Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Noufl v R [2020] NSWCCA 10 Hearing dates: 27 November 2019 Decision date: 12 February 2020 Before: Hoeben CJ at CL R A Hulme J Button J Decision: (1) Leave to appeal granted. (2) Appeal against sentence allowed. (3) The sentences imposed by Judge Maiden SC on 12 July 2018 are quashed. (4) In substitution, on count two the applicant is sentenced to a sentence of imprisonment for one year six months, to commence on 12 February 2020. (5) On count one, the applicant is sentenced to a sentence of imprisonment for one year nine months, to commence on 12 May 2020. (6) Each of those sentences is to be served by way of an intensive correction order. (7) The conditions of each intensive correction order are as follows: (a) the applicant must not commit any offence; (b) the applicant must submit to supervision by a community corrections officer; and (c) the applicant must receive treatment with regard to any issue with regard to prohibited drugs at the reasonable discretion of his community corrections officer. Catchwords: CRIME – APPEALS – application for leave to appeal against sentence – two counts of supplying a prohibited drug – whether sentencing judge found aggravating factor of personal gain contrary to evidence – whether cumulation of sentences unavailable – whether subjective factors inadequately reflected in sentences of full-time custody – whether sentences manifestly excessive – whether erroneous disparity demonstrated – consideration of effect of erroneously generous backdate – parity ground upheld – applicant resentenced – sentences to be served by way of intensive correction orders Legislation Cited: Criminal Procedure Act 1986 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1986 (NSW) Cases Cited: Cahyadi v R [2007] NSWCCA 1 Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 Haydon v R [2012] NSWCCA 151 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 R v Ilbay [2000] NSWCCA 251 R v Kollas and Mitchell [2002] NSWCCA 491 R v Parente [2017] NSWCCA 284; (2017) 96 NSWLR 633 R v Zamagias [2002] NSWCCA 17 Category: Principal judgment Parties: Mohammed Noufl (Applicant) Regina (Crown) Representation: Counsel: J Ghabrial (Applicant) D Patch (Crown) Solicitors: Attia Lawyers (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2017/195233 Publication restriction: Nil Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 12 July 2018 Before: Judge Maiden SC File Number(s): 2017/195233 Judgment 1. THE COURT: Mr Mohammed Noufl (the applicant) was sentenced in the District Court on 12 July 2018 by Judge Maiden SC for two offences of supplying a prohibited drug. The first count related to 27.8 g of crystal methylamphetamine (ice) at 55.5% purity, and the second count related to 27.5 g of MDMA (ecstasy) at 16.5% purity. Each offence carried a maximum penalty of imprisonment for 15 years, and no standard non-parole period. The first of the offences had a further offence "attached" by way of a Form 1 pursuant to the Criminal Procedure Act 1986 (NSW): supplying 6.8 g of ice. (In light of the regrettable fact that a technical failure meant that the proceedings on sentence were not recorded, the preceding assignment of particulars as between the identical counts is a reconstruction, as best we can, from the documents placed before his Honour, and from the remarks on sentence, which were recorded.) 2. There has been a little confusion as to the relevant dates and lengths of sentences imposed by the learned sentencing judge, and the following is therefore derived from JusticeLink. His Honour imposed a total head sentence of imprisonment of 2 years 1 month and 14 days, with a total non-parole period of 1 year 2 months and 9 days. In terms of the individual sentence imposed for count 1 (with the attached Form 1), his Honour imposed a head sentence of 22 months 15 days (or 1 year 10 ½ months) to commence on 28 January 2018, with a non-parole period of 11 months 9 days. For count 2, his Honour imposed a very nearly identical head sentence of 22 months 14 days (or 1 year 10 ½ months), with a non-parole period of 11 months 9 days. It commenced on 28 April 2018, and therefore was cumulated upon the other sentence by a period of three months. 3. As the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA) stood at that time, that total head sentence meant that an intensive correction order (ICO) was not an option. 4. Shortly beforehand, the same judge had sentenced Mr Mrwan Sayah (whom we shall call the co-offender). The co-offender had been involved in the crimes of the applicant; indeed, the latter was the assistant of the former. And it is also the case that the two acts of supply committed by the applicant were "wrapped up" in two counts for which the co-offender was dealt. 5. But, in truth, the criminality of the co-offender was clearly more extensive than that of the applicant: the first count of the co-offender pertained to supplying ice, on a number of occasions, in a quantity of 124.93 g (as opposed to 27.8 g), with purities ranging between 54.5 and 59.5%. 6. Furthermore, the second count was supplying a commercial quantity of ecstasy, in the amount of 139.16 g (as opposed to 27.5 g), with the purity on the two underlying occasions at 16.5% and 60%. Of course, that offence carried a maximum penalty of imprisonment of 20 years, and a standard non-parole period of 10 years. 7. The third count of the co-offender pertained to dealing with the proceeds of crime in the amount of $21,700. 8. The co-offender received a total head sentence of 3 years 6 months, with a total non-parole period of 2 years. That was made up of, on the first count, a head sentence of 3 years with a non-parole period of 18 months, to commence on 29 June 2017; and, on the second count, a head sentence of 3 years with a non-parole period of 18 months, to commence on 29 December 2017. The period of cumulation was therefore six months. (With regard to the proceeds of crime offence, the co-offender received a dismissal pursuant to s 10A of the CSPA.) 9. In other words, it can be readily seen that the total head sentence imposed upon the co-offender was 1 year 4 months longer than the total head sentence imposed upon the applicant. More noteworthy is the fact that the total non-parole period of the co-offender is less than 10 months longer than the total non-parole period of the applicant. 10. A further level of confusion crept into these proceedings, however. As we have recounted, when imposing sentence on 12 July 2018, the sentencing judge provided the applicant with a backdate to 28 January 2018, a period of approximately five months and two weeks. In fact, at that stage the applicant had not been in custody for that length of time: according to the tendered printout from the Department of Corrective Services, he had only been in custody between his arrest on 29 June 2017 until his release on bail on 18 August 2017, and for a single day on 27 December 2017. That is a total period of approximately one month three weeks. 11. The error almost certainly arose from the Crown sentence summary (CSS) that was placed before his Honour. That document wrongly stated that the applicant had been in custody continuously from 29 June 2017 until 27 December 2017, a period said in the CSS to be five months and 28 days. 12. In contrast, the co-offender was indeed in continuous custody between his arrest on 29 June 2017 and the imposition of sentence on 12 July 2018, and there is no suggestion of his backdate having been incorrect. 13. In other words, on one analysis the applicant received an unearned benefit of a little under four months by way of an unduly generous backdate in his sentences. What role, if any, that should play in the resolution of this appeal is discussed later in this judgment. 14. For the convenience of the reader, attached to this judgment are diagrams showing the structure of the sentences imposed on each young man, so that one can make a ready comparison between them. Objective and subjective matters – the offender 1. The following is derived from the remarks on sentence, supplemented by the contents of the agreed facts, a pre-sentence report, a psychiatric report, a letter from a clinical psychologist, a statutory declaration, and a character reference. 2. Objectively, it was the co-offender who was the "prime mover". He and the applicant shared accommodation, and the latter provided assistance when the co-offender was not available to perform the physical handover of prohibited drugs. 3. An undercover operative (UCO) was in telephone contact with the co-offender over a period of time. On 14 June 2017, the UCO attended at the home to see the applicant standing outside. The applicant entered the home, and reappeared with two plastic bags, provided them to the UCO, and received in return $6,200 in cash. Those two offences, committed simultaneously, underpinned the two counts. 4. As for the Form 1 matter, the same procedure had been adopted, and a little less than 7 g of ice had been supplied in return for $1,200. 5. In a subsequent record of interview, the applicant claimed not to have any memory of the offences, and denied supplying a prohibited drug. 6. The sentencing judge assessed the level of objective seriousness of the offending of the applicant as "low". 7. Subjectively, the applicant was 24 years of age at the time of the offences. 8. He had no prior criminal record whatsoever. 9. The sentencing judge applied a 25% discount for the utilitarian value of the early pleas of guilty. 10. The applicant was described as having obvious intelligence, and abilities with regard to employment. The sentencing judge recounted the employment and tertiary education pursued by the applicant, and the fact that the applicant had been employed during an extended period whilst on bail after charge and before sentence. 11. There were also a statutory declaration from the applicant's mother and a letter from a person associated with a charity organisation, Brothers in Need. Each document spoke of the volunteering and community engagement in which the applicant had involved himself. In the latter document, there was a reference to the remorse of the applicant, in that he had told its author that he hated drugs. 12. There was also a letter from the applicant's treating clinical psychologist, who spoke of his symptoms of major depressive disorder. 13. In the remarks on sentence, the sentencing judge noted that the applicant had been using illicit substances significantly prior to his arrest. Furthermore, his Honour remarked that there was no evidence before the Court as to any benefit the applicant was to receive from the drug supply. However, the pre-sentence report that was tendered before the sentencing judge indicated that the offending of the applicant "resulted in financial benefit to supplement his income". 14. The sentencing judge made a finding of special circumstances to assist in the rehabilitation of the applicant. His Honour characterised the applicant as at "low/medium" risk of reoffending. 15. The sentencing judge accepted that it was necessary to take into account parity considerations in relation to the co-offender. In particular, his Honour said: "The Court must take into account that there is a parity issue with Mr Sayah and I accept that this offender's involvement was not as great as Mr Sayah; nonetheless, it did involve him working in a way that they were both possibly to share in the profits together. That evidence is not before me." Objective and subjective matters – the co-offender 1. The following is derived from remarks on sentence and a document containing agreed facts; nothing more from the proceedings on sentence relating to the co-offender was provided to this Court. 2. In relation to objective matters, the co-offender carried out a "commercial operation" in which he was in contact with the UCO (through text messages) for the purposes of organising the delivery of prohibited drugs in exchange for cash. In particular, the co-offender was also able to tell the UCO how much the drugs would cost. 3. In relation to the transaction shared with the applicant, it was the co-offender who organised the meeting and delivery of the prohibited drugs, but it was the applicant who met the UCO and exchanged them for cash. 4. The count for the supply of ice reflects five occasions of supply. The count for the supply of ecstasy reflects three occasions of supply. The former count factually overlapped with the second count, in that on all three occasions on which ecstasy was supplied, ice was also supplied. As we have said, the purity of the ice ranged from 54.5% to 59.5%, and the purity of the ecstasy was 16.5% and 60%. In addition, police searched the bedroom of the co-offender, and it was there that the amount of $21,700 in cash was discovered and seized. 5. The sentencing judge assessed the objective seriousness of the supply offences of the co-offender as "low". 6. Subjectively, the co-offender was 26 years of age at the time of the offences. Like the applicant, he had no criminal record. The sentencing judge found that the co-offender came from a good family background. His Honour also recounted aspects of the co-offender's education, including completion of high school, commencement of tertiary education, and his traineeship. In light of this background, his Honour found that it was difficult to comprehend the co-offender's involvement in drug dealing, but went on to consider the co-offender's history of drug use, in particular his heavy dependence on ice. 7. Concerning the mental health of the co-offender, his Honour found that there was a possibility that he suffered from ADHD, as well as depression and post-traumatic stress disorder. 8. The sentencing judge found that the motivation for the offending was to support the co-offender's drug habit. 9. Again, a discount of 25% was applied in light of the early pleas of guilty. There was also a finding of special circumstances. 10. Whilst his Honour was concerned about the co-offender's risk of reoffending, his Honour nonetheless granted "leniency" on the basis that the co-offender would have family support upon release. Grounds of appeal 1. In support of the application for leave to appeal against sentence, the following grounds were notified and pressed at the hearing before this Court: Ground 1: The learned sentencing judge erred in finding the Appellant committed the offence because he was to "possibly share in the profits" with the co-offender where there was no evidence before the court and this is a feature of the sentence the Crown would need to prove beyond a reasonable doubt. Ground 2: The learned sentencing judge erred in sentencing the Appellant to a cumulative sentence where the two offences occurred simultaneously, and the objective seriousness was conceded as being low level. Ground 3: The learned sentencing judge did not properly take into account the Appellant's subjective features of youth, first time in custody, and strong work record nor prospects for rehabilitation, and alternatives to full-time imprisonment and give any reasons as to why such alternatives were not found to be appropriate. Ground 4: The learned sentencing judge did not state the reasons for how parity affected the Appellant's sentence, made no comparison between the two offenders to arrive at a sentence commensurate with the Appellant's lower role in the actual drug supply hierarchy. Ground 5: The sentences imposed were manifestly excessive. Submissions 1. Because of the degree of useful refinement that took place at the hearing, the following summary focuses upon the oral submissions of counsel for the applicant, rather than the written submissions that had previously been filed by different counsel. To the extent necessary, the oral submissions of the Crown are also briefly recounted. Ground 1 1. With regard to ground 1, counsel for the applicant submitted that, on the one hand, the sentencing judge took into account the aggravating factor of financial gain accruing to the applicant personally without, on the other hand, being satisfied beyond reasonable doubt of that aggravating factor. Reliance was placed upon the portion of the remarks on sentence extracted at [30] above. Counsel pointed to the following further portions of the remarks on sentence in support of this ground: "It is unclear and there is no evidence before me as to what benefit the offender was to receive and his counsel, Mr Lee, when asked was he involved to obtain drugs for his own use or for financial reward or some other reason, was unsure. … … This matter in my mind although described as a low level of objective seriousness, is serious. It is serious because two men who have ability to provide for themselves took to using drugs and either for their own use and also for monetary gain undertook this most dangerous criminal activity, dangerous because of the risks to members of the community who use the drugs that they were providing." (Emphases added.) 1. It was emphasised in oral submissions that the passage immediately above indicates that the sentencing judge took into account financial gain when assessing the objective seriousness of the applicant's offending, despite the evidence about the question being "unclear". Grounds 2 and 3 1. In oral submissions, counsel for the applicant dealt with grounds 2 and 3 together. It was submitted that the sentencing judge had made a "House v King error" because there was a "gap in reasoning" in the remarks on sentence concerning the degree of partial cumulation between the two sentences imposed. 2. Furthermore, counsel submitted that the offences concerned one transaction involving two different drugs, of very similar quantity, that were handed over to the undercover officer at exactly same time. In those circumstances, it was submitted, the sentence imposed for the first count ought to comprehend the criminality of the other count by way of complete concurrence. 3. In relation to the putative failure of the sentencing judge to consider alternative penalties, counsel accepted as a "bare proposition" that the total head sentence imposed was over 2 years, with the result that, as a matter of simple statutory prohibition, the sentencing judge could not consider alternatives (such as an ICO). Ground 4 1. As for ground 4, counsel for the applicant argued that there was erroneous disparity between the sentence imposed upon the applicant and his co-offender, Mr Sayah. It was said that during the remarks on sentence, the sentencing judge made note of Mr Sayah's role as the "prime mover", but did not otherwise make reference to other important differences between the offenders – namely, that one of the offences of which the co-offender was convicted was supply of a commercial quantity of ecstasy, and that he faced the additional third offence of dealing with the proceeds of crime in a sum well over $20,000. 2. In submissions in reply, counsel emphasised that the applicant should have received a significantly lesser sentence than was imposed upon him. In other words, the focus shifted away from that of the ground (that is, aspects of process, said to be revealed in the remarks on sentence) to the simple proposition that, although the applicant received a total sentence less than that of the co-offender, it should have been significantly lesser (that is, to aspects of outcome, as revealed in comparison of the two total sentences actually imposed). 3. We proceed to summarise here the submissions made by counsel for the Crown in relation to the applicant's parity argument, as reframed during the hearing. 4. The Crown submitted that the sentencing judge adequately dealt with parity considerations by having regard to the essential differences between the two offenders. 5. It was further submitted that, ultimately, the sentences imposed upon the applicant were well within the range of his Honour's discretion, considering the criminality of his offending as reflected in the agreed facts. 6. Finally, the Crown submitted that an implicit complaint that the co-offender should have received a longer sentence does not justify the applicant receiving a lesser sentence, if the applicant's sentence is appropriate in all other respects. Ground 5 1. Counsel for the applicant submitted that the starting point of the total head sentence imposed upon the applicant must have been around three years, and that that was plainly unjust and unreasonable (we interpolate that we understood that to be a mere rule of thumb, bearing in mind that the discount must have been applied to each individual sentence, not the total head sentence). Counsel emphasised that the offending was at the lower end of objective seriousness, that there are examples of much more serious offending, and that the applicant had a strong subjective case. To the extent that the Crown relied upon statistics from the Judicial Commission of New South Wales in resistance to the ground, counsel for the applicant pointed to the well-known limitations of such reliance. Determinations 1. Because the Court considers that a single ground should succeed, and all others should not, we shall deal with the latter four only briefly. Ground 1 1. Turning to our determination of ground 1, in our opinion read as a whole, and not focusing upon a passing comment in the remarks on sentence, the sentencing judge was expressing the ultimate determination that it could not be established as an aggravating feature beyond reasonable doubt that the applicant personally received financial or other recompense for his criminal services to his housemate. 2. In truth, that finding was a generous one, not least because the pre-sentence report recorded that the offending of the applicant "resulted in financial benefit to supplement his income". That statement, made no doubt after an interview between the applicant and its author and placed in evidence before his Honour, was the subject of neither objection, nor dispute, nor was its author called for cross-examination by defence counsel at first instance. 3. But in any event, in the Court's opinion the ground cannot succeed, simply because on a reading of the whole of the remarks on sentence it cannot be said that the adverse finding was actually made. To the contrary, in our opinion, the sentencing judge proceeded on the basis that financial gain to the applicant arising from the crimes had not been established to the criminal standard. 4. The Court does not uphold ground 1. Ground 2 1. Turning to the Court's determination of ground 2, it is correct to say that the two counts pertained to the one transaction (having said that, the offence on the Form 1 occurred on an entirely separate day). Contrary to the submission of counsel for the applicant, however, the mere fact that the two offences arose from the one event, or one series of physical acts committed by the applicant, does not automatically call for wholly concurrent sentences. That is because Parliament has decided, by way of the focus of the Drug Misuse and Trafficking Act 1986 (NSW) (DMTA) upon different prohibited drugs as the foundation for criminality, by way of its various offence-creating provisions, to "divide up" criminal acts according to their prohibited subject matter. That means that if a person possesses on a single occasion a single sports bag that contains 10 different prohibited drugs, each of which is over the traffickable quantity, he or she can indeed be charged with 10 different offences of supply. In the Court's opinion, it has never been the law since the DMTA commenced in 1986 that, if a person supplies on the one occasion more than one prohibited drug, he or she must receive wholly concurrent sentences for each offence arising from that single transaction. 2. And quite apart from the structure of the statute, adoption of that thesis could lead to manifestly inadequate sentences being imposed that fail to reflect the total criminality of the offender. As ever, whether an offender is being dealt with under the DMTA or for any other offence, the whole question of partial or complete cumulation and concurrence remains one for the discretion of the sentencing judge: Cahyadi v R [2007] NSWCCA 1 at [28]. 3. Here, it can be seen from the sentencing structure diagram that the degree of cumulation between the two offences committed by the applicant was as little as three months. That is despite the fact that the quantity of each of the drugs was by no means trivial – almost an ounce – and each quantity of each drug had an obviously significant market value. 4. In short, because it was perfectly open to the sentencing judge to provide for partial cumulation, and to do so to the degree adopted, ground 2 is rejected. Ground 3 1. Ground 3, to the extent that it asserts that various factors were not "properly" taken into account, really focuses on outcome, in terms of the individual sentences and total sentence actually imposed. For that reason, that part of the ground has been understood by the Court as merely a particular of ground 5, and it will be discussed as necessary under that rubric. 2. As for the second part of the ground, there was no need for the sentencing judge to give reasons as to why an ICO was not appropriate, for the simple reason that an ICO was not available, in accordance with the CSPA as it was at that time. And in accordance with the discrete steps set out as long ago as in R v Zamagias [2002] NSWCCA 17, once the sentencing judge decided to impose a total head sentence of 2 years 1 month and 14 days, discussion of unavailable alternatives became superfluous. 3. For that reason, the Court does not uphold ground 3. Ground 5 1. The proposition that either individual sentence or the total sentence is manifestly excessive is, with respect, untenable; we say that bearing in mind all of the very favourable subjective features of the matter, including those emphasised by way of ground 3. It is to be recalled that each offence carried a maximum penalty of 15 years; that each pertained to almost an ounce of a prohibited drug; that a further supply was to be taken into account on a Form 1; and that, although the sentencing judge proceeded on the basis that the applicant was not to receive financial recompense, the amount handed over by the UCO reflective of the market value of the drugs was well over $6,000. In other words, looked at as a whole, this was a commercial operation of some significance. 2. It is one thing to say that, in light of all of the favourable subjective and objective features pertaining to the applicant and his offending, other judges may have felt that a total head sentence of two years or less could have been appropriate; may have felt that an alternative to full-time incarceration should have been explored; and may have ultimately imposed such an alternative. But it is another thing entirely to assert that the outcome arrived at here was beyond the sentencing discretion reposed in the sentencing judge. Nothing placed before us, including statistics from the Judicial Commission or the well-known development in jurisprudence about sentencing for supply of prohibited drugs in R v Parente [2017] NSWCCA 284; (2017) 96 NSWLR 633, establishes the proposition underpinning the ground. The Court rejects it. Ground 4 1. That leaves ground 4: the assertion of erroneous disparity. 2. To recap fundamental principle briefly: appellate intervention will be warranted where there is disparity between the sentences imposed upon co-offenders, and that disparity gives rise to a justifiable sense of grievance: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295. That is to be determined using objective criteria (Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [31]), namely, whether a reasonable person would regard the applicant's sense of grievance as justified: R v Ilbay [2000] NSWCCA 251; R v Kollas and Mitchell [2002] NSWCCA 491; Haydon v R [2012] NSWCCA 151 at [17]. 3. In other words, when one compares the objective and subjective features relevant to the applicant and the co-offender, and reflects upon the two outcomes in terms of length of sentences actually imposed, can it be established that the applicant would experience an objectively justifiable sense of grievance? 4. Reflecting on that, there is very little difference between the subjective cases of the applicant and the co-offender. They were of similar age, with only two years between them. Both had pleaded guilty, and received 25% discounts. Both had good family and community support, had no criminal record, had pursued tertiary education, were gainfully employed at the time of the offending, had been abusing prohibited drugs for a period of time, were entitled to a finding of special circumstances, and both had psychological issues. 5. The only important difference between the applicant and the co-offender, subjectively speaking, was the findings made about their motivations for offending. The sentencing judge found that the co-offender was dealing in prohibited drugs in order to support his drug habit, whereas no such finding was made in the remarks on sentence with regard to the applicant: as we have explained with regard to ground 1, taken as a whole, the remarks on sentence do not ascribe a benefit (such as drugs, or money to be spent on drugs) derived by the applicant from his crimes. 6. Having said that, his Honour did find generally that the use of illicit substances by the applicant before his arrest was "significant". In all the circumstances, we do not believe that this difference in findings as to benefit to be derived from criminality is important. If anything, it favours the applicant. 7. We turn now to a comparison of the objective features of the offending of these two young men. Whilst the sentencing judge assessed the offending of both the applicant and the co-offender to be of low level objective seriousness, there are nonetheless notable dissimilarities between the objective criminality of the applicant and of the co-offender, as follows. 8. First, the co-offender was convicted of offences of graver criminality than those of the applicant. As we have said, the co-offender was convicted of supplying a commercial quantity of ecstasy, which carried a higher maximum penalty, and a standard non-parole period. 9. Relatedly, leaving those formal aspects of the DMTA aside, the co-offender supplied more than 5 times the quantity of ecstasy that the applicant supplied. 10. Secondly, the co-offender was facing an additional third substantive charge of dealing with proceeds of crime, which concerned a significant sum of over $20,000. 11. It is true that the applicant had his own third offence on a Form 1, but the prosecution had thereby elected not to have him liable to a substantive sentence for that offence. It is also the case that the quantity of less than 7 g of ice underpinning the Form 1 offence meant that, if that offence had stood alone, it would in all likelihood have been dealt with summarily. 12. The other important aspect of the third count faced by the co-offender is that it was itself symbolic of the relationship between the co-offender and the applicant: prime mover on the one hand, and assistant on the other. 13. Thirdly, although each of the young men was convicted of supplying a quantity of ice, the quantity pertaining to the co-offender was far greater than that of the applicant, and he supplied it on five occasions, not once. 14. Fourthly, the role of the co-offender was greater than that of the applicant. As we have said, the co-offender was the "prime mover" who used his mobile phone to facilitate drug transactions, whilst the applicant was simply a "deliveryman" on the one substantive occasion. It is noteworthy that, according to the agreed facts in the proceedings on sentence of the applicant, "the UCO spoke to the offender about reducing his prices and about other deals but the offender said he does not deal with this issue". In other words, the offender made it clear – in an unguarded moment when he thought he was speaking to a real purchaser – that he was a mere deliveryman, and that questions of quantity, price, and bulk discount were not within his authority. 15. Reflecting on those important differences between the offending of the applicant and the co-offender, it is certainly true that the applicant received a lesser total sentence. But it is worth reiterating that the difference between the total head sentences imposed upon the applicant and the co-offender is only 1 year 4 months. Even more importantly, the difference in total non-parole periods is even smaller: less than 10 months. 16. In light of the significant objective differences between the offending of the applicant and the co-offender, in the Court's opinion the applicant should have received a comparatively lesser total sentence than the sentence that was actually imposed upon him. There is erroneous disparity between the total sentences of the co-offender and the applicant, and that disparity gives rise to a justifiable sense of grievance. 17. Finally, the Court has not neglected to reflect on the fact that, on one analysis, the erroneously generous backdate means that both the total head sentence and the total non-parole period imposed upon the applicant are just under 4 months shorter than they "should" have been. What role should that error play in determination of this ground? Should one regard the sentences actually imposed as approximately 4 months shorter than they were expressed to be? And would such an approach mean that the level of differentiation between the two offenders is sufficient to defeat a ground based on erroneous disparity? The Court's answer to these questions is as follows. 18. It is true that the Crown prosecutor who appeared in this Court pointed out the error, described it as an unearned benefit, and relied upon it in written submissions in resistance to the ground of erroneous disparity. But it was the Crown at first instance, respectfully, that led the sentencing judge into this error, by failing to ensure that the central document in the Crown case on sentence, upon which a busy sentencing judge is surely entitled to rely, was accurate. 19. Separately, "subtracting" the unearned benefit from both the total head sentence and the total non-parole period imposed upon the applicant leads to a notional total sentence that is internally disproportionate; by that we mean, although the sentencing judge imposed a sentence structure with a ratio between total non-parole period and total head sentence of just over 56%, the artificial sentence would have a ratio of a little over 48%. In that and other senses, "subtraction" is a distortion. 20. Finally, and in the alternative, even if one were to subtract notionally the unearned benefit from the sentences imposed upon the applicant, the Court remains (just barely) of the view that he is justified in a sense of grievance when he compares his total sentence with that of the co-offender. 21. In other words, for a number of reasons, we do not believe that the unearned benefit with regard to backdate received by the applicant should stand in the way of success of this ground. 22. In short, the Court upholds ground 4. Resentence 1. As we have said, the true position was that the applicant was incarcerated after arrest on 29 June 2017, but released to bail on 18 August 2017, and thereafter spent a single day in custody before the imposition of sentence. The Court was led to understand that the applicant was incarcerated on 12 July 2018, that being the date of imposition of sentence, but was released to bail on 15 August 2018, and has been at liberty since that time. 2. In total then the applicant has already spent about two months three weeks in custody referrable to these offences. One can infer, we think, that that would have been a very unpleasant and thought-provoking experience for this young man. Furthermore, since his release in August 2018 he has had the distinct possibility of re-incarceration hanging over his head for something approaching 18 months. 3. An affidavit of the applicant of 19 November 2019 was read as against the possibility of resentence. In it, the applicant swore that: he had not breached his bail in the many months since his release in August 2018; his career development in construction had been limited, because he was incapable of working on regional development projects or during the evenings, due to his conditions of bail; he had continued with psychological treatment until his treating psychologist went overseas, and thereafter focused on studies and his career; the stability of his extended family has developed positively, and he is getting on well with them; his tertiary studies proceed well, and he is on track to finishing a Bachelor's degree in construction management; as at the date of the affidavit, he had been working for a large development and construction company; his dream after completion of his degree is to set up his own company in that field; he is currently making good money from his construction work; and an engagement to marry was regrettably recently broken off due to familial disapproval of the applicant. 4. As for the future, the applicant plans to focus on his studies, complete his degree, and continue with his rehabilitation in the community. He has an ambition to exploit opportunities in regional centres for development projects. His parents are supportive of his dreams. Although the applicant has not received psychological help for quite some time (due to the disruption caused by the departure of the psychologist overseas), he has recently sought a new referral from his general practitioner to a psychiatrist and a psychologist, and he intends to see both of them quite soon. 5. No evidence to the contrary was relied upon by the Crown, nor was the applicant required for cross-examination, nor was any submission made that any aspect of his affidavit should not be accepted, or was lacking in necessary detail. Nor, of course, was there any evidence of the commission of a further offence whilst on bail, or any suggestion of its breach. In all the circumstances, we believe that this Court should proceed on the assumption that, despite the pressure of being on appeal bail with regard to a full-time custodial sentence, the rehabilitation of the applicant in the community has proceeded very well indeed. 6. Exercising the sentencing discretion afresh, giving efficacy to our finding that there should be greater differentiation in total sentences and total non-parole periods between the two offenders, applying the same discount of 25% to each sentence, reflecting the objective role of deliveryman, and the powerful subjective features, on the first count, pertaining to ice and featuring the Form 1, the Court would adopt a starting point of 2 years 3 months (or 27 months), and impose a head sentence of 1 year 8 months (or 20 months). We would commence that sentence three months after the commencement of the sentence for count two (we appreciate that we have reversed the order of commencement of sentences adopted by the sentencing judge). 7. On the second count, pertaining to the supply of ecstasy, the Court would adopt a starting point of 2 years, and impose a head sentence of 1 year 6 months (or 18 months). 8. That means that the applicant would be subject to a total head sentence of precisely 2 years. That further means that, whether one regards the older and more restrictive version of the CSPA or the newer and less restrictive version (s 68 CSPA) as being applicable, the alternative option of an ICO is potentially available. 9. Because of the alternative to full-time imprisonment that we propose be adopted in this case, there is no need for the Court to specify individual non-parole periods, or a total non-parole period (CSPA, s 7(2)). For completeness, if that were not the case, we indicate that we would impose a total non-parole period of one year. 10. Yet again, we appreciate that the sentences might on one analysis be longer than those imposed upon the applicant, if one takes into account and notionally subtracts the unearned benefit by way of the erroneous backdate at first instance. But we think that to try to do so simply means that one is comparing "apples with (artificial) oranges"; we are content simply to compare the length of the sentences that we propose with the length of the sentences actually imposed by the sentencing judge. In accordance with s 6(3) of the Criminal Appeal Act 1912 (NSW), the Court considers that lesser sentences are warranted in law. Alternative to full-time imprisonment 1. Separately, on all of the evidence, we believe that it is open to our discretion to impose two ICOs (CSPA, s 7; all subsequent references are to the same Act). 2. In coming to that opinion, the Court has considered the purposes of sentencing (s 3A), and has of course previously come to the view that no penalty other than imprisonment (in some form) is appropriate for these offences (s 5). 3. Because we propose such orders, as we have said non-parole periods do not need to be set. 4. We believe that there is sufficient information before this Court – constituted not only by all of the material tendered in the proceedings on sentence, but also by the recent and uncontradicted sworn evidence of the applicant – not to require an assessment report before the making of the ICOs (s 17D(1A)). 5. The Court does not propose to impose a condition of home detention or a condition of community service work, and accordingly such a report is not separately required (s 17D(2) and (4)). 6. In coming to the view that ICOs are appropriate, the Court has regarded community safety as paramount, and in that regard consider that declining to return the applicant to full-time custody is more likely to address his risk of reoffending in the future (s 66). 7. In deciding whether or not to impose ICOs, we have considered other information in the form of all of the evidence placed before this Court on the appeal (s 69). 8. The conditions of each ICO that we propose are the standard conditions that the applicant must refrain from offending, and must submit to supervision by a community corrections officer (s 73). 9. The Court proposes a further additional condition: that the applicant receive treatment for his issues with regard to prohibited drugs, at the reasonable discretion of his community corrections officer (s 73A(2)(e)). 10. Finally, the ICO with regard to the sentence for count two would commence on the date of the making of orders by this Court. The ICO with regard to the sentence for count one would commence three months later (s 71). Orders 1. For the foregoing reasons, the Court makes the following orders: 1. Leave to appeal granted. 2. Appeal against sentence allowed. 3. The sentences imposed by Judge Maiden SC on 12 July 2018 are quashed. 4. In substitution, on count two the applicant is sentenced to a sentence of imprisonment for one year six months, to commence on 12 February 2020. 5. On count one, the applicant is sentenced to a sentence of imprisonment for one year nine months, to commence on 12 May 2020. 6. Each of those sentences is to be served by way of an intensive correction order. 7. The conditions of each intensive correction order are as follows: 1. (a) the applicant must not commit any offence; 2. (b) the applicant must submit to supervision by a community corrections officer; and 3. (c) the applicant must receive treatment with regard to any issue with regard to prohibited drugs at the reasonable discretion of his community corrections officer. Noufl (11.2 KB, pdf) Sayah (9.51 KB, pdf) ********** 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: 12 February 2020