Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Murray v R [2017] NSWCCA 262 Hearing dates: 18 October 2017 Date of orders: 15 November 2017 Decision date: 15 November 2017 Before: Ward CJ in Eq at [1]; Price J at [2]; Beech-Jones J at [79] Decision: (1) Leave to appeal granted. (2) Appeal allowed. (3) The sentences imposed by McLennan SC DCJ for counts 1 and 2 are quashed. (4) On count 1, the applicant is sentenced to 10 years 6 months imprisonment consisting of a non-parole period of 7 years, commencing on 11 September 2015 and expiring on 10 September 2022 with a balance of term of 3 years 6 months expiring on 10 March 2026. (5) On count 2, the applicant is sentenced to 10 years 6 months imprisonment consisting of a non-parole period of 7 years commencing on 11 September 2016 and expiring on 10 September 2023, with a balance of term of 3 years 6 months expiring on 10 March 2027. (6) The overall effective sentence is 11 years 6 months imprisonment with a non-parole period of 8 years commencing on 11 September 2015 and expiring on 10 September 2023, with a balance of term of 3 years 6 months expiring on 10 March 2027. (7) The earliest date that the applicant will be eligible to be released on parole is 10 September 2023. Catchwords: CRIMINAL LAW – appeal against sentence – two counts of supply of not less than the large commercial quantity of a prohibited drug – whether judge erred in failing to take into account the early pleas of guilty – whether judge erred in postulating a theoretical 'street level purity' of methylamphetamine without an evidential basis – whether there was a denial of procedural fairness – whether judge in error in the characterisation of the objective seriousness of the offences – whether failure to have proper regard to a finding of special circumstances – whether lesser sentence warranted Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(g), 21A(3)(i) Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) Cases Cited: Carroll v The Queen (2009) 254 ALR 379; [2009] HCA 13 Chong v R [2017] NSWCCA 185 Jaafar v R [2017] NSWCCA 223 Jiang v R [2010] NSWCCA 277 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Koh v R [2013] NSWCCA 287 Lee, Matthew v R [2016] NSWCCA 146 Munday v R [2017] NSWCCA 95 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 R v Cramp [2004] NSWCCA 264 R v Olbrich [2000] NSWCCA 389; (2000) 117 A Crim R 326 R v Reilly; R v Smith [2012] NSWCCA 166 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Wendy Olive Lawrence [2005] NSWCCA 91 Ramos v R [2015] NSWCCA 313 Scott v R [2010] NSWCCA 103 Stoeski v R [2008] NSWCCA 230 Woodward v R [2014] NSWCCA 205 Category: Principal judgment Parties: Matthew Scott Murray (Applicant) Regina (Respondent) Representation: Counsel: K. Ginges (Applicant) H. Roberts (Respondent) Solicitors: A. Luong (Applicant) C. Hyland – Solicitor for Public Prosecutions (Respondent) File Number(s): 2015/267725 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 03 November 2016 Before: McLennan SC DCJ File Number(s): 2015/267725 Judgment 1. WARD CJ in Eq: I agree with Price J. 2. PRICE J: Matthew Scott Murray ("the applicant") seeks leave to appeal against the sentences imposed upon him by McLennan SC DCJ ("the judge") in the District Court at Parramatta on 3 November 2016. The applicant had pleaded guilty in the Local Court to two counts of supply of not less than the large commercial quantity of a prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). 3. The prohibited drug in the first count was 4.96 kilograms of methylamphetamine and in the second count the prohibited drug was 8.66 kilograms of 3,4 methylenedioxy-methylamphetamine ("MDMA"). 4. At the time of the commission of the offences, the large commercial quantity of each of the prohibited drugs was 500 grams. The maximum penalty for an offence of supplying not less than the large commercial quantity of a prohibited drug is life imprisonment and/or a fine of $550,000. A standard non-parole period of 15 years imprisonment has been prescribed. 5. The judge imposed the following sentences: 1. Count 1: 11 years imprisonment with a non-parole period of 8 years commencing on 11 September 2015. 2. Count 2: 13 years imprisonment with a non-parole period of 9 years commencing 11 September 2016. 1. As a result of partial accumulation by one year, the overall effective sentence of imprisonment is 14 years with a non-parole period of 10 years. The Notice of Appeal 1. The notice of appeal identifies five grounds: "Ground 1: the sentencing judge erred: (i) in failing to take into account the early pleas of guilty, or (ii) in the alternative, in failing to explain in the reasons for judgment how such pleas had been taken into account. Ground 2: the sentencing judge erred in that he: (i) postulated a theoretical "street level purity" of the methylamphetamine without any evidential basis; (ii) failed to provide the parties with any opportunity to address his findings regarding the theoretical street level purity; and (iii) placed undue weight on the purity of the drugs (particularly the methylamphetamine) in determining objective seriousness of the applicant's offending. Ground 3: His Honour erred in finding that the objective seriousness fell within the mid-range of objective seriousness. Ground 4: His Honour failed to give proper regard to his finding of special circumstances in allowing for a ratio of 71.4 per cent between the total head sentence and the total non-parole period. Ground 5: In the circumstances, the total sentence imposed was manifestly excessive." Factual background 1. A lengthy statement of agreed facts was tendered which his Honour recounted in his remarks on sentence. A convenient outline of the agreed facts accepted by both the Crown and the applicant is as follows (AWS at [10.1]–[10.21]): "[10.1] The applicant is the son of Peter Murray ("Peter") and a friend of Tamer Kandemir ("Kandemir"), being the co-offenders. [10.2] On 2 September 2015, Peter and another (unidentified) man attended Pack & Send in Liverpool, each carrying a medium-sized cardboard box. [10.3] Pack & Send is a logistics company that deals in the packaging and freight of items, internationally and domestically. [10.4] Peter provided his details, including his full name, mobile telephone number and email address to the employee of Pack & Send, James McMath (referred to in the sentencing judgement as James McMeagher), and informed him that one of the boxes contained a power drill and the other a saw. [10.5] Peter advised that no warranty was required; however the boxes were to be sent to Western Australia overnight. When asked as to how the tools were packed, Peter replied 'they're in boxes and I have used rags around the boxes'. The cost to freight the boxes to Perth was $820, paid in cash. [10.6] The receiver of the boxes (in Perth) was identified a 'Dimmy Christinos' (referred to as 'Dimi Kritsonis' in the Statement of Facts), with a mobile telephone (0435 XXX XXX), later identified to belong to [the applicant]. Peter informed Mr McMath that he would be in Perth on Friday and that the tools were for work that he was doing in Western Australia. [10.7] Due to a concern that the power tools may not have been properly packed, and because warranty had not been purchased, Mr McMath opened the boxes. [10.8] Mr McMath observed numerous pieces of clothing and a white unlabelled paint container with a handle inside the box. He pulled out the container and noticed that the lid was sealed with silicon. He could smell a glue or paint like smell. He shook the box and felt it had something soft inside the container. He opened the second box and observed numerous pieces of clothing with another white unlabelled paint container with a handle. He took photographs of the contents of the boxes and sent them to his manager. [10.9] Mr McMath contacted Liverpool Police with concerns that the contents of the boxes were suspicious, and police arrived at about 2:30pm. [10.10] Police retrieved the CCTV footage showing Peter, along with the consignment notes and details of Peter which had been provided to Pack & Send. [10.11] Police seized both boxes and the drums located inside the boxes. Upon opening the first drum, police observed a yellow singlet with the writing 'Pitbull Gym' written on the front. Underneath the singlet, police located a number of resealable bags containing the prohibited drugs crystal methylamphetamine and MDMA tablets. [10.12] When police inspected the second drum, additional bags containing crystal methylamphetamine and MDMA tablets were located. [10.13] Police sent the yellow singlet for forensic examination, which revealed that the applicant's DNA was located on it. [10.14] The prohibited drugs were analysed and the total quantity of methylamphetamine (from both boxes) was found to be 4.96 kilograms. The total quantity of MDMA (from both boxes) was found to be 8.66 kilograms. [10.15] Testing revealed that the purity level of one resealable bag of methylamphetamine (containing 996 grams) was 79 per cent. One resealable bag of the MDMA (containing 301 grams of MDMA) was tested to reveal 21.5 per cent purity. [10.16] On 4 September 2015, police were granted warrants to intercept the mobile telephone numbers of Peter and the applicant. From that time until their arrest on 11 September 2015, the applicant and Peter were the subject of electronic and physical surveillance. An undercover police operative, posing as a Pack & Send employee, spoke with Peter during that time causing Peter and the applicant concern that the consignment had been lost or was mislaid. [10.17] During phone calls between the applicant and Peter, the applicant expressed concern, stating 'I don't know what to do', 'I don't know what I'm going to tell him', '[the loss is] too much… shit that I can't afford', I am finished man. That's the end of the story… what am I going to do man? How am I going to pay this back?... What happens if they can't find it?' [10.18] On 11 September 2015, police arrested the applicant and Peter at the applicant's address in Valda Street Blacktown. A search warrant was executed, during which various documents in both the applicant's and Peter's names were located, $3,600 was located in the applicant's bedroom, Pack & Send documentation in the name of Peter was located in the applicant's bedroom, a Blackberry mobile phone was located, an iPhone located on Peter and two black Nokia mobile phones were located in the applicant's bedroom. [10.19] Peter was taken to Blacktown Police Station where he participated in a record of interview, admitting that he attended the Pack & Send Store in Liverpool on 2 September 2015, but claimed that the contents of the boxes were 2 power saws, a power drill and a drill. He claimed that he was going to Perth at some point to undertake work and said that Dimi Kritsonis was an employee of his company who was going to do work on the Perth job. He claimed to have no idea that the boxes contained prohibited drugs, and said that he did not pack the boxes, instead suggesting that [the applicant] was responsible for packing the boxes. He told police that he had used Pack & Send in the past to send motorcycle parts and when asked about Tamer Kandemir, he said that he was a friend who lived in Perth. [10.20] The applicant was also taken to Blacktown Police Station, and participated in a record of interview. He said he was not involved with the packaging of the boxes and did not know who had packaged them. He admitted that the drugs contained 'some pills and some meth' but said he did not know what the quantities were. When shown photographs of the quantities, and asked what he thought the value might be, he said 'a million bucks or something'. [10.21] The applicant told police that he was expecting to be paid $5,000 to move the drugs from Sydney to Perth, and he admitted that he had done this previously. He estimated that he had made between $30,000–$40,000 in total doing this. He described his role as 'all I do is just make the call. See if it's there and then that's it. I just send someone to pick it up.'" The applicant's subjective circumstances 1. The applicant did not give evidence during the sentence proceedings. Included in the written material tendered in his case was a report from Tim Watson-Munro, a psychologist, a letter from his grandfather, an affidavit from his mother and a letter from the Chaplain at Long Bay Correctional Centre. The Crown tendered a pre-sentence report and some statistics from the Judicial Information Research System. 2. The applicant was born in May 1988 and at the time of the offences was 27 years old. His background is provided in the psychologist's report. In summary, the applicant grew up in Blacktown, the only child of his parents who separated when he was about 6 years old. Although the applicant lived with his mother, he regularly saw his father. He described their relationship as being "very positive". 3. He left school towards the end of Year 10 to work as a carpenter's apprentice. The applicant has subsequently been otherwise employed, being involved in installation work in warehouses since about 2013. 4. The applicant told the psychologist that he commenced snorting cocaine at the age of 19 and would binge heavily on weekends. He has been binge drinking since the age of 15. 5. Mr Watson-Munro observed that at the time of the offending, the applicant was suffering from an intense reliance upon cocaine which took the form of binging most weekends. He also described a protracted history of steroid abuse and alcohol abuse. The psychologist opined that this "speaks to underlying self-esteem issues". The psychologist noted that the applicant expressed appropriate remorse for his behaviour, appreciated the gravity of the situation, and was keen to move forward with his life and return to the community in a more productive way. 6. The applicant told Mr West, the author of the pre-sentence report, that he had debts of approximately $30,000 and it was the pressure to repay those debts that was the main motivating factor for his offending. Mr West noted that the applicant presented as very frank and open during the interview, had expressed regret and taken responsibility for the offences. The applicant's risk of re-offending was assessed as relatively low. 7. Anita Krieger, the applicant's mother, states in her affidavit that her son is "genuinely a good person" who she knows will never re-offend. He has expressed that he is "extremely sorry" for not only changing his life but that of his whole family, by his offending. 8. The applicant has no prior convictions. Some findings by the judge 1. The judge observed that there was no evidence of the monetary value of the drugs, although the agreed facts recorded the applicant's own estimate as being "a million bucks or something". His Honour noted that the syndicate had been on foot since probably the end of December 2013 and it was accepted that the applicant had been involved on some four to six prior occasions. As a consequence, the inference of good character that would otherwise be drawn from the absence of criminal convictions was not available nor could the applicant's conduct be seen to be an isolated aberration. 2. The judge said that the applicant was part of a trio which included his father "who was involved in an integral part of the distribution of prohibited drugs on the opposite side of the continent" (ROS 16). His Honour observed that without the activities of these three persons acting together, the link between the ultimate organiser and the final distributor would be broken. 3. His Honour found that the applicant was "the go between for this trio as regards either the organiser or final distributor" (ROS 16). 4. His Honour considered that the applicant was the person "clearly responsible for making contact with the person Whatsie that his role is more than the simple and discrete one of making a phone call" (ROS 17). An available inference, his Honour said, was that the applicant, as opposed to his father, or personal friend Tamar Kandemir, was personally responsible for the loss of the merchandise which was inconsistent with the very circumscribed role in the trio that he had advanced to police. His Honour found that the applicant's role was integral to the success of the venture. 5. The judge remarked that it was unlikely that the applicant's role was as limited or that he was paid as little as he had said. However, the judge was not satisfied beyond reasonable doubt that the applicant was the principal behind the operation or that he was to receive a share of the profits, whatever they may have been. 6. His Honour found that the applicant engaged in the enterprise for financial benefit and had an important role in a group of three, who were integral to the success of this large commercial trans-Australian enterprise, which had been successfully on-foot for some time, was well-planned and organised. 7. The applicant's criminality was found by the judge to fall within the mid-range of objective seriousness. His Honour accepted the applicant's expressions of remorse and assessed his prospects of rehabilitation "as being good" (ROS 20). His Honour was prepared to accept it was unlikely that the applicant would re-offend. 8. The judge said that general deterrence was particularly significant and it was important to publicly denounce the applicant's crimes. 9. His Honour determined to partially accumulate the sentences as there were "different drugs with different weights and purities" (ROS 21). His Honour said that the partial accumulation of the sentences was reason enough for a finding of special circumstances. Ground 1: the sentencing judge erred: (i) in failing to take into account the early pleas of guilty, or (ii) in the alternative, in failing to explain in the reasons for judgment how such pleas had been taken into account. Argument 1. The applicant contended that although the judge had acknowledged in the sentencing proceedings that he would be given the "full discount" for his pleas of guilty, there was neither reference to it in the sentencing remarks nor any evidence that the guilty pleas had been taken into account. 2. Another submission was that if the Court found that his Honour had taken into account the pleas of guilty, his Honour had erred in failing to explain how they had been taken into account. 3. Whilst the Crown accepted that there was no express reference in the sentencing remarks to a discount being applied for the guilty pleas, the Crown argued that error was not necessarily established. The Crown pointed to the express reference by the trial advocate that it would be appropriate for the judge to give the full discount of 25 per cent for the guilty pleas, his Honour's remarks during the sentencing proceedings, the adherence of the applicant to his guilty pleas before the judge and the reference in the sentencing remarks to the guilty pleas. The Crown submitted that this was not a case whereby when considering the ultimate sentence imposed, the only available inference is that the discount was not applied. Consideration 1. The sentencing proceedings took place before the judge on 1 November 2016. Written submissions had been provided to his Honour by the applicant's counsel which included a reference to the pleas of guilty being entered at an early stage in the Local Court and that a discount of 25 per cent should be allowed. During oral submissions, the judge said to the applicant's counsel (Tcpt, 1 November 2016, p 20): "And he will of course receive the full discount that's available for his plea of guilty." 1. The Trial Advocate subsequently informed the judge that the Crown had no issue with the applicant receiving "the full discount of 25 per cent for his early plea" (Tcpt, 1 November 2016, p 25). 2. At the conclusion of submissions, his Honour adjourned the matter for sentence on 3 November 2016. 3. When the applicant was sentenced on that day, the sole reference to the guilty pleas in his Honour's sentencing remarks was that the applicant had confirmed his pleas of guilty to both counts, which had been entered in the Local Court on 15 June 2016. 4. The requirement for a sentencing judge to explicitly state that an offender's plea of guilty has been taken into account was emphasised in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [46] ("Thomson"). Although sentencing judges were encouraged to quantify the discount awarded for a plea, it was not mandatory for them to do so: Thomson at [160] (Spigelman CJ); R v Wendy Olive Lawrence [2005] NSWCCA 91 at [14] (Spigelman CJ) ("Lawrence"). 5. In Lawrence, Spigelman CJ observed at [14]–[15] that although the guideline established in Thomson did not require sentencing judges to identify the discount, the rationale for providing a guideline included "the need to ensure that participants in the New South Wales criminal justice system had no reason to be sceptical about whether or not the benefits of a guilty plea were in fact made available to accused." 6. The importance of transparency when offenders are sentenced has been more recently emphasised in Woodward v R [2014] NSWCCA 205 ("Woodward") and Lee, Matthew v R [2016] NSWCCA 146 ("Lee"). 7. In Woodward, Hamill J (with whom Hoeben CJ at CL and Fullerton J agreed) said at [6]: "[6]… There is no dispute that the plea of guilty was entered at the first available opportunity and that it entitled the applicant to a significant discount from his sentence to reflect the utilitarian value of the plea. In R v Thompson [2000] NSWCCA 309; 49 NSWLR 383; 115 A Crim R 104, a bench of five members of this Court emphatically determined that where an offender enters a plea of guilty the record should reflect clearly and transparently that the plea of guilty has been taken into account and the extent to which it has ameliorated the sentence imposed. Subsequent cases have made it clear that reference to the plea of guilty and a clear statement of the fact that it has resulted in a reduction in the sentence is usually an important part of a judgment, however brief, delivered in imposing a sentence upon an offender. It is possible to point to cases where a failure to do so has not resulted in interference by this Court, but such cases do not in any way diminish the force of the guideline judgment to which I have made reference. …" 1. In Lee, Basten JA and McCallum J (with whom Davies J agreed) stated at [37]: "[37] Because the plea is a mandatory consideration (s 22 says the court 'must take [it] into account'), it must form part of the reasoning process and should therefore be addressed in the judgment. If the appellate court can be affirmatively satisfied that the plea was taken into account and an appropriate discount allowed, the failure to so state in the sentencing judgment may be treated as an immaterial error. Where there is a real possibility that it was not properly considered, failure to refer to the issue in the judgment should be treated as a material error." 1. There have been cases where this Court has been satisfied that the plea was taken into account and an appropriate discount allowed, although cursory reference was made to the plea and the discount was not quantified in the sentencing judgment. 2. Amongst those cases are Lawrence and R v Reilly; R v Smith [2012] NSWCCA 166 ("Reilly and Smith"). In Lawrence, a ground of appeal that the sentencing judge had erred in failing to take into account the applicant's plea of guilty was dismissed. In his remarks on sentence, which appear to have been delivered ex tempore, the sentencing judge referred to the plea of guilty but did not explicitly refer to the fact that he had taken it into account, nor did he quantify the benefit of the plea. Spigelman CJ, with whom the other members of the Court agreed, concluded that in view of the sentencing judge's long experience and the structure and length of the sentence imposed, that he had not failed to take the plea into account and to give it appropriate weight. The final head sentence had been 27 months which could be arrived at by reducing the sentence of 3 years by a 25 per cent discount for the plea. 3. In Reilly and Smith, a few moments before the applicant was sentenced, the sentencing judge told the parties that whilst he was having difficulty precisely calculating the discount for the early guilty plea, they had his assurance that the plea had been taken into account in the sentence. However, no mention was made of the discount in the ex tempore sentencing remarks. I rejected the notion (Basten JA and S G Campbell J agreeing) that the sentencing judge, having assured the parties that he had taken into account the pleas just prior to passing sentence would renege on his promise. I observed that the sentencing judge was very experienced. 4. In the present case however, judgment was not delivered immediately following oral argument, but was reserved. The degree of latitude afforded to sentencing judgments delivered ex tempore is not available. Furthermore, the ungainly starting points of the sentences provide no indication as to whether the utilitarian discount was applied. Although his Honour had referred to the full discount in his discussions with the parties and made a passing reference to the pleas in his sentencing remarks, I am not satisfied that the pleas were taken into account and an appropriate discount applied. I mention that a consideration of the experience of the judge did not play any part in reaching this conclusion. 5. I would uphold this ground of appeal. Specific error having been identified, the remaining grounds of appeal may be dealt with some brevity as it will be necessary to exercise the sentencing direction afresh. Ground 2: the sentencing judge erred in that he: (i) postulated a theoretical 'street level purity' of the methylamphetamine without any evidential basis; (ii) failed to provide the parties with any opportunity to address his findings regarding the theoretical street level purity; and (iii) placed undue weight on the purity of the drugs (particularly the methylamphetamine) in determining objective seriousness of the applicant's offending. Argument 1. The applicant submitted that his Honour erred in that he: 1. postulated a theoretical "street level purity" of the methylamphetamine without any evidential or other basis; 2. failed to provide the parties with any opportunity to address in respect of his findings regarding the theoretical street level purity; and 3. placed undue weight on the purity of the drugs (particularly the methylamphetamine) in determining objective seriousness. 1. These errors, it was said, caused his Honour's sentencing discretion to miscarry. 2. The Crown argued that the judge's remarks concerning the potential "street level" purity of the methylamphetamine were in the nature of an illustration of the significance of purity to the seriousness of the offending and were appropriate remarks in this context. Reference was made by the Crown to the discussions between the judge and the applicant's counsel as to the very high purity of the "uncut" methylamphetamine. The Crown submitted that it was apparent during the sentencing proceedings that his Honour viewed the very high purity of the drugs as a significant consideration. Consideration 1. The focus of the applicant's complaint is the following passage in the remarks on sentence (ROS 19–20): "As a general proposition it may be accepted that the quantity of drugs involved in a particular case may not be the primary determinant of a sentence however its significance cannot be gainsaid in a case where the amounts represent large multiples of what is the statutorily significant quantity. To further illustrate my point, it is well understood that drugs with a purity of almost 80 per cent can be diluted a number of times to what is referred to as a street level deal. In this case, the almost 5 kilograms of 79 per cent pure methylamphetamine could be diluted by a factor of four to produce approximately 20 kilograms of about 20 per cent purity. This is a common purity of this drug on the streets as far as sentencing courts are aware, and I note that the purity of the related drug in this case is 21.5 per cent. It is the common experience of these courts that street level deals occur in what is known in the trade as points, i.e., [0].1 of a gram. The potential 20 kilograms, or 20,000 grams in this case, represents potentially 200,000 street deals of 20 per cent pure methylamphetamine, the drug ice." 1. Although the judge spoke in terms of illustrating a point, the possible dilution of the methylamphetamine was a matter of significance. 2. It is not uncommon for the Crown to lead evidence, whether oral or in a statement, from a police officer with relevant expertise as to the possible dilution of prohibited drugs with a high level of purity into "street deals". This evidence is adduced to emphasise the potential value of the prohibited drug when it is "cut" into amounts which are commonly supplied on the street. However, in the present case there was simply no such evidence before the judge. 3. In particular, there was no evidence that "almost 5 kilograms of 79 per cent pure methylamphetamine could be diluted by a factor of four to produce approximately 20 kilograms of about 20 per cent purity" (ROS 19). Moreover, the "common purity" of methylamphetamine "on the streets" had not been placed in evidence before the judge. 4. Whilst the judge in oral argument had referred to the 4.96 kilograms of methylamphetamine, which was 79 per cent pure, as being "almost off the factory floor" (Tcpt, 1 November 2016, p 12), his Honour neither told the applicant's counsel of his understanding as to how the drug could be diluted nor of his understanding of its common street purity. His Honour's failure was procedurally unfair and his understanding was not based on evidence. As was said by Beech-Jones J (with whom Johnson and Fagan JJ agreed) in Munday v R [2017] NSWCCA 95 at [24]: "[24]… 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." 1. For these reasons, I am satisfied that Ground 2 has been established. The question remains whether the judge placed undue weight on the purity of the drugs in determining the objective seriousness of the offences. Ground 3: His Honour erred in finding that the objective seriousness fell within the mid-range of objective seriousness. Argument 1. The applicant complained that the judge's finding that his offending "fell within the mid-range" of objective seriousness was affected by error as his Honour gave predominate consideration to the quantity of the prohibited drugs and their purity and failed to accord proper weight to his findings about the applicant's role. The applicant submitted that the objective criminality was below the middle range, but not at the bottom or towards the bottom of the range. 2. The Crown contended that given the factual circumstances of the offences, the judge's assessment of objective seriousness could not be said to be erroneous. Consideration 1. The conclusion that the judge reached as to the objective seriousness of the offences was that the applicant's criminality fell within the mid-range. His Honour made that assessment after carefully considering the amount and purity of the prohibited drugs and the applicant's role in the offences. 2. The judge observed that the applicant was "involved in supplying approximately ten times the large commercial quantity of methylamphetamine which was of 79 per cent purity and approximately 17 times the large commercial quantity of ecstasy, which was of 21.5 per cent purity" (ROS 1). His Honour's careful analysis of the applicant's role included findings that he had an important role in a group of three persons who were integral to the success of a large trans-Australian commercial enterprise for the distribution of prohibited drugs; that the applicant was the "go between" for this trio as regards either the organiser or final distributor; and that the applicant had engaged in the criminal enterprise for financial reward. His Honour was not satisfied that the applicant was "the principal behind this operation or that he was to receive a share of the profits" (ROS 19). All of these findings were open on the evidence. 3. An important factor in assessing the objective seriousness of the offences is what the applicant did: R v Olbrich [2000] NSWCCA 389; (2000) 117 A Crim R 326. In the present case, the precise extent of his involvement in the criminal enterprise could not be determined on the agreed facts. However, the judge did not accept that the applicant's role was as limited as he said. As the "go between", the applicant played an important part in the distribution of the prohibited drugs. 4. Other important factors in assessing objective seriousness are the quantity and purity of the drugs: Chong v R [2017] NSWCCA 185 at [21]. The purity of the methylamphetamine at 79 per cent was very high and the quantity of this prohibited drug exceeded the threshold of the large commercial quantity by approximately ten times. The purity of the MDMA was 21.5 per cent and the quantity of this prohibited drug exceeded the threshold of the large commercial quantity by approximately 17 times. 5. In Koh v R [2013] NSWCCA 287, Johnson J observed at [108]: "[108] There is no upper limit beyond the large commercial quantity. That category may be engaged where the quantity just exceeds the limit, or where the offence escalates to involve quantities confined only by the limits upon the capacity of a criminal syndicate to organise drugs for supply for potentially massive profits. The extent to which the quantity exceeds the threshold for the large commercial quantity is a very material consideration in assessing the objective seriousness of an offence: Paxton v R at 122 [131]–[132]; R v Calcutt [2012] NSWCCA 40; 221 A Crim R 505 at 507 [6], 522–523 [69]." 1. I am not persuaded that the judge placed undue emphasis on the purity and quantity of the prohibited drugs. In my view, the characterisation of the objective seriousness of the applicant's offending as falling within the mid-range was open to the judge. The applicant has not shown that the assessment of objective seriousness was outside the range properly available to his Honour: Ramos v R [2015] NSWCCA 313 at [41]. 2. I would reject this ground of appeal. Ground 4: His Honour failed to give proper regard to his finding of special circumstances in allowing for a ratio of 71.4 per cent between the total head sentence and the total non-parole period. Argument 1. The applicant pointed out that without adjustment for special circumstances, 75 per cent of the head sentence resulted in a sentence of 10 years 6 months. The applicant submitted that the reduction of the non-parole period by 6 months did not give real effect to the judge's finding of special circumstances. Consideration 1. His Honour considered that the partial accumulation of the sentences for count 1 and 2 warranted a finding of special circumstances and the effective non-parole period of the overall sentence was reduced by 6 months. 2. After a finding of special circumstances, the size of an adjustment to the statutory ratio is essentially a matter within a judge's discretion and will not usually be interfered with unless the non-parole period is found to be manifestly inadequate or manifestly excessive: R v Cramp [2004] NSWCCA 264; Stoeski v R [2008] NSWCCA 230; Jiang v R [2010] NSWCCA 277. 3. The judge found that the applicant had good prospects of rehabilitation and was unlikely to re-offend. After special circumstances were found, the overall effective parole period of the sentence was 4 years. In these circumstances, it is understandable that the adjustment to the non-parole period was modest. The applicant has not established that his Honour's discretion miscarried. 4. I would reject this ground of appeal. Ground 5: In the circumstances, the total sentence imposed was manifestly excessive. 1. It is unnecessary to decide this ground. As specific error has been identified, it is this Court's duty to re-sentence, "unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed": Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [35] ("Kentwell"). This Court is obliged to take into account "all relevant matters, including evidence of events that have occurred since the sentence hearing": Kentwell at [43]. Additional material admitted on re-sentencing 1. In an affidavit sworn 14 October 2017, the applicant states that he has obtained a full-time job as a sweeper at the Mid-North Coast Correctional Centre and has stayed out of trouble. The applicant says that since his incarceration, he has abstained from any use of illicit drugs and continues to enjoy the support of his mother and her parents. Re-sentence 1. The maximum penalty for counts 1 and 2 is life imprisonment with a standard non-parole period of 15 years. These legislative guideposts are to be borne in mind when considering the appropriate sentences, having regard to the objective circumstances of each offence and the applicant's subjective case. 2. In the exercise of my sentencing discretion, I have formed a different view to the judge "about where, on an objective scale of offending" the applicant's conduct stands: Carroll v The Queen (2009) 254 ALR 379; [2009] HCA 13 at [24]. I do not think that my approach is inconsistent with the rejection of Ground 3 where I considered that the applicant had not shown that his Honour's assessment of objective seriousness was outside the properly available range. 3. Whilst it cannot be doubted that the applicant's role was important to the success of the criminal enterprise, the part that he played was limited to being the "go between" or facilitator of the distribution of the prohibited drugs from New South Wales to Western Australia. I would characterise the objective seriousness of the applicant's offending as being below the mid-range, but not much below. In making this assessment, I have not overlooked the quantity and purity of the drugs which I have emphasised are important considerations. 4. I find that each of the offences is equally serious. Although, the MDMA exceeded the threshold of the large commercial quantity by approximately 17 times and the methylamphetamine exceeded the same threshold by approximately ten times, the purity of the MDMA at 21.5 per cent was far less than the purity of the methylamphetamine at 79 per cent. 5. A discount of 25 per cent for the applicant's guilty pleas in the Local Court will be allowed on re-sentence. The guilty pleas are also relevant to the applicant's remorse which was otherwise expressed in the material tendered before the judge. I accept that he has shown remorse for the offences as he has accepted responsibility for his actions, and acknowledges the harm caused by his participation in the supply of the prohibited drugs: s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999. I am also satisfied that he is unlikely to re-offend: s 21A(3)(g) of the Crimes (Sentencing Procedure) Act. All of these mitigating factors are to be taken into account in determining the appropriate sentences. 6. For the reasons given by the judge, the applicant cannot be sentenced on the basis that he was of prior good character. 7. As the applicant is unlikely to re-offend, specific deterrence is a consideration of limited significance. However, I recognise the importance of general deterrence in sentencing for offences such as those of the applicant. This Court has emphasised on many occasions the high need for general deterrence in cases involving the supply of prohibited drugs: Jaafar v R [2017] NSWCCA 223; Scott v R [2010] NSWCCA 103. 8. It must not be overlooked that the applicant played an important part in a large trans-Australian commercial enterprise for the distribution of prohibited drugs. 9. My consideration of the structure of the sentences to be imposed has included fixing an appropriate sentence for each offence and the questions of cumulation or concurrence as well as totality: Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57. 10. The appropriate undiscounted starting point of the sentences for counts 1 and 2 is 14 years imprisonment. After allowing for the 25 per cent discount for the guilty pleas, each head sentence is 10 years 6 months. There will be a partial accumulation of the sentences of one year. I agree with the judge that such partial accumulation warrants a finding of special circumstances. 11. Accordingly, I propose the following orders: 1. Leave to appeal granted. 2. Appeal allowed. 3. The sentences imposed by McLennan SC DCJ for counts 1 and 2 are quashed. 4. On count 1, the applicant is sentenced to 10 years 6 months imprisonment consisting of a non-parole period of 7 years, commencing on 11 September 2015 and expiring on 10 September 2022 with a balance of term of 3 years 6 months expiring on 10 March 2026. 5. On count 2, the applicant is sentenced to 10 years 6 months imprisonment consisting of a non-parole period of 7 years commencing on 11 September 2016 and expiring on 10 September 2023, with a balance of term of 3 years 6 months expiring on 10 March 2027. 6. The overall effective sentence is 11 years 6 months imprisonment with a non-parole period of 8 years commencing on 11 September 2015 and expiring on 10 September 2023, with a balance of term of 3 years 6 months expiring on 10 March 2027. 7. The earliest date that the applicant will be eligible to be released on parole is 10 September 2023. 1. BEECH-JONES J: I agree with Price 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: 15 November 2017