Delleci v R

HOEBEN CJ at CL:

The applicant sought leave at the commencement of the appeal to rely upon Ground 2. That application was not opposed by the respondent. Accordingly, leave was granted to amend the Grounds of Appeal.

There were two groups of offences before her Honour. The offences falling into the first group were committed on 30 May 2017. The offences falling into the second group were committed on 3 and 4 October 2017. The applicant was on bail for the first group of offences when he committed the second group of offences.

In respect of all offences, the applicant pleaded guilty in the Local Court and received a 25 per cent discount for the utilitarian value of the early plea of guilty.

The table below summarises the offences that were before her Honour and the sentences that she indicated for them:

The first group of offences arose out of the execution of a search warrant on 30 May 2017 at what appears to have been the applicant's home in Mountain Street in Ultimo. When police arrived at the unit, the applicant threw a backpack onto an adjoining balcony. When it was retrieved, police found the following inside:

Inside the unit, police found a further 22.03g of cannabis resin (part of Count 4), 0.48g of lysergic acid (Count 3) and $2,800 in cash (Form 1).

The Form 1 matters were to be taken into account when sentencing for Count 2.

Police also found indicia of supply including resealable plastic bags of various types, four mobile phones, three sets of scales and what was described in the Agreed Facts as a “handwritten drug menu where drugs and their associated process were written down (e.g Acid - 1 tab = $30)”.

The second group of offences arose out of the execution of two search warrants, first at a unit in Darlinghurst on 3 October 2017 and then at a storage unit leased from Kennards Self Storage on 4 October 2017.

At the unit in Darlinghurst, police found a total of 19.612kg of cannabis (Sequence 2), including: 21 vacuum sealed bags of cannabis inside a suitcase; a plastic shopping bag containing cannabis; and a Tupperware container containing 20 bags of cannabis. They also found 84 tabs of lysergide in a plastic bag in the fridge (0.73g in total) (Form 1 attached to Sequence 1).

The applicant’s fingerprint or fingerprints were found on:

The applicant’s DNA was found on:

Acting on the basis of evidence discovered in the possession of a person described as the applicant’s co-offender, Mr Dahmoul, police executed a search warrant at the Kennards Self Storage unit the following day. Inside the storage unit police found 246.4g of MDMA including a bag containing 161.9g with a purity of 74 per cent and a second bag containing 84.5g, with a purity of 75.5 per cent (Sequence 1). Police also found $184,350 cash (Sequence 5).

CCTV footage seized from Kennards showed that Mr Dahmoul regularly attended the storage unit to pay the rent. It showed that on 8 February 2017 the rent was paid by another unknown man who was accompanied by the applicant.

Investigations revealed that throughout 2017, the applicant and Mr Dahmoul lived together in a unit in Pyrmont.

The applicant’s fingerprint or fingerprints were found on:

The applicant’s DNA was found on the handle of a bag containing some of the cash.

Liability for the second group of offences was on the basis that the applicant knowingly took part in the supply of the prohibited drugs in that he took or participated in steps, or caused steps to be taken, in the process of that supply:

Her Honour noted that a number of matters needed to be taken into account in assessing the objective seriousness of the offending such as “quantity, purity if known and role”. Turning to the assessment of the objective seriousness of the first group of offences, her Honour noted that for Count 1, 7.29g of cocaine was nearly one and a half times the indictable quantity of 5g and that it was packaged and ready for supply. As for Count 2, 7.78g of MDMA, her Honour noted that the quantity was over six times the indictable quantity and was packaged into nine bags. As for Count 3 (lysergic acid), her Honour noted that 54 tablets was “significantly in excess of the indictable quantity and approaching the commercial quantity” of 0.5g. As for Count 4 (cannabis resin), her Honour noted that it was nearly twice the indictable quantity.

On the basis of the variety of drugs found, their packaging and the indicia of supply, her Honour found, in respect of the first group of offences, that the applicant “was in possession of different types of drugs which he was able to supply to users on the street” (Sentence judgment p5.4).

Her Honour then turned to the second group of offences. Her Honour noted that Sequence 1 (246.4g of MDMA) involved almost double the commercial quantity of 125g and that the purity was 74 per cent (for one bag) and 75.5 per cent (for the other bag). Her Honour noted that for Sequence 2 (19.612kg cannabis), the amount of drug was “well below but approaching the commercial quantity” of 25kgs. So far as Sequence 3 is concerned ($184,350), her Honour regarded it as relevant that the amount involved was well over the $100,000 required to make out an offence under s 193C(1) of the Crimes Act 1900 (NSW).

Her Honour found in relation to the second group of offences:

Her Honour made the following findings as to the applicant’s subjective case.

The applicant was 26 years old when sentenced. He was born in Algeria but moved to France as a small child. He had limited contact with his father when growing up and was raised by his mother and older sister. His relationship with his mother soured when he was aged nine when she started a new relationship. His relationship with his older sister broke down in adolescence. Before coming to Australia, his relationship with them was “civil but distant”.

He arrived in Australia on a Working Holiday Visa in 2016. There is an expectation that he will be deported after serving his non-parole period, although no evidence was called about that.

He obtained average marks at school, however graduated from high school and commenced a number of different courses at university, including economics, marketing, medicine and engineering. His teachers at school consistently reported that his results did not reflect what he was capable of achieving. He reported to a psychologist, who prepared a report for sentencing purposes, that his IQ had been assessed at 140 when he was a child. According to the psychologist, this is well above average and means that he is “gifted with high intelligence”.

Her Honour found that he is “by all accounts … an intelligent man”. He said that he planned to resume his studies once he returned to France. He had a history of casual employment, becoming bored with a job within months.

He began smoking cannabis aged 17 or 18. After arriving in Australia, he started drinking alcohol and taking cocaine, MDMA and “poppers”. He also started abusing codeine, which he would use to help him sleep. The psychologist diagnosed him with “cannabis use disorder, cocaine use disorder and codeine use disorder”. He has historically used substances in order to cope with anxiety.

He told the psychologist that while he accepted that he had to stop abusing drugs, he did not plan to stop using cannabis.

Her Honour did not accept that his drug addiction was at all causally connected to the offending such that it would in any way mitigate the seriousness of the offences.

Her Honour rejected the applicant’s expressions of remorse in his letter to the court, noting that the psychologist had perceived that his expressions of shame and remorse were “focused on the consequences his offending had had for himself, including his incarceration, social embarrassment and a possible effect on his career”. Nor was her Honour convinced that the plea of guilty was indicative of genuine remorse, noting that the “attitude he has to his offending would suggest otherwise”. In short, her Honour was not willing to find on the balance of probabilities that the applicant was genuinely remorseful (Sentence judgment p14.8).

Her Honour further found that the applicant had limited insight into his offending. He had not engaged in any drug or alcohol treatment and, since being taken into custody, had been dealt with for refusing to provide a drug sample and for failing a prescribed drug test (in March and November respectively of 2018).

When the applicant committed both groups of offences he was on a bond, pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for an offence of possess a prohibited drug which was imposed by the Local Court at the Downing Centre on 10 November 2016. That related to the possession of 1.1g of MDMA on 16 October 2016. He had also been dealt with on 30 January 2017 under s 10A of the Crimes (Sentencing Procedure) Act for another offence of possess a prohibited drug on 29 December 2016.

The applicant was initially bail refused on the first set of offences, but was released to bail on 22 June 2017. He was therefore on bail for the first group of offences when he committed the second group of offences. Her Honour regarded this as a matter of “serious aggravation”.

Her Honour found that there was a risk of re-offending and that his prospects of rehabilitation were “guarded” (sentence judgment p15.5).

The fact that the applicant would serve his sentence in Australia far from his family in France was a basis for a finding of special circumstances.

The applicant submitted that by reference to statistics relating to pleas of guilty for an offence of drug supply to that of the applicant, the median sentence was 4 years with a non-parole period of 2 years. The applicant noted that the most serious offence for which he was sentenced, attracted an indicative sentence of 6 years imprisonment with a non-parole period of 4 years. This was before the discount for an early plea of guilty. This meant that the pre-discount starting point was 8 years for the head sentence. The applicant submitted that this pre-discount starting point was not consistent with the offence having been assessed at “below mid-range” by her Honour.

The applicant submitted that although the previous convictions for possession of cannabis and MDMA were relevant to the sentencing exercise, and the finding of aggravated circumstances, they appear to have had a more significant impact on the level of sentence than was warranted by the facts.

The applicant submitted that while there was no patent error disclosed in her Honour’s reasons, the aggregate sentence of 8½ years with a non-parole period of 5½ years imprisonment was in all the circumstances manifestly excessive.

The applicant submitted that the overall criminality was one where the activity in the first group of offences was in some ways encompassed by the more serious offending in the second group. The applicant submitted that while it was accepted that her Honour was obliged to attribute individual sentences for each offence, the overall accumulation had resulted in a sentence which was excessive. Having said that, the applicant accepted that there had to be some accumulation of the sentences. Nevertheless, given that the offending was so closely connected, the level of accumulation should have been more modest than was indicated by the aggregate sentence.

The co-offender, Mr Dahmoul, was sentenced by her Honour Judge Payne on 20 September 2019. He was not involved in any of the first group of offences for which the applicant was sentenced. Mr Dahmoul was sentenced in relation to the second group of offences for two offences:

There were four Form 1 offences to be taken into account when he was sentenced for Count 2:

Because Mr Dahmoul’s plea of guilty was late, he received a discount of 10 per cent.

Judge Payne assessed the offending as “serious”. This was particularly so in relation to the MDMA supply offence which carried with it a prescribed standard non-parole period. Judge Payne assessed the seriousness of that offending at “below middle range but just below for an offence of its type”. Judge Payne assessed Mr Dahmoul as “taking an active role in the supply of prohibited drugs”.

Judge Payne found that Mr Dahmoul’s offending was mitigated by genuine contrition and remorse pursuant to s 21A(3)(i) of the Crimes (Sentencing Procedure) Act. Judge Payne found that Mr Dahmoul had accepted responsibility for his actions and had acknowledged the potential harm which his offending was calculated to bring about.

Judge Payne noted that Mr Dahmoul had only a very limited criminal record. Her Honour also noted that even though Mr Dahmoul was still on remand, he had undertaken two course while in custody and had expressed a desire to undertake further treatment programs while in custody. Her Honour was unable to make a finding as to whether Mr Dahmoul was likely or unlikely to re-offend but did find that he had reasonable prospects of rehabilitation.

Her Honour did not find any aggravating factors pursuant to s 21A(2).

On the issue of parity, Judge Payne said:

Judge Payne ultimately imposed an aggregate sentence of 6 years commencing 3 October 2017 and expiring 2 October 2023, with a non-parole period of 3 years commencing 3 October 2017 and expiring 2 October 2020.

Judge Payne indicated the following sentences:

In relation to parity, the applicant submitted that what should be compared were the indicative sentences and in particular the starting point for those indicative sentences before any reduction for the utilitarian value of a plea of guilty. The applicant submitted that his notional starting point for supplying a commercial quantity of MDMA was 8 years, whereas that of his co-offender, Mr Dahmoul, was 6½ years.

The applicant further noted that the second offence for which Mr Dahmoul was sentenced, involved a kilogram more of cannabis leaf than did his offence, yet the undiscounted indicative sentence was significantly less than that imposed on him, i.e. 2 years compared to 2 years and 8 months.

The applicant noted that Judge Payne assessed the role of Mr Dahmoul as being the same as his. The applicant noted that there was no difference in the findings by both judges of the objective criminality, i.e. below mid-range.

The applicant submitted that even though the signature offence was the same as that for which he was sentenced, in Mr Dahmoul’s case it had attached to it four Form 1 offences. Despite this, the applicant noted that the notional starting point indicated for the sentence was significantly less than his.

The principles applicable to a claim of manifest excess are clear. They were re-stated by this Court in Hughes v R [2018] NSWCCA 2 where the Court (Payne JA, R A Hulme and Garling JJ) said:

The applicant’s principal contention in respect of the claim of manifest excess is that the indicative sentence of 6 years (with a non-parole period of 4 years) for the principal offence under s 25(2) is revealed to be excessive when regard is had to the Judicial Commission’s statistics. There are two significant difficulties confronting this submission.

The first is that this Court and the High Court have said that statistics are of limited utility (see MLP v R [2014] NSWCCA 183 at [40]-[44] per Bellew J with whom Macfarlan JA and Adamson J agreed; Kresovic v R [2018] NSWCCA 37 at [36] per Hoeben CJ at CL, Campbell and N Adams JJ concurring). In BB v R [2017] NSWCCA 189 at [42] per Bellew J (Bathurst CJ and McCallum J agreeing) said that “consistency in sentencing is not demonstrated, and does not require, numerical equivalence”.

The second difficulty is the focus of the applicant’s complaint on the indicative sentence for the s 25(2) offence in circumstances where her Honour was imposing an aggregate sentence for seven offences (and taking into account Form 1 offences). Where an aggregate sentence is imposed the appeal lies from the aggregate sentence not the indicative sentence (JM v The Queen [2014] NSWCCA 297 at [40]). For this reason, in Kresovic v R, this Court pointed out that where an aggregate sentence is imposed, focus on a single indicative sentence is misplaced:

For the same reason, this Court in Tuite v R [2018] NSWCCA 175 at [100] said that reliance on statistics for a single offence where an aggregate sentence is imposed is “misconceived” (per Hoeben CJ at CL, R A Hulme and Button JJ agreeing). To like effect, Bathurst CJ observed in Kerr v R [2016] NSWCCA 218 (at [114]) that if an indicative sentence is excessive, it does not necessarily follow that the aggregate sentence is excessive (although the indicative sentences may be a guide). (See also Nguyen v R [2019] NSWCCA 87.)

It follows that the only relevant question is whether the aggregate sentence reflects the totality of the criminality. The statistics relied upon by the applicant must be examined with these principles in mind.

While the statistics provided by the applicant indicate that the indicative sentence for the s 25(2) offence was stern, it was by no means excessive. Those statistics demonstrate that for a guilty plea for offenders aged 21 to 25 years, total terms for s 25(2) offences range from 2 years to 9 years with non-parole periods from 1 year to 5 years. When the search is limited to principal offences only, the range is total terms of 2 years to 9 years with non-parole periods of 1 year to 4 years.

However, relevantly in this case the applicant was not being sentenced only for the s 25(2) offence. The applicant was being sentenced for seven offences and four Form 1 offences. The only question for this Court is whether the overall sentence imposed reflected the totality of the criminality separated by several months; disclosed in all those offences. When regard is had to the following factors, it can be seen that the sentence while stern, was well within her Honour’s broad sentencing discretion:

This ground of appeal has not been made out.

I did not understand there to be any disagreement at the level of principle. The “parity principle” requires that like offenders should be treated in a like manner and allows for different sentences to be imposed to reflect different degrees of culpability and/or different circumstances: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [65]. The principle is broader than cases where persons are charged with the same offences arising out of the same criminal conduct or enterprise, and in cases where offenders have been charged with different crimes, there can be significant practical difficulties in applying the principles: Green at [30].

The issue as formulated in Ground 2 is whether the sentence imposed on the co-offender gave rise to a “justifiable sense of grievance”: Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at [3]. In Green at [31] French CJ, Crennan and Kiefel JJ said:

There are in this case significant differences in both the offending and in relation to personal circumstances which do not give rise to the necessary “justifiable sense of grievance” as would bring about the application of the parity principle.

The following significant differences existed between the applicant and his so called co-offender, Mr Dahmoul.

When those matters are taken into account, there is no basis for the application of the parity principle and no basis for “a justifiable sense of grievance” on the part of the applicant.

This ground of appeal has not been made out.

Accordingly, the orders which I propose are:

HARRISON J: I agree with Hoeben CJ at CL.

BUTTON J: I agree with Hoeben CJ at CL.