submission that the Applicant was a young man being manipulated by AT cannot be accepted. He was not contacted by AT to participate until he was living and working in Canberra. The Applicant's own evidence shows him to be a willing participant in the arrangements. He accepted that he had an important role to play in the drug importation syndicate and that he was a trusted member of that syndicate. Apart from DB he was the only person who had any contact with AT. 3. His Honour's assessment of the Applicant's role involved factual findings where it would be necessary to demonstrate a House v The King type of error if a challenge was to be successfully made. No such error is demonstrated. The lengthy Remarks on Sentence show that his Honour properly considered all of the evidence that was given without considering irrelevant matters, and his Honour's conclusion was well open to him. The fact that AT was ultimately the person operating the syndicate and giving the instructions to the Applicant does not diminish the role that the Applicant had in Sydney to make many of the significant arrangements and decisions including the engagement of persons such as the co-offender BA. It is significant in that regard that the Applicant conceded before the Sentencing Judge that he was more culpable than DB, the only other person who had any dealings with AT. 4. This ground should be rejected. Grounds 2 and 3: Discounts for assistance Submissions 1. In respect of count 1 the Sentencing Judge accorded a combined discount of 30% for the guilty plea and past assistance. The breakdown was accepted as being 25% for the plea and 5% for the past assistance. In respect of count 2 he accorded a discount of 25% being made up of 20% for facilitating the course of justice and 5% for past co-operation. 2. The Applicant had been arrested in November 2011, caught "cold" as the Sentencing Judge put it. He pleaded guilty in the Local Court in about May 2013. His Honour considered that a delay of 18 months before a plea was entered was not warranted and that the discount of 20% for facilitating the course of justice was provided on that basis. 3. The Applicant pointed to the evidence from Federal Agent Beckett about the extent of the Applicant's assistance which included the following: • Providing the name and identity of the person at the "pinnacle" of the syndicate, AT. • Providing details concerning a person who could provide false passports and drivers licences which Federal Agent Beckett was going to pass on to Western Australian Police. • Providing information about a person in New South Wales who had offered to supply arms, including C4 explosives, a topic about which Federal Agent Beckett briefed NSW Police. • He provided details about AT's associates, including AT's brother, MT. • He provided information concerning an Outlaw Motorcycle Group and some "Chinese gangs". • He provided information about AT's involvement in a shooting in Adelaide. • He provided information about a Milperra Chapter of a bike gang and guns that had been removed by somebody. • He provided information concerning AT's importation of drugs by soaking jackets in methyl amphetamine. • He provided a draft statement that the AFP initially intended to use in the brief of evidence against a co-offender, WS, but the proceedings against that offender were discontinued. 1. The Applicant submitted that although the information was not provided until May to July 2013 and that he will not be called as a prosecution witness in any proceedings, the information he provided concerning AT and WS was relatively timely. The Applicant submitted that he could not be blamed because AT was not being prosecuted. He submitted that there was nothing to suggest that his assistance was tailored so that it could not be used in other proceedings. 2. Senior Counsel for the Applicant submitted that the discount for past cooperation of 5% in each case was too low in a case where a young man has given the head of the ring to the police and they chose not to prosecute. 3. The Applicant also submitted that there was a problem in the way in which the Sentencing Judge gave effect to the discounts once the two discounted sentences were ordered to be served partially accumulatively and partially concurrently. Although each of the sentences was discounted the total effective sentence including the single non-parole period did not reflect any particular identifiable discount. In that regard the Applicant pointed to what the Sentencing Judge said after he discounted count 1 by 30%: In practical terms, however, given that the sentence in relation to count 1 must be greater than the sentence in relation to count 2 and will be partially accumulative, the sentence I impose has no practical impact upon the ultimate release date of the prisoner. 1. The Crown submitted that his Honour's statement should be read as if he had said: In practical terms, however, given that the sentence in relation to count 1 must be greater than the sentence in relation to count 2 and will be partially accumulative, the sentence I impose [in respect of count 2] has no practical impact upon the ultimate release date of the prisoner. The Crown submitted that this was the only way to make sense of what his Honour actually said. This is because the only thing that affected the release date was the sentence for count 2 because it was the longer sentence and commenced some years after the sentence for count 1. The Crown submitted that his Honour was not negating the discount given in relation to the two offences. Consideration 1. There were two principal problems with the assistance provided by the Applicant. The first was the time it was provided being a period of about 18 months after the Applicant's arrest. The second problem, as the AFP officer made clear, was that the information provided was largely single sourced. She assessed it as being of low to medium value. There was the additional problem that much of the evidence was vague and non-specific particularly with regard to the identification of other persons involved but also in relation to such matters as the identification of bank accounts that were used. 2. The Sentencing Judge considered the Applicant's assistance at a number of places in his Remarks. His Honour noted that the lack of timeliness of his cooperation was a critical matter and that much of the useful material had been lost by reason of the delay of the Applicant in providing assistance. There was nothing to suggest that any future assistance would be available. The wiping of the Blackberry, although not deliberately engineered by the Applicant, also reduced substantially the benefit of his assistance particularly as it related to AT. 3. The assessment of the appropriate discount for the assistance was a matter for the Sentencing Judge's discretion. It cannot be said that 5% in all of the circumstances was outside the appropriate range of his Honour's discretion. It is significant in that regard that when sentencing DB, although his Honour gave a discount of 20% for assistance, only 8% of that was given for past assistance which was assessed to be of a high value. 4. Since this was a matter for the Sentencing Judge's discretion a House v The King error would need to be demonstrated. No such error was asserted nor demonstrated in his Honour's assessment in that regard. 5. In relation to ground 3, I consider that the reading of his Honour's Remarks at [56]-[57] above is correctly identified by the Crown. His Honour must have been referring to the sentence in respect of count 2 when he said "The sentence I impose has no practical impact upon the ultimate release date". 6. There is nothing to suggest that when his Honour fixed the single non-parole period required to be fixed he did not take account of the discounts he had accorded to the Applicant. The Sentencing Judge indicated that the starting point for count 1 was 28 years. He applied a discount of 30% which produced a sentence of 19 years and six months. The starting point for count 2 was 22 years and a 25% discount produced a sentence of 16 years and six months. It cannot be said that on the individual sentences his Honour failed to take account of the discount he provided. 7. The Applicant sought to link the issue of the discounts with the extent of the accumulation of the sentences for the two offences. Although, as will be seen when Ground 6 is considered, there is a problem with the extent of the accumulation, I do not consider that accumulation and the discounts are connected in the manner alleged. The benefit from the discounts produces the sentences which then need to be considered for concurrency and accumulation purposes. If the sentences are wrongly accumulated that says nothing about the discounts which have already benefited an offender before totality is considered. 8. I would reject these grounds. Grounds 4 and 5: Applicant's youth and dysfunctional background Submissions 1. The Sentencing Judge summarised the Applicant's family background as well as his criminal record. He referred to a report from the psychologist Ms Duffy and in some detail to evidence given by the Applicant's aunt about the Applicant's family and the difficulties the Applicant had in relation to his family. 2. His Honour then went on to say: I accept the prisoner has had a disadvantaged upbringing in a range of ways. It may be the explanation for his knowledge of the person who recruited him. But it barely explains, or does not fully explain, the conduct of which I am concerned. I accept that his aunt and her family will provide him with support on his release. It is fair to say that the reference she provides and the information provided by her daughter puts a human aspect to the prisoner. The aunt expressed the opinion that the prisoner was a product of his "environment and subsequent lack of parental support and guidance." This may be true and I have taken that into account, but it scarcely, as I say, explains the circumstances of this criminality. 1. The Applicant submitted that these Remarks reduced to a minimum the relevance of the Applicant's youth and dysfunctional upbringing. He submitted that his moral culpability for engagement in the drug related enterprise was substantially less than those who engage in such conduct without such disadvantage. The sentence needed to give full weight to his deprived background in assessing objective criminality. 2. The Applicant submitted that the Sentencing Judge did not suggest that the Applicant's relative youth impacted on the sentencing exercise to any significant degree - certainly not by way of mitigation. Rather, his Remarks suggested that his Honour did not regard the Applicant's youth as a matter which called for any significant moderation in the sentence. The fact that the offending occurred when the Applicant was still quite a young man should have impacted on his Honour's assessment of moral culpability and should also have affected his Honour's assessment of the risks of reoffending and the need to encourage rehabilitation. Consideration 1. His Honour detailed the background and dysfunctional upbringing of the Applicant in his Remarks. There can be no doubt, as the Applicant conceded, that in the first instance his Honour had regard to these matters. The Applicant points specifically to what his Honour said when, having noted that he had taken the subjective circumstances into account, he went on to say: … but it scarcely, as I say, explains the circumstances of the criminality. The Applicant submitted that that remark was the best indicator that the Sentencing Judge had either ignored the Applicant's youth and dysfunctional upbringing or did not factor it into the assessment of his moral culpability. Had he done so he would have said something quite different about the Applicant to show that it moderated the sentence that might otherwise have been imposed. 1. These submissions fail to acknowledge countervailing factors. The Sentencing Judge said: Certainly every aspect of his involvement in the offending with which I am concerned reflects upon deliberation and consideration consistent with a clear mind. This finding was entirely open to his Honour on the evidence. 1. The Applicant gave evidence that although he used cocaine and ecstasy he was not addicted to those drugs. Further he gave evidence that he did not get involved to finance a drug or gambling habit. Rather, his evidence was to the effect that he looked up to AT who always seemed to have "nice things" that the Applicant did not have, and he was trying to big note himself. Whilst his unfortunate background might be an explanation for why he chose to become involved in the particular criminal milieu this was some distance from a person who for desperate reasons arising from drug or gambling addiction was forced to become involved to meet the debts from those addictions. 2. Contrary to the Applicant's submissions the Applicant was not recruited into the drug importation enterprise by reason of being a homeless youth in Adelaide that led him into contact with AT. The evidence Ms Duffy the psychologist detailed from what the Applicant told her and which the Applicant accepted as correct when he gave evidence, was that after he left school he was initially unemployed for a period but then worked as a contractor for Telstra selling phone packages, internet and other telecommunications. He also worked casually in hospitality such as bar work and as a waiter. 3. He moved to Canberra to join his girlfriend who worked in her aunt and uncle's Thai restaurant to which some of the consignments were directed. The Applicant worked as a cashier with a Caltex service station and then found employment with the Greyhound bus company. He started as a reservations clerk and after two months was promoted to terminal manager. Shortly after he moved to Sydney and found work at Fantastic Furniture as a salesman. He worked there for several months until he left after taking a day off for wrong reasons. 4. Whilst he was certainly contacted by AT both when he was in Canberra and in Sydney to become involved in the syndicate he was not in the position of a homeless person or a drug addict who was desperate for money or accommodation. His becoming involved could well be characterised as a lifestyle choice by reason of the evidence he gave before the Sentencing Judge. 5. The question of the youth of an offender was considered recently by this Court in R v Lachlan [2015] NSWCCA 178. The respondent in that Crown appeal was aged 19 at the time of the offending. The offences related to possession of firearms and a prohibited weapon being a stun gun. There were additional offences on a Form 1 concerning the possession of ammunition and other prohibited weapons together with some street offences. 6. Gleeson JA said (Johnson and Garling JJ agreeing): [80] Against these matters [personal deterrence and retribution for serious offences] it is to be accepted that the respondent's youth operated in mitigation of sentence, as did his dysfunctional childhood and adolescence, his problems with alcohol and drugs and his social isolation and distrust of others. However, none of this provides an explanation let alone excuse for the possession of shortened firearms, along with an assortment of other prohibited weapons and ammunition, which the sentencing judge fairly described as approaching an arsenal of weapons. [81] Counsel for the respondent argued that rehabilitation took precedence over deterrence and retribution in the present case. Reference was made to R v GDP (1991) 53 A Crim R 112, and R v DM [2005] NSWCCA 181 at [61]. Both of those cases involved minors who were 15 years of age at the time of sentencing and in both cases, s 6 of the Children (Criminal Proceedings) Act 1987 (NSW) was engaged. In the case of an extremely young offender such as a minor, more emphasis can be given to rehabilitation, even at the expense of deterrence. [82] It may be accepted that similar principles may apply in the case of a young offenders who are no longer a minor: Tammer-Spence v R [2013] NSWCCA 297 at [37]. Accordingly, in cases such as the present, regard should be had to the age of the young person and the circumstances of the offence: R v MA [2004] NSWCCA 92; 145 A Crim R 434 at [28]. [83] Nonetheless, in R v Gordon (1994) 71 A Crim R 459 at 469, Hunt CJ at CL (McInerney and Sully JJ agreeing) observed: … where a youth conducts himself in the way an adult might conduct himself and commits a crime of considerable gravity, the protective function of the criminal courts would cease to operate unless deterrence and retribution remained significant considerations in sentencing that youth: Pham (1991) 55 A Crim R 128 at 135; Allam (unreported, Court of Criminal Appeal, 15 April 1993) at p 4; Hawkins (1993) 67 A Crim R 64 at 66. 1. In the present case the Applicant was already a young adult. Further, he conducted himself as an adult and committed crimes of considerable gravity. There was no direct relationship between his youth and dysfunctional upbringing that led him to this offending. 2. There can be no doubt that his Honour properly considered all of those matters. They all formed part of the instinctive synthesis of sentencing in the way described by Gleeson CJ in Engert v R (1995) 84 A Crim R 67, albeit in a different context; see also Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 at [44]-[45]. 3. I would reject these grounds of appeal. Ground 6: Totality Submissions 1. His Honour ordered the sentence for count 1 to commence seven years after the commencement of the sentence for count 2. 2. The Applicant submitted that count 1 and the offences on the s 16BA Schedule attached to it reflected a continuing course of conduct involving the importation of commercial quantities of drugs that covered the entire period of the total offending conduct. The period reflected in count 1 and the s 16BA offences overlapped with the period charged in count 2. It was the same course of conduct. 3. Whilst acknowledging that questions of concurrence and accumulation involved the exercise of judicial discretion, the Applicant submitted that his Honour gave no reasons why he chose to commence the sentence for count 1 seven years into the sentence for count 2. The Applicant submitted that the seven year extension in the sentence was so significant as to point to error in itself. 4. The Crown submitted that the offences were separate but the importation in count 2 was an escalation of the offending. The Crown accepted that the Sentencing Judge did not expressly mention the potential for double counting nor avoiding the imposition of a crushing sentence. His Honour did say during submissions that there would need to be accumulation. It was not necessary for him to explain the structure of the sentence. Consideration 1. The principles relating to accumulation and concurrency were conveniently summarised by Hall J (Tobias JA and Kirby J agreeing) in R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38 as follows: (1) It is well established that questions of accumulation are, subject to the application of established principle, discretionary. What is important is that, firstly, an appropriate sentence is imposed in respect of each offence; and, secondly, that the total sentence imposed properly reflects the totality of the criminality: Regina v Wilson [2005] NSWCCA 219 at [38] per Simpson, Barr and Latham JJ agreeing. (2) In Regina v Weldon; Regina v Carberry (2002) 136 A Crim R 55, Ipp JA at [48] stated that it is "not infrequent that, where the offences arise out of one criminal enterprise, concurrent sentences will be imposed" but his Honour observed that "this is not an inflexible rule" and "[t]he practice should not be followed where wholly concurrent sentences would fail to take account of differences in conduct" . (3) The question as to whether sentences in respect of two or more offences committed in the course of a single episode or a criminal enterprise or on a particular day should be concurrent or at least partly accumulated is to be determined by the principle of totality and the relevant factors to be taken into account in the application of that principle. See observations in this respect of Howie J in Nguyen v Regina [2007] NSWCCA 14 at [12]. (4) In applying the principle of totality, the question to be posed is whether the sentence for one offence can comprehend and reflect the criminality of the other offence. See generally Regina v MMK [2006] NSWCCA 272 at [11] and [13], Cahyadi (supra) at [12] and [27] and Vaovasa v Regina [2007] NSWCCA 253. (5) If the sentence for one offence can comprehend and reflect the criminality of the other, then the sentences ought to be concurrent, otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the totality of the two offences: Cayhadi (supra) per Howie J at [27]. (6) If not, the sentence should be at least partially cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality: Cayhadi (supra) per Howie J at [27]. (7) Whether the sentence for one offence can comprehend and reflect the criminality of the other calls for the identification and an evaluation of relevant factors pertaining to the offences. These will include the nature and seriousness of each offence. (8) … (9) Where two offences committed during the course of a single episode are of a completely different nature and each individually involved significant or extreme gravity, it is likely that some accumulation will be necessary to address the criminality of the two: Nguyen (supra) per Howie J at [13]. (10) Possession of two different kinds of drugs may not be regarded as one episode of criminality in a case of "deemed" supply: Luu v Regina [2008] NSWCCA 285 at [32]. (11) The fact that the evidence of two offences (eg, documentary evidence or the presence of drugs) are located by police at or in the one place is not a relevant factor in favour of concurrent sentences:- "… The fact that the evidence of a number of discrete offences is located in the one place is completely irrelevant to any question of how the sentences for those offences should be imposed." ( Cayhadi (supra) at [26]) 1. The evidence showed that the two counts charged, together with the offences on the s 16BA Schedule, all formed part of a course of dealing relating to the importation of methamphetamine and cocaine from April to November 2011. It was appropriate that there be a measure of concurrency to take that factor into account. However, the two offences involved discrete importations. The offence the subject of count 2 involved significant quantities of each of the drugs being 17.314kgs of pure cocaine and 20.548kgs of pure methamphetamine. Whilst the quantity of the drugs is not the only factor to be considered in relation to the objective seriousness of the offences the quantity is a significant factor. In addition, the maximum penalty for each of the offences charged was life imprisonment, as it was for four of the offences on the s 16BA Schedule. His Honour's accumulation of the sentences by seven years did not need to be explained: GJ v R [2014] NSWCCA 292 at [25]. The only issues arising from the accumulation are whether there was double counting and whether in totality it produced a crushing sentence that was not warranted in all the circumstances. 2. In my opinion the notional starting points for each of the offences, whilst high, was within the Sentencing Judge's discretion. However, those starting points required care to be given to the overall sentence produced by the inevitable accumulation that was required from the commission of the separate offences. It seems to me to be significant that all of the offending occurred within a six month period and involved the same drugs imported by similar means. This highlighted the fact that the offending was a course of offending which, no doubt, for both practical reasons and for minimising the risk of detection, meant that the drugs needed to be divided amongst discrete shipments. 3. While concurrency of the sentences would have been inappropriate, accumulation of seven years for two offences, albeit serious, in a course of offending was outside the range of discretion. It produced a total sentence of 26 years and 6 months with an 18 year non-parole period. That amounted to a crushing sentence for a 20 year old man who was involved for the first time in serious drug importation. The Sentencing Judge is a very experienced criminal judge but when there was no discussion about the extent of the accumulation (and nothing was said during submissions apart from the judge observing that there must be some accumulation) and almost no reference to both counts being part of a course of offending it is difficult not to consider that there is double counting in the ultimate sentence. The fact that the non-parole period exceeded the whole sentence imposed for count 1 highlighted the matter. Error of a House v The King type is demonstrated because the result is unreasonable or plainly unjust. Ground 7, 8 & 9: Parity with DB and manifestly excessive sentences 1. Since error has been established it will be necessary for this Court to re-sentence the Applicant; Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601. That makes it unnecessary to decide if the sentences imposed were manifestly excessive. Issues of parity will be considered on the re-sentence. Re-sentence 1. The factual findings of the Sentencing Judge as to the offending, to the background of the Applicant and the relationship between that background and the offending should be accepted. Those findings are amply borne out by the evidence. However, the two counts and those on the s 16BA Schedule were all part of a course of offending that took place over a relatively short period of a little under seven months. The offences were serious when the quantity of the drugs, the planning, the sophistication of the enterprise and the Applicant's role in the enterprise are considered. The Applicant had a significant managerial role in the syndicate, albeit he acted on the orders of AT. 2. Parity issues with DB must be considered. The Applicant accepted that his culpability exceeded that of DB and BA. 3. DB was charged with attempting to possess a commercial quantity of cocaine and methamphetamine between 2 and 4 November 2011. This was the same offence as count 2 on the Applicant's indictment. DB was sentenced to nine years and nine months imprisonment with a non-parole period of five years and ten months after a 45% discount to reflect his guilty plea and cooperation. That figure is made up of 25% for the plea, eight per cent for past assistance and 12 per cent for future assistance. The notional starting point for his sentence was, therefore, 17 years and nine months. 4. DB was 19 years old at the time of the offence whereas the Applicant was 20 years old. DB had a background of family dysfunction and dislocation in his teenage years, was drug dependent on a number of drugs including methamphetamine at the time of the offending, had an interrupted education leading to a peripatetic existence that brought about his association with the Applicant and other drug users. Because of his drug addiction he was more easily recruited. Mr Watson-Munro who examined him considered that he had undiagnosed ADHD. 5. DB had a criminal record as a young person that included a conviction for armed robbery. Although the Applicant had a bad criminal record none of his offences was as serious as an armed robbery. Neither DB nor the Applicant had been convicted of serious drug-related offences previously. However, as noted, the Applicant was on two forms of conditional liberty at the time of the offending. The Applicant accepted that he played a greater role in the overall criminal enterprise and in the execution of the offending constituting count 2 than did DB. 6. The Applicant should receive a 25% discount in respect of count 1 and 20% for count 2 for facilitating the course of justice. The plea in respect of count 2 was not at the earliest opportunity. 7. In relation to assistance, the AFP officer assessed its level as low to medium. It came at a late stage and, to the extent that it contained specific information, seems confined to AT's role. No future assistance was relevantly involved. Although I have the impression from reading the cross-examination of the AFP officer that she and the AFP could have made more use of the information that was provided by the Applicant, I could not be satisfied on the balance of probabilities that the end result of the Applicant's providing the information when he did would have been any different. 8. A combined discount of 50% is given in cases for an early plea and assistance of a high order where part of the 25% for assistance relates to future assistance. As noted earlier, DB received a discount of 8% for past assistance where that assistance was rated as being of high value. I consider that a discount of 5% should be given to the Applicant on each count. 9. Although the two offences were separate they were part of one course of continuous offending. Nevertheless, the criminality of one does not comprehend the criminality of the other particularly having regard to the serious offences included on the Schedule. There must be a measure of accumulation but the principle of totality will limit the extent of that accumulation. 10. The starting point for count 2, bearing in mind parity issues, should be 20 years. With a discount of 25% the result is a sentence of 15 years commencing 4 November 2011 and expiring 3 November 2026. The starting point for the sentence for count 1, taking into account the matters on the s 16BA Schedule, should be 25 years. With a discount of 30% the result is a sentence of 17 years 6 months commencing 4 November 2014 and expiring 3 May 2032. The total sentence is 20 years and 6 months expiring 3 May 2032. The single non-parole period should be 14 years and 6 months expiring 3 May 2026. Conclusion 1. I propose the following orders: 1. Leave to appeal granted 2. Appeal upheld. 3. Quash the sentence of the District Court imposed on 17 October 2014. In lieu, sentence the Appellant as follows: 1. On count 2 sentence the Appellant to imprisonment for 15 years commencing 4 November 2011 and expiring 3 November 2026; 2. On count 1 and taking into account the matters on the s 16BA Schedule, sentence the Appellant to imprisonment for 17 years and 6 months commencing 4 November 2014 and expiring 3 May 2032; 3. The Appellant should serve a single non-parole period of 14 years and 6 months commencing 4 November 2011 and expiring 3 May 2026. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 July 2016