Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kaddour v R [2017] NSWCCA 294 Hearing dates: 24 November 2017 Date of orders: 01 December 2017 Decision date: 01 December 2017 Before: Leeming JA [1]; Fullerton J [12]; Adamson J [13] Decision: (1) Leave to appeal granted. (2) Appeal dismissed. Catchwords: CRIMINAL LAW – appeal – whether offending on parole erroneously taken into account on assessment of objective seriousness – HELD – no error demonstrated – sentencing judge adopted sequence of relevant matters submitted by parties – finding of objective seriousness preceded mention of fact that offence committed while applicant on conditional liberty – need to read reasons fairly and as a whole Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 54B Drug Misuse and Trafficking Act 1985 (NSW), ss 24, 26 Cases Cited: Boney v R [2015] NSWCCA 291 C G Maloney Pty Ltd v Noon [2011] NSWCA 397 Chiro v The Queen [2017] HCA 37 Commonwealth v Bank of New South Wales (1949) 79 CLR 497 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 House v The King (1936) 55 CLR 499 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Osborne v R; R v Osborne [2017] NSWCCA 11 Sharma v R [2017] NSWCCA 85 Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14 Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 Category: Principal judgment Parties: Kalid Kaddour (Applicant) Regina (Respondent) Representation: Counsel: I Lloyd QC (Applicant) T Smith (Respondent) Solicitors: Bannisters Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2009/133187 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 10 February 2017 Before: Flannery DCJ File Number(s): 2009/133187 Judgment 1. LEEMING JA: I have had the advantage of reading the judgment of Adamson J in draft. I agree with the orders proposed by her Honour, and, subject to what follows, which is principally by way of elaboration, with her reasons. 2. Adamson J has reproduced the portion of the reasons given by the primary judge which contain the critical sentence "The offence is aggravated as the offender was on parole when he committed it." The primary judge structured her reasons by reference to an analysis of the objective seriousness of the offence, and then the personal circumstances of the offender. The disputed sentence occurs immediately after statements directed to objective seriousness, and immediately before statements directed to the applicant's personal circumstances. For the applicant, it was accepted that if that sentence formed part of her Honour's assessment of the circumstances subjective to the offender, the appeal should be dismissed. Conversely, for the Crown it was accepted that if that sentence formed part of the assessment of the objective seriousness of the offence, there was appellable error. I proceed on that agreed basis. 3. Senior counsel for the applicant said that his point was "a simple point", namely, that the position was not without doubt. He accepted that "the sentence of which we complain comes at the end of the assessment of objective seriousness", and submitted that "it merges into it". He said that the position was unclear, and that if this Court were satisfied that it was unclear, then "the appellant should get the benefit". I do not agree. 4. Commonly, a jury's guilty verdict will not disclose its reasoning process (for cases where that is not so, see the discussion of special verdicts and of questioning juries in Chiro v The Queen [2017] HCA 37 at [28]-[45]). Often there may be a variety of ways in which a guilty verdict has been reached. That may be because the Crown has advanced alternative cases, or because multiple defences have been left open for the jury. For example, in a prosecution for murder, if provocation and excessive self-defence have been left open, a verdict of manslaughter will be opaque as to on what basis it was reached. If it is not possible to say how the jury reached their verdict, and one possible path is erroneous, then in principle (and subject to the operation of the proviso), the verdict will be unsafe: see for example Osborne v R; R v Osborne [2017] NSWCCA 11 at [133]. This seems to have been what underlay the submission advanced by the applicant. 5. However, the position is entirely different when dealing with reasons given by a judge at first instance. It is not enough that there is the possibility of error. The task of this Court is "to determine whether there was error made in sentencing the [offender], error being understood, in this context, as it was explained in House v The King": Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [3] (a Western Australian appeal, but the conferral of appellate jurisdiction was materially identical). 6. Of course, appellate intervention for error which is only inferred may be possible. That is what was contemplated in the last category of error listed in House v The King (1936) 55 CLR 499 at 505, namely, where it "may not appear how the primary judge has reached the result embodied in" the order. Dixon, Evatt and McTiernan JJ said that "In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." 7. However, the applicant disavowed any case of manifest excess. The appellable error sought to be advanced was that an irrelevant consideration had contributed to the assessment of objective seriousness of the offence. As Hayne J (with the agreement of McHugh and Gummow JJ) said in Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 at [130], "because the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result." The question, accordingly, is whether the reasons actually stated (in the present case, as revised by the primary judge after they were transcribed) disclose that error. 8. The Crown sought to rely on the fact that the primary judge's reasons had been revised, that the critical sentence was contained in a separate paragraph, and did not (unlike the previous sentence) commence with "I also take into account". While they are not irrelevant, I do not think that much turns on any of these points. The Crown was, with respect, on stronger ground when it submitted that the reasons were to be read in light of the issues presented by the parties, which followed the same order of topics and were in accord with how the fact that the applicant was on parole should be treated. 9. Written and oral submissions were made in late 2016. The matter was adjourned until Friday 16 December 2016, but in fact the proceedings resumed on Wednesday 21 December 2016 while her Honour was awaiting a jury's verdict. Sentence was imposed in February 2017. Her Honour's reasons were transcribed and later revised. It may confidently be inferred that prior to delivering those reasons and imposing sentence, her Honour returned to the parties' written submissions. 10. Lord Porter delivering the advice of the Privy Council in Commonwealth v Bank of New South Wales (1949) 79 CLR 497 at 637-638 said that "every word of every judgment" must be read secundum subjectam materiam. He added that the words in the judgment "were appropriate to their context and must be read in their context." Campbell JA (with whom Handley and Tobias AJJA agreed) relied on this passage when holding, in C G Maloney Pty Ltd v Noon [2011] NSWCA 397 at [68]: "The sentence on which CGM relies for this ground must, like any statement in a judgment, be read in accordance with its context: Commonwealth v Bank of New South Wales (1949) 79 CLR 497 at 637-638; R v Beserick (1993) 30 NSWLR 510 at 517; Leaway v Newcastle City Council (No 2) [2005] NSWSC 826; (2005) 220 ALR 757 at [75]-[84] and cases there cited. So read, I cannot accept, with respect, that it is to be taken at the face value it would have when read in isolation. It may be that there is a 'not' missing from it, or that it should appear at the end of the paragraph preceding that in which it actually appears." 1. The present is a clearer case than C G Maloney Pty Ltd v Noon. When read in light of the way in which the sentencing hearing was run, the error for which the applicant contends is not been made out. The natural reading of the language is confirmed by the context. The orders proposed by Adamson J should be made. 2. FULLERTON J: I agree with Adamson J's analysis of the remarks of the sentencing judge in this case and the principled approach which her Honour commends as the approach this Court should take when considering whether an error of sentencing principle has been established. It follows that I agree with the orders her Honour proposes. I have also read and agree with the additional observations of Leeming JA which accord with her Honour's analysis and her Honour's reasons for dismissing the appeal. 3. ADAMSON J: The applicant seeks leave to appeal against a sentence imposed on him by Flannery SC DCJ on 10 February 2017 for an offence of conspiracy to manufacture not less than the commercial quantity of a prohibited drug, 2,5-Dimethoxyamphetamine (2,5-DMA) contrary to ss 24(2) and 26 of the Drug Misuse and Trafficking Act 1985 (NSW). The offence carries a maximum penalty of 20 years' imprisonment. The sentence imposed was a term of imprisonment of 6 years 3 months with a non-parole period of 4 years 2 months, which commenced on 10 July 2014 (to take account of the pre-sentence custody). 4. The offence was committed between April and August 2008. At that time, the applicant who had been released from custody in June 2007 was serving the balance of a term of imprisonment on parole. The sentence related to two convictions for the manufacture of prohibited drugs (the earlier offences). He was arrested for the current offence on 19 November 2008 and served the remainder of his sentence for the earlier offences until 21 December 2009. He remained in custody on remand after that date until 20 October 2010 when he was granted bail for the current offence. 5. On 14 May 2015 he pleaded guilty to the current offence. On 20 November 2015 he was arrested and charged with committing further offences while on bail for the current offence (for which he had not yet been sentenced). 6. The applicant seeks leave on the following ground (the second ground not having been pressed at the hearing): "The sentencing judge erred in having regard to the breach of parole as an objectively aggravating factor." 1. Because of the limited challenge to the sentence and the absence of any allegation of manifest excess it is not necessary to narrate the circumstances of the offence or summarise her Honour's reasons, except to the extent necessary to deal with the sole ground. Whether the sentencing judge regarded the breach of parole as an objectively aggravating factor 1. The distinction between objective and subjective matters in sentencing is important for various purposes. First, an assessment of objective seriousness is important to determine whether an offence lies in the spectrum contemplated by the maximum penalty (which is reserved for cases of greatest objective seriousness): Veen v The Queen [No 2] (1988) 164 CLR 465 at 478; [1988] HCA 14. Secondly, where the sentence follows a trial and the offence for which the offender stands to be sentenced has a standard non-parole period, an assessment of objective seriousness is also required: s 54B of the Crimes (Sentencing Procedure) Act 1999 (NSW); Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]. 2. As this Court is a court of error, it is necessary for this Court to be persuaded that her Honour had regard to the fact that the applicant committed the subject offence when he was on parole in assessing the objective seriousness of the offence. The identification of error must proceed from a consideration of the reasons for decision, viewed where necessary in light of the proceedings on sentence and the submissions made by the parties. This Court ought not proceed from any assumption of error. I reject the submission made on behalf of the applicant that if this Court had any doubt about whether an irrelevant consideration was taken into account in the assessment of objective seriousness this Court ought allow the appeal. The onus lies on an applicant to persuade this Court that any infelicity of language ought be construed as revealing an error of principle. This task is generally more difficult where the principle is well known and well established. . 3. The Crown provided written submissions in which it addressed matters relevant to objective seriousness under the heading "Objective seriousness". No reference to the offence having been committed while the applicant was on parole appeared under that heading. There followed a further heading, "Aggravating features" and a sub-heading, "Section 21A(2)(d) Crimes (Sentencing Procedure) Act 1999", which related to the applicant's criminal history. The next sub-heading was "Section 21A(2)(i): The offence was committed while the offender was on conditional liberty". Under this subheading the following paragraph appeared: "The combination of the offender continuing to commit drug manufacturing offences after previous convictions, and his commission of this offence while on conditional liberty as part of a sentence for a similar offence combine to reinforce the need for the sentence to reflect general deterrence as well as specific deterrence of this offender. Protection of society from the offender is a further factor which should loom large in the setting of a sentence appropriate to the objective seriousness of the circumstances." 1. The applicant's counsel provided written submissions which followed the same pattern as that adopted by the Crown. The objective seriousness of the offence was addressed first, then the plea of guilty, followed by the applicant's criminal record. It was said on his behalf under the heading "Criminal record": "It is accepted - in accordance with Veen v The Queen (No 2) (1988) 164 CLR 465 at 477 (Mason CJ, Brennan, Dawson and Toohey JJ), that the offender's criminal record is relevant to sentencing principles of retribution, deterrence and the protection of society. Also it is a relevant matter pursuant to s 21A(2)(d) Crimes (Sentencing Procedure) Act, 1999. However, the offender's prior antecedence cannot increase the objective seriousness of the offence and thus the parameters of a proportionate sentence. The offender's record is only relevant to where within the boundaries set by the objective circumstances of the offence the sentence should fall: R v McNaughton (2006) 66 NSWLR 566 at 574 [24], [26]. Similarly, it is accepted that it is an aggravating feature that this offence was committed while the offender was on parole: s 21 A(2)(j)." 1. In addressing the various matters germane to sentencing her Honour followed substantially the same sequence which had been adopted by the parties in their submissions. Her Honour summarised the submissions of counsel and made findings about the objective seriousness of the offence as follows: "In addressing the reality of the conspiracy, Mr Dalton submitted that the cumulative effect of the conspiracy only having one objective, being of relatively limited duration, and lacking in sophistication, all lead to the very real possibility that the intended outcome of manufacturing a prohibited drug may never have eventuated and are therefore all factors that place this conspiracy at the lower end of objective seriousness for offences of this type. Although I accept that the conspiracy was not particularly sophisticated, I am satisfied that the offence is more objectively serious than an offence at the lower end of objective seriousness for offences of this type, having regard to its duration, the fact that it extended over two countries and contemplated the international transport of prohibited drugs disguised so as to hide their true nature, and as I am satisfied beyond reasonable doubt that the offender was the more knowledgeable of the two participants. I also take into account that the aim of the conspiracy was the production of drugs for financial gain, although I accept that that is a factor which would apply in most, if not all, conspiracies to manufacture commercial quantities of prohibited drugs. The offence is aggravated as the offender was on parole when he committed it. The offender has a long record of previous convictions including convictions for drug manufacture." 1. Unlike in the parties' submissions, the sentencing judge did not use headings. However, her Honour moved from the finding of objective seriousness to matters which were relevant to subjective matters, such as that the offence was committed while the applicant was on parole and his criminal record. I am not satisfied that her Honour took into account, in the assessment of objective seriousness, the fact that the applicant was on parole. The distinction between matters germane to objective seriousness had been made correctly by the parties in their written submissions; it is a well-established distinction; and there is, in my view, no proper basis for considering that her Honour did not observe the distinction. Indeed, I am satisfied that her Honour had completed that assessment before her Honour embarked on a consideration of the other matters which were not relevant to objective seriousness. 2. Reliance was placed on behalf of the applicant on Boney v R [2015] NSWCCA 291 and Sharma v R [2017] NSWCCA 85, which were both instances where this Court considered that the sentencing judge had elided the distinction between matters germane to objective seriousness and those which were relevant to subjective matters, which led to a finding that the sentencing discretion had miscarried and the setting aside of the sentences imposed. The cases of Boney v R, Sharma v R and the present case illustrate the need for this Court to examine the remarks on sentence with care and as a whole, and, where relevant, the submissions made by the parties, in order to determine whether error has been shown. Any broad-brush approach to matters of this nature does a disservice to sentencing judges to whom the distinction between matters germane to objective seriousness and subjective matters is plain. To require explicit demarcation between the two categories by syntactic devices such as headings would not only be at odds with the requirement that it is for the applicant to demonstrate error but also at odds with the practice of this Court to read remarks on sentence fairly as a whole to discern whether error has been established. Proposed orders 1. I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed. ********** 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: 01 December 2017