Daher v R

1. [1]

   N ADAMS CJ at CL: I agree with Fagan J that this appeal should be dismissed. Despite this, I would grant leave to bring the appeal on the basis that there appears to remain some confusion about the need to make a finding of objective seriousness on a putative range for offences which attract a standard non-parole period (“SNPP”).

2. [2]

   I am grateful to Fagan J for his Honour’s summary of the facts, the applicant’s subjective case, the findings of the sentencing judge, the submissions in this Court and the relevant law. My reasons for agreeing with Fagan J that this appeal should be dismissed are as follows.

3. [3]

   It is an important part of the sentencing process to assess the objective seriousness of an offence. Such an assessment assists in ensuring that an appropriate sentence is imposed and that the sentence imposed is proportionate to the seriousness of the offending: Veen v The Queen [No 2] (1988) 164 CLR 465 at 486; [1988] HCA 14 per Wilson J; R v Van Ryn [2016] NSWCCA 1 at [134]-[135] (per R A Hulme J, Leeming JA and Johnson J agreeing). Further, assessing the objective seriousness of an offence can assist when comparing a sentence with one or more sentences imposed in previous cases for the purposes of ensuring consistency in sentencing.

4. [4]

   The practice of assessing the objective seriousness of an offence by reference to a notional range (as occurred in the applicant’s case) commenced after the enactment of SNPPs in Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”) in 2003. This Court considered that such an approach was required for SNPP offences because s 54A of the Sentencing Act provided that a SNPP represented “the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division”.

5. [5]

   Following the enactment of SNPPs, a general practice emerged of assessing the objective seriousness of an offence by reference to a notional range for all offences, whether or not an offence attracted a SNPP.

6. [6]

   In Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, the High Court overturned authority in this Court as to the requirement to fix objective seriousness on a range and stated the following at [28]:

7. [7]

   The High Court went on at [29] to say this about the reference in s 54B(4) to “mak[ing] a record of its reasons for increasing or reducing the standard non-parole period”:

8. [8]

   The Sentencing Act was subsequently amended to make clear that there is no need to make a finding of objective seriousness for an SNPP offence on a putative range. Fagan J has extracted ss 54A and 54B of the Sentencing Act at [39] below, but for ease of reference s 54B(6) of the Sentencing Act, effective from 29 October 2013, now provides that:

9. [9]

   In FL v R [2020] NSWCCA 114, Wilson J said this on this issue at [58]-[59]:

10. [10]

    Her Honour then cited Muldrock v The Queen at [29] before going on to observe the following at [60]:

11. [11]

    Similarly, in DH v R [2022] NSWCCA 200, Yehia J observed the following at [58]-[59]:

12. [12]

    On the other hand, in R v Eaton [2023] NSWCCA 125; 308 A Crim R 465, Hamill J cited [58]-[60] from the decision of Wilson J in FL v R and observed the following at [57]:

13. [13]

    I agree with Hamill J. For my part, I consider that it remains helpful to place the objective seriousness of an SNPP offence on a putative range, but I accept that decisions of this Court reflect differing views on the utility of doing so.

14. [14]

    To summarise, the effect of the decision in Muldrock v The Queen and s 54B(6) of the Sentencing Act is that there is no requirement to place the finding of objective seriousness on a putative range for an SNPP offence. To be clear, it is neither an error to do so nor an error to fail to do so. What is important is to identify the “facts, matters and circumstances” which bear on the assessment of the gravity of the crime(s).

15. [15]

    Turning to the applicant’s sole ground of appeal, two observations made by the sentencing judge are important to its determination. They are extracted by Fagan J at [38]. First, the sentencing judge proceeded on the incorrect assumption that “the law requires that I determine where on the scale of objective seriousness the offence does fall”. Secondly, his Honour clearly stated that he did not intend to impose the SNPPs because to do so would “result in a sentence which is out of proportion to the criminality involved” and would be “an incredibly harsh punishing sentence”.

16. [16]

    The applicant stood for sentence in relation to four drug supply offences and asked that two further drug supply offences be taken into account on a Form 1 pursuant to s 33 of the Sentencing Act. A further offence under the Firearms Act 1996 (NSW) was dealt with under s 166 of the Criminal Procedure Act 1986 (NSW). An aggregate sentence of 7 years’ imprisonment with a non-parole period of 3 years and 6 months was imposed.

17. [17]

    This application for leave to appeal against sentence is confined to purported error in relation to one of the five indicative sentences: sequence 12. That charge related to supplying a large commercial quantity of methylamphetamine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The applicant was found in possession of more than twice the large commercial quantity of methamphetamine (500 g), namely, 1031.1g (I note Fagan J’s query as to whether that amount should have been recorded as 1049.1g but nothing turns on that for the purposes of considering this ground).

18. [18]

    The SNPP for sequence 12, as provided for in the table behind s 54D of the Sentencing Act, is 15 years’ imprisonment. The maximum penalty for that offence is life imprisonment. As against these statutory guideposts, an indicative sentence of 4 years’ imprisonment with a SNPP of 2 years was imposed. This indicative sentence reflects his Honour’s intention, foreshadowed at the outset of his reasons, to impose a non-parole period that was nowhere close to the SNPP. Despite this, his Honour went on to assess the objective seriousness of sequence 12 as falling “at the mid range”.

19. [19]

    The narrow issue on this appeal is whether it was reasonably open to the sentencing judge to assess the objective seriousness for sequence 12 as “at the mid range”: Hancock v R [2025] NSWCCA 213 at [46], [74]. In the frequently cited passage in Mulato v R [2006] NSWCCA 282 at [37], Spigelman CJ observed this about a challenge to such a finding:

20. [20]

    I am satisfied that it was reasonably open for the sentencing judge to make the finding he did. His Honour proceeded on the basis that the applicant was in possession of just over twice the threshold quantity for a large commercial supply of methamphetamine, some of which had a purity of 74%. He was in possession of the drugs for supply by another person. This offence was not isolated; different types of drugs with different purities were found in different places (in relation to the other offences). There was evidence that the applicant had repackaged the drugs in vacuum seal packaging; it was not a case where the drugs had simply been delivered. Further, the applicant’s evidence at the proceedings on sentence was that he was communicating with a third person about the drugs being delivered to him by way of encrypted messaging.

21. [21]

    But, even if I was satisfied that the description of sequence 12 as being “at the mid range” was inapt in the present case and error was established, a question would have arisen as to the capacity of that finding to influence the sentence. As Gleeson JA (with whom Ierace J and I agreed) explained in Benn v R [2023] NSWCCA 24 at [82], there remains the need for materiality once error is established before this Court will intervene:

22. [22]

    The above passage from Benn v R was cited with approval in Hancock v R at [81].

23. [23]

    In the applicant’s case the sentencing judge proceeded on the incorrect basis that he was required to make a finding of objective seriousness on a range. Despite assessing it as “at the mid range”, the indicative sentence for sequence 12 (which included a Form 1 matter) included a non-parole period of only 2 years’ imprisonment (as against the SNPP of 15 years). Although as a statement of general principle, an established error in the assessment of objective seriousness would usually have the capacity to influence the sentence, in the unusual circumstances of this case it is difficult to see how that could have been the case.

24. [24]

    It is ultimately not necessary for me to make any finding as to materiality in this case as I am not satisfied that error has been established; I simply wish to state that there is force in the observations of Fagan J at [61].

25. [25]

    The orders I would propose are:

    1. (1)

       Grant leave to appeal.

    2. (2)

       Dismiss the appeal.

26. [26]

    FAGAN J: On 2 November 2024 the applicant was sentenced in the District Court on four counts of supplying illicit drugs and one count of acquiring firearms in contravention of a firearms prohibition order. He pleaded guilty to all charges and was accorded a discount of 25% on each indicative sentence. The offences, statutory maximum terms of imprisonment and indicative sentences were as follows:

27. [27]

    In sentencing for seq 12 and 15 there were taken into account pursuant to s 33 of the Sentencing Act additional drug offences concerning smaller quantities and two counts of dealing with cash totalling over $18,000 reasonably suspected of being proceeds of crime.

28. [28]

    His Honour imposed an aggregate sentence of 7 years with a non-parole period of 3 years and 6 months. The sole ground of appeal for which leave is now sought is as follows:

29. [29]

    If leave were granted, the appeal would be against the aggregate sentence rather than against the indicative sentence for sequence 12: JM v R [2014] NSWCCA 297 at [40](11) (RA Hulme J, Hoeben CJ at CL and Adamson J agreeing). Nevertheless, if error could be shown in the assessment of objective seriousness of sequence 12, it might follow that the judge made an erroneous assessment of total criminality, which might vitiate the aggregate sentence.

Agreed facts

1. [30]

   The applicant was sentenced on the basis of an agreed statement of facts. He gave evidence in the sentence proceedings and sought to minimise his criminality. Some of his exculpatory claims appeared to the judge to traverse his pleas of guilty. Nevertheless, the applicant maintained his pleas. He was sentenced on the facts as agreed and inconsistent oral testimony was rejected. For the purpose of the leave application it is sufficient to confine attention to the drug supply offences.

2. [31]

   Sequence 15 was the first in time of the drug supply matters. At 8:41 pm on 25 October 2022, a co-offender, Molloy, was at the applicant’s residence. In a conversation recorded by listening device the applicant was heard directing him where to find a packet of chips, in the pantry. At 9:05 pm Molloy departed in his motor vehicle. At 9:22 pm he was stopped and police found in his possession a chip bag containing 433.67 g of methylamphetamine.

3. [32]

   Sequence 12 concerned the total of three quantities of methylamphetamine found on 8 December 2022 when a search was undertaken of the applicant’s residence and an adjacent vacant block:

4. [33]

   Sequence 21 concerned the total of two quantities of amphetamine found at the residence and near the water tower, as follows:

5. [34]

   Sequence 6 was charged in respect of two quantities of cocaine, one of 7.73 g and the other of 20.75 g, found under the front passenger seat of a taxi in which the applicant was travelling when he was arrested on 8 December 2022. At that time he was also in possession of 3.17 g of methylamphetamine and $13,920 in cash, giving rise to separate charges that were dealt with on Form 1 schedules.

6. [35]

   The agreed facts included additional events that provided context for the above principal offences and that were the basis for charges dealt with under s 33 of the Criminal Procedure Act. First, on 26 October 2022 police searched the applicant as he was leaving Room 415 at the Crown Plaza Hotel, Terrigal. He was in possession of $4,810 in cash, the source of which he refused to disclose. This became the subject of a Form 1 proceeds of crime charge. Upon entering Room 415 police found a white plate with lines of cocaine laid out on it and a backpack evidently belonging to the applicant in which there was 8.67 g of methylamphetamine and 5.93 g of cocaine. Possession charges in relation to those drugs were dealt with on Form 1 schedules.

7. [36]

   Secondly, surveillance of the applicant at his residence on the afternoon of 8 December 2022 showed him and another co-offender, Gellatly, removing a package secreted in a gas bottle and handling a fuel can, both of which were associated with drugs later found during execution of the search warrant. Further, surveillance during the evening captured the applicant appearing to take a CCTV security camera to the vacant block. An item of that description was found when the property was searched, secured to a fence and pointed in the direction where drugs were concealed near the water tower.

8. [37]

   Thirdly, at the applicant’s residence police found several items indicative of drug supply, including scales, gelatine caps and vacuum seal packaging.

Departure from standard non-parole periods

1. [38]

   Early in his Honour’s Remarks, before outlining the agreed facts and his findings relative to objective seriousness, the learned judge made clear that on objective considerations alone the offences did not warrant imposition of standard non-parole periods. The following passage is from pp 3-4 of the Remarks (emphasis added):

2. [39]

   That passage invokes the following provisions of Pt 4, Div 1A of the Crimes (Sentencing Procedure) Act. As explained in more detail later, the highlighted statement is contrary to s 54B(6) and is not correct.

Findings significant to objective seriousness of the drug supply offences

1. [40]

   His Honour made this finding:

2. [41]

   At a later point his Honour said this:

3. [42]

   That statement was made in general terms as applying to each of the drug supply offences. It is not correct that there was no evidence of actual supply. The circumstances in which Molloy came to be in possession of the 433.67 g of methylamphetamine on 25 October 2022 (seq 15) constituted a significant circumstantial case that the applicant had supplied the drug to him. The quantities of various drugs across all the charges, including the Form 1 matters, would alone support an inference that actual supply by the applicant was taking place. The inference would be strengthened upon rational consideration of the applicant’s possession of scales, gelatine caps and vacuum seal packaging at his residence. At the time of arrest, the small quantities of drugs in the applicant’s personal possession in the taxi were contained in clear resealable bags and accompanied by one such bag containing 7.95 g of baking powder. The agreed fact of his possession of those items was further contradiction of the learned judge’s “no evidence” statement. Despite that body of circumstantial evidence, his Honour did not draw the inference that the applicant was engaged, across all his offences, in an activity of actual supply and this Court must assess the application upon that basis, in the absence of express Crown challenge.

4. [43]

   After specifically referring to the definition of “supply” in s 3 of the Drug Misuse and Trafficking Act, his Honour said this:

5. [44]

   His Honour held that there was “no evidence which would establish beyond reasonable doubt that the offender […] was motivated by financial gain”. There was undoubtedly circumstantial evidence that could have supported a conclusion as to such a motive, to the requisite standard. The applicant well knew the risks of involvement with illicit drugs, having served a term of imprisonment (5 years, with a non-parole period of slightly more than 3 years, from 1 October 2003) for manufacture of methylamphetamine. It would have been open to the sentencing judge to infer that he would not have taken the risk of being caught in possession of the very substantial quantities involved in this case if he was not getting anything out of it. Again, this Court must proceed on the basis that the judge declined to draw the inference, although his statement as to “no evidence” is not correct.

6. [45]

   The sentencing judge expressed the view that “the less pure the drug, the less serious the offending” and he took account of the low purity of some of the drugs seized. However, with respect to seq 12, his Honour noted that just over half of the total quantity involved in that count was at a high purity of 74.5%.

7. [46]

   With respect to ownership of the drugs, the learned judge expressed these conclusions:

Subjective considerations

1. [47]

   The applicant was 46 years old in December 2022 when most of the offences were committed. The learned judge described his record of prior offending as “extensive”. The principal prior offence was that of manufacturing a commercial quantity of methylamphetamine, to which reference has already been made. It was committed when he was aged 26. The judge accepted the applicant’s evidence about a “challenging upbringing” but concluded that “any moderation in this offender’s moral culpability is only slight”. He misused drugs and alcohol from the age of 16. Drug use continued during his marriage, which lasted from around 1999 until separation in 2016. He engaged unsuccessfully in two rehabilitation programs prior to 2016 but his drug use led to separation from his wife and four children.

2. [48]

   Whilst on bail following his arrest for these matters the applicant successfully completed a 12 month residential drug rehabilitation program. The judge was satisfied that through the program the applicant had ceased his abuse of illicit drugs and had commenced to engage in prosocial activities. Effusive evidence was given by the Chief Executive Officer of the rehabilitation centre, to the effect that the applicant’s improvement was “a miracle and remarkable”. The judge accepted that evidence. With respect to rehabilitation from criminal activity, his Honour concluded that there were good prospects and that he would be unlikely to reoffend. The learned judge found that the applicant’s unsatisfactory evidence in the sentence proceedings, by which he attempted to minimise his offending, raised questions as to whether he was genuinely remorseful but in the end made a positive finding in that regard.

3. [49]

   His Honour made a generous departure from the default ratio of the non-parole period (50% of the head sentence rather than 75%). That was based upon findings that full-time custody should be reduced to prevent interruption of the applicant’s rehabilitation from drug use and that longer time in the community under supervision would be beneficial to his reform.

Unnecessary scalar classification of the applicant’s offences

1. [50]

   Towards the end of his Remarks the learned judge considered several of the purposes of sentencing prescribed in s 3A of the Crimes (Sentencing Procedure) Act. He then referred to the competing submissions of the Crown and the offender regarding features that contributed to the objective seriousness of each count. Both parties suggested placement of each count on a scale, using expressions such as “at the middle of the range”, “towards the middle of the range” and “below the middle of the range”.

2. [51]

   His Honour resolved the competing submissions as follows:

3. [52]

   This classification of relative objective gravity was unnecessary and ineffectual. It was undertaken at the invitation of counsel and pursuant to the learned judge’s understanding that it was required by law, as he stated in the highlighted part of the passage quoted at [38] above. When Muldrock v The Queen was decided, subs (4) of s 54B was to the same effect as the present subs (3). The High Court said this at [29] of its joint judgment (emphasis added):

4. [53]

   Subsection (6) of s 54B was introduced with effect from 29 October 2013. Parliament thereby confirmed what the High Court had said in Muldrock v The Queen. In Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247 at [110](d) Johnson J (Payne JA and Simpson AJA agreeing) explained the operation of s 54B(6) in the following terms (emphasis added):

5. [54]

   The “abstract, notional or theoretical offence referred to in s 54A(2)” is an offence “in the middle of the range of seriousness”, determined by “taking into account only the objective factors affecting the relative seriousness of that offence”. The position could not be clearer. Where, as occurred here, the sentencing judge concludes that the non-parole period for an offence should be shorter than the prescribed standard period, whether by reason of facts that reduce the objective seriousness or on account of subjective features pertaining to the offender, the law does not require that the judge must determine where on a scale of objective seriousness the offence falls. The following are some recent judgments in which the point has been restated. In each of them, yet further decisions of the Court, to the same effect, are cited:

6. [55]

   In a number of this Court’s decisions it has been observed that there is commonly no utility in taking the unnecessary step of purporting to locate an offence on a hypothetical scale of gravity. The uncertain meaning of scalar labels such as “below the mid-range” was commented upon by Basten JA in Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162 at [88] and by McCallum J in Shayne Hammond v R [2015] NSWCCA 89 at [44]-[46]. There may be instances where a sentencing judge’s shorthand label for the degree of seriousness of an offence may be so discordant with the objective facts as to indicate lack of appreciation of the significance of those facts – as in R v Ferguson [2022] NSWCCA 147.

The arguments in support of the appeal ground

1. [56]

   The sentencing judge’s placement of seq 12 “at the mid-range” of objective seriousness is a characterisation (see Mulato v R at [37] (Spigelman CJ)) or the outcome of a discretionary evaluative process (see Mulato v R at [46] (Simpson J)), rather than a finding of fact. If the applicant’s challenge to the characterisation has to be resolved, the review would be on the principles of House v The King (1936) 55 CLR 499; [1936] HCA 40 ( see Mulato v R at [46]) and would come down to whether it was reasonably open to his Honour to place seq 12 “at the mid-range”. That expression conveys a meaning similar to “the middle of the range”, being the wording used in s 54A(2) of the Sentencing Act to explain what a standard non-parole period represents.

2. [57]

   Given the enormous potential range of seriousness of offending against s 25(2) of the Drug Misuse and Trafficking Act, “the mid-range” must comprise a very wide band with respect to that offence. The quantity of drugs involved is a significant factor in assessing objective gravity. The offence of supplying not less than a large commercial quantity may be committed with respect to 500 g of methylamphetamine or any amount in excess thereof, without limit. A single charge may concern, for example, several tons. Such an offence may be committed by a person who is merely taking orders, who has a small role and who derives little benefit. On the other hand, the offender may be an owner and principal who takes a significant active part in holding the drug and/or supplying it, who recruits and directs numerous co-offenders and who uses sophisticated counter surveillance techniques to escape detection.

3. [58]

   For the purposes of this leave application I do not find it necessary to wrestle with the breadth and indeterminacy of the concept of offending “at the mid-range” against a provision like s 25(2) of the Drug Misuse and Trafficking Act, with open ended potential gravity. For the reasons that follow I regard his Honour’s characterisation as immaterial to the sentencing outcome. On that view, I need not examine whether it was reasonably open to his Honour to characterise as he did the relative objective seriousness of seq 12.

4. [59]

   An immaterial error in finding a primary or an evaluative fact does not lead to a conclusion that the exercise of the sentencing discretion has miscarried: Hancock v R at [79]-[82]. Similarly, adoption of an insupportable characterisation of relative seriousness of offending would not lead to the sentence being set aside if the characterisation is immaterial. For an applicant to show that an error was material, it is not necessary that it should have had an actual effect on the sentence imposed, only that it had the capacity to influence the sentence: Newman (a pseudonym) v R [2019] NSWCCA 157 at [8]-[14] (Basten JA); Benn v R [2023] NSWCCA 24 at [82] (Gleeson JA). In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 the High Court dealt with materiality in cases of jurisdictional error. In Hancock v R at [82] this Court quoted a passage from the High Court’s reasons and appeared to adopt, as a test of the materiality of errors of fact that may vitiate sentencing decisions, the question whether “there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred”.

5. [60]

   By commencing his Remarks with the passage quoted at [38] above, the sentencing judge made clear from the outset that he found the objective gravity of all offences insufficient to warrant standard non-parole periods, including for seq 12. In discharge of his obligation to give reasons for not imposing the standard periods, the judge thereafter recorded findings that both ameliorated objective gravity and provided subjective mitigation, for all matters. It was inconsequential for his Honour to designate a point on a scale of seriousness for seq 12, at the end of his Remarks, when he had already determined with reasons that a non-parole period shorter than the standard should be indicated.

6. [61]

   The adoption of a generalised and indeterminate descriptor, after all that had preceded it in the Remarks, had no legal or discretionary significance. It had no capacity to affect the determination of an appropriate indicative sentence. The fact that his Honour adopted for seq 12 the label of “mid-range” does not mean that he had decided, after all, that this was an offence warranting a standard non-parole period. His Honour indicated a period without parole of 2 years, as compared to the standard of 15 years. By the “mid-range” classification his Honour clearly did not mean to retreat from the extensive findings and reasons that caused him not to incorporate the standard non-parole period in the indicative sentence. The incongruity of designating seq 12 “at the mid-range” merely confirms that the classification was redundant.

7. [62]

   Scalar classification of each of the offences was sought by both counsel at the sentence hearing. Their submissions in that respect were misdirected. The limit of useful submissions about labelling the relative seriousness of any of the offences would have been for the Crown to identify any count that should be regarded as “in the middle of the range”, “taking into account only the objective factors”, as an implicit invitation to adopt the relevant standard non-parole period. Only if his Honour accepted that one or more of the offences should attract the standard period would it have been relevant for a characterisation of mid-range seriousness to have been expressed in support of that conclusion, and only in respect of the count concerned.

8. [63]

   The applicant put the following submissions in oral argument:

9. [64]

   I understand those submissions to mean that the “guidepost” consideration of the 15 year standard non-parole period somehow became more influential than it should have been in the learned judge’s synthesis of all sentencing factors for seq 12, and that this resulted from his classification of the offence “at the mid-range”.

10. [65]

    I do not accept the submission. When the standard non-parole period is taken into account, as explicitly required by s 54B(2), it serves as an indication of the seriousness with which Parliament regards this type of offending and as a guide to the order of magnitude of punishment that Parliament contemplates. The Crimes (Sentencing Procedure) Act expressly recognizes that a judge may refrain from imposing the standard, as the sentencing judge did in this case. Once his Honour had determined that the standard non-parole periods would be excessive, there was no statutory mechanism or rational thought process through which the redundant classification of “mid-range” was capable of influencing the judge towards a longer indicative sentence.

11. [66]

    Consistently with that being the case, the Remarks on sentence contain no trace of the judge having subliminally over-weighted the statutory “guidepost”. His Honour’s favourable specific findings on objective circumstances were coupled with equally generous findings about subjective matters, resulting in an indicative sentence for seq 12 at the lenient end of the range in which sentences have been approved in this Court, or passed on re-sentence, in comparable cases.

12. [67]

    In my view there is no merit in the single appeal ground for which leave is sought. Leave to appeal should be refused.

13. [68]

    BOULTEN J: I agree with N Adams CJ at CL that leave should be granted and the appeal dismissed for the reasons her Honour has articulated.