Why v R

1. [1]

   HOEBEN CJ at CL: I agree with Walton J.

2. [2]

   WALTON J: By a notice of appeal filed 16 November 2016, the applicant, Michael Why, sought leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed on him in the District Court on 16 October 2015 (an application for an extension was not opposed by the Crown).

3. [3]

   The applicant pleaded guilty to the following charges on indictment.

4. [4]

   The first count was the supplying a prohibited drug, namely a quantity of cocaine, between 24 February 2012 and 3 March 2012, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (“the Act”). The applicable maximum penalty for Count 1 was 15 years imprisonment and/or a $220,000 fine: s 32(1) of the Act. The second count was the supplying not less than the commercial quantity of a prohibited drug, namely methylamphetamine, between 1 January 2012 and 4 April 2012, contrary to s 25(2) of the Act. The applicable maximum penalty for Count 2 was 20 years imprisonment and/or a $385,000 fine: s 33(2)(a) of the Act. Count 2 carried a standard non-parole period of 10 years under the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”).

5. [5]

   A further offence of recruiting another person – the applicant’s son, Michael Why Junior – to assist in carrying out a criminal activity, namely supplying a prohibited drug, contrary to s 351A(1) of the Crimes Act 1900 (NSW) was listed on a Form 1 (“the admitted offence”). That offence carried a maximum penalty of 7 years imprisonment.

6. [6]

   Pursuant to s 53A(1) of the Sentencing Act, Williams SC DCJ (“the sentencing judge”) imposed an aggregate sentence of 8 years and 9 months imprisonment commencing on 4 April 2012 and expiring on 3 January 2021, with a non-parole period of 5 years and 6 months expiring on 3 October 2017. His Honour noted that, if separate sentences had been imposed, he would have imposed a sentence of 3 years imprisonment for Count 1 and a sentence of 8 years, with a non-parole period of 5 years and 6 months, for Count 2. The admitted offence was taken into account.

Grounds of Appeal

1. [7]

   The grounds of appeal were as follows:

   1. (1)

      The applicant was left with a justifiable sense of grievance given the sentence that was passed on other co-offenders, particularly, Jason Shipman.

   2. (2)

      The sentence was manifestly excessive in all the circumstances.

2. [8]

   For the reasons outlined below, neither of the grounds of appeal was made out. The application for leave should be, in my view, refused with respect to ground 1 and leave granted for ground 2 with the appeal dismissed.

Factual Background

1. [9]

   The charges against the applicant arose out of a police investigation which commenced in January 2011, into the activities of members and associates of the Lone Wolf Outlaw Motorcycle Gang (“the OMCG”) based in Toormina, near Coffs Harbour. The investigation involved the use of telephone intercepts, listening devices and the use of undercover operatives. The investigation led to 11 persons, including the applicant and a Mr Shipman being charged and ultimately sentenced for various offences for the supply of prohibited drugs.

2. [10]

   The applicant was a full member of the OMCG. He was arrested and charged on 4 April 2012 in relation to the supply of methylamphetamine to club and non-club members as well as the supply of cocaine.

Sentencing Proceedings

1. [11]

   The applicant appeared for sentence on 15 and 16 October 2015. The Crown tendered a bundle of material which contained the indictment, the Form 1, a signed agreed statement of facts, the applicant’s criminal and custodial history, as well material relating to Mr Shipman including the remarks on sentence of Baly SC DCJ who sentenced him.

2. [12]

   Mr Shipman had been charged and sentenced to the following:

   1. (1)

      The supply of not less than a commercial quantity of a prohibited drug (methylamphetamine – 495.86 grams), contrary to s 25(2) of the Act with an indicative sentence of 5 years and 10 months and a non-parole period of 3 years and 9 months;

   2. (2)

      The supply of a prohibited drug, cocaine, contrary to s 25(1) of the Act with an indicative sentence of 3 years;

   3. (3)

      The supply of a prohibited drug, cannabis, contrary to s 25(1) of the Act with an indicative sentence of 2 years; and

   4. (4)

      The possession of an unregistered firearm contrary to s 36(1) of the Firearms Act 1996 (NSW), with an indicative sentence of 2 years and 6 months.

3. [13]

   The first three offences were committed by Mr Shipman between 19 August 2011 and 3 April 2012. Pursuant to s 53A of the Sentencing Act, Baly SC DCJ imposed an aggregate sentence of imprisonment of 7 years and 2 months with a non-parole period of 4 years and 8 months. For two related offences of not keeping firearm safely and possessing ammunition (contained on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW)), Baly SC DCJ imposed an 8 month fixed term period of imprisonment and a s 10A conviction without penalty respectively.

4. [14]

   The applicant tendered a bundle of material comprising of a psychological assessment report prepared by Ms Michelle Player (dated 14 September 2015), custodial case notes and a custody management record for the applicant from Corrective Services NSW. A letter from the applicant’s partner was also admitted into evidence.

Remarks on sentence

1. [15]

   In his remarks on sentence, the sentencing judge began by recording the background of the matter, including the charges against the applicant and his incarceration since 4 April 2012 (excluding a period of 6 or 7days when the applicant was released owing to administrative error).

2. [16]

   The sentencing judge identified that Count 1 concerned the actual supply of, “at least 17.5 grams of cocaine” to James Fletcher on 25 February 2012 and that the agreed statement of facts evidenced various conversations about payment for the drug.

3. [17]

   The sentencing judge noted an agreement that Count 2, which he referred to as the “more serious count”, involved an amount in excess of the commercial quantity namely, 500 grams of methylamphetamine. His Honour also noted that the agreed statement of facts identified a number of instances of actual supply of methylamphetamine: 56 grams to Mr Fletcher on 16 March; 3.5 grams to Daniel Yilas on 17 March; 54 grams to Michael Horne on 21 March (at the request of Neville Luck); and 28 grams to an undercover operative on 3 April 2012. There was also evidence of the applicant admitting to “regular supplies of 1 ounce quantities of methylamphetamine to various people”, including members of the OMCG for $3,000 an ounce and non-members, including Mr Shipman, for $4,000 an ounce. With regard to the Form 1, the sentencing judge noted that, on 24 January 2012, the applicant had given his son, who was then in his early twenties, “detailed advice and instruction about how to supply methylamphetamine to make money and offered to be his supplier for the drugs.”

4. [18]

   The sentencing judge stated that it was “common ground” that his Honour should have regard to the facts involved and the sentence imposed by Baly SC DCJ on Mr Shipman in March 2015, namely:

   1. (1)

      he pleaded guilty to the offence with which he was charged (as earlier discussed in the judgment);

   2. (2)

      he was one year older than the applicant;

   3. (3)

      he “had a more extensive criminal record at the time of his sentence”;

   4. (4)

      his criminal record “was one with no prior matters for supplying prohibited drugs and… his last offence had been in 2007”;

   5. (5)

      he had purchased methylamphetamine from the applicant “to on-sell to his customers in small quantifies”; and

   6. (6)

      he entered a plea of guilty for which Baly SC DCJ allowed a 10 percent discount for the utilitarian value.

5. [19]

   The sentencing judge also highlighted the following findings of Baly SC DCJ:

   1. (1)

      Mr Shipman had supplied three different drugs on many occasions over an eight month period and was to be “regarded as a principal in the enterprise at a higher level than most of the others who had been charged”;

   2. (2)

      the applicant was “higher up in the network” than Mr Shipman but the duration of his offending conduct was significantly less than the period over which Mr Shipman had been supplying drugs; and

   3. (3)

      Mr Shipman’s offending, for the first offence (noted above at para 11(1)), was in the mid-range of objective seriousness, having regard to the amount supplied, his role as a principal and the number of supplies over an extended period to different customers.

6. [20]

   Her Honour imposed an aggregate sentence of imprisonment of 7 years and 2 months. A finding of special circumstances resulted in a non-parole period of 4 years and 8 months.

7. [21]

   The sentencing judge also summarised the material tendered by the applicant as to his subjective circumstances including his family background, educational history, family history, association with the OMCG, health and history of drug use. His Honour accepted that the applicant expressed a level of remorse and that his period of custody had been a “salutary one”. It was accepted that a 10 per cent discount should apply for the utilitarian value of the plea.

8. [22]

   His Honour recorded that the objective seriousness of Count 2 fell within the mid-range and accepted the applicant’s submission that the objective seriousness of Count 1 was below the mid-range of objective seriousness. His Honour said:

9. [23]

   The sentencing judge noted that “this is a very serious offence and the Court could infer the applicant’s lifestyle as one being funded by drugs and that such an inference was “clearly open, given the amount of money involved in the sales covered by the period”. His Honour found that the applicant “must be sentenced on the basis that he was a wholesaler of illicit drugs in the Coffs Harbour community for profit.” The applicant’s criminal record included four charges of supplying a prohibited drug. These were dealt with by Coffs Harbour District Court in 2009. Those drug supply charges involved “relatively small” amounts of cannabis and cocaine, for which the applicant received suspended sentence (pursuant to s 12 of the Sentencing Act). A charge of dealing with property suspected of being proceeds of crime in the amount of $1,700 was also dealt with on a Form 1 The sentencing judge found that the applicant’s record did not entitle him to any leniency, particularly given his previous sentences for the drug supply offences.

10. [24]

    In terms of mitigating factors, the sentencing judge noted that the applicant had “reasonable prospects of rehabilitation” given his conduct in custody, its “hopefully salutary effect”, and his knowledge that he will be a father to another child upon his release The applicant had acknowledged that he intended to leave the OMCG, accepting there was a high risk of reoffending if he continued to associate with that body. His Honour commented that the applicant had demonstrated remorse by his plea

11. [25]

    As to the applicant’s criminality the sentencing judge recorded the Crown’s submission that his criminality was “significantly greater than all the other related offenders”. Although counsel for the applicant had submitted that Mr Shipman was a co-offender with a significant level of parity, counsel had properly accepted in oral submissions, that the criminality of the applicant was slightly more than that of Mr Shipman. His Honour found that Mr Shipman’s offending was “a little more sophisticated as it extended over a longer period of time”

12. [26]

    The sentencing judge accepted that there should be a finding of special circumstances because it was the applicant’s first time in custody, he had demonstrated remorse, had reasonable prospects of rehabilitation and his family circumstances

Ground 2: The sentence was manifestly excessive in all the circumstances

1. [27]

   It is appropriate to deal with Ground 2 of the appeal before considering Ground 1 because, as this Court has repeatedly stated, “a complaint as to parity accepts that the sentence imposed was otherwise appropriate”: Zreika v R; Elsaj v R [2016] NSWCCA 177 at [76] per Hoeben CJ at CL (with whom Button and N Adams JJ agreed).

Relevant principles

1. [28]

   By contending the exercise of the sentencing discretion below resulted in a sentence which was manifestly excessive, the applicant must be taken as asserting the sentencing process was attended by the last mentioned error in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505, such that a sentence is manifestly excessive where the applicant shows that the sentence is “unreasonable or plainly unjust”: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 (“Markarian”) at [25]. This has to be established in a context where there is no single correct sentence and where judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle: Vuni v R [2006] NSWCCA 171 (“Vuni”) at [33] per Hoeben J (as his Honour then was, Tobias JA and James J agreeing); Markarian at [27]; Vale v R (2016) 77 MVR 194; [2016] NSWCCA 154 at [37] (per Hoeben CJ at CL with whom Rothman J and R A Hulme J agreed)

2. [29]

   Intervention is not warranted simply because the sentence is “markedly different”, from other sentences that had been imposed in other cases: Wong v R (2001) 207 CLR 584; [2001] HCA 64 at [58]. Rather there must be some misapplication of principle, even though when and how is not apparent from the reasons given in the impugned judgment: Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 at [58].

3. [30]

   In a case involving an aggregate sentence imposed pursuant to s 53A of the Sentencing Act, it is the “aggregate sentence [and not the indicative sentences] that must answer the description of being manifestly excessive”: Beale v R [2015] NSWCCA 120 at [78] per Beech-Jones J (with whom Hoeben CJ at CL and R A Hulme J agreed). The indicative sentences “are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence”: JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [40] per R A Hulme J (with whom Hoeben CJ at CL and Adamson J agreed).

4. [31]

   The applicant advanced two submissions in respect of the contention that the aggregate sentence imposed by the sentencing judge is manifestly excessive. First, whilst recognising the “limited use” of statistics, the applicant submitted that “of the 157 cases dealt with in the JIRS database for this charge on a plea of guilty for the head sentence, only one percent received 12 years, only one percent received 8 years, with the peak of at 36 months (sic)”.

5. [32]

   The second aspect of the applicant’s submissions as to manifest excess involves a reference to the case of R v Barkho [2005] NSWCCA 211 (“Barkho”). The citation was presumably given on the basis that it was a comparable case, in which this Court intervened and reduced a sentence for an offence of supplying methylamphetamine.

6. [33]

   It should be immediately observed that the applicant has not been sentenced for a single charge; he received an aggregate sentence for two counts of supplying a prohibited drug under ss 25(1) and (2) of the Act, taking into account a further serious offence on the Form 1. In this regard, as Davies J (with whom Ward JA and R S Hulme AJ agreed) identified in Erazo v R [2016] NSWCCA 139 at [70], “[t]his Court has said in a number of cases that the statistics offer no guidance about the propriety of an aggregate sentence: Tweedie v R [2015] NSWCCA 71 at [47]; Knight v R [2015] NSWCCA 222 at [88]; AG v R [2016] NSWCCA 102 at [92]”. In Tweedie v R, at [47], R A Hulme J (with whom Basten JA and Adamson J agreed) said:

7. [34]

   In R v Chidiac [2015] NSWCCA 241 at [57], Price J, with whom Bathurst CJ and Beech-Jones J agreed, explained that:

8. [35]

   As to the second limb, the applicant’s allegation of manifest excess is not assisted by the identification of one other case in which a more lenient sentence was imposed. As Johnson J (with whom Allsop P and Price J agreed) explained in Huynh v The Queen (2008) 188 A Crim R 287; [2008] NSWCCA 216 at [61]:

9. [36]

   Barkho is not a comparable case from which this Court should draw any assistance for three reasons. First, Mr Barkho had been sentenced for only one count of supplying a prohibited drug (methylamphetamine) in a quantity not less than the commercial quantity and an offence of possessing cannabis was taken into account on a Form 1. Secondly, Mr Barkho’s criminality was different from the applicant, given that he was characterised as a “middle order street seller” whose offending was assessed as “slightly below the middle range of offending”. Further, his offending concerned the supply of 2000 pills on one occasion rather than ongoing supply of a prohibited drug as in the present case.

10. [37]

    Finally, the basis for this Court’s intervention was a disparity between Mr Barkho’s sentence with that imposed on a co-offender, given Mr Barkho’s lesser criminal history than the co-offender and the more significant criminal offences set out on the co-offender’s Form 1.

11. [38]

    In the present case, the aggregate sentence of imprisonment that the sentencing judge imposed on the applicant was not unreasonable or plainly unjust. Counts 1 and 2 carried maximum terms of imprisonment of 15 and 20 years respectively and the standard non-parole period of Count 2 was 10 years. His Honour had regard to the applicant’s role as a wholesaler of illicit drugs for profit in the Coffs Harbour community; the quantity of drugs supplied (the quantity supplied in Count 1 contained more than triple the amount of an indictable quantity of methylamphetamine and Count 2 contained at least double the threshold for the supply of a commercial quantity of methylamphetamine); the applicant’s previous convictions for drug supply and the admitted offence.

12. [39]

    Ground 2 should be rejected. There is nothing in the arguments advanced by the applicant which could warrant the grant of leave to appeal and, hence, I would propose leave to appeal be refused.

Ground 1: the applicant is left with a justifiable sense of grievance given the sentence that was passed on other co-offenders, in particular, Jason Shipman

1. [40]

   In Ground 1, the applicant alleges that he is “left with a justifiable sense of grievance given the sentence that was passed on other co-offenders, in particular, Mr Jason Shipman”. Although this ground might be taken as alleging disparity in relation to the sentences passed on the applicant’s co-offenders generally, the applicant’s challenge was essentially limited to the sentence imposed on Mr Shipman as it was in the proceeding below.

2. [41]

   The applicant submitted that the criminality of the two co-offenders was close to equal in relation to the charges for the supply of methylamphetamine and cocaine. The quantities of supply of methylamphetamine were submitted to be similar and that, although Mr Shipman’s involvement was slightly lower in organisational terms, it was for a longer period of time. The applicant further submitted that a common enterprise did exist for parity to apply, directing attention to a “interlinking of cross-supplies” and a “web or vertical drug sale” rather than a “hierarchical system” between him and Mr Shipman.

3. [42]

   The applicant submitted that the objective seriousness of the offences committed by the applicant and Mr Shipman were essentially the same. Further, it was submitted that the subjective factors of the applicant and Mr Shipman did not justify a departure from the operation of the parity principle. It was contended that the aggregate sentence imposed created a grievance as Mr Shipman had two other significant counts on his indictment, whilst the applicant had a lesser charge taken on the Form 1. The difference in starting points for these offences created a justifiable sense of grievance.

Relevant principles

1. [43]

   The principles for the application of the parity principle were summarised by Garling J (with whom Macfarlan JA and R S Hulme J agreed) in Rees v R [2012] NSWCCA 47 at [50]:

2. [44]

   In Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49 at [31] French CJ, Crennan and Kiefel JJ explained:

3. [45]

   Further, their Honours noted, at [32], that:

4. [46]

   Two questions arise in relation to this ground of appeal. The first is whether the principle of parity applies in this matter. Depending upon the answer to that question, an issue then arises as to the proper application of the principle. I consider that the principle of parity does not apply as contended by the applicant and therefore, this ground of appeal must fail. It is strictly unnecessary to consider the second limb of this ground. However, for completeness, I will make some short remarks to demonstrate that this first ground of appeal should also fail upon the second limb of the applicant’s case.

Failure to establish parity principle applies

1. [47]

   The parity principle, although not confined to co-offenders in a strict sense, “has application in the sentencing of persons involved in the same criminal enterprise”: Elias v R; Issa v R (2013) 248 CLR 483; [2013] HCA 31 at [30] per French CJ, Hayne, Kiefel, Bell and Keane JJ .The principle does not apply in the present case because the applicant and Mr Shipman were not participants in a “common criminal enterprise” or the “same criminal enterprise”: Henderson v R [2012] NSWCCA 65 at [57]-[61] per R A Hulme J (with whom Macfarlan JA and R S Hulme J agreed); see also Meager v R [2009] NSWCCA 215 (“Meager”) at [8] and [13] per Latham J (with whom Young JA and Johnson J agreed).

2. [48]

   The Crown submitted, correctly in my view, that the offenders, although part of the same network distributing drugs in the Coffs Harbour area, had individual roles and levels of criminality which varied such that the parity principle simply had no application.

3. [49]

   Mr Shipman’s offending extended across a longer period than that of the applicant and, it is evident, as the applicant contended below, that he sourced his drugs from various people, only one of whom was the applicant. The applicant, as a wholesaler of methylamphetamine, supplied to persons other than Mr Shipman. He supplied both to OMCG members and also, at a higher price, to non-members like Mr Shipman.

4. [50]

   Further, the applicant had encouraged his son to “undercut” Mr Shipman.

5. [51]

   The fact that both the applicant and Mr Shipman were charged with the same offences contrary to ss 25(1) and (2) of the Act in respect of the same type of drugs of relatively similar quantities does not make them co-offenders in a common criminal enterprise: see also Meager at [8] and [13].

6. [52]

   The judgment in R v Araya (2005) 155 A Crim R 555; [2005] NSWCCA 283 per Johnson J (with whom Simpson and Rothman JJ agreed) is instructive, in this respect. The relevant extract, at [66], [67] and[72], is as follows:

7. [53]

   Accordingly, this ground of appeal must therefore fail. I would refuse leave to appeal.

Misapplication of parity principle

1. [54]

   Two matters should be noted about the manner in which the applicant invites this Court to apply the parity principle. First, the applicant’s complaint is directed to the “starting points for these offences” outlined in Tables A and B of his submission. Those Tables do not contain the starting points for indicative sentences for Counts 1 and 2 for the applicant or Mr Shipman and refer only to what is described as the “Aggregate Sentence starting point”. This approach, in effect, ignores s 53A(2)(b) of the Sentencing Act which requires the indicative sentences (and not the aggregate sentence) to be assessed by taking into account such matters in Pt 3 or elsewhere in the Sentencing Act as are relevant, including reductions for guilty pleas: JM v R at [39](3); SHR v R (2014) 241 A Crim 544; [2014] NSWCCA 94 and Khawaja v R [2014] NSWCCA 80.

2. [55]

   Secondly, and relatedly, the applicant challenged the “nature of the aggregate sentence imposed on each” of him and Mr Shipman, given that Mr Shipman had two other significant counts on his indictment whereas the applicant had a lesser charge taken into account on a Form 1. Although the parity principle cannot be ignored for aggregate sentences where there is an identity of some but not all crimes (see, Thangavelautham v R [2016] NSWCCA 141 at [72]), merely comparing the aggregate sentences of two offenders, without more, may not satisfactorily deal with issues of parity on relevant counts. As such, the primary focus of the analysis should be a comparison of the indicative sentences for the relevant counts and not the aggregate sentences: see, eg, R v Clarke [2013] NSWCCA 260 at [68] per McCallum J.

3. [56]

   There is no basis for the applicant to have a justifiable sense of grievance in respect of the sentence imposed on Mr Shipman because of:

   1. (1)

      the differences in their offending (having regard to the quantity of the drug supplied and the difference in their roles and levels of participation);

   2. (2)

      the charge on the Form 1 (Mr Shipman had no admitted offence); and

   3. (3)

      the differences in their subjective cases (having regard to the applicant’s criminal record and the risk of his reoffending compared to Mr Shipman).

Conclusion

1. [57]

   The application for leave to appeal, in my view, should be granted to permit the discussion of the forgoing principles, and the appeal dismissed.

Orders

1. [58]

   I propose the following orders:

   1. (1)

      The application for an extension of time made on 16 November 2016 is granted.

   2. (2)

      Leave to appeal on ground one is refused.

   3. (3)

      Leave to appeal on ground two is granted and the appeal is dismissed.

2. [59]

   R A HULME: I agree with the orders proposed by Walton J and with his Honour’s reasons. I only wish to add the following to what his Honour has said about the applicant’s reliance upon sentencing statistics.

3. [60]

   Quite a deal has been said in judgments of this Court in recent years about the care which needs to attend the use of sentencing statistics provided by the Judicial Commission of New South Wales. Walton J has referred to those which discuss statistics in the context of aggregate sentencing (above at [34]-[35]).

4. [61]

   In Knight v R [2015] NSWCCA 222 at [13] I wrote of the need caution: "if [statistics] are to be relied upon, it is necessary that counsel ensure that the limits of their utility are properly understood”. Earlier (at [8]) I said:

5. [62]

   The Judicial Commission has provided enhancements to the statistics in recent times, partly in response to what the High Court has said in cases such as Hili v The Queen; Jones v The Queen [2010] HCA 45; 244 CLR 520 and The Queen v Pham [2015] HCA 39; 256 CLR 550. They include the provision of statistics for “Aggregate/Effective” terms of sentence and non-parole periods. But there are limitations on the utility of these.

6. [63]

   Another enhancement is the provision of further information about individual cases which make up the database. Sometimes it is limited but where published judgments are available there is a very helpful hyperlink to them (and sometimes to summaries of them). It is, unfortunately, rarely apparent in this Court that counsel who are relying upon the statistics have made use of this facility.

7. [64]

   The sentencing statistics can be a very valuable tool if properly understood and used appropriately. Once again, I can only implore practitioners to read the “Explaining the Statistics” document before relying upon statistics in any court, including this Court.