Tsimingos v R

1. [1]

   HOEBEN CJ at CL: I agree with Bellew J and with the orders he proposes.

2. [2]

   BELLEW J: Bill Tsimingos (the applicant) pleaded guilty in the Local Court to an offence of manufacturing a large commercial quantity of a prohibited drug, namely methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1995 (NSW). That offence carries a maximum penalty of life imprisonment and a prescribed standard non-parole period of 15 years imprisonment. The applicant adhered to his plea when he subsequently appeared before the District Court. On 24 May 2017, he was sentenced by her Honour Judge Noman SC to imprisonment for 9 years with a non-parole period of 6 years and 9 months.

3. [3]

   The applicant’s co-offender, Mark Brett Lewis (Lewis), was found guilty by a jury of the same offence. On 14 December 2018 (i.e. after the applicant was sentenced) Lewis was sentenced by his Honour Judge Neilson to imprisonment for 12 years with a non-parole period of 9 years.

4. [4]

   The applicant now seeks leave to appeal against his sentence on the grounds more fully discussed below. He requires an extension of time which was not opposed by the Crown.

THE FACTS OF THE OFFENDING

1. [5]

   A statement of agreed facts was before the sentencing judge which her Honour summarised as follows: [1]

2. [6]

   In terms of the amount of the methylamphetamine which was the subject of the offending, her Honour said: [2]

THE ROLE OF THE APPLICANT

1. [7]

   The agreed facts before her Honour included a concession that the applicant was “not at the top of the hierarchy”. [3] In assessing the applicant’s role, and in ultimately concluding that his offending fell below the mid-range of objective seriousness, [4] her Honour said: [5]

2. [8]

   Although the final sentence of that paragraph is a little ambiguous, the reference to the “Bunnings trip” in the immediately preceding sentence was clearly a reference to the applicant. It follows that the final sentence must be construed as a finding that the applicant was differently and slightly less involved than Lewis.

THE APPLICANT'S SUBJECTIVE CASE

1. [9]

   Her Honour describing the applicant’s involvement in the offending as “inexplicable and an aberration” [6] and found that the applicant:

2. [10]

   A report of Dr Jack Zoumaras, the applicant’s treating Reconstructive Surgeon, dated 28 April 2017 was tendered before the sentencing judge. Dr Zoumaras summarised the injuries sustained by the applicant in the explosion as follows: [11]

3. [11]

   Dr Zoumaras confirmed that upon admission to hospital following the explosion, the applicant underwent surgery for the debridement of his wounds, the exploration of the knee joint and the repair of the lacerated nerve. Three surgeries carried out in the weeks following the applicant's admission to hospital involved further debridement of the wounds and the application of skin grafts. The applicant remained in hospital for a period of six weeks in order for the skin grafts to heal.

4. [12]

   The prognosis of Dr Zoumaras in terms of the applicant’s likelihood of a complete recovery was guarded. He cited (inter alia) the possibility of the applicant suffering from contracture of the scarring which, if it eventuated, would necessitate surgery to release the scars and apply re-grafts, as well as the possibility of the applicant having to undergo surgical management of the scars in order to address the shrapnel wounds and remove glass fragments. Dr Zoumaras also made reference to the necessity for the applicant to wear an orthotic boot and to undergo physiotherapy. [12]

5. [13]

   In addressing the applicant’s injuries, her Honour said: [13]

6. [14]

   Her Honour also found that the applicant was sensitive to noise as a result of the explosion, and that this was a factor which would render his incarceration more onerous than would otherwise have been the case. Her Honour applied what she described as a “slight amelioration in sentence" to reflect that factor. [14]

7. [15]

   A report of Dr Emma Collins, Clinical and Forensic Psychologist, was before the sentencing judge. Dr Collins reported that results of clinical testing revealed that the applicant had a depressed mood, consistent with his having reported depressive thinking, physiological symptoms and a low mood. [15] Dr Collins also concluded, absent a formal diagnosis, that the applicant exhibited symptoms of Post-Traumatic Stress Disorder. [16]

8. [16]

   A report of Pamela Brady, Psychologist, of 17 May 2017 was also tendered before the sentencing judge. [17] Ms Brady had been treating the applicant since April 2017, having diagnosed him as displaying symptoms consistent with a diagnosis of Post-Traumatic Stress Disorder.

9. [17]

   Given the absence of a formal diagnosis by Dr Collins, her Honour did not accept that the applicant suffered from Post-Traumatic Stress Disorder. Her Honour concluded that the applicant’s reported symptoms were relatively common, and were of a kind which could be more than adequately managed by Justice Health. [18] Her Honour also found that any mental health issues did not reduce the applicant’s moral culpability. [19]

10. [18]

    In terms of parity (and bearing in mind that Lewis had not yet been sentenced) her Honour said: [20]

THE GROUNDS OF APPEAL

1. [19]

   The applicant relied upon two grounds of appeal, the first of which was based upon parity considerations and the second of which asserted that the sentence imposed was manifestly excessive. It is appropriate to address the manifest excess ground first, given that a ground based on parity assumes that the sentence imposed is otherwise within range. [21]

Submissions of the applicant

1. [20]

   Counsel for the applicant did not challenge any of the factual findings of the sentencing judge, be they in relation to the circumstances of the offending, the applicant’s role, or the applicant's subjective case. Counsel identified the following factors which, he submitted, supported a conclusion that the sentence imposed was manifestly excessive.

2. [21]

   Firstly, counsel pointed out that the applicant had been found by the sentencing judge, based on the agreed facts, to be “differently and slightly less involved” than Lewis.

3. [22]

   Secondly, counsel pointed to the fact that the applicant’s offending was found by the sentencing judge to be below the mid-range of objective seriousness, in circumstances where the role played by the applicant, whilst obviously necessary, was not high in terms of the relevant hierarchy, and resulted in the applicant being placed in a position where he was likely to be (and was in fact) exposed to both injury and detection.

4. [23]

   Thirdly, counsel pointed to the significant physical injuries which were sustained by the applicant as a consequence of the explosion, and their ongoing sequelae, which would render his conditions of custody more onerous.

5. [24]

   Fourthly, counsel pointed to her Honour’s recognition of the fact that a further adjustment to the sentence (albeit a slight one) was required to reflect the fact that the applicant's conditions of custody would be rendered more onerous as a consequence of the fact that he was more susceptible to noise.

6. [25]

   Fifthly, counsel relied upon the finding made by the sentencing judge that the applicant was remorseful.

7. [26]

   Sixthly, counsel pointed to the positive findings made by the sentencing judge as to the unlikelihood of the applicant re-offending, and his prospects of rehabilitation.

8. [27]

   Finally, counsel submitted that the applicant was entitled to leniency in light of his lack of criminal history.

9. [28]

   In advancing these submissions, counsel made reference to sentencing statistics for this offence. He also took the Court to the sentences imposed in a number of other cases involving what was said to be comparable offending and submitted that such material provided further support for the conclusion that the sentence was manifestly excessive.

Submissions of the Crown

1. [29]

   The Crown relied upon a series of factors in support of a conclusion that the sentence was not manifestly excessive.

2. [30]

   Firstly, the Crown pointed to the maximum penalty of life imprisonment, and the prescribed standard non-parole period of 15 years imprisonment. The Crown submitted that these were indicators of the seriousness with which the Parliament viewed this offending, and that they served as important guideposts for the sentencing judge.

3. [31]

   Secondly, the Crown pointed to the quantity of methylamphetamine involved in the offending.

4. [32]

   Thirdly, whilst acknowledging the subjective factors in the applicant’s favour, the Crown submitted that those factors had been taken into account by the sentencing judge and had been given appropriate weight. The Crown submitted that notwithstanding that subjective case, general deterrence remained an important factor in sentencing for offending of this nature, particularly in circumstances where the overwhelming inference was that it had been committed for monetary reward.

5. [33]

   Fourthly, the Crown pointed to the finding of the sentencing judge that the applicant's moral culpability was not reduced by factors impacting upon his mental health.

6. [34]

   Finally, in terms of the statistical material relied upon by the applicant, the Crown submitted that such statistics were of limited utility in circumstances where they were based upon a small sample of cases. As to the sentences imposed in other cases to which the Court was taken by counsel for the applicant, the Crown submitted that those cases were, in various respects, distinguishable from that of the applicant, that they did not establish a sentencing range, and that they did not otherwise support a conclusion that the sentence imposed was manifestly excessive.

CONSIDERATION

1. [35]

   In Goodbun v R this Court summarised the relevant principles applicable to a ground of appeal asserting manifest excess of sentence as follows: [22]

   1. (1)

      appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;

   2. (2)

      intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error;

   3. (3)

      it is not to the point that an appellate court might have exercised the sentencing discretion differently;

   4. (4)

      there is no single correct sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and

   5. (5)

      it is for the applicant to establish that the sentence was unreasonable or plainly unjust.

2. [36]

   I have had regard to the both the statistics provided by counsel for the applicant, and to the sentences imposed in the other cases to which the Court was referred. In evaluating such material, it is necessary to bear in mind that consistency in sentencing is not demonstrated by, and does not require, numerical equivalence. The consistency that is sought is consistency in the application of relevant legal principles. [23] Having read the cases to which the Court was referred, and without engaging in a lengthy analysis of each of them, each can be distinguished from the present case on one or more bases. The sentences imposed in those cases do not establish a range, nor do they support a conclusion that the sentence imposed upon the applicant was manifestly excessive. Likewise, the statistics do not support that conclusion, given the small size of the sample and the absence of any details of the circumstances of any of the offending to which they relate.

3. [37]

   As I have previously noted, none of the factual findings made by the sentencing judge were challenged before this Court. The role which the applicant was found to have played in the manufacture was not insignificant, and was obviously carried out for monetary reward. The serious nature of the offending, and the amount of methylamphetamine involved, necessarily meant that general deterrence was an important factor in determining an appropriate sentence. Further, as the Crown pointed out, the maximum penalty of life imprisonment, and the standard non-parole period of 15 years imprisonment, necessarily served as important legislative guideposts for the sentencing judge, and reflected the seriousness with which the Parliament views this kind of offending.

4. [38]

   There is no doubt that the applicant's subjective case was strong in a number of respects. He pleaded guilty at the first available opportunity. The sentencing judge made a series of favourable findings as to remorse, his prospects of rehabilitation, and the unlikelihood of his reoffending. The nature and severity of his injuries clearly amounted to significant extra-curial punishment and were a particularly powerful mitigating factor.

5. [39]

   However, it is clear that her Honour took into account all of those factors in arriving at the sentence that she did. I infer that in doing so, her Honour was mindful of the fact that there must be reasonable proportionality between any sentence imposed and the gravity of the offending, [24] and that an offender's subjective case, however powerful, must not be permitted to result in the imposition of a sentence which fails to reflect that gravity. I also infer that her Honour was mindful of the fact that the fixing of any non-parole period was not a matter to be determined solely, or even primarily, by reference to subjective considerations, but was to be fixed according to what the circumstances of the case indicated should be the minimum period of actual incarceration. [25]

6. [40]

   In all of these circumstances, I am not satisfied that the sentence was manifestly excessive.

7. [41]

   This ground is not made out.

The sentence imposed on Lewis

1. [42]

   I have previously noted, the sentence imposed on Lewis following his trial was imposed after the applicant was sentenced. In addressing Lewis’ role, Judge Neilson said: [26]

2. [43]

   Having noted that Judge Noman SC had determined the applicant’s role by reference to agreed facts by which he was not bound, Judge Nielson went to say: [27]

3. [44]

   Judge Neilson then returned to the role of Lewis: [28]

Submissions of the applicant

1. [45]

   The primary submission of counsel for the applicant was that there should not have been parity in the starting point of the respective sentences imposed upon the applicant and Lewis primarily because:

2. [46]

   As to the first matter, counsel for the applicant submitted that the applicant’s significant physical injuries, and the physical and psychological sequelae, served as an important point of distinction between his subjective case and that of Lewis. Counsel submitted that those injuries were not properly regarded as having been self-inflicted, but had been accidently inflicted in the course of the offending.

3. [47]

   It was further submitted that, coupled with the finding of the sentencing judge as to the applicant’s remorse, and the adjustment made to reflect the fact that the applicant's conditions of custody would be more onerous, a lower starting point was warranted in respect of the applicant’s sentence.

Submissions of the Crown

1. [48]

   The Crown submitted that in sentencing Lewis, Judge Neilson had distinguished between what the applicant had done and what the co-offender had done in furtherance of the joint criminal enterprise. The Crown emphasised, in particular, the finding that the applicant had continued with the manufacture after the involvement of Lewis had ceased.

2. [49]

   The Crown further emphasised that in sentencing Lewis, Judge Neilson had found that other than the applicant's injuries and remorse, there was no real difference in his subjective case compared with that of the co-offender. It was submitted that in these circumstances, the applicant had no justifiable sense of grievance.

CONSIDERATION

1. [50]

   The principle of equal justice requires, so far as the law permits, that like cases be treated alike. Equal justice also requires, where permissible, the different treatment of persons according to the differences between them. Consistency in the punishment of offences against criminal law finds its expression in the parity principle which requires that like offenders should be treated in a like manner, and which allows for different sentences to be imposed on like offenders to reflect different degrees of culpability and/or different circumstances. [29]

2. [51]

   The parity principle also recognises that equal justice requires that as between co-offenders, there should not be a marked disparity which gives rise to one offender having a justifiable sense of grievance. The question is always one of due proportion being structured between those sentences which is to be determined having regard to the different circumstances of the co-offenders and their different degrees of criminality. [30]

3. [52]

   In my view, the finding made by Judge Neilson that there was “nothing to differentiate [Lewis] from [the applicant] other than [the applicant's] injuries and his remorse” [31] was not correct. There were, in fact, a number of matters which distinguished the two cases.

4. [53]

   Firstly, the applicant was entitled to a discount of 25% on account of his early plea of guilty. Lewis elected to go to trial, following which he was found guilty by a jury.

5. [54]

   Secondly, Judge Noman SC concluded, on the basis of the agreed facts before her, that the applicant was “slightly less involved” than Lewis.

6. [55]

   Thirdly, the applicant had the benefit of a finding that he was remorseful. No such finding was made in the case of Lewis.

7. [56]

   Fourthly, the applicant's prospects of rehabilitation were found by Judge Noman SC to be highly favourable. When sentencing Lewis, Judge Neilson found himself unable to make a similar finding in the absence of an admission of guilt.

8. [57]

   Fifthly, Judge Noman SC found, on the basis of what her Honour described as the applicant's “own insight supplemented by strong support in the community”, that the applicant was most unlikely to reoffend. No such finding was made in favour of Lewis by Judge Neilson.

9. [58]

   Sixthly, the applicant suffered significant physical injuries, which were properly regarded extra-curial punishment [32] and which were found would render the applicant’s conditions of custody more onerous. The applicant was also found to be sensitive to noise as a consequence of the explosion. All of these matters ameliorated the applicant’s sentence. None of them had any role to play in the case of Lewis.

10. [59]

    In sentencing the applicant, her Honour adopted a starting point of 12 years imprisonment, from which she deducted 25% on account of the applicant’s early plea of guilty, yielding a head sentence of 9 years imprisonment. That starting point of 12 years was the same as the head sentence imposed on Lewis by Judge Neilson.

11. [60]

    I hasten to point out that when sentencing the applicant, Judge Noman SC did not have the benefit of being able to compare the applicant’s position with that of Lewis. However, in circumstances where her Honour found that the applicant’s role was slightly less, and where the applicant was able to rely on a series of subjective factors which had no role to play in determining the sentence to be imposed on Lewis, I take the view that the applicant has a justifiable sense of grievance.

12. [61]

    It follows that this ground has been made out.

Re-sentence

1. [62]

   In re-sentencing the applicant, and in circumstances where no issue was taken with any of the findings reached by the sentencing judge. I have adopted those findings, both as to the objective seriousness of the offence and the applicant’s subjective case.

2. [63]

   Two affidavits were read without objection for the purposes of resentence, namely:

3. [64]

   In his affidavit, the applicant made reference to suffering from depression since being sentenced, as well as to the ongoing difficulties posed by his injuries. Notwithstanding these matters, it appears that the applicant is using his time in custody productively. In particular, he has engaged in employment and has undertaken a number of courses. Those factors, all of which were confirmed by the documents annexed to the affidavit of Ms Witmer. tend to fortify the favourable conclusion reached by Judge Noman SC as to the applicant’s prospects of rehabilitation. I have taken all of those factors into account.

ORDERS

1. [65]

   I propose the following orders:

   1. (1)

      The time for filing the notice of application for leave to appeal is extended until 17 February 2021.

   2. (2)

      Leave to appeal is granted.

   3. (3)

      The appeal is allowed.

   4. (4)

      The sentence imposed in the District Court is quashed.

   5. (5)

      In lieu thereof the applicant is sentenced to 8 years and 3 months imprisonment commencing on 20 February 2017 and expiring on 19 May 2025.

   6. (6)

      Specify a non-parole period of 6 years and 2 months imprisonment commencing on 20 February 2017 and expiring on 19 April 2023.

2. [66]

   N ADAMS J: I agree with Bellew J.