R v Ferguson

1. [1]

   WARD P: For the reasons given by R A Hulme J, I agree that the Crown has established error and that the sentences imposed were manifestly inadequate. I agree with the orders R A Hulme J proposes.

2. [2]

   R A HULME J: The Crown has appealed against a sentence imposed upon Ryan George Ferguson by his Honour Judge Whitford SC in the District Court at Sydney on 12 November 2021.

3. [3]

   The sentence was imposed in respect of the respondent’s involvement in serious drug supply activity in various suburbs of Sydney between October 2019 and February 2020. He pleaded guilty and was sentenced in respect of six offences with a further five offences listed on Form 1 documents being taken into account.

4. [4]

   The judge imposed an aggregate sentence of imprisonment for 6 years and 6 months with a non-parole period of 3 years and 3 months.

5. [5]

   The offences were:

6. [6]

   In compliance with the requirement of s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the judge indicated the sentence he would have imposed for each offence if not for the imposition of an aggregate sentence. The indicative sentences were the result of a 25% deduction from the assessed sentence on account of the respondent’s pleas of guilty. (Non-parole periods specified in respect of Sequence 1 and Sequence 4 are not material and have been omitted.)

7. [7]

   The Crown initially proposed a single ground of appeal but filed an application to rely upon an additional ground. No objection was taken and the application should be granted. Accordingly, the amended grounds of appeal are:

Principles in relation to a Crown appeal against sentence

1. [8]

   Counsel for the respondent helpfully provided the following summary of the principles applicable to a Crown appeal against sentence:

The offences

1. [9]

   A signed statement of agreed facts setting out the detail of the respondent’s offending was tendered at the sentencing hearing and is the source of the following summary.

2. [10]

   A police investigation into the supply of drugs, mainly cocaine and MDMA, was commenced in May 2019. It was established that the respondent was “a ‘runner’ for others and facilitated the supply of quantities of prohibited drugs across the Sydney metropolitan and surrounding areas”. [1]

3. [11]

   The respondent was aged 29 and was a director and employee of New Corp Refrigeration and Air Conditioning Pty Ltd. His work vehicle was a Volkswagen Caddy. He lived with his partner in an apartment in Zetland and he had access to his sister’s apartment at Wentworth Point. Both the respondent and the vehicle were the subject of recorded surveillance.

4. [12]

   The respondent used his sister’s apartment “as a safehouse to store prohibited drugs for others”. [2] Between 18 October 2019 and 27 November 2019 he attended this apartment on numerous occasions to access drugs which he would place inside a hidden compartment of his vehicle. He removed drugs from the hidden compartment prior to meeting unknown persons to whom he made supplies in exchange for cash. He used an encrypted mobile phone (a Cipher device) in his drug supply activities.

5. [13]

   On 20 October 2019 the respondent was in the vehicle with another man when he said, “You’re about to see a trick that no-one knows”. He pressed a button on the dashboard, turned on the air-conditioner fan and pressed a button on a garage remote. He then leaned into the rear of the vehicle and a hydraulic noise could be heard as the hidden compartment located behind the driver’s seat opened. He removed a package of cocaine which the other man opened while the respondent was driving. They then both snorted lines of cocaine before the respondent returned the package to the hidden compartment.

6. [14]

   On 20 November 2019 the respondent was planning to take the vehicle to his local mechanic for a service. He drove it into the underground carpark of his apartment block in Zetland and was then captured using tools and dragging heavy items into the rear of the vehicle. Police believe (and this was not contested) he removed the hidden compartment before the vehicle was serviced the following day.

7. [15]

   The dates, times, and locations of 21 specific occasions of supplies of unspecified quantities of drugs between 18 October 2019 and 15 November 2019 are listed in the statement of agreed facts. In addition, there was a supply to an unknown male on 18 October 2019 in which a conversation between the respondent and the male included:

8. [16]

   The male placed a paper bag in a shopping bag in the passenger footwell of the respondent’s vehicle and retrieved from it a white plastic bag which he put in his backpack before alighting.

9. [17]

   There is a description of two further specific occasions, on 19 October 2019 and 8 November 2019. On each of these occasions the respondent supplied 85.2 grams of cocaine.

10. [18]

    The agreed facts thereby established that between 18 October 2019 and 15 November 2019 the respondent supplied drugs on 24 occasions in 29 days. This is well in excess of the minimum of 3 supplies in 30 days necessary to prove a charge of ongoing supply.

11. [19]

    On 16 November 2019 the respondent travelled to South Wentworthville and supplied 28.4g of cocaine.

12. [20]

    The agreed facts include that “text messages and drug ledgers were obtained from Alexander Rolfe’s mobile phone” in relation to this transaction. Mr Rolfe is referred to in relation to the offence in Sequence 15 in a way that makes it clear he was a customer of the respondent. The “drug ledgers” found on Mr Rolfe’s phone confirm what the quantities being supplied also suggested; that the respondent was supplying to persons who were suppliers in their own right. In other words, he was more than a street dealer supplying small quantities for the purchasers’ own use.

13. [21]

    On 18 December 2019 the respondent went to Bunnings at Ashfield where he purchased a large “AEG” tool bag with wheels on the bottom, a small “Craftright” tool bag, and a “Lockwood” combination padlock. Later that day he went to his sister’s apartment at Wentworth Point. He was pulling the AEG tool bag which appeared to be heavy. He was also carrying the Craftright tool bag. He left a short time later with the Craftright bag but not the AEG bag.

14. [22]

    On 19 December 2019 the respondent attended a pre-arranged meeting at McGraths Hill where he told Alexander Rolfe he would obtain for him an encrypted “Cipher” device for $2000. They also arranged for the respondent to supply Mr Rolfe with cocaine. Mr Rolfe gave the respondent a sock containing a large amount of cash and the respondent whispered, “I’ll come tomorrow”. This description of a supply transaction is inconsistent with a submission made to and accepted by the judge that the respondent “would take directions from others on his ‘Cipher’ device and carryout the supply activities as directed”. [3]

15. [23]

    At about 9.34am on 21 December 2019 the respondent was at the rear of his vehicle and placed five ounces of cocaine into a paper bag. About 10 minutes later he parked in the street at South Wentworthville where Mr Rolfe lived and supplied the drug to him.

16. [24]

    The respondent made a brief visit to the Wentworth Point apartment at 7.30am on 23 January 2020. About an hour later he supplied 168g of cocaine to an unknown person at Oxley Park (near St Marys). He later met up with an unknown man at Kellyville and gave him an envelope. They had a conversation, seemingly about the progress of sales.

17. [25]

    On 24 January 2020 the respondent travelled to Mascot where he supplied a person with 56.8g of cocaine.

18. [26]

    Police searched the Wentworth Point apartment on 6 February 2020. They found the AEG tool bag secured with the Lockwood padlock, both of which had been purchased by the respondent on 18 December 2019.

19. [27]

    Within the bag was:

20. [28]

    Police also located the following items:

21. [29]

    A partial DNA profile matching the respondent was found in a swab taken from the vacuum sealer.

22. [30]

    Police also searched the respondent’s apartment at Zetland. They found:

23. [31]

    Police attended a storage facility at Minchinbury on 7 February 2020 and found that the respondent had leased a storage unit there since 18 May 2016 and had paid lease fees of at least $3100.

The respondent’s subjective case

1. [32]

   The judge noted that the respondent was aged 31 at the time of sentencing. He came from an “extremely supportive family”. He had no children but had plans to marry.

2. [33]

   He had a “very limited criminal history” and was of good character.

3. [34]

   The respondent had experienced a number of traumatic incidents in his teens which the judge accepted had profound consequences on his development, psychological makeup, and capability.

4. [35]

   These incidents were described in detail in a report by Dr Kala Ram, clinical psychologist, dated 25 October 2021: [4]

5. [36]

   The respondent told Dr Ram that he commenced drinking alcohol at the age of 16-17 and started experimenting with drugs at the age of 19. Initially he was drinking and snorting cocaine on a mostly social basis. By age 21 his cocaine use increased and by age 22-23 he was snorting every weekend in addition to mid-week. He was also using MDMA. His father, with whom he worked in his early 20s, had no knowledge of his drug use. His fiancée knew of it, but not the extent. By 2018-2019, 6-12 months before the offences, his cocaine use was “spiralling out of control”. He previously had small debts that he was able to pay because he was working but at the time of the offences, he owed approximately $30,000. [5]

6. [37]

   The respondent maintained to Dr Ram that he had not used alcohol or any illicit substances since his arrest on 6 February 2020. He actively sought out rehabilitation courses and programs, engaging in and completing all those available within the limits of the custodial environment.

7. [38]

   Dr Ram suggested that during the commission of the offences, the respondent satisfied the DSM-5 criteria for “Other Specific Trauma-and-Stress Related Disorder” and “Cocaine Use Disorder (currently in sustained remission)”. [6]

8. [39]

   The sentencing judge found that if the respondent “continued with the treatment and assistance he had been undertaking voluntarily and enthusiastically while in custody, and be suitably assisted and supervised in doing so, the risk of [his] reoffending is negligible”. [7]

9. [40]

   The respondent had “shown remorse by his timely plea and a letter to the court demonstrating that he has accepted responsibility for his offending”. This was supported in the documentary material including affidavits by his father and his partner as well as the report of Dr Ram. [8]

10. [41]

    The judge proceeded to describe the “delicate balance between offending which is objectively relatively serious and a powerful subjective case”. It is evident that his Honour was overwhelmingly impressed by the respondent’s subjective case which he described, with occasional descriptive flourish, as follows:

Ground 1 – error in assessment of objective seriousness of the large commercial supply offences (Seq 1 and Seq 4)

1. [42]

   The learned sentencing judge found that the objective seriousness of the offence in sequence 1 was “well below the midrange but … not at the lowest level” and the objective seriousness of the offence in sequence 4 was “even lower”. [9]

2. [43]

   It is necessary to set out the following rather lengthy extract from the remarks on sentence which led to the announcement of those findings. It is evident that the judge first spoke in global terms about the respondent’s offending before referring to factors relevant to each offence. The overall description appears intended to provide a context for the specific.

3. [44]

   The Crown had submitted that the sequence 1 offence was “in the upper range of objective seriousness” and the sequence 4 was “above the mid-range of objective seriousness”. [10]

4. [45]

   Counsel for the respondent made a broad submission that “the objective gravity of the offending conduct would be deemed to be below the mid-range”. [11]

5. [46]

   The above extract from the remarks on sentence makes clear that the primary judge accepted in large part the submissions that were skilfully made by counsel for the respondent. However, there are some problems with that acceptance.

6. [47]

   The Crown submitted it was not open to the judge to characterise the offence in sequence 1 as falling well below the midrange for the following reasons (supported by citation of authority): [12]

7. [48]

   The Crown also submitted that if error is found in the assessment of objective seriousness of the offence in sequence 1, it would follow that there was error in finding that sequence 4 was at an even lower level owing to the lesser quantity involved. [13]

8. [49]

   The respondent submitted the judge’s findings as to the objective gravity of the offences were open on the unchallenged factual findings made. [14]

9. [50]

   The respondent’s submissions referred to the summary and findings by the judge as to the facts pertaining to the offences. [15] It was submitted that the Crown’s only contention of error was in relation to the judge finding the respondent’s conduct was “hardly sophisticated”. [16]

10. [51]

    The respondent characterised the Crown as having not contended in the District Court proceedings that the respondent’s conduct involved any degree of sophistication that would be seen to be outside that which was commonly involved with such offending. He sought to characterise the Crown in this Court as criticising the judge for not making a finding of sophistication. [17]

11. [52]

    The respondent submitted that features of the offending such as the hidden compartment in the vehicle and the use of an encrypted cipher phone were taken into account by the judge when sentencing for the ongoing supply offence and it would be double counting to also have regard to those features when sentencing for the offences in sequences 1 and 4. [18]

12. [53]

    The respondent characterised the Crown as contending there was an error of principle involved in the judge giving primacy to the respondent’s role and neglecting to sufficiently consider the weight of the drugs. [19]

13. [54]

    The Crown made clear at the hearing that it was not contending the judge failed to make an adverse finding about the offending being more sophisticated and organised than would otherwise be encountered in this type of offending. The Crown submission was that the judge erred in making a mitigating finding that was not open to be made. [20]

14. [55]

    The Crown clarified that it was not contending there was an error of principle in the judge giving primacy to the respondent’s role above the issue of quantity of the drugs involved. The Crown contended that both were relevant considerations. It was the ultimate finding as to objective seriousness that the Crown submitted was erroneous. [21]

15. [56]

    The Crown disputed the respondent’s contention that the use of the Cipher device and the hidden compartment could not be taken into account in the assessment of seriousness of the offences in sequences 1 and 4 because they were taken into account in relation to the ongoing supply offence in sequence 10. The Crown case is that they were relevant as contextual matters and as items available for potential use by the respondent in the intended supply of the drugs the subject of sequences 1 and 4. [22]

16. [57]

    In relation to the proposition that the respondent was merely acting for “others”, the Crown submitted it was a relevant matter for the judge to take into account that there was no evidence of coercion or duress. [23]

17. [58]

    Finally, the Crown responded to perceived criticism that there was inconsistency in the Crown challenging the judge’s findings as to objective seriousness in respect of sequences 1 and 4 but not in relation to the ongoing supply and individual supply offences. It was submitted that the judge made no specific finding regarding objective seriousness in relation to the latter. [24] (The judge did liken the ongoing supply offence to “street dealing”, but the Crown was unable to identify the source of that notion. [25] )

18. [59]

    The starting point in relation to this ground of appeal is to note the caution with which this Court approaches contentions of error in the assessment of the objective seriousness of an offence. In Khorami v R; R v Khorami [2021] NSWCCA 228 at [18], after quoting both Spigelman CJ and Simpson J in Mulato v R [2006] NSWCCA 282 at [37], [45], Bell P (as his Honour then was) said:

19. [60]

    The respondent supplied drugs on behalf of “others” according to the agreed facts, although he told Dr Ram it was his drug dealer to whom he owed a debt. In either case, he was trusted with the possession of large quantities of drugs from which he was to make supplies. It is not known for each transaction what the quantities were; but where it is known it is consistent with the respondent operating at a wholesale level. In other words, rather than being a supplier of small quantities to individual users of the drug, he was supplying quantities that clearly imply his purchasers were themselves drug suppliers. An offer he made to obtain a Cipher device for one of his customers for $2000 further implies this.

20. [61]

    The respondent operated with a degree of organisation and sophistication. This is indicated by the hidden compartment in his vehicle, his use of a safehouse and his use of a Cipher phone.

21. [62]

    The secret compartment in the respondent’s vehicle was opened by a complex means of pressing a button on the dashboard, turning the air conditioner fan on, and then pressing a button on a garage remote.

22. [63]

    His use of a safehouse on its own was indicative of organised drug supply activity. Like the hidden compartment in his vehicle, it was his, not his principal’s. It was well away from his own home, and equipped with items used in the preparation and packaging of drugs: multiple plastic bags; a vacuum sealer; a block press and a kitchen scale. The judge did not refer to these items, or even to the agreed fact that the apartment at Wentworth Point was described as a “safehouse”.

23. [64]

    For communications in relation to his drug supply activities the respondent used an encrypted Cipher device so as to avoid detection and interception by law enforcement agencies. He had sufficient knowledge and connections to even offer to obtain such a device for one of his customers.

24. [65]

    In the context of involvement in a large-scale drug supply enterprise, these features may not be beyond what is ordinarily expected. However, they are features for which the respondent was directly responsible. They are not consistent with the sentencing judge’s description of the offending comprising mere physical storage of drugs and being a runner who delivered those drugs for others in a manner that was “hardly sophisticated or highly organised”. The exception from this description of the hidden compartment acknowledged by the judge was understated: “with the possible limited exception of …”.

25. [66]

    The quantities the subject of the large commercial quantity supply offences were substantial. The prescribed large commercial quantities for both MDMA and methylamphetamine are 500g, yet the sequence 1 offence concerned 11.24kg of MDMA and the sequence 4 offence concerned 782g of methylamphetamine.

26. [67]

    The other offences for which the respondent stood for sentence provided a relevant context or background against which the seriousness of the offences in sequences 1 and 4 required assessment. If the latter were offences devoid of such context they would fall to be assessed as isolated instances of involvement in drug supply. The true position is otherwise.

27. [68]

    The offence in sequence 10 was a serious example of its type. Supplying prohibited drugs on an ongoing basis requires proof of supplies for financial or material reward on three or more separate occasions during any period of 30 consecutive days: s 25A, Drug Misuse and Trafficking Act. The respondent’s offence well-exceeded this: 24 supplies of an unstated quantity and 2 supplies each of 85.2g of cocaine. While there was no evidence as to the quantity in most of the supplies, the overall context denies the description of the sentencing judge of “street dealing”.

28. [69]

    The individual supply offences in sequences 15 and 19 were not minor matters either. They each involved cocaine, one of 141.7g and the other of 168g. The supply offences taken into account involved quantities of 27.3g, 28.4g, 91.2g and 56.8g. The quantity involved for such an offence may range from the prescribed indictable quantity of 5g to the commercial quantity of 250g.

29. [70]

    Nothing was said in the statement of agreed facts as to the respondent’s remuneration. He did not give evidence in the sentence proceedings, but the history provided to Dr Ram included that he was rewarded by having his debt to his drug dealer reduced and by taking out drugs for his own use. He said the debt was about $30,000 at the time of the offending. [26]

30. [71]

    It is unfortunate that the agreed facts referred to the respondent being a “runner” as that term is inherently imprecise. It is often used to connote somebody at the lowest echelon of drug supply activity; someone involved in selling “street deals” to users of a drug: see, for example, R v Hoon; R v Pouoa [2000] NSWCCA 137 at [40]; R v Fakhreddine; R v Doudar [2004] NSWCCA 354; (2004) 147 A Crim R 422 at [38]; Hurmz v R [2017] NSWCCA 235 at [8]; Kay v R [2019] NSWCCA 275 at [6]. The term has also been used to describe someone involved in transporting much larger quantities of drugs but where their activities are confined to the transporting: see, for example, R v Shi [2004] NSWCCA 135 at [16], [44]; DAB v R; NJB v R [2010] NSWCCA 275 at [13]; and R v Pavlou [2014] NSWCCA 337 at [5]. It is difficult to conceive of an offender who carried out the activities described in the statement of agreed facts in the present case as a “runner” in either of the ways described in cases such as these.

31. [72]

    Johnson J observed in R v Paxton [2011] NSWCCA 242; (2011) 219 A Crim R 104 at [135] that an offender’s role in drug supply is not to be determined by the selection of a label which might attach to it. It should be assessed by a consideration of the involvement of the offender in the steps taken to effect the drug supply offences.

32. [73]

    In relation to the respondent carrying out activities for “others” it is necessary to note (as the Crown emphasised) that this was not a matter that reduced his criminality as might be the case if the respondent was acting under duress or coercion. As the Crown characterised it, “he voluntarily decided to go to work for serious drug dealers, to involve himself in serious supplies because he didn’t want his family to find out that he was using cocaine”. [27] This was a reference to what the respondent told his psychologist: “He expressed shame and embarrassment, indicating that he could not ask his family or friends for help because he did not want to disclose his drug use to anyone”. [28]

33. [74]

    When referring to specific matters affecting the gravity of the individual offences, the judge compared the quantity of the drug involved in the sequence 1 offence (11.24kg of MDMA) as being “many, many orders of magnitude less than is too frequently seen in offending that comes before this Court”. Nothing was cited in support of this proposition, and it is not sustainable. On any view, a quantity in the order of 11kg that is more than 22 times the prescribed large commercial quantity of MDMA exceeds that found more often than not in offending against the Drug Misuse and Trafficking Act. [29]

34. [75]

    Having diminished the gravity of the sequence 1 offence in part by that analysis, the judge then distinguished the sequence 4 offence by referring to it as involving a “substantially smaller quantity”. [30]

35. [76]

    There was no controversy about the fact that the quantity involved in a drug supply case is not determinative of the sentence to be imposed. It is important to recognise, however, that this does not mean that it may not be of significance. McCallum J (as her Honour then was) addressed this in Pham v R [2013] NSWCCA 217. Her Honour went to the primary authority on the issue, Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 and said:

36. [77]

    A large part of the respondent’s case in this Court, and before the sentencing judge, involved characterising his role as that of a menial underling, devoid of any authority or decision-making capacity. It was sought to contrast this with the role of his principal(s) who, as described by the judge in accepting the defence submissions, were “concerned in the planning, organisation and profit of the enterprise” and who were “protected from detection”. This is a matter which pervades the judge’s reasons both as to objective seriousness and in supporting his later explanation for extending considerable leniency in sentencing. It is, however, to identify characteristics that if present would render the offences more serious. The absence of such characteristics did not render the offences less serious than they in fact were.

37. [78]

    It must be accepted that the respondent was not a principal in whatever enterprise was engaged in this drug dealing venture. However, he performed a vital function for its existence. He was trusted with large quantities of drugs worth very large sums of money, and he employed sophisticated techniques to carry out his role. He was actively engaged in drug supply activity over several months. This is the background against which an assessment had to be made of the respondent’s possession for the purpose of supply of large commercial quantities of MDMA and methylamphetamine on 6 February 2020. The objective seriousness of the offence in sequence 1 was not “well below the midrange” and the offence in sequence 4 was not “even lower”.

38. [79]

    Ground 1 must be upheld.

Ground 2 – manifest inadequacy

1. [80]

   The Crown submitted that the aggregate sentence (and the underlying indicative sentences) failed to reflect the objective seriousness of the offences. They are so low as to inadequately reflecting important sentencing considerations: Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284. The non-parole period of the aggregate sentence did not reflect the gravity of the offences or the need for general deterrence: R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [65].

2. [81]

   R v Le Cerf (1975) 13 SASR 237 at 239 was cited for the proposition that those who participate in a drug supply enterprise at any level should receive a heavy penalty. [31]

3. [82]

   The Crown summarised its case as follows: [32]

4. [83]

   While acknowledging the limitations of the exercise (citing Hili v The Queen; Jones v The Queen (2014) 242 CLR 520; [2010] HCA 45 at [59] and Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]), the Crown referred to a number of decided cases said to reveal that the sentence in the present case is more consistent with (although still below) sentences imposed for a single offence of large commercial quantity supply (and for quantities of drugs lower than that involved in sequence 1). [33]

5. [84]

   In responding to Ground 2 the respondent relied in part upon a defence of the findings by the sentencing judge as to the objective seriousness of the offences in sequences 1 and 4. As indicated above, that defence has failed.

6. [85]

   It was also submitted that the respondent’s “powerful subjective case provides strong support for the sentence”. Seven findings made by the judge in respect of subjective matters were emphasised: [34]

7. [86]

   The respondent contested the utility of comparing the present case with the nine cases summarised in the Crown’s written submissions on the basis of differences in levels of objective seriousness and/or the materially different and less compelling subjective circumstances of the offenders.

8. [87]

   The ongoing supply offence in sequence 10 was a very grave example of its type. The quantity supplied is not irrelevant: Daher v R [2018] NSWCCA 287 at [52]. In Mirza v R [2007] NSWCCA 248 at [11] Howie J observed that s 25A was said to have been enacted to target dealers who were involved in the ongoing supply of drugs for profit where the amounts supplied on any particular occasion were small and one instance of supply did not fairly represent the involvement of the supplier in the distribution of drugs. His Honour considered that the amount of the drug supplied in that case (an ounce of cocaine on each of three occasions) was “an important fact in determining the seriousness of the crime committed … in the range of criminal activity that could be encompassed by the section”. In the present case it is known that on 2 of the 24 occasions the amount supplied was 3 ounces (85.2g) and there is a compelling inference that the amounts on each of the other 22 occasions were not trivial.

9. [88]

   Again, however, the sentencing judge diminished the significance of the amount supplied, and the activity involved generally, by describing the offence in terms that are completely unsupportable:

10. [89]

    “Street dealing” is a term usually associated with sales of drugs to end users. The respondent’s supply of drugs was at least in part to drug suppliers such as Mr Rolfe. Neither party referred to this offending as involving “street dealing”. [35]

11. [90]

    The judge’s assessment of a sentence of 4 years before reduction for the plea of guilty for the s 25A offence where the maximum penalty is 20 years is grossly inadequate.

12. [91]

    The judge’s finding that respondent’s moral culpability was diminished for the reasons identified in the extract from the sentencing remarks set out above (at [41]) was, to say the least, generous. It was not open to the judge to take the respondent’s self-induced intoxication at the time of the offending into account as a mitigating factor (s 21A(5AA), Crimes (Sentencing Procedure) Act) but perhaps that is not what his Honour meant when referring to “drug use” in relation to this issue. However, having regard to the description of the activities in which the respondent engaged in carrying out the offences, and the rather limited respect in which it could be said that his mental health was impaired and had a bearing upon the offending, it is difficult to understand why moral culpability was reduced in any significant respect.

13. [92]

    There was no suggestion in the evidence that the respondent acted without knowledge of what he was doing, or of the gravity of his actions. Accordingly, the justification for any moderation of the weight to be afforded to general deterrence was at best slight: see, for example, R v Wright (1997) 93 A Crim R 48 at 52.

14. [93]

    The Crown reminded the judge, but he made no reference to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act. The Crown also reminded his Honour of Parente v R in which (at [108]-[111]) a five-judge bench of this Court emphasised the importance of deterrence and protection of the community in sentencing for drug supply cases. The Court also spoke of the necessity for judges to remain mindful of the maximum penalty and any standard non-parole period which are the legislative guideposts.

15. [94]

    The nine cases described in the Crown’s written submissions under the heading “Comparable cases” each involved offences of supplying a large commercial quantity of MDMA, methylamphetamine or cocaine. Six of the cases involved a single such offence and three involved two such offences. Some also involved an offence of a different type: one offender was also sentenced for possession of more than three firearms; two offenders were also sentenced for dealing with proceeds of crime; another two were also sentenced for supply of an indictable quantity of a drug.

16. [95]

    None of the cases involved an appeal against an aggregate sentence imposed for the number of offences involved in the present case. The Crown’s reliance upon them was more to indicate that the indicative sentences for the large commercial quantity offences in the present case were inadequate by comparison. However, there are points of distinction of varying significance rendering the cases of little assistance in the determination of whether this ground of appeal is made out.

17. [96]

    The aggregate sentence imposed by the primary judge involves a very large degree of notional concurrency of the indicative sentences. The longest indicative sentence is 5 years and 3 months for the sequence 1 offence. The aggregate sentence is 6 years and 6 months. The additional criminality involved in the other offending is substantial but accounted for only a further 1 year and 3 months. Such concurrency was unjustifiable.

18. [97]

    An aggregate sentence of 6 years and 6 months, absent a finding of special circumstances pursuant to s 44(2B) of the Crimes (Sentencing Procedure) Act, would require a non-parole period that is at least 4 years and 10.5 months. The judge neglected to make a finding of special circumstances but nevertheless reduced the non-parole period to 3 years and 3 months, 50% of the total term. Such a non-parole period is wholly inadequate in reflecting “all of the circumstances of the offence and the offender – including the objective gravity of the offence and the need for general deterrence”: R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [65].

19. [98]

    This is a case in which there was substantial involvement in drug dealing for which a sentence was imposed that failed adequately to reflect the objective gravity of the offending and the need for deterrence and community protection. There is no cavil with the judge’s finding to the effect that the respondent presented a strong subjective case. While it was appropriate to allow leniency on account of it, there remained a requirement that the sentence imposed be proportionate to the objective gravity of the offending: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [15]. The sentence fails to do that by a large margin. It is manifestly inadequate.

Residual discretion

1. [99]

   Section 5D of the Criminal Appeal Act 1912 (NSW) under which this appeal is brought provides that the Court “may in its discretion vary the sentence and impose such sentence as … may seem proper”. Notwithstanding error having been established, the question remains whether the Court should intervene and impose an alternative sentence. The onus of persuasion in this regard is upon the Crown. See CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 at [32]-[33] (French CJ and Gageler J); [54], [66] (Kiefel, Bell and Keane JJ).

2. [100]

   The Crown submitted there were no procedural or other matters that suggested the discretion to intervene should not be exercised. There had been no relevant delay. The respondent’s non-parole period is not due to expire for another year. There was no conduct by the Crown that contributed to the error which led to the appeal. [36]

3. [101]

   The respondent submitted that more than half the non-parole period had been served and so an extension of his incarceration at this stage would be unjust. He had made substantial progress towards his rehabilitation which would be negatively impacted if there were to be an increase in the sentence with a regression of his classification in the prison system. It was also submitted that in the event error was established, the purposes of Crown appeals in achieving consistency of sentencing and the establishment of sentencing principles could be given effect from the terms of the Court’s judgment without the need for intervention by way of re-sentencing. [37]

4. [102]

   The Crown’s submissions should be accepted. The Court should intervene and resentence in order to maintain adequate standards of punishment for serious drug supply offences of this kind and so as not to betray public confidence in the administration of justice.

Resentencing

1. [103]

   The respondent read two affidavits for the purpose of resentencing if that eventuality arose. Both attested and provided documentary material as to the respondent’s experience in custody since sentencing last November. None of this material was contested and the deponents were not required for cross-examination.

2. [104]

   It is apparent that the respondent has continued on the same trajectory he established whilst on remand. He has continued to seek out rehabilitative and self-improvement courses and programs and has participated in whatever has been made available to him. He appears to remain highly motivated to maintain the abstinence he has achieved since coming into custody.

3. [105]

   The respondent is presently highly regarded as a leading hand in an industry-related employment position at his current placement. Like the majority of inmates, he has experienced adverse conditions as a result of the COVID-19 pandemic. For example, he was looking forward to an in-person visit by his parents in May which was cancelled at late notice because of a COVID-19 related lockdown. Visiting generally has been disrupted significantly through the pandemic era. Communication by way of AVL is not as readily available as might be desired. Unsurprisingly, the respondent describes himself as extremely anxious and stressed about the outcome of this appeal. It has impeded his ability to progress from C2 classification to C3, the lowest available classification which would enable benefits such as day leave and work release.

4. [106]

   All of this material is highly favourable to the respondent and should be taken into account in that way.

5. [107]

   The primary judge was in error in his assessment of the objective seriousness of the large commercial supply offences in sequences 1 and 4. They are within the middle of the range, albeit just so. The ongoing supply offence in sequence 10 is far removed from the primary judge’s description of it involving “street dealing”. It is a serious example of its type. The indictable quantity supply offences in sequences 15 and 19 are of moderate seriousness. Finally, the proceeds of crime offence is of such insignificant seriousness it is a wonder the prosecution pursued it.

6. [108]

   The existing sentence should be quashed. A new aggregate sentence should be imposed based upon indicative sentences set out below, taking into account the offences on the Form 1 documents in respect of sequences 1, 4 and 19. Because of the quantities involved, the offence in sequence 4 is slightly less serious than that in sequence 1 but it has two significant offences on the Form 1 attached to it.

7. [109]

   The proceeds of crime offence should be excluded from the aggregate sentence and disposed of without penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act.

8. [110]

   The strong subjective case for the respondent is factored in by assessing the aggregate and indicative sentences at the lowest end of the range that is proportionate to the gravity of the offences. The principle of totality has been applied with some degree of accumulation being notionally factored into the assessment of the aggregate sentence.

9. [111]

   There should be a finding of special circumstances in the need to continue fostering the respondent’s rehabilitation through treatment programs and courses under an extended potential period of parole.

10. [112]

    Each of the indicative sentences has been reduced by 25% on account of the respondent’s early pleas of guilty.

Orders

1. [113]

   I propose the following orders:

2. [114]

   BELLEW J: I have had the advantage of reading in draft the judgment of R A Hulme J. I agree with the orders his Honour proposes, for the reasons he has given.