QL v R

1. [1]

   STERN JA: I agree with Dhanji J and with his Honour’s reasons.

2. [2]

   DHANJI J: The applicant, QL, seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), out of time, against the sentence imposed upon him in the District Court of New South Wales at Sydney on 26 October 2023 by his Honour Judge Mahony SC. Leave to appeal was not opposed by the Crown.

3. [3]

   Following his pleas of guilty in the Local Court, the applicant was sentenced with respect to two distinct episodes of drug-related offending in 2018 and 2020 respectively. In total, the applicant was sentenced with respect to five offences of manufacturing or supplying large commercial quantities of prohibited drugs contrary to the Drug Misuse and Trafficking Act 1985 (NSW) (DMTA) and one offence of possessing ammunition without a licence contrary to the Firearms Act 1996 (NSW). A further 14 offences were taken into account on Form 1 documents.

4. [4]

   The following table outlines the offences for which the applicant was sentenced, their maximum penalties, their applicable standard non-parole periods (SNPP) and the indicative sentences determined by the sentencing judge:

5. [5]

   The indicative sentences for the offences were each arrived at after the application of a 50 per cent discount made up of a 25 per cent discount for the applicant’s early plea of guilty pursuant to s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA) and a further 25 per cent discount [REDACTED].

6. [6]

   Mahony SC DCJ imposed an aggregate sentence in relation to all the offences, other than sequence 6, of 12 years imprisonment, commencing 27 January 2020, with a non-parole period of 7 years. The head sentence will expire on 26 January 2032 and the applicant will be first eligible for parole on 26 January 2027. Sequence 6 of the 2020 offences was dismissed without further penalty pursuant to s 10A of the CSPA.

7. [7]

   The sole ground of appeal on which the applicant seeks to rely is that his Honour erred in applying the totality principle, resulting in a sentence which was manifestly excessive.

8. [8]

   For the reasons set out below, I would grant leave to appeal and dismiss the appeal.

Agreed Facts

1. [9]

   The proceedings on sentence took place on 5 October 2023. Statements of agreed facts in respect of the 2018 and 2020 offending were tendered. The following is taken from the agreed facts and Mahony SC DCJ’s remarks on sentence: see R v QL [2023] NSWDC 456.

2. [10]

   The 2018 offending occurred between 22 September and 25 October 2018. Following police investigations, on 24 October 2018, a search warrant was executed at the applicant’s Mount Hunter property where he lived with his family. The search revealed a “large scale clandestine laboratory inside the main shed on the property” which housed four 20 litre flasks on heating mantels, one of which had heat being applied to the flask. A variety of prohibited drugs were seized, as well as precursors and drug manufacturing apparatus.

3. [11]

   The agreed facts outline the evidence supporting each of the charges, including the process by which the prohibited drugs were manufactured and the chemicals used in order to manufacture the prohibited drugs. The sentencing judge summarised the facts with respect to the manufacture of the 3,4-methylenedioxyphenyl-2-propanone (MDP2P) as follows (at [12]-[14]):

4. [12]

   The sentencing judge summarised the facts with respect to the manufacture of the 3,4-methylenedioxyamphetamine (MDA) as follows (at [16]-[19]):

5. [13]

   The sentencing judge summarised the facts with respect to the manufacture of the methylamphetamine as follows (at [23]-[24]):

6. [14]

   The sentencing judge described the drug manufacture apparatus as containing MDA and MDP2P “in a way that indicated that that process was being conducted at those premises”. Other chemicals including formamide and hydrochloric acid were also found on the premises. The agreed facts referred to numerous containers within the premises containing MDA, MDP2P, methamphetamine and safrole at various stages of the production process. MDA was also discovered in the main bedroom of the house (in a quantity of 6.2 grams) and in various quantities in the large shed. Gamma butyrolactone (GBL) was found in two separate containers in the large shed in the amount of 21,966 grams.

7. [15]

   The sentencing judge summarised the further material located at the Mount Hunter property during the search as follows (at [26]-[29]):

8. [16]

   On the next day, 25 October 2018, the applicant was arrested upon his discharge from Campbelltown Hospital, where he had been admitted as a mental health patient. He spent 225 days in custody before being released to bail on 6 June 2019.

9. [17]

   The 2020 offending occurred between 29 June and 9 September 2020, when the applicant was on bail for the 2018 offences.

10. [18]

    Police commenced an investigation in relation to the suspected manufacture of prohibited drugs by the applicant. In July 2020, the applicant’s vehicle was observed by police to be parked within the rear of an industrial unit complex at Moorebank, which was leased under the name of Steven Chichester. The applicant and the co-offender were observed on numerous occasions throughout August and September 2020 to be attending the premises. They were observed to enter and exit the premises carrying various types of material and apparatus used in the manufacture of prohibited drugs. Between 10 August and 9 September 2020, only the applicant and the co-offender entered or exited the industrial unit.

11. [19]

    On 9 September 2020, the applicant was arrested whilst travelling in his vehicle. On searching the vehicle, police located numerous items relating to the manufacture of prohibited drugs, together with documents relating to the hire or purchase of various items relating to the manufacture process. On that same date, police executed a search warrant at the Moorebank premises. There, police located (at [39]-[44]):

12. [20]

    Police also executed a search warrant on that date at premises at Minto Heights occupied by the applicant. There, they located numerous identification documents in the name of Steven Chichester. This was the subject of sequence 8 on Form 1D attached to sequence 5. The lease of the Moorebank premises contained photocopies of the same identity documents found in the applicant’s bedroom.

Sentencing

1. [21]

   The sentencing judge made the following findings with respect to the objective seriousness of the 2018 offences:

   1. (1)

      Sequence 1 was within the middle of the range;

   2. (2)

      Each of the six Form 1A offences were objectively serious although below the mid-range;

   3. (3)

      Sequence 7 was below the mid-range and in the middle of the low range;

   4. (4)

      Sequence 10 was within the mid-range, although towards the bottom of the mid-range; and

   5. (5)

      Each of the five Form 1B offences were within the low range.

2. [22]

   As to the objective seriousness of the 2020 offences, the sentencing judge made the following findings:

   1. (1)

      Sequence 2 was within the mid-range;

   2. (2)

      The Form 1C offence was within the low range;

   3. (3)

      Sequence 5 was just below the mid-range; and

   4. (4)

      The Form 1D offences were within the low range.

3. [23]

   His Honour found that general deterrence was significant in sentencing for offences involving the manufacture of large commercial quantities of drugs and that specific deterrence was important as the applicant had reoffended whilst on bail.

4. [24]

   The sentencing judge assessed the applicant’s subjective case at [163]-[167]. His Honour’s key findings included that the applicant had no relevant criminal history and was otherwise a person of good character, although that carried little weight in respect of the offending conduct, and that the applicant experienced some childhood trauma, but not so as to attract the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.

5. [25]

   The sentencing judge referred to evidence tendered in relation to a break in of the applicant’s home in April 2020 and it subsequently burning down in February 2021. His Honour rejected the contention that these could be found to relate to the offending. A submission was also made on behalf of the applicant before the sentencing judge that there was evidence the 2020 offences were motivated by non-exculpatory duress. This submission was, however, withdrawn and consequently was not dealt with in the sentencing judgment. His Honour found the applicant to have reasonable prospects of rehabilitation and a low risk of recidivism.

6. [26]

   His Honour considered that “considerable accumulation” was warranted as a result of the objective seriousness of the offending, there being two discrete sequences of criminal conduct, and the fact that the applicant was on bail for the 2018 offences when he committed the 2020 offences.

7. [27]

   The sentencing judge made a finding of special circumstances pursuant to s 44(2B) of the CSPA on the basis that the applicant was on remand during the COVID-19 pandemic and to ensure the applicant’s productive return to the community. The statutory ratio was varied from 75 per cent (9 years) to 58.3 per cent (7 years).

The ground of appeal: His Honour erred in his application of the totality principle resulting in a sentence which was manifestly excessive

1. [28]

   As is clear, given the applicant’s sole ground of appeal, the applicant does not suggest the sentencing judge fell into any specific error. It might further be observed that the applicant does not take issue with the findings of objective seriousness made with respect to each of the offences, nor with the indicative sentences arrived at by his Honour. Nor is any issue taken with the extent of any discount applied. Rather, the applicant’s ground is limited to the contention that the sentencing judge “erred in his application of the totality principle resulting in a sentence which was manifestly excessive”. Having regard to the limited focus of the applicant’s ground and the submissions in support of it, it is unnecessary to dwell on the various objective and subjective matters bearing on the determination of the indicative sentences. The principles to be applied when determining a complaint of manifest excess (or inadequacy) are well established: Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221.

2. [29]

   The applicant made the following submission:

3. [30]

   There is, given the imposition of a single aggregate sentence, no actual concurrence or cumulation. Understood in the context of the ground and the submissions, the applicant’s contentions set out above are properly understood as a complaint that, having determined the various indicative sentences (which the applicant does not seek to impeach), the aggregate result arrived at by the sentencing judge bespeaks error. Put another way, the applicant’s contention is that, had individual sentences been set rather than an aggregate sentence, the level of cumulation that would necessarily be required between those sentences to arrive at the total aggregate sentence is excessive to the point that it demonstrates some error of principle occurred.

4. [31]

   The principle of totality is well established. That does not have the result that its application is straightforward. The proper application of the principle is capable of producing a range of results. This is of particular significance here where it is not suggested that any specific or patent error of principle can be established. In Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17, Bell and Keane JJ said (at [37]):

5. [32]

   The language of “just and appropriate” as a measure of the sentence against the total criminality involved mimics the language used in Mill v The Queen (1988) 166 CLR 59 at 63; [1988] HCA 70, by Wilson, Deane, Dawson, Toohey and Gaudron JJ, referring to David A Thomas, Principles of Sentencing (Heinemann London, 2nd ed, 1979) 56-57.

6. [33]

   The principle of totality is not dependent on the offences being connected. Thus, in Harris v R [2023] NSWCCA 44, Beech-Jones CJ at CL said (at [15]):

7. [34]

   Whether the sentence for one offence can “encompass the criminality” of other offences, or, in other words, “comprehend the criminality” (Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27]; R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38 at [52]) will depend on the individual sentences and an assessment of the criminality represented by all of the offences for which an offender is to be sentenced. Individual sentences at the lower end of the range will be amenable to a greater degree of cumulation while individual sentences at the upper end of the range will be amenable to a greater degree of concurrence.

8. [35]

   In arriving at a total, it is necessary to bear in mind, particularly in the context of long sentences, that the severity of a sentence increases at a rate greater than the increase in its length. That is, a sentence of 10 years is more than twice as severe as a sentence of 5 years: R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [16], quoting from the decision of the Western Australian Court of Appeal in R v Clinch (1994) 72 A Crim R 301 at 306.

9. [36]

   The applicant sought to expose error by assessing the undiscounted sentence. There is nothing wrong in principle in looking at a starting point: Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6 at [70]; TYN v R [2009] NSWCCA 146; (2009) 195 A Crim R 345 at [34]; Xue v R [2017] NSWCCA 137. The starting point is the result of the application of the intuitive synthesis based on all matters relevant to a sentencing purpose. Discounts for matters such as the utilitarian value of a plea of guilty, the size of which may not be subject to discretion, or, alternatively, to any dispute, are not related to a sentencing purpose, and are applied as a distinct further step (or as distinct further steps) after the exercise of the sentencing discretion: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [74]. When it is contended that the sentence is so severe (or lenient) that some error has occurred in the exercise of that discretion, albeit that the error cannot be identified, it consequently makes sense to look at the undiscounted sentence.

10. [37]

    The applicant, however, proceeded on the assumption that, as the aggregate sentence was 12 years, the starting point was an undiscounted aggregate sentence of 24 years. That is not strictly correct.

11. [38]

    In order to comply with s 53A(2) of the CSPA, a sentencing judge must, in addition to indicating to the offender and making a written record of the fact that an aggregate sentence is being imposed (s 53A(2)(a)), must also, in accordance with s 53A(2)(b), indicate to the offender and make a written record of “the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence” (emphasis added). Part 3 of the CSPA, titled “Sentencing procedures generally”, includes provisions governing the application of discounts to sentences for matters such as pleas of guilty (s 22 and Div 1A), facilitating the administration of justice (s 22A) [REDACTED]. Thus the indicative sentences were to be arrived at and stated after the application of any applicable discounts. There is abundant authority in this Court for this proposition: Elsaj v R [2017] NSWCCA 124 at [56]; PG v R [2017] NSWCCA 179; (2017) 268 A Crim R 61 at [76]; BB v R [2021] NSWCCA 283 at [64]-[66]; Davidson v R [2022] NSWCCA 153; (2022) 300 A Crim R 214 at [14]; Sharma v R [2022] NSWCCA 190 at [72]; and R v Cook [2023] NSWCCA 9; (2023) 103 MVR 285 at [126].

12. [39]

    That his Honour complied with the above requirement is clear having regard to his statement that, “[i]n coming to the indicative sentences I have not imposed the standard non-parole period for any of the offences having regard to the accumulation involved in the sentencing process and the discount to which the offender is entitled”.

13. [40]

    While it is clear that it is the indicative sentences that are to be discounted, it is also clear that, had the discounts not been applied, the application of orthodox sentencing principles with respect to concurrence and cumulation will not necessarily result in a total sentence equal to that which would have been arrived at by setting undiscounted individual sentences; determining an appropriate undiscounted sentence based on those individual sentences; and then applying the applicable discount to the total. Perhaps, at least in some circumstances, it should, a matter to which I will return.

14. [41]

    There has been a divergence of views as to the appropriateness of loosely reverse engineering, or “grossing up” an aggregate sentence to obtain an approximate undiscounted starting point for the sentence. Recently in Richardson v R [2025] NSWCCA 197 at [55] the Court said that, while it is the indicative sentences that are the result of the application of any discount:

15. [42]

    The paragraphs cited in Davidson in the above extract refer to the reasons of N Adams J. Brereton J in that case (at [14]) expressed a similar (indeed more absolute) view. Adamson J (at [137]) expressed a different view, referring to BB at [64]-[68] and stated that the approach was wrong and apt to mislead. In MJR v R [2025] NSWCCA 51 at [48], the Court referred to Moananu v R [2022] NSWCCA 85; (2022) 297 A Crim R 513, Davidson at [239]-[245] and XY (A Pseudonym) v R [2023] NSWCCA 50 at [71] in support of the proposition that “grossing up”, while not providing a precise answer to what the aggregate sentence would have been, absent the discount, does provide “a way of approximating, for the purpose of making comparison with the actual result in the instant case or in another case”.

16. [43]

    For my part, I would accept the approach of “grossing up” as described above. As was acknowledged in the joint reasons of the High Court in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 5 at [45], from an offender’s perspective, “the only relevant question may be ‘how long’”. Understanding this, and understanding the entitlement to a discount, it would be quite bewildering to be confronted by the proposition that any discount applied to the individual offences bears so little connection with the total sentence that a rough attempt to reverse engineer that total is impermissible (with the result that the real impact of any discount allowed is entirely obscured).

17. [44]

    [REDACTED]

18. [45]

    [REDACTED]. As noted above, the offender and, it can be presumed, the community are interested in the effect of the discount on the offender’s punishment; that is, the total sentence to be served. Secondly, it is intended to provide an indication of the consequence of any forfeiture of entitlement to the discount (or part of it). Where an offender has forfeited their entitlement, they may be subject to an appeal by the Crown pursuant to s 5DA. Such an appeal, as the cases make clear, is not a basis for punishing an offender, but allows the court to resentence an offender to remove a discount that the offender received on sentence but to which they are no longer entitled. Neither of these purposes are met where the discount to the total sentence is not known.

19. [46]

    [REDACTED]. Nonetheless, while it may not be required by the section, there may be utility in making clear what the aggregate sentence would have been had the various discounts not been applied. The matter was not, however, argued and I as a result would refrain from expressing any final view on the issue.

20. [47]

    Returning to the applicant’s argument, he relied on the figure of 24 years for the purpose of his complaint as to the excessive degree of notional cumulation between the indicative sentences. As noted above, the applicant observed that the total of the indicative sentences was 26 years. It was then submitted that this meant the “degree of concurrency applied only constituted two years”. Even accepting the 24 year figure as a rough approximate, the submission is flawed. The indicative sentences had been discounted. If the discount is added back to each of the indicative sentences, they total 52 years. That is, clearly, not demonstrative of the point the applicant attempts to make.

21. [48]

    I would not, however, rely on the total of 52 years as the sum of the undiscounted indicative sentences to defeat the applicant’s argument. A calculation of the total of all sentences is misleading. That is because a sentencing court is not, where a non-parole period has been set, entitled to commence a sentence later than the expiry of the non-parole period: s 47(2)(b), s 47(4) CSPA. In the present case, treating the offences in the order in which the indicative sentences were pronounced, if each subsequent sentence was made fully cumulative to the earlier sentence, the result would be, as shown in the table below, a total of 15 years with a non-parole period of 13 years:

22. [49]

    Again, this mathematical exercise is an artificial one. Nonetheless, some observations can be made. First, the exercise exposes a degree of notional concurrence in the non-parole periods of the indicative sentences inherent in the aggregate sentence of 12 years with a non-parole period of 7 years. Secondly, while the result represents the maximum available cumulation had the indicative sentences actually been imposed, that is not to deny that when sentences are cumulated in this way, there is a degree of concurrence between sentences as a result of the parole periods continuing to run while the non-parole period of any earlier sentence or sentences are being served. This is more significant in a case such as the present where the non-parole periods were set, in each case, at 50 per cent of the total (that being a significant adjustment for special circumstances). It cannot be assumed that the same adjustment for special circumstances would have been made had the sentencing judge imposed individual sentences and then structured them to achieve an appropriate total effective sentence. Finally, and related to this last observation, it is orthodox to adjust the order in which sentences are imposed in order to achieve a proper total. Commonly this is done by imposing the longest sentence last. (The total of the non-parole periods will always be the same, but a longer head sentence, if imposed last, will extend the total term.) Here, if the longest sentence was imposed last, the total sentence would have been 16 years and 6 months imprisonment with a non-parole period of 13 years. While there are vagaries inherent in the process, what can be said is that the applicant’s complaint that the sentences themselves reveal little or no concurrence is untenable.

23. [50]

    While the applicant’s approach must be rejected, it is necessary to address his complaint by reference to proper principle. To do this, something must be said of the relationship between the various offences.

24. [51]

    With respect to the 2018 offences, sequence 1 involved the manufacture of a large commercial quantity of MDA. Sequence 10 involved the manufacture of a large commercial quantity of MDP2P. MDP2P, while a prohibited drug, is used in the manufacture of MDA. It was accepted that that was the purpose to which it was to be put. In that light it can be seen that the manufacture of the MDA and the MDP2P was part of the same enterprise. In these circumstances a significant degree of concurrence between the sentences would ordinarily be warranted. Total concurrence, however, could not necessarily be expected. The manufacture of the charged quantity of the MDP2P for the purpose of the further manufacture of MDA constituted a separate criminal offence, and, importantly, was informative of the scale of the enterprise. That is, it is necessary to look at the two charges together to understand the criminality. Further, while the offender was not to be sentenced for the offences on the Form 1s, those matters being relevant to the weight to be given to specific deterrence and retribution in sentencing for the primary offences, the facts of those offences were also available to provide context to the charged offences: Kapila v R [2024] NSWCCA 48; Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518.

25. [52]

    With respect to sequence 7, the charge of supply of a large commercial quantity of GBL, the applicant was sentenced on the basis that the GBL was stored on the property. There is no evidence to establish that the applicant himself was to supply the drug. The offence was factually distinct from the manufacturing enterprise. That said, the degree to which this sentence could impact on the total was very much limited by its length (the indicative sentence being one of 2 years with a 1 year non-parole period).

26. [53]

    With respect to the 2020 offences, while the offences for sentence (sequence 2 and sequence 5) involved different drugs, they can, again, be seen to be related to the criminal enterprise into which the applicant had entered, although, unlike the 2018 offences, the different drugs represented different end products. The Form 1 offences again provided some context to the offences. While a significant degree of concurrence would ordinarily be appropriate, some cumulation was warranted between the sentences for the individual offences.

27. [54]

    The degree of cumulation to be expected as between the 2018 offences and the 2020 offences is in a different category. The applicant was on bail when he committed the 2020 offences. He does not challenge the finding that no connection was established between the break in and the house fire in April 2020 and February 2021, respectively, and his involvement in the 2020 offences. The necessary result is that the only basis on which the applicant could be sentenced was that he chose to return to the manufacture of drugs for the purpose of financial gain. The applicant could not, in these circumstances, have an expectation of concurrence to any significant degree between the sentences for the 2018 and the 2020 offences, beyond the necessary concurrence between the parole period on earlier sentences and the non-parole period of later sentences.

28. [55]

    Returning to the indicative sentences pronounced in the present matter, the longest sentences imposed in relation to the 2018 offending and the 2020 offending were both 7 years. Bearing in mind what I have said above about the application of special circumstances when setting individual sentences, a total sentence of 12 years where substantial cumulation is warranted, while at the upper end of the range, is not obviously excessive. This calculation is dependent on each of the shorter sentences being made completely concurrent with the longer sentences. When this is taken into account, a total aggregate sentence of 12 years appears to be well within the range.

29. [56]

    It must be accepted that the total sentence, which can be roughly approximated to a total pre-discount sentence of 24 years, is a very long one. The only complaint, however, is as to the extent of the notional cumulation between the indicative sentences. There being no complaint as to the length of the indicative sentences, and having regard to the analysis above, the applicant’s ground must fail.

Orders

1. [57]

   I propose the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal dismissed.

2. [58]

   CHEN J: I agree with Dhanji J.