Hadler v R

HOEBEN CJ at CL:

The applicant asked that a further charge, being an offence of knowingly deal with the proceeds of crime, namely $34,800, be taken into account on a Form 1. This offence was contrary to s 193B(2) of the Crimes Act 1900 (NSW). In addition, there were four related charges of possession of other drugs before the court pursuant to a s 166 Certificate.

The applicant was sentenced to an aggregate term of imprisonment of 10 years and 6 months with a non-parole period of 6 years and 3 months, to commence on 19 August 2016. The non-parole period will expire on 18 November 2022. This resulted in an aggregate non-parole period that was 59.5 per cent of the total aggregate sentence. The details of each offence, as well as the indicative sentences are set out below:

His Honour found that the applicant had pleaded guilty at the earliest reasonable time and was entitled to the full 25 per cent discount for the utilitarian value of his plea. His Honour found special circumstances due to the sentence being the applicant’s first time in custody, his minor criminal record, his acceptance of responsibility and his attitude to receiving treatment in the community upon his release.

The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the aggregate sentence imposed by Madgwick QC ADCJ as follows: The sentencing judge erred in applying the sentencing discount for the pleas of guilty to the aggregate sentence and not the indicative sentences.

The co-offender, Rohan Hadler, was sentenced by his Honour on 30 November 2018. He was sentenced to an aggregate sentence of 10 years imprisonment with a non-parole period of 6 years. The offences and indicative sentences relating to him are as follows:

In the sentence hearing, the Crown tendered an agreed statement of facts in relation to both the applicant and Rohan Hadler. His Honour summarised the facts in his sentence judgment. Those facts included the part played by Rohan Hadler.

In May 2015, police initiated a strike force to investigate the supply of large commercial amounts of prohibited drugs by the applicant. On 19 August 2016, CCTV depicted the applicant and Rohan Hadler purchasing a white coloured two door filing cabinet and a roll of plastic bubble wrap from Office Works Penrith. They returned to the applicant’s primary residence at Glenmore Park. Surveillance devices captured both the applicant and Rohan Hadler entering the garage. Rohan Hadler was seen to be carrying the filing cabinet into the garage. The applicant and Rohan Hadler began packing items consistent with a prohibited drug into the filing cabinet. The filing cabinet was placed back into a cardboard box. The applicant and Rohan Hadler exited the garage with Rohan carrying the same large cardboard box out of the premises. It was loaded into the applicant’s Toyota Hilux vehicle.

Shortly thereafter, police stopped the vehicle and the applicant and Rohan Hadler were removed. A search of the vehicle revealed the cardboard box containing the filing cabinet. Rohan Hadler was searched and the key to the cabinet was located in his pocket. The following items were located inside the bottom locked drawer:

The applicant and Rohan Hadler were arrested. “Blackberry” encrypted mobile devices were located during the search of both males. Search warrants were issued with respect to two properties at Glenmore Park. The following items were located at the primary residence of the applicant:

The following was located at the second premises:

His Honour noted the maximum penalties for the offences. He noted that the amount involved in Sequence 1 (2.5471kg) was “well above” the minimum quantity required for a large commercial supply of cocaine (1kg). He noted that Sequence 2 involved the supply of 996.4g of methylamphetamine and that the large commercial quantity for that drug was 500g. His Honour also noted that the amount of cannabis supplied (Sequence 3) was less than half the quantity designated as the commercial quantity of that drug which is 25kg.

His Honour assessed the offences and the applicant’s role as follows:

In relation to the moral culpability of the applicant, his Honour said:

His Honour found that the “concurrent involvement” of the applicant and Rohan Hadler and the “real similarity of their subjective cases” was such that the sentence he imposed on Rohan Hadler in relation to Sequences 1 and 2 was appropriate for the applicant. His Honour did, however, also make some allowance for the cannabis offence committed by the applicant (Sequence 3) stating that “there should be some increase in the aggregate sentence overlap given to Rowan [sic] but, in my opinion, it need not be high” (Sentence judgment 7.3).

His Honour summarised the applicant’s subjective case in his reasons noting the following:

Section 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act) sets out the manner in which a guilty plea is to be taken into account on sentence.

Sections 53A(5) and 22(4) of the Act both provide that non-compliance with those sections (in each case) does not invalidate any sentence of imprisonment imposed.

It is accepted that, if a discount is to be applied, it should be applied to the indicative sentences before the imposition of the aggregate sentence, in accordance with established principle, as discussed in the judgment of Button and N Adams JJ in PG v R (2017) 268 A Crim R 61; [2017] NSWCCA 179 at [76]. See also JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [39.3] and Berryman v R [2017] NSWCCA 297 at [29], citing Elsaj v R [2017] NSWCCA 124 at [56].

Where a discount is applied to the aggregate sentence rather than the indicative sentences, error is disclosed (Ibbotson (a pseudonym) v R [2020] NSWCCA 92 at [138] –[145], [7]-[17]; Weiss v R [2020] NSWCCA 188 at [69]-[73]).

The analysis of Leeming JA in Ibbotson set out the capacity of the erroneous approach adopted in this case to influence the sentence. At [13] his Honour said:

It was in that context that the respondent conceded error in relation to Ground 1.

Error having been established, it is necessary for this Court to undertake afresh a separate and independent exercise of the sentencing discretion. In doing so, the Court has to take into account the full range of factors relevant to the imposition of an appropriate sentence. It is also necessary to have regard to circumstances as of the date of re-sentence.

There was before the Court an affidavit of the applicant, sworn 2 September 2020. This showed that the applicant was doing well in prison and supported the finding by the sentencing judge that the applicant had good prospects of rehabilitation.

In this matter the applicant does not assert on appeal that the aggregate sentence imposed by his Honour of 10 years and 6 months imprisonment with a non-parole period of 6 years and 3 months was not within the bounds of the proper exercise of the sentencing discretion. Moreover, there is no challenge by the applicant to any of the factual findings made by his Honour, nor his Honour’s assessment of the seriousness of the offences or the role of the applicant in those offences.

Given the similarity which his Honour found between the offending of the applicant and that of Rohan Hadler, some regard needs to be had on re-sentencing to the parity principle but only in a general sense. This is because the aggregate sentence imposed on Rohan Hadler was subject to the same error as has affected the applicant’s sentence, i.e. the plea of guilty discount was applied to the aggregate sentence, not to the indicative sentences.

Relevant factual findings made by his Honour which have not been challenged are:

When regard is had to those factual findings, the following statements of principle need to be kept in mind.

General deterrence and protection of the community are important considerations in sentencing for drug supply offences: Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 at [109]-[110]. In Parris v R [2013] NSWCCA 5 Adamson J said:

In Regina v Shi [2004] NSWCCA 135, Wood CJ at CL, with whom Spigelman CJ and Simpson J agreed, said:

In Cullen v R [2014] NSWCCA 162 Adamson J said:

Having regard to those matters and the undisputed factual findings of the sentencing judge, I have concluded that despite the error identified in Ground of Appeal 1, a less severe sentence is not warranted in law and that the appeal should be dismissed (Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [35] and [42]).

Accordingly, the orders which I propose are:

PRICE J: I agree with Hoeben CJ at CL.

FAGAN J: I agree with the Chief Judge.