Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Munday v R [2017] NSWCCA 95 Hearing dates: 2 May 2017 Date of orders: 19 May 2017 Decision date: 19 May 2017 Before: Johnson J at [1] Beech-Jones J at [2] Fagan J at [32] Decision: (1) The Applicant be granted leave to appeal. (2) The Appeal be dismissed. Catchwords: SENTENCE APPEAL – possession of methylamphetamine – courier – culpability diminished because offence committed to discharge son's debt – procedural fairness – whether sentencing judge used a particular sentence in another case as yardstick – whether sentencing judge obliged to bring decision relied on to parties' attention – sentencing judge only used decision to distil matters of principle- no error shown – leave granted – appeal dismissed Legislation Cited: Crimes (Sentencing Procedure) Act 1999, s 44 Criminal Appeal Act 1912 s 6(3) Criminal Procedure Act 1986 s 166 Drug Misuse and Trafficking Act 1985 ss 10(1), 25(2) Cases Cited: Farkas v R [2014] NSWCCA 141; 243 A Crim R 388 R v JRB [2006] NSWCCA 371 Kioa v West [1985] HCA 81; 159 CLR 550 Lam v R [2014] NSWCCA 50 Markarian v The Queen [2005] HCA 25; 228 CLR 357 R v Gip [2006] NSWCCA 115; 161 A Crim R 173 Radi v R [2013] NSWCCA 278 RCW v R (No 2) [2014] NSWCCA 190; 244 A Crim R 541 Tweedie v R [2015] NSWCCA 71 Weir v R [2011] NSWCCA 123 Category: Principal judgment Parties: Steven John Munday (Applicant) Regina (Respondent) Representation: Counsel: D Barrow (Applicant) H Roberts (Crown) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2015/232061 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 21 June 2016 Before: English DCJ File Number(s): 2015/232061 Judgment 1. JOHNSON J: I agree with Beech-Jones J. 2. BEECH-JONES J: This is an application for leave to appeal against a sentence imposed by her Honour Judge English DCJ for supply of a commercial quantity of methylamphetamine. For the reasons that follow I would grant leave to appeal but dismiss the appeal. 3. On 21 June 2016, the Applicant was sentenced in the District Court for supplying a commercial quantity of a prohibited drug, namely methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (the "supply offence"). The maximum penalty for the supply offence was 20 years imprisonment and the standard non‑parole period was 10 years imprisonment. In accordance with the procedure set out in s 166 of the Criminal Procedure Act 1986, the Applicant was also sentenced for an offence of possessing a small amount of methylamphetamine contrary to s 10(1) of the Drug Misuse and Trafficking Act (the "possession offence"). The maximum penalty for the possession offence was 2 years imprisonment. 4. For the supply offence, her Honour sentenced the Applicant to a term of imprisonment of 7 years and 6 months with a non‑parole period of 4 years and 6 months. The sentence was fixed to commence on 8 August 2015, which was the date the Applicant was arrested. He has remained in custody since that time. For the possession offence, the Applicant was sentenced to a fixed term of imprisonment of 6 months commencing 8 August 2016. This sentence is wholly concurrent with the non-parole period for the supply offence. Agreed Facts and the Sentencing Judgment 1. Given the confined nature of the appeal, the circumstances of the offending and the sentencing judgment need only be briefly described. 2. In the sentencing judgment, her Honour noted the maximum penalties for the two offences and the standard non‑parole period for the supply offence. Her Honour then summarised an agreed statement of facts that recorded the circumstances of the offences as follows. 3. In the early evening of 8 August 2015, the Applicant was driving a hire vehicle south on the Hume Highway. His adult son was in the passenger seat. A police officer stopped the vehicle to administer a random breath test. After a conversation about the purpose of the Applicant's journey the officer sought his consent to a search of the vehicle for drugs, which was granted. In the boot compartment the officer located a "red box with Asian writing on it" under a blanket. Inside the box was 982.4 grams of methylamphetamine with a purity of 78 per cent. The Applicant denied knowledge of the drugs. A forensic analysis of the box recovered some DNA from the exterior underside of the box which matched the Applicant's DNA. 4. The Applicant and his son were arrested. In an interview with the police, the Applicant stated that he hired the vehicle after his tow truck broke down but denied any knowledge of the methylamphetamine. On 11 August 2015, the police searched his tow truck and a vehicle secured on its tilt tray. Inside the vehicle on the tilt tray the police found a small plastic resealable bag containing 0.24 grams of methylamphetamine. These drugs were the subject of the possession charge. 5. A presentence report and a psychologist's report placed before the sentencing judge recorded the Applicant as stating that he committed the offence to discharge a debt for his son who had incurred a debt to a "bad group" who threatened to "kneecap" his son so that he "would never walk again". The sentencing judge accepted this account. Her Honour found that he was a "courier" and "not someone actively supplying [drugs] and not someone doing so for financial reward". Her Honour found that his "role as a courier and his motivation … lessen … his moral culpability". 6. Otherwise, I note the following four points about the sentencing judgment. 7. First, her Honour described the Applicant's subjective circumstances. At the time of sentencing he was 38 years of age. Her Honour referred to his "minor criminal antecedents". The Applicant came from a "relatively stable family environment". He had elderly parents. He had two grown children from a relationship and a younger child from a second marriage. He struggled at school and left when he was fifteen years of age. At the time of his arrest he had "fly-in, fly-out" employment at a mine in Western Australia. Her Honour noted that he was "hopeful" of regaining work when released. 8. Second, the sentencing judge accepted the opinion of the Applicant's psychologist that the Applicant was a "timid and simple man" who was "most likely suffering from depression". 9. Third, her Honour found that the Applicant was entitled to a 25 per cent discount for his plea of guilty, that he was "truly remorseful and contrite" and that he was "highly unlikely to reoffend". 10. Fourth, her Honour made a finding of "special circumstances" under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (the "Sentencing Act"). The finding was based on the fact that the Applicant would face his first time in custody and would need a "longer than normal period of supervision" on parole because of his depression. The Application for Leave to Appeal 1. The Applicant's grounds of appeal are as follows: "(a) Her Honour's reliance upon Radi v R [2013] NSWCCA 278 caused procedural unfairness to the applicant. (b) Her Honour erred in relying upon Radi v R [2013] NSWCCA 278 when deciding an appropriate term of imprisonment to be served by the applicant." Radi 1. To address these grounds, it is necessary to describe the sentencing proceedings and the use made by her Honour of the decision in Radi v R [2013] NSWCCA 278 ("Radi") in the sentencing judgment. Her Honour received submissions on sentence on 20 June 2016 during an adjournment of a trial. The submissions of both parties were concise but cogent. Counsel for the Applicant did not refer her Honour to any authorities. The Crown referred to Lam v R [2014] NSWCCA 50 for the proposition that the purity of the prohibited drug is relevant to sentencing, and R v Gip [2006] NSWCCA 115; 161 A Crim R 173 at [43] concerning the significance of the identification of an offender's role in the supply of drugs. In the sentence hearing her Honour did not refer the parties to any judgments but equally did not state that she would confine herself to the authorities referred to by the parties. Her Honour published her sentencing judgment orally after her trial adjourned on 21 June 2016. 2. I have described the sentencing judgment above. In the judgment her Honour referred to Radi, stating as follows: "The offence is subjectively serious, as I have said. This drug causes untold damage to addicts and the community. This Court is repeatedly reminded by the Court of Criminal Appeal that lip service should not be paid to the sentencing principles of general and specific deterrence, but give real effect to those principles. This case is not dissimilar to that of Radi v R [2013] NSWCCA 278. A 41-year-old man of otherwise good character was caught with 991 grams of methylamphetamine with a purity of 74%. He, however, had been found guilty after trial and sentenced. He was found to be a courier. He was sentenced to a term of imprisonment for ten years. The non‑parole period was set at seven years. His appeal against the severity of that sentence was unsuccessful. The Court of Criminal Appeal held that the quantity of drugs was very much towards the end of the commercial quantity classification. The nature of the drug was particularly pernicious in its effect on those who use it, and potentially at least on those who come into contact with users. Even allowing for a strong subjective case in that matter, a lesser sentence was found not to be warranted in law. This offender, of course, has pleaded guilty, and is entitled to a 25% discount for his plea. It has significant utilitarian value, and it demonstrates contrition. Although having regard to the DNA, it must be said it was a strong Crown case. Despite not hearing from him, I find he is truly remorseful and contrite. I find he has good prospects for rehabilitation, and I find him highly unlikely to re‑offend. There is no dispute that only a sentence of fulltime custody will suffice. I have been provided with statistics. They are of limited use. There are numerous cases involving supplies close to this quantity reported, but the role of the various offenders differs enormously." (emphasis added) 1. After this her Honour addressed the seriousness of Mr Munday's offence, his moral culpability and the basis for finding special circumstances. There was no further reference to Radi. As suggested by this extract, in Radi this Court found that a sentencing judge had erred in sentencing an offender but nevertheless concluded that no lesser sentence was warranted in law (Criminal Appeal Act 1912, s 6(3)). 2. The submissions in support of both grounds of appeal focused on the use her Honour made of the sentence that was affirmed by this Court in Radi. As I will explain, it is a premise of both grounds of appeal that her Honour did not merely rely on Radi as an example of a broadly comparable case that illustrated the appropriate sentencing principles. Instead, it was contended that her Honour treated the sentence affirmed in Radi as a yardstick which guided the outcome in this case. Thus, on behalf of the Applicant, it was submitted that her Honour used Radi "to determine an appropriate head sentence" for the Applicant and that her Honour's reliance on Radi amounted to a "slavish implementation of a sentence imposed upon another". 3. In support of this contention, Counsel for the Applicant emphasised that the sentence affirmed in Radi of 10 years imprisonment correlated with the sentence imposed on this Applicant prior to the discount for his plea. It was contended that this demonstrated the determinative weight that her Honour attributed to the sentence that was affirmed in Radi notwithstanding what was said to be the differences between the Applicant's circumstances and those of the offender in Radi (see [21]). However that suggestion loses much of its force when it is realised that, as her Honour noted, in Radi all this Court determined was that no lesser sentence than that imposed at first instance was warranted. This leaves open the possibility that a higher sentence for the offender in Radi might have been imposed had this Court been able to impose the sentence it considered to be appropriate. 4. In any event, even accepting the mathematical correlation relied on by the Applicant, I do not accept that the sentencing judge treated Radi in the manner contended. In this case, the sentencing judge accurately referred to the facts of Radi as "not dissimilar". Both before and after the sentencing judge discussed Radi, her Honour addressed the circumstances of the offence and the Applicant. Her Honour did not undertake a process of comparing and contrasting each of those circumstances with those of the offender in Radi. 5. The Crown submitted that the above extract and the balance of the sentencing judgment reveal that her Honour simply treated Radi as an illustration of the role of general and specific deterrence. In particular, it was contended that her Honour referred to Radi as an example of a case where, notwithstanding that the offender occupied the role of courier and had no prior convictions, a substantial sentence was warranted. I agree. Her Honour expressly stated as much in the above passage. The Applicant's submissions invites the Court to disregard the sentencing judgment based on a mathematical comparison between the sentence in this case and the sentence at first instance that was not disturbed in Radi. The invitation should be rejected. Ground (a): Procedural Fairness 1. The Applicant contends that her Honour failed to afford him procedural fairness by not putting his Counsel on notice that reliance would be placed on Radi. The written submissions contend that his Counsel was "denied the opportunity to make submissions about the relevance of Radi and thus lost the opportunity to make submissions in opposition to a course proposed by the sentencing judge". The submissions refer to various matters that could have been put in response to a suggestion that Radi was analogous including that in Radi, and unlike this case, there was not a plea of guilty nor a finding that the offender was not motivated by financial gain (at [27]), and was contrite (at [28]). It was also submitted that in Radi, and unlike this case, the finding that the offender was only a courier did not significantly diminish his culpability in that Mr Radi was also found in possession of cash, ammunition and four mobile phones (Radi at [26]). Overall, it was submitted that there was a "departure from the dictates of proper procedure" resulting in unfairness (Weir v R [2011] NSWCCA 123 at [66] per Garling J with whom Macfarlan JA and Johnson J agreed; "Weir"). 2. As a general proposition, the obligation on judicial officers to afford parties procedural fairness does not require them to provide an indication of their provisional or tentative findings or their acceptance or non-acceptance of the parties' contentions (see Tweedie v R [2015] NSWCCA 71 at [26] per R A Hulme J; "Tweedie"). However, if a sentencing judge proposes to depart from an earlier statement about the procedure to be adopted or the outcome of a case, then procedural fairness may require a judge to advise the parties and give them the opportunity to respond (see Tweedie at [54] per Basten JA; Weir at [65] to [67]). Similarly, if a sentencing judge proposes to rely on facts ascertained from a source external to the proceedings, then the parties should be so advised and given the opportunity to respond (R v JRB [2006] NSWCCA 371 at [42]; Farkas v R [2014] NSWCCA 141; 243 A Crim R 388 at [85] to [87]). Even if notice is given, it may still be erroneous to rely on such facts if evidence supporting them has not been adduced by the parties and proven in the proper manner. 3. Counsel for the Applicant, Mr Barrow, accepted that a breach of the obligation to afford procedural fairness was not established merely because a sentencing judge referred to a decision of this Court in their reasons which was not adverted to in the submissions of the parties. However, Mr Barrow contended that, if a sentencing judge intends to use a sentence that was imposed or affirmed in another case as determinative or as a yardstick for the imposition of a sentence in the case before them, then procedural fairness requires that it be brought to the parties' attention and they be given the opportunity to respond. I accept that, if it was established that a sentencing judge proposed to treat a sentence imposed in another case in that manner, then procedural fairness may require the judge to bring that to the parties' attention. Such a case may provide an example in a judicial context of the analogous obligation imposed on administrative decision‑makers "to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that they may have an opportunity of dealing with it" (Kioa v West [1985] HCA 81; 159 CLR 550 at 587 per Mason J). 4. However, this need not be explored further. It follows from the above that I do not accept that the sentencing judge used the sentence affirmed in Radi in a manner that raised any obligation to bring the sentencing judge's proposed reliance on that decision to the attention of the parties. If that had been established then, as next discussed, that would have been an error in its own right. 5. I do not accept Ground (a) of the application. Ground (b): Single Comparable Case 1. As noted, it was also submitted that her Honour's reliance on Radi amounted to a "slavish implementation of a sentence imposed upon another". It was contended that this "approach … has all the appearance of having been driven by a single so-called comparable case" which was disapproved of in the following passage from RCW v R (No 2) [2014] NSWCCA 190; 244 A Crim R 541 at [48] (per R A Hulme J, with whom Bathurst CJ and Adams J agreed): "This demonstrates an approach that has all the appearance of having been driven by a single so-called comparable case. The focus was very much confined to a comparison of the criminality in R v Holland with that in the present case. There was no process of instinctively synthesising all of the relevant objective and subjective facts and circumstances to arrive at a proposed sentence and then looking at the outcome of other similar cases that may have provided a check or yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357; Hili v The Queen; Jones v The Queen, supra". 1. It follows from the above, that I do not accept that the sentencing judge was "driven by a single so-called comparable case". Instead her Honour correctly applied an "instinctive synthesis" approach to all the circumstances of the offence and the offender as required by Markarian v The Queen [2005] HCA 25; 228 CLR 357. 2. I would reject ground (b). Conclusion 1. In light of the above conclusions it was not necessary to consider the table of comparable cases filed by each of the parties after the hearing. They do not assist in construing the sentencing judgment and there is no contention in this case that the sentence imposed was manifestly excessive. 2. The orders I propose are: (1) The Applicant be granted leave to appeal; and (2) The Appeal be dismissed. 1. FAGAN J: I agree with Beech-Jones 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 May 2017