DG v R (No 1)

1. [1]

   THE COURT: The applicant seeks leave to appeal against an aggregate sentence imposed by her Honour Judge O’Rourke SC on 6 April 2023. The applicant pleaded guilty to five charges in the Local Court and maintained his pleas in the District Court when he appeared for sentence. The offences and the indicative sentences nominated by her Honour are as follows:

2. [2]

   Her Honour imposed an aggregate sentence of 3 years and 6 months imprisonment with a non-parole period of 2 years and 4 months, commencing on the date of the applicant’s arrest, 8 April 2022. This judgment is concerned with two of the applicant’s grounds of appeal, as follows:

3. [3]

   Ground 2 of the proposed appeal is dealt with in a separate judgment, to be published to the parties simultaneously with this judgment.

Facts of the offending

1. [4]

   The offence of knowingly take part in the supply of cocaine, seq 21, arose out of the applicant’s use of a mobile phone for taking orders and supplying the drug on several dates in December 2021 and February 2022. Police intercepted SMS text messages sent to and from the phone in question during the period 7 December 2021 to 7 April 2022. The applicant had control of the phone for part of that period, up to 24 February 2022. The phone was used to send out bulk text messages to 467 customers, offering them cocaine. Orders were placed by text messages to the phone, with advice of a delivery address. The phone was used to send a response advising the time of delivery and the description of the delivery vehicle. On 11 separate days in December 2021 and a further seven days in February 2022 the applicant was in control of the phone and caused a total of 29.5 g of cocaine to be delivered by drivers acting at his direction. Others were involved in this enterprise and the order phone was used to facilitate the supply of a total of 521 g of cocaine with an estimated value of over $230,000 over the whole of the period from 7 December 2021 to 7 April 2022.

2. [5]

   All the other offences were constituted by the applicant being in possession of the weapons and ammunition at his residence in Panania when he was arrested for the drug supply and when the residence was searched. In the course of the search he showed police an Aldi bag under his bed that contained all the items that are the subject of the remaining charges. The serial number of the Ruger revolver in seq 6 was defaced and the weapon was loaded with six rounds of ammunition. The Smith and Wesson pistol in seq 13 was also loaded, with seven rounds in its magazine. The weapons prohibition order, of which the applicant was in breach by virtue of his possession of the ammunition to which seq 9 relates, had been made on 22 March 2020. The applicant said he had not opened the Aldi bag containing these items but one fingerprint from him was located on a plastic bag containing ammunition, inside the Aldi bag.

Ground 1 – failure to assess for intensive correction order

1. [6]

   The very considerable lenience of the indicative sentences nominated by the sentencing judge is largely attributable to her Honour’s allowance of a substantial discount, well in excess of the 25% to which the applicant was entitled on account of his pleas of guilty. It was submitted to her Honour that an aggregate head sentence of less than 3 years was “open” and that she should order under s 7 of the Crimes (Sentencing) Procedure Act that the sentence be served by way of intensive correction in the community (“ICO”), rather than by way of full-time custody. As an ICO can only take effect from the day it is ordered (s 71(1)) and cannot be backdated to take account of presentence custody, it was submitted to the learned judge that the duration of the sentence and the ICO by which it would be served should be shortened to give credit for almost exactly one year that the applicant had spent in custody on remand. That submission was contained in the following paragraph:

2. [7]

   In this Court the applicant’s written submissions included the following:

3. [8]

   The following provisions of the Crimes (Sentencing) Procedure Act are relevant to ground 1:

4. [9]

   In R v Zamagias [2002] NSWCCA 17 at [25]-[29] Howie J (with whom Hodgson JA and Levine J agreed) laid out the sequence in which a sentencing judge is required to determine matters relevant to making a statutory order that a term of imprisonment be served other than in full-time custody. The relevant alternative considered in R v Zamagias was a suspended sentence. Howie J’s observations were addressed, also, to orders of other kinds that are no longer available under the Crimes (Sentencing) Procedure Act. Essentially his Honour said that a sentencing judge must first determine whether there is any alternative to a term of imprisonment in the circumstances of the case. If there is no appropriate alternative, it must be decided how long the term should be, that decision being “made without regard to whether the sentence will be immediately served or the manner in which it is to be served”. His Honour observed that the power to order that a term of imprisonment be suspended or served other than by immediate full-time custody is in each case dependent upon the term first being “imposed”. Hence, the length of “the term of the sentence cannot be influenced by what order might be made after the sentence has been imposed”. His Honour said this:

5. [10]

   In Mandranis v R [2021] NSWCCA 97 Simpson AJA said this at [35]:

6. [11]

   In Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 Gageler J (as the Chief Justice then was) made the following observations at [30]:

7. [12]

   Although his Honour was in the minority concerning the issue of jurisdictional error upon which the appeal turned, the authority of the above statement is not diminished. In the joint judgment of Gordon, Edelman, Steward and Gleeson JJ a statement to similar effect was made, as follows:

8. [13]

   Jagot J, also in the minority, recognised the same principles:

9. [14]

   In Zheng v R [2023] NSWCCA 64 at [270]-[272], Gleeson JA (Hamill and Ierace JJ agreeing) again endorsed the sequence of considerations, as follows:

10. [15]

    The applicant’s submission quoted at [7] above seeks to circumvent these principles by proposing that the learned sentencing judge should first have determined whether an ICO would be appropriate, having regard to the considerations specified in s 66(2). The applicant submits that, if so satisfied, the judge should have ordered that the sentence to be imposed commence on the day it was pronounced, rather than backdating it to give credit for the year of the applicant’s remand in custody and should have reduced the length of the sentence as an alternative means of giving that credit. The result, it is submitted, would have been an aggregate sentence of under 3 years commencing on 6 April 2023, which the learned judge could have ordered to be served by way of an ICO.

11. [16]

    Grounds 2 and 3 are independent complaints about her Honour’s exercise of the sentencing discretion, either of which, if upheld, would require consideration of whether any lesser sentence than the aggregate imposed by the judge is warranted in law. Ground 1 is to be evaluated on the assumption that the aggregate sentence of 3 years and 6 months is not otherwise impeachable. On that basis, the applicant’s suggestion that the learned judge should have imposed a shorter sentence commencing on the day it was pronounced for the purpose of bringing the term of imprisonment down to 3 years or less and thereby satisfying the statutory prerequisite in s 68(2) for an ICO, is untenable.

12. [17]

    It is a settled practice that where a period on remand is referable to the offence for which sentence is to be passed, credit for the time served should be given by backdating pursuant to ss 24(a) and 47(3) of the Crimes (Sentencing Procedure) Act, not by shortening the term with commencement on the date of sentencing. The seminal decision on that subject is R v McHugh (1985) 1 NSWLR 588, where the Court said this (at 590-591):

13. [18]

    The practice was reaffirmed in Eldridge v R [2011] NSWCCA 144 at [32]-[34] where Hoeben J (as his Honour then was) cited R v McHugh and a number of intervening decisions that had restated the point. If this practice had been departed from in the present case, as the applicant submits should have occurred, her Honour would have to have imposed a sentence of 2 years and 6 months commencing on 6 April 2023, so that with the year already served on remand the applicant would have been either actually in custody or subject to an order for his imprisonment for a total of 3 years and 6 months, being the duration that the sentencing judge considered warranted. If the learned judge had taken that course she would have failed to formalise, in an order of the Court, her conclusion as to the term that was called for in all the circumstances of the case. That would not merely confound the collection of statistics about sentencing, it would involve a lack of transparency and misrepresentation in the court’s record.

14. [19]

    As stated in R v McHugh and in the decisions that have followed that case, if the practice of backdating is to be departed from the sentencing judge should clearly state the reasons for doing so. Here, if the course now proposed by the applicant had been adopted, the only reason that could have been given for not fixing the full term of 3 years and 6 months with commencement backdated to the applicant’s arrest would have been that this was intended to circumvent the 3-years-or-less prerequisite in s 68(3), enabling the judge to make an order that imprisonment commencing from the pronouncement of the sentence should be served by way of an ICO. Far from the judge having erred by not engaging in such manipulation, to have done so would have been an impermissible exercise of her Honour’s discretion under ss 24(a) and 47(3). Exercise of the discretion as to commencement date for a purpose of defeating s 68(3) would involve acting upon an irrelevant and impermissible consideration.

15. [20]

    In Mandranis v R at [55]-[62] Simpson AJA pointed out that if a sentencing judge should impose a term of 3 years or less for an offender who had been on remand pending sentence, the backdating of commencement in accordance with R v McHugh would preclude an ICO, because the ICO can only take effect from the date it is made as provided in s 71. Her Honour contemplated that in such a case there might be an exceptional departure from backdating and that, instead, credit might be given by shortening the term, in order not to deprive the applicant and the court of the ICO alternative to full-time custody. Her Honour’s observations in that respect do not support the applicant’s submissions in the present case, where the appropriate sentence was deemed to be one of more than 3 years and the applicant suggests that a commencement date be adopted to avoid the operation of s 68(3).

16. [21]

    At [63] Simpson AJA also raised as an additional possibility, which did not arise for determination in that appeal, of whether a sentencing judge might refrain from passing an otherwise appropriate term of more than 3 years and instead fix a shorter term, in lieu of backdating, to commence on the pronouncement of the sentence. Her Honour said this:

17. [22]

    N Adams J expressed doubt upon the point at [67]. Having now to decide the matter, it is our view that where an aggregate sentence of more than 3 years is considered appropriate and the offender has served some presentence custody, it would be an impermissible exercise of the sentencing discretion to reduce the term to 3 years or less, with a commencement date that is not backdated, for the purpose of satisfying s 68(3) and facilitating an order that the shortened sentence be served by way of an ICO.

Ground 3 – non-exculpatory duress

1. [23]

   In the sentence proceedings the Crown tendered a police fact sheet concerning the arrest of the applicant on 13 October 2020 when he was found to be in possession of 13 small resealable plastic bags containing cocaine and three mobile phones. An affidavit of the applicant was tendered in the sentence proceedings that are the subject of the present appeal, in which he deposed that at the time of that earlier arrest he was indebted in respect of drug transactions and, as result of the police seizure of the mobile phones, he became further indebted because he had “lost the run phone”. The effect of his evidence was that thereafter he was committed to continue distributing drugs in order to pay off money owed to the people with whom he had become involved in that trade.

2. [24]

   The applicant said that on 23 February 2022 he went to the house of the person who had introduced him to this activity “to give back the phones”, apparently referring to replacement run phones that police had detected him using since 7 December 2021. The applicant said that as a result of stating his desire to cease involvement in drug distribution he was bashed, stabbed and struck with a metal pole, resulting in his hospitalisation for eight days.

3. [25]

   The applicant tendered records of the Bankstown-Lidcombe Hospital where he was admitted on 24 February 2022 and where he remained until 2 March 2022. According to those records he had sustained a penetrating laceration to his right medial thigh, tenderness and redness of the right ankle, swelling of the left arm with grazed skin over the elbow and a mildly displaced fracture of the metacarpal of his right thumb. The applicant reported to hospital staff that the cause of these injuries was a collision between a dirt bike and a motor vehicle. Notes from a surgical review raised a query as to whether the injury to his right thigh was a stab wound. The notes record that the applicant was evasive when questioned.

4. [26]

   The applicant’s affidavit contained the following account of what occurred after he was discharged from hospital:

5. [27]

   The applicant told his psychologist, Ms Kam, that the guns were left with him on the evening of the day he was discharged from hospital. He gave oral evidence in the sentence proceedings. He was not challenged as to the assault or as to the circumstances of his receipt of the two handguns. He said that the bag containing them was handed to him by one of the two people who had assaulted him on 24 February 2022 and that he knew those assailants were involved in the supply of large quantities of drugs. In cross-examination the applicant accepted that he believed the firearms “were going to be used for criminal activities and violence”. In written submissions the applicant’s counsel relied upon the agreed facts that he had ceased to control the run phones from 24 February 2022 and that another person took them over from that date. The facts showed that the applicant was still in possession of the guns on 8 April 2022, one month after he had received them, according to his account.

6. [28]

   The applicant’s counsel submitted to the sentencing judge that s 21A(3)(d) of the Crimes (Sentencing Procedure) Act was engaged, requiring that her Honour take into account in mitigation of sentence that “the offender was acting under duress”. It was submitted that duress was operative in relation to the drug supply offence and all firearms offences. Her Honour was referred to Tiknius v R [2011] NSWCCA 215 at [31]-[54], where Johnson J (Tobias JA and Hall J agreeing) analysed a number of authorities concerning the role that non-exculpatory duress may play in sentencing. Johnson J noted that duress may reduce moral culpability, in particular by showing that neither greed nor any other criminal objective was the motive for the offending. His Honour also noted that if duress is shown to have contributed to the commission of the offence, there may be a reduced likelihood of future offending and a favourable expectation of rehabilitation once the duress has ceased to be operative.

7. [29]

   Johnson J made the following observations, tending to moderate the extent to which duress may mitigate sentence:

8. [30]

   In the present case, the learned judge accepted the applicant’s evidence of the circumstances that were said to have constituted duress. In her remarks on sentence the judge said this with respect to taking this sentencing factor into account:

9. [31]

   Having quoted the above passage in written submissions to this Court, the applicant’s counsel put the following in support of ground 3:

10. [32]

    We do not draw such a conclusion in the present case. First with respect to the drug offence in seq 21, it was committed by a series of transactions in December 2021 and February 2022, prior to the assault that resulted in the applicant’s hospitalisation. The duress asserted in relation to the drug offence was said to be pressure to repay debts including a debt that resulted from loss of a run phone in October 2020, 14 months before the first of the offending transactions in seq 21. In relation to that offence, general deterrence remained a significant sentencing consideration. It is incumbent upon a person engaged in ongoing offending of this nature that he or she should cease and, if necessary, seek police intervention and protection, long before the elapse of 14 months from the commencement of duress.

11. [33]

    The firearms offences were very serious. It is notorious that there is a high incidence of the use of handguns in the commission of violent offences connected with the trade in prohibited drugs. It is important that there should be a strong general deterrent element in sentences imposed for offences of keeping such weapons and ammunition on behalf of persons involved in that trade. The deterrent effect of sentences must be sufficient to discourage others from submitting to demands for storage of weapons, such as the demand that was made to the applicant. Taking into account all sentencing factors that the sentencing judge had under consideration, it is not apparent to the Court that acceptance of the uncontested evidence concerning duress ought to have translated into lesser indicative sentences or a lesser aggregate than as determined by her Honour.

Orders

1. [34]

   For the above reasons and for the reasons expressed in the Court’s separate judgment concerning ground 2, the orders of the Court are:

   1. (1)

      Grant leave to appeal against sentence.

   2. (2)

      Dismiss the appeal.