Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Younan [2018] NSWCCA 180 Hearing dates: 1 August 2018 Decision date: 22 August 2018 Before: Gleeson JA at [1]; R A Hulme J at [2]; Button J at [101] Decision: 1. Crown appeal against sentence allowed. 2. Aggregate sentence imposed in the District Court on 25 May 2018 quashed and in lieu the offender is sentenced to an aggregate term of imprisonment for 7 years with a non-parole period of 4 years 6 months. Catchwords: CRIME – Crown sentence appeal – drugs and firearms supply offences – s 25A of Drug Misuse and Trafficking Act does apply to offences where offender did not actually obtain financial or material reward – s 25A does apply to offences where actual financial or material reward did not occur – whether judge erred in assessment of objective seriousness of ongoing drug supply offences – not necessary to determine – whether sentence manifestly inadequate – gross criminality inherent in offending could not be reflected in sentence imposed – subjective circumstances did not warrant such leniency – ground upheld – appeal allowed Legislation Cited: Crimes Act 1900 (NSW) ss 93T(4A), 193C Criminal Procedure Act 1986 (NSW) s 166 Drug Misuse and Trafficking Act 1985 (NSW) ss 25, 25A Firearms Act 1996 (NSW) s 36 Cases Cited: Ahmad v R [2012] NSWCCA 273 CMB v Attorney-General for the State of New South Wales (2015) 256 CLR 346; [2015] HCA 9 El Jamal v R [2017] NSWCCA 243 Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49 Linden v R [2017] NSWCCA 321 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Mirza v R [2007] NSWCCA 248 MRN v R [2006] NSWCCA 155 Mulato v R [2006] NSWCCA 282 Nguyen, The Tao v R [2018] NSWCCA 176 R v Cahill [2015] NSWCCA 53 R v CTG [2017] NSWCCA 163 R v Ejefekaire [2016] NSWCCA 308 R v El-Ahmad [2015] NSWCCA 65 R v Elliott [2018] NSWCCA 69 R v GWM [2012] NSWCCA 240 R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 R v Smiroldo [2000] NSWCCA 120; 112 A Crim R 47 R v Smith [2002] NSWCCA 378 R v Wong [2018] NSWCCA 20 Ritter v R [2012] NSWCCA 121 Stack v R [2008] NSWCCA 271 Vu v R [2006] NSWCCA 188 Watkins v R [2018] NSWCCA 24 Texts Cited: Drug Misuse and Trafficking Amendment (Ongoing Dealing) Bill 1998, New South Wales Legislative Council, Parliamentary Debates (Hansard), 24 June 1998 at 6382 Category: Principal judgment Parties: Regina (Appellant) John Younan (Respondent) Representation: Counsel: Ms B Baker (Crown) Mr J Klarica (Respondent) Solicitors: Solicitor for Public Prosecutions Skopelja Solicitors File Number(s): 2016/191741 Decision under appeal Court or tribunal: District Court Date of Decision: 25 May 2018 Before: Grogin ADCJ File Number(s): 2016/191741 Judgment 1. GLEESON JA: I agree with R A Hulme J. 2. R A HULME J: The Crown appeals against the asserted inadequacy of an aggregate sentence imposed by his Honour Acting Judge Grogin in the District Court at Sydney on 25 May 2018 upon John Younan ("the respondent"). 3. The sentence was imposed in respect of five offences which were contrary to the Drug Misuse and Trafficking Act 1985 (NSW), the Firearms Act 1996 (NSW) and the Crimes Act 1900 (NSW). The offence contrary to the last of those was a related summary offence which came to the District Court on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). 4. The aggregate sentence was one of imprisonment for 4 years 4 months with a non-parole period of 2 years 10 months dating from 23 June 2016, the date of the respondent's arrest and refusal of bail. 5. Details of the offences and the individual sentences assessed for each of them are set out in the following table. Count Offence Offence provisions Indicative sentence 1 Ongoing supply of methylamphetamine Drug Misuse and Trafficking Act, s 25A(1) – max penalty 20 years and/or $385K fine 3 years 3 May – 1 June 2016 2 Supply 1.368 kg cannabis Drug Misuse and Trafficking Act, s 25(1) – max penalty 10 years and/or $220K fine 18 months 7 May – 7 June 2016 3 Supply unregistered prohibited firearm, namely .22 handgun Firearms Act, s 36(1) – max penalty 14 years 2 years 23 May – 13 June 2016 4 Ongoing supply of methylamphetamine Drug Misuse and Trafficking Act, s 25A(1) – max penalty 20 years and/or $385K fine 3 years 31 May – 24 June 2016 s 166 Deal with suspected proceeds of crime Crimes Act, s 193C(1) – max penalty 2 years and/or $5500 fine 12 months 23 June 2016 1. The indicative sentence for Count 4 had been reduced by 25% and all of the others had been reduced by 20% to reflect the utilitarian value of the respondent's pleas of guilty. (The plea for Count 4 was entered in the Local Court whereas the others were entered upon arraignment in the District Court. The offences 1. Police commenced an investigation in March 2016 into the drug supply activities of the respondent and his associates on the Central Coast. A "controlled operation" was authorised which allowed the use of an undercover officer to purchase drugs. Various telecommunications interception warrants allowed police to record conversations between the respondent and his associates in which they used coded language in an attempt to disguise their talk of drug supply. 2. The respondent was living with his wife and children in a house equipped with CCTV surveillance. He was unemployed and was not receiving any government benefits. He told police that he had not been in regular employment for a year. 3. A very lengthy statement of agreed facts and a summary of the various transactions in a "table of offences" were tendered to the sentencing judge. They disclose many instances of the respondent's involvement in negotiating sales and sometimes the purchase of drugs. In some instances there is confirmation that sales occurred while in other instances there is nothing beyond the negotiations. 4. A question was raised at the hearing of the appeal as to whether the offence in s 25A of the Drug Misuse and Trafficking Act is confined to transactions where the offender actually obtains a financial or material reward. For the reasons given later (at [17]ff) I am satisfied that all transactions carried out for the purpose of the respondent obtaining a financial or material reward (regardless of whether he actually received same) may be included in the offence. Count 1 – Ongoing supply of methylamphetamine in May 2016 1. In the four week period for this charge there were 32 transactions. They comprised 5 purchases with the balance being supplies, agreements to supply or, in one case, possession for the purpose of supply. Where there was an actual or intended supply, the total quantity was about 215 grams and the value of the amount involved may be estimated at about $37,000. [1] The smallest supply was of 0.1 gram for $50 and the largest was 56 grams for about $8800. Count 2 – Supply of cannabis between 7 May – 7 June 2016 1. On 8-9 May 2016 the respondent purchased two pounds (907 grams) of cannabis at a cost of $5000. On 15 May he agreed to supply a pound (454 grams) or an ounce (28 grams) and there is uncertainty as to whether any supply occurred. On 6 June the respondent agreed to supply to a customer, in addition to her usual "HB" (half ball or 1.75 grams of methylamphetamine), a "Q" of "green" (7 grams of cannabis). Count 3 – Supply unregistered prohibited firearm 23 May – 13 June 2016 1. The respondent was not the holder of a firearms licence and was not a licensed firearms dealer. 2. During 23 May to 13 June 2016 the respondent negotiated the sale of a small custom made .22 calibre hand gun. It was small enough to fit inside a cigarette packet. The first of the intercepted telephone conversations quoted in the agreed facts in relation to this offence is indicative of the respondent having been trying to source such an item; the caller said, "Hodgey has got one of those things that you want". Subsequent conversations indicated that the respondent arranged for the prospective purchaser to meet with the vendor, the latter having agreed with the respondent's suggestion of a sale price of $2500. The respondent was later heard complaining that he made nothing from the transaction. Count 4 – Ongoing supply of methylamphetamine in June 2016 1. In the 23 day period for this charge there were 19 transactions. There were 2 purchases and the others were either arranged or actual supplies. The supplies (arranged or actual) involved about 310 grams of methylamphetamine for a price of about $59,000. The quantities range from less than a gram up to 139.5 grams (for $27,500). Section 166 certificate – deal with proceeds of crime on 23 June 2016 1. This charge relates to a large amount of property police seized when a search warrant was executed at the respondent's home on the day of his arrest, 23 June 2016. The property included mobile phones, shaving cartridges, electrical and other tools, electronic entertainment items, clothing and make-up. Much of it was new, in boxes and/or with price tags. Its value exceeded $20,000. It was property that had been provided to the respondent in exchange for drugs, or purchased by him using money he obtained from the sale of drugs. Financial or material reward 1. A question was raised at the hearing of the appeal as to the construction of s 25A(1) of the Drug Misuse and Trafficking Act ("the Act"): "A person who, on 3 or more separate occasions during any period of 30 consecutive days, supplies a prohibited drug (other than cannabis) for financial or material reward is guilty of an offence." 1. The question was whether "financial or material reward" had to have been received by the offender in order for a transaction to be counted as one of the "3 or more separate occasions". Further written submissions in relation to this issue were received after the hearing by leave of the Court. 2. As it happens, a separately constituted bench of this Court had previously reserved judgment in a case in which this issue was raised and judgment was handed down on 10 August 2018: Nguyen, The Tao v R [2018] NSWCCA 176. There, as here, the offender's argument was that the scope of s 25A is confined to actual supplies. 3. As the Crown did in the present case, Price J referred to the extended definition of "supply" in s 3(1) of the Act: "supply includes sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things." 1. His Honour then cited authorities in relation to statutory construction before stating (at [34]): "Accordingly, the word "supplies" in s 25A must be read in accordance with the extended meaning in s 3(1) unless the context or subject matter otherwise indicates or requires." 1. It was then observed that s 25A was inserted into the Act with effect from 7 August 1998. Price J continued (in [35]): "The extended definition of 'supply' preceded the enactment of s 25A and there is simply no rational basis for deciding that it was the intention of the legislature that the extended definition would not apply to the section. The intention of the legislature was that the new offence would complement the existing law and would cover any act of supply as defined in s 3(1), so long as it was for financial or material reward." 1. Next, his Honour referred to dictionary definitions of "for" as it appears in s 25A as a preposition before the words "financial or material reward". They included, "with the object or purpose of". He concluded (at [37]): "The presence of the preposition before 'financial or material reward' strongly indicates that the purpose of the act of supply has primary importance in the construction of the section. Where an accused's purpose in supplying a prohibited drug is to obtain a financial or material reward the offence is committed provided the other elements of s 25A are met. Applying such a construction, s 25A operates in the same way in respect of agreements to supply, or offers to supply as it does in respect of actual supplies." 1. The reasoning and conclusion of the Court in Nguyen, The Tao v R is consistent with the argument advanced in the present case by the Crown. I respectfully add my agreement to the judgment of Price J to that of the other members of the Court in that case. 2. The only point I would add is that if there was any doubt about the ordinary and grammatical reading of the terms of the section (which I do not believe there is), the Second Reading speech for the Drug Misuse and Trafficking Amendment (Ongoing Dealing) Bill 1998, New South Wales Legislative Council, Parliamentary Debates (Hansard), 24 June 1998 at 6382, is confirmatory. 3. The Second Reading speech confirmed that the concept of possession for the purpose of supply (within the extended definition and specifically the subject of the deeming provision in s 29 of the Act) would be capable of constituting a supply for financial or material reward. The Honourable the Attorney General said (at 6383): "It bears noting that this new law does not exist in a vacuum. Rather, it will complement existing laws under the Drug Misuse and Trafficking Act 1985. I should take time to clarify the relationship between a particular provision under the Drug Misuse and Trafficking Act 1985 and the new offence. Section 29 is an unusual provision. In short, the provision deems possession of a trafficable quantity of a prohibited drug to be for supply, unless a person can prove otherwise. In relation to section 25A, it is intended that deemed supply under section 29 will have application in appropriate cases to the element of 'supply' only, just as it does in the case of other drug offences. The other elements of the new offence – including the element of 'for financial or material reward' – will need to be proven in the usual way; that is, proven beyond reasonable doubt by the prosecution." 1. The Crown submitted that in the present case the agreements to supply in which a price is nominated clearly fall within the scope of s 25A as they could each be readily described as an agreement to supply for financial or material reward. Having regard to the facts of the case, this is the most conservative approach that could be taken. But the Crown also submits that where nothing explicit was said in covertly recorded conversations about a payment amount, an inference could be drawn that the supplies were to be for monetary or other benefit. On the facts of the case overall, that inference is overwhelming (except in relation to relatively small quantities, given there is an instance on 10 June 2016 where there was reference to a "free sample" being provided). Findings as to seriousness of the offences 1. The judge said a number of things about the seriousness of the drug supply offences including the following: "The repetitive nature and the ready availability of resources to and for the offender indicate an organised and planned operation. I take into consideration this factor along with the number of instances of supply. Although quantity is not the only factor involved in assessing the objective seriousness of the offence it remains significant." 1. The judge then noted some matters that he considered relevant, including (at ROS 17-18): ● The applicant "could not be classed as a street dealer. He is I find higher up the chain in relation to the operation." ● The fact that drugs supplied to undercover police will not be disseminated into the community is unlikely to lead to other than a very minor diminution of culpability. ● Addiction to drugs is generally not itself a matter of mitigation. ● The aggravating factor in "s 21A(2)(1)" [sic] can be taken into account where its nature or extent is unusual or exceeds the norm. "I do find that this offending would be classified as unusual or exceeding the norm." [Because of the obvious typographical error, it is not clear what aggravating factor his Honour was referring to. Perhaps it was that in s 21A(2)(i) – "the offence was committed without regard for public safety"?] ● It was a "lucrative business". ● The "amount of prolonged operation and planning are aggravating factors". 1. The judge summarised: "I find that due to the nature of the offending the number of deals, the factors relating to the arrangements for the drugs to be supplied, that the offender was trafficking and he was substantially involved in the supply of drugs. The number of transactions was significant." 1. There were some further matters in the agreed facts that were not specifically mentioned by the judge but he may well have had them in mind when he spoke of the degree of planning and organisation involved in the respondent's offending. They included: (a) The respondent's home was equipped with CCTV surveillance equipment. (b) He had three mobile phones, only one of which was in his own name. (c) He and his associates conducted telephone conversations with the use of a code. (d) He obtained the drugs from multiple persons and made supplies to multiple purchasers, some of whom were end users but some were suppliers in their own right. 1. As to the seriousness of, and assessment of sentence for, the firearm offence, his Honour said: "[T]he offence of supplying an unregistered firearm carries a maximum term of imprisonment of 14 years. The introduction of firearms into the community places the community at risk. The firearm was a handgun which could easily be secreted on the body of a person. This offence alone calls for a term of imprisonment. The need for a sentence that sends a message to the general public that firearm offences will not be tolerated looms large in the sentence. The public needs to be protected from those members of the community who find the possession of considerable weapons to be acceptable behaviour." 1. The judge made findings as to the level of objective seriousness of each of the offences as follows: "The number of instances of supply for each count considerably exceeds the threshold for an offence to fall within the terms of s 25A. After considering the amounts involved, the role of the offender, the nature of the conduct of the offender and the period over which the offending took place, I find that the objective seriousness of the ongoing supply and firearm matters is at the mid-range or just below. The supply of cannabis is at the lower end of objective seriousness." The respondent's personal circumstances 1. Counsel for the respondent tendered at the sentence hearing a report by Mr Sam Borenstein, psychologist, various letters (including one signed by the respondent) and other documents relating to his subjective circumstances. The respondent did not give evidence but his wife did. 2. The respondent was aged 44 at the time of the offending. The judge described him as having a "lengthy criminal record dating back to 1989". The history includes driving offences, fraud, hindering police, failing to appear in court, damaging property, stealing, and being found armed with an offensive weapon or instrument. He was sentenced to full-time imprisonment in 2003 for driving whilst disqualified and for breaching a suspended sentence good behaviour bond. He served a term of periodic detention in 2010-2011 for fraud and stealing offences. The judge said that this criminal history deprived the respondent of any leniency that he might have otherwise been afforded. 3. The history the respondent gave to Mr Borenstein included that he spent five years in hospital following a motor vehicle accident in which he sustained facial injuries from glass fragments and was left with a 50% loss of acuity in one eye. 4. The respondent has been married to his wife for 21 years and they have two children aged 20 and 13 and a foster son aged 19. His most recent employment had been managing a service station owned by his brother-in-law and there was a letter confirming that such employment would be available in the future. 5. The respondent told Mr Borenstein that he began using crystal methamphetamine sometime in 1997 (elsewhere in the report, at the age of 23 in about 1994) and had been dependent upon the drug ever since. He said that he "felt forced into selling and supplying drugs in order to support an escalating ice habit, which he estimated was upwards to 3½ grams per day". He was unemployed and his wife was working part-time. He said that he did "whatever I could to make dollars for drugs". 6. The judge noted Mr Borenstein's assessment that there was no serious psychiatric disorder but there were elements of depression and anxiety in the mild to moderate range. He also noted that the respondent had not participated in any form of drug or alcohol counselling or rehabilitation but that he had applied for a program in gaol but was yet to be accepted. There were proposals for the respondent to engage with a private rehabilitation facility upon his release. 7. The judge quoted the respondent's letter and said that despite the respondent not having given evidence he would take into account the respondent's expressions of remorse as genuine. 8. The judge also referred to the letter by the respondent's wife in which she wrote of the difficulties she had experienced while her husband was in custody. In her oral evidence she said that at the time of his arrest, she was working part-time while the respondent was unemployed and not receiving any government benefits or allowances. They were paying $500 per week on the mortgage and $5000 per year on school fees. Since the respondent's arrest she has had to work full-time but was struggling financially. (This would indicate the impact the respondent's drug dealing had on the family finances.) 9. Towards the end of his judgment the judge noted the respondent's longstanding addiction to drugs, that he had failed to accept the advice of his family to seek assistance, and that he now accepted that he must do something positive upon release. The judge also noted that the respondent's family remained supportive; that he was supportive of his children including the foster child; that he had employment available which was positive in terms of rehabilitation; and that he would need substantial supervision upon release. The judge repeated that he accepted the respondent's expression of remorse and found that he had reasonable prospects of rehabilitation. 10. The judge said that "special circumstances [to justify reducing the proportion of the sentence represented by the non-parole period] do exist in light of his prospects of rehabilitation and with a somewhat guarded hope that he will in fact take those steps to address his addiction upon release". Ground 2 – the sentencing judge erred in characterising counts 1 and 4 as "mid-range or just below mid-range" 1. It is convenient to deal with Ground 2 first. 2. Counsel for the Crown accepted at the hearing of the appeal that the finding of "mid-range or just below" was open to the judge to make in respect of the firearm offence in Count 3 but contended that it was not a finding that was available in respect of the ongoing supply charges. 3. Ongoing supply offences contrary to s 25A often involve offenders dealing at a street level in relatively small quantities. Indeed, that was the type of criminal behaviour the offence was designed to meet. As the Attorney General described it in the Second Reading speech referred to earlier, the creation of the offence was designed to close a loophole with the pre-existing quantity-based offences by targeting those who were involved in repetitive drug dealing but avoiding the more serious penalties available under the Act by supplying in small quantities. See also, for example, R v Smiroldo [2000] NSWCCA 120; 112 A Crim R 47 at [11]-[15]; Mirza v R [2007] NSWCCA 248 at [11]. 4. This is not to say that quantity is not important in the assessment of the seriousness of an ongoing supply offence. In MRN v R [2006] NSWCCA 155 at [145], Simpson J (as her Honour then was) referred with apparent approval to observations made in earlier cases to the effect that "repetition, system and organisation" as well as the magnitude of the organisation and the number and quantities of individual incidences of supply are all relevant to the objective criminality of offences against s 25A. 5. In the present case, the respondent was involved in repetitive dealing but he was involved on quite a number of occasions in dealing in large amounts; quantities of an ounce or more. His largest actual supply was one involving five ounces (139.5 grams) on 17 June 2016 for which he was paid $27,500. 6. Quite a number of the events described in the agreed facts constituted agreements to supply with no confirmation as to whether they came to fruition. However, as counsel for the respondent pointed out in written submissions (at [5]), "there is no reason in principle why a genuine agreement to supply drugs should be regarded as any less serious than a proven act of supply: R v Smith [2002] NSWCCA 378 at [16]". 7. The point counsel was endeavouring to make in referring to this is that there is lesser criminality and moral culpability where no profit is derived and no drugs are disseminated into the community in the case of supply offences constituted by an agreement to supply as opposed to an actual supply. That is debatable. Vu v R [2006] NSWCCA 188 was cited in the respondent's submissions where Hall J listed (at [89]) a number of factors relevant to determining the objective seriousness of an offence under s 25(2) involving an offer to supply. There is no reason for not considering the same factors in relation to an offence against s 25A. The factors that would apply in this case to most instances of the respondent agreeing or offering to supply are: (a) they were not isolated instances but occurred in the context of an ongoing supply of drugs; (b) the respondent was motivated by reasons of commercial gain or greed, even if this was partly in order to fund his own drug use; (c) this was not a case in which it was asserted that the offender never had an intention of fulfilling the offer or agreement to supply; (d) he had a demonstrated capacity to do so; and, (e) there is nothing to suggest that if an offer or agreement was not fulfilled it had anything to do with a decision made by the respondent. 1. Having regard to these matters, the fact that there are a number of instances of the respondent agreeing to supply which cannot be shown to be the subject of completed or actual supplies does little to lessen the gravity of the respondent's offending. 2. Earlier in this judgement (at [28]-[31]) I set out his Honour's findings as to the ongoing supply offences and some further specific matters that are pertinent to the seriousness of those offences. The issue raised by this Ground is whether the characterisation of objective seriousness of "mid-range or just below" was open to be made. This Court is usually reluctant to intervene in relation to such assessments: Mulato v R [2006] NSWCCA 282 at [37] (Spigelman CJ) and [46] (Simpson J, as her Honour then was). 3. I am doubtful that the finding was open to the judge to make but I do not consider that it is necessary to finally decide the point. More pertinent to the resolution of the case is an acknowledgement of serious attributes of the offending which is more significant than the broad label that was then placed upon it. Ground 1, as the Crown accepted, is determinative of whether there is a basis for this Court to consider intervening by resentencing. It should be considered in light of the manner in which the primary judge described the ongoing supply offences. Ground 1 – the sentence pronounced was manifestly inadequate 1. The Crown submitted that the sentence was manifestly inadequate for a number of reasons. They included that it did not adequately reflect the objective criminality of the offending or the need for general deterrence, specific deterrence and denunciation. 2. On the other hand, the respondent submitted that the sentence imposed was both fair and just and not manifestly inadequate. He submitted that the judge had properly identified all relevant features and sentencing principles. It was contended that the sentence imposed was a significant one in respect of a person who had no prior convictions for drug offences. 3. In relation to the firearm offence in Count 3, the respondent submitted that the indicative sentence of 2 years was not lenient in circumstances where a co-offender received a 12 month intensive correction order. This was a reference to Mitchell Hodge who was said to have been charged with supplying an unregistered firearm based on similar facts to the respondent. It was also said that Hodge had "less antecedents to the Respondent but had served imprisonment for offences previously". This submission must be rejected. Hodge pleaded guilty to a far less serious offence, one with a maximum penalty of 5 years compared to the offence for which the respondent was sentenced, which had a maximum penalty of 14 years. Moreover, this was the only charge for which Hodge was dealt with. 4. Reference was also made by the Crown to the seriousness of the firearm offence and correctness of the sentencing judge noting the importance of general deterrence in relation to offences of that nature: El Jamal v R [2017] NSWCCA 243 at [35]. 5. The respondent submitted that no error was evident, or suggested by the Crown, in the manner in which the judge applied the principles of totality in (notionally) partially accumulating the individual sentences. This is not entirely correct. The Crown submitted that the sentence was manifestly inadequate to reflect the totality of the offending conduct and that "it was incumbent on the sentencing judge to ensure that the total aggregate sentence encompassed the criminality in all of the offending: R v Cahill [2015] NSWCCA 53 at [111]". 6. The Crown also referred to Ritter v R [2012] NSWCCA 121 where it was observed that repetition of drug supply for financial or material reward outside the 30 day period for one offence into a further period constituting another offence "may well amount to a doubling of an offender's criminality" (at [31]). 7. The respondent cited some cases in which there are references to offenders being at "the cross roads" in support of a contention that this was a case in which there was an appropriate emphasis given to rehabilitation. It is certainly the case that rehabilitation was a relevant factor but it must be borne in mind that the judge's finding was that the respondent's prospects were "reasonable"; he did not find them to be "good". Comparative cases 1. The Crown acknowledged the limited utility of referring to sentences imposed in other cases. The point was also made at the hearing of the appeal that the Crown did not rely upon other cases to establish manifest inadequacy but only to confirm it. 2. The Crown referred to three ongoing supply cases as examples where a sentence had been imposed that was similar to the present but where the supplies were of much lesser quantities of drugs; there were significantly fewer transactions; and they typically involved "street level dealing": R v El-Ahmad [2015] NSWCCA 65: 4 years with non-parole period of 2 years 2 months. Ahmad v R [2012] NSWCCA 273: 4 years with non-parole period of 2 years 6 months. Stack v R [2008] NSWCCA 271: 5 years with non-parole period of 3 years. 1. Counsel for the respondent did not suggest that the characterisation of these cases was other than as stated by the Crown. 2. The Crown also referred to two other ongoing supply cases factually more similar to the present but where the penalties imposed were substantially higher: R v Wong [2018] NSWCCA 20: 6 years with non-parole period of 4 years imposed following a successful Crown appeal. Watkins v R [2018] NSWCCA 24: 8 years with non-parole period of 4 years where this Court refused leave to appeal. 1. The respondent submitted that this case "falls somewhere between the factual matrices in [the three cases cited next] at the lower end and Wong and Watkins at the higher end". 2. The three cases the respondent referred to were R v Ejefekaire [2016] NSWCCA 308, R v Linden [2017] NSWCCA 321 and R v Elliott [2018] NSWCCA 69. The only thing worth mentioning about them is that they are each substantially less serious than the present case. It is necessary to say something in more detail about the other two cases. Watkins v R [2018] NSWCCA 24 1. In Watkins v R there were two groups of offences. (An aggregate sentence was imposed; I will refer to the indicative sentences in brackets when mentioning each individual offence.) The first arose out of items found during a police search of a home the offender had been living in. He was charged with supplying 30.73 grams of methylamphetamine (3 years), supplying 360 grams of cannabis (2 years) and possessing an unauthorised pistol (the only description given was that it was a "black, plastic .177 calibre pistol") (2 years). An offence of supplying fentanyl was taken into account in sentencing for the methylamphetamine supply charge. 2. The second group of offences were committed while the offender was on bail in respect of the first group. There were offences of ongoing supply of methylamphetamine (4 years 6 months), supplying 29.59 grams of that drug (4 years 6 months), and knowingly dealing with the proceeds of crime ($35,000, $250 and a $75 gift card) (4 years). Telephone interception revealed that the offender had supplied a customer with 0.1 grams of methylamphetamine on four occasions and 0.42 grams of that drug on one occasion in a 12 day period. The total amount supplied was 0.82 grams. When the offender's home was searched, police found 29.59 grams of methylamphetamine, $35,000 in cash, 28.8 grams of cannabis leaf, 13 Valium tablets, 60 diazepam tablets and partly filled 10ml vials of testosterone and nandrolone, $250 in cash, a $75 gift card, four sets of digital scales, plastic resealable bags, foil, and various and numerous drug use paraphernalia. 3. There was a "10-15%" discount for the pleas of guilty to the first group of offences and 25% for the second group. The offender had substance abuse and mental health issues (the latter not causally related to the offending). His criminal history included a 3 year gaol term in 2009 for "numerous counts of supply prohibited substance, supply prohibited drug (cannabis) and possession of prohibited items". 4. An aggregate sentence of 8 years with a non-parole period of 5 years was imposed. The case had the unusual feature of the sentencing judge announcing this would be the sentence and senior counsel for the offender agreeing that it was appropriate. The sole ground of appeal that the judge had failed to make an assessment of the objective seriousness of the offence was rejected and leave to appeal was refused. 5. When compared to the present case, it is difficult to see how Watkins v R could be seen as involving similar criminality, as the Crown contends, or a higher level of criminality, as the respondent contends. The quantities of drugs supplied were nowhere near the quantities supplied by the respondent. Arguably, the offender in that case had a worse subjective case with his prior imprisonment for supplying cannabis and a prohibited substance and being on bail for the first group of offences when he committed those in the second group. That cannot, however, mean that the sentence could be increased over and above what was proportionate to the objective circumstances of the offences: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at 574 [24]-[25]. R v Wong [2018] NSWCCA 20 1. The drug offences in R v Wong were more serious than in the present case, although of a somewhat different style. An aggregate sentence was imposed by this Court upon it upholding an appeal by the Crown. 2. There were three substantive offences of supplying a prohibited drug and two offences of ongoing supply. In the order in which they occurred, the offender supplied a UCO with 28 grams of methylamphetamine for $5000 (1 year 3 months); then on five separate occasions in a 27 day period he supplied the same UCO with a total of about 250 grams of methylamphetamine for $39,000 (2 years 10 months); then on four separate occasion in an ensuing 27 day period he supplied the UCO with a total of about 224 grams of methylamphetamine and 224 grams of cocaine for $90,000 (3 years 4 months). He was arrested after his final supplies which were of 56 grams of methylamphetamine (1 year 8 months) and 167 grams of cocaine (2 years 4 months) for a total of $50,000. 3. An offence of knowingly directing the activities of a criminal group (Crimes Act, s 93T(4A)) was taken into account in the assessment of sentence for the second of the ongoing supply offences. 4. Overall, the offender in R v Wong supplied a total of 560 grams of methylamphetamine and 392 grams of cocaine for $184,000. All of the supplies were to a UCO. The offender was operating as a wholesaler whereas the respondent alternated between wholesaler and retailer. 5. Other features of R v Wong included that there were no firearm offences; there were 25% discounts to the indicative sentences because of pleas of guilty; the offender had no criminal history; he was drug-dependent at the time of the offending but was free of drugs by the time of sentencing; he was genuinely remorseful and found to be unlikely to re-offend (findings maintained by this Court). 6. The judge found the supply offences were below the mid-range of objective criminality and the ongoing supply offences were just below the mid-range. It was held that such findings were open on the facts. In relation to the ongoing supply offences, it was noted (by Garling J at [67]) that they "included a limited number of transactions" within the one month period of each charge. After stating that the finding as to objective seriousness was open to the primary judge, Garling J proceeded to give reasons for his conclusion that it was "difficult to see that the aggregate sentence which was imposed adequately reflected any issue of general deterrence". The reasons reveal some further matters relevant to the objective seriousness of the offences: "[71] … The respondent was not acting alone. He accepted that he knowingly directed the activities of a criminal group. The facts demonstrated that he worked with at least two other people in so doing. He was able to freely access drugs and provide them as regularly as was required by the UCO. Ultimately, the final transaction was for a very significant quantity of drugs and involved a very significant sum of money. The supply of drugs by the respondent was not a one-off or single instance activity. His plea of guilty to the ongoing supply charges bespeaks a person who was not just engaging in the transaction so as to be able to experience taking drugs himself. Rather, all of the facts, matters and circumstances demonstrate that the respondent was engaging in these transactions so as to be a source of significant income – which he used for family and selfish purposes." 1. An aggregate sentence of 4 years 6 months with a non-parole period of 2 years 5 months imposed in the District Court was held to be manifestly inadequate and was replaced with a sentence of 6 years with a non-parole period of 4 years. 2. The Crown in this case contended that the objective seriousness of the offences in R v Wong, particularly of the ongoing supply offences, was, if anything, less than in the present case where there were many more transactions and where the supplies were not confined to one UCO as the sole customer. Moreover, the offender in that case had a more favourable subjective case. 3. It is pertinent to note the submission of counsel for the respondent that the indicative sentences assessed by this Court for the ongoing supply offences in R v Wong (namely 34 months and 40 months) are very similar to those assessed by the primary judge in the present case (each of 36 months). It was submitted that R v Wong was a more serious case than the present in terms of the objective seriousness of the offences, including that an offence of directing the activities of a criminal group were taken into account. No mention was made in the submissions of the various matters that were favourable to the offender in R v Wong, such as the lack of any criminal history, good prospects of rehabilitation, unlikelihood of reoffending and 25% discounts upon the assessment of all of the individual sentences. 4. The Crown submitted at the hearing that "the real bite in the manifest inadequacy claim" was that while there were broadly similar indicative sentences in R v Wong, there the sentence was one of 6 years compared to the 4 year 4 month sentence here. Moreover, there was no associated firearm offence in R v Wong. Determination 1. It is important not to understate the broad range of the sentencing discretion in circumstances where there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at 371 [27]. However, for a number of reasons I am satisfied that the sentence is manifestly inadequate. 2. The maximum penalties for the various offences in this case were substantial: 20 years for Counts 1 and 4, 15 years for Count 2 and 14 years for Count 3. 3. The fact that there were two offences against s 25A involving continual offending spanning almost two months renders the case one of particular seriousness. In relation to those offences it was necessary for the judge to reflect in the sentences the findings he made about matters bearing upon the objective seriousness: for example, that the respondent was operating a "lucrative" business; the aggravating factors concerning the prolonged operation and the degree of planning; and the significant number of transactions and the quantities involved. 4. The cannabis supply offence did not contribute much to the respondent's criminality over and above the ongoing supply of methylamphetamine offences. The statement of facts included uncertainty about the quantity involved in the first supply of cannabis (it was either an ounce or a pound) and whether anything was in fact supplied. 5. On the other hand, the firearm offence did materially contribute to the totality of criminality. The respondent's role was as an intermediary in the transaction, but the nature of the firearm, a very easily concealable pistol, rendered the offence a serious one, assessed by the primary judge as middle of the range or just below. 6. Assuming acceptance of the sentencing judge's characterisation of the objective gravity of the ongoing supply offences as "at the mid-range or just below", starting points for each of them of 3 years 9 months (Count 1) and 4 years (Count 4) in the context of there being a maximum penalty of imprisonment for 20 years are difficult to understand. 7. Moreover, even if one accepted the sentencing judge's assessment of each of the indicative sentences of 3 years, 18 months, 2 years, 3 years and 12 months, the gross criminality inherent in the entirety of the respondent's offending cannot possibly be reflected in an aggregate sentence of only 4 years and 4 months. 8. The respondent's subjective case did not include anything of such significance that lenience should prevail over the need to impose a condign sentence. 9. The inadequacy of the aggregate sentence is such that the appeal should be upheld, subject to the "residual discretion". The discretion as to intervention 1. Notwithstanding a finding that a sentence is manifestly inadequate, there remains discretion as to whether the Court should intervene and re-sentence. In this regard the Crown bears the onus: CMB v Attorney-General for the State of New South Wales (2015) 256 CLR 346; [2015] HCA 9 at 358-9 [33]. 2. The Crown's submission on this subject were that it had not caused or perpetuated the imposition of a manifestly inadequate sentence; there was no delay in the institution of the Crown appeal; and there was no post-sentence evidence that would suggest that the Court should refrain from intervention. It was also submitted that because the sentence did not reflect the criminality of the respondent's offending it has "the capacity to undermine public confidence in the proper administration of criminal justice in the sentencing of offenders: R v CTG [2017] NSWCCA 163 at [98]". 3. Counsel for the respondent contended that the Court should decline to intervene and re-sentence. Regrettably, what was put in the written submissions in support of this was either not the subject of evidence before the Court (concerning events post-sentencing); was simply wrong (the primary judge made no adjustment despite finding special circumstances); or otherwise unhelpful (by repeating submissions about R v Wong). Counsel did not seek to add to those submissions at the hearing. 4. The Crown submitted that the appeal should be allowed in order to provide further governance and guidance to sentencing courts so as to ensure that due consideration continues to be given by such courts to ensuring that sentences for ongoing supply of prohibited drug offences properly reflect the criminality and need for general deterrence. 5. This appeal should be allowed. The observations of McHugh J in Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49 at 306 that uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice and that inadequate sentences are likely to undermine public confidence in the ability of courts to play their part in deterring the commission of crimes are apt. The sentence imposed in this case falls well short of the mark in sending a strong message of deterrence to those who might contemplate involvement in large-scale, repetitive and lucrative drug dealing and/or in illicit trading in readily concealable handguns amongst those in the criminal milieu. Resentencing 1. The respondent did not place any evidence before the Court in the event of re-sentencing so the assessment is confined to the material that was before the District Court. 2. Enough has been said about the objective seriousness of the offences. As to the respondent's subjective case, I repeat that there is nothing out of the ordinary that could particularly justify leniency. The finding of the primary judge that the respondent was remorseful and had reasonable prospects of rehabilitation should be maintained, as should the allowance for the pleas of guilty with a 25% reduction on the sentence for Count 4 and 20% in respect of the other offences. (There will be some rounding for practical purposes in relation to these reductions.) 3. A new aggregate sentence should be imposed. The sentences for the individual offences are assessed as follows: Count 1 (Ongoing supply of methylamphetamine): 4 years. Count 2 (Supply cannabis): 1 year 8 months. Count 3 (Supply unregistered prohibited firearm): 3 years 2 months. Count 4 (Ongoing supply of methylamphetamine): 4 years Section 166 certificate (Deal with suspected proceeds of crime): 9 months. 1. The Crown did not argue that the finding of special circumstances by the primary judge was not open; its concern was confined to the inadequacy of the total term and non-parole period generally. I propose that the finding be maintained and that there be a similar percentage proportion of non-parole period to total term as imposed at first instance. Orders 1. I propose the following orders: 1. Crown appeal against sentence allowed. 2. Aggregate sentence imposed in the District Court on 25 May 2018 quashed and in lieu the offender is sentenced to an aggregate term of imprisonment for 7 years with a non-parole period of 4 years 6 months. 1. BUTTON J: I agree with R A Hulme J. ********** Endnote 1. In relation to Count 1 and Count 4, the value is calculated from the "Table of Offences" and where there is a quantity but no price indicated, the price is conservatively estimated on the basis of sales of similar quantities on other occasions. 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: 22 August 2018