Miles v R

1. [1]

   LEEMING JA: In this application for leave to appeal against sentence, the Crown properly conceded material error. The facts are set out in Rothman J’s judgment, which I have had the advantage of reading in draft, and to which I wish to add the following.

2. [2]

   The conceded error came about because the “Form 1” which had been drafted (it may be presumed) by the Crown, which was signed by a person authorised under s 32(5) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and which listed five charges of supply and possession of prohibited drugs, failed to identify the “principal offence” in relation to which Mr Miles had indicated that he wished the court to take account when imposing sentence. Instead, it listed all five offences to which Mr Miles had pleaded guilty and for which he was to be sentenced. The error was not detected by senior counsel briefed for Mr Miles, nor by the advocate appearing for the Crown, as a consequence of which the sentencing judge did not receive the assistance to which he was entitled.

3. [3]

   A similarly defective Form 1 was the subject of comment in Woodward v R [2017] NSWCCA 44 at [23]-[24].

4. [4]

   The Form 1 offences included selling 28.19 grams of cocaine to a female undercover operative for $7,500 and giving her 0.64 grams of methylamphetamine as a sample in order (according to the agreed facts) that “she could assess how much of the drug she wished to purchase in the future”. The indictable quantity for cocaine is 5 grams.

5. [5]

   The Form 1 offences were plainly far from trivial. It was open to the primary judge to exercise the power in s 53A of the Crimes (Sentencing Procedure) Act to impose an aggregate sentence, but it remained necessary to identify an offence as the principal offence, in respect of which the Form 1 offences would be taken into account, in the indicative sentence specified under s 53A(2)(b). This was one of the errors identified in Doumit v R [2011] NSWCCA 134.

6. [6]

   The Crown also maintained that it was wrong for the sentencing judge to state that “I have taken into account the five matters on the Form 1, which also has to be reflected in some accumulation of the sentences”. The Crown pointed to what a majority of this Court held in Sparos v R (2013) 235 A Crim R 462; [2013] NSWCCA 223 at [1] and [7]; cf at [59]-[60]. I agree that it was wrong to proceed on the basis that the Form 1 offences were required to affect the accumulation inherent in the aggregate sentence. In the absence of submissions on a point in an appeal where error is conceded, I do not think it is necessary to express a view on the point on which this Court divided in Sparos, namely, whether it was open to do so.

7. [7]

   However, and with respect, I struggle to understand how the accumulation to which the sentencing judge referred was effected. The primary judge imposed an aggregate sentence of 4.5 years, with a non-parole period of 2.5 years, on the applicant’s co-offender. The co-offender had been charged with no other offences, and yet the indicative sentences for the three offences – all of which were committed on the same day and in a transaction with the same operative – were 2 years and 3 months, 2 years and 12 months. It will be seen that the co-offender received relatively little reduction by way of concurrency. In contrast, the indicative sentences for the five offences for which the applicant was sentenced were 2.5 years, 3 years, 4 years, 3 years and 2 years. Those offences were committed over an 8 week period. It will be seen that the applicant obtained the benefit of a deal of concurrency, significantly more than did his co-offender, and both in absolute terms (6.5 years) and proportionately. I acknowledge that that might, at least in theory, be a consequence of considerations of totality, but if so, it is not explained in the reasons. Further, the reasons of the primary judge do not explain how such a different approach to accumulation – and one which was highly favourable to the applicant – was applied to both men, sentenced on the same day, when it was said that it was the applicant whose sentence was adversely affected by the Form 1 offences, while his co-offender had no other offences to which account was to be taken.

8. [8]

   I can deal with the other grounds concisely. I would reject ground 3, which asserts an error in the nature of double jeopardy in relation to counts 1 and 2. There is no such error. The three offences comprising the ongoing supply count which was count 1 took place on 3 days in July 2015. The supply comprising count 2 took place in August.

9. [9]

   The gravamen of ground 1 is addressed in resentencing. It is not possible to deal with it in respect of the sentence which was imposed, because all of the indicative sentences must be taken to have been infected by the error in relation to the defective Form 1. For that reason, there were only limited submissions on the test to be satisfied to establish disparity sufficient of itself to give rise to appealable error. That said, having now read what Hamill J wrote in Cameron v R [2017] NSWCCA 229 at [79]-[90], I think I was wrong, in Tan v R [2014] NSWCCA 96, to adhere to the proposition that it is necessary for the disparity to be “gross, marked or glaring”. In Cameron at [86], Hamill J said that:

10. [10]

    I agree with the sentence proposed by Rothman J, and with the reasons his Honour gives for that sentence. In particular, I agree that the sentence imposed on the applicant’s co-offender was at the very bottom of the range. Yet it was not said to be manifestly inadequate, and the applicant is entitled to the application of the principles of parity in respect of the sentence imposed upon his co-offender. The result is that the sentence which this Court will impose is one which is lower than it would otherwise be.

11. [11]

    ROTHMAN J: Benjamin Adam Miles (the Applicant) seeks leave to appeal and appeals the sentence imposed upon him in the District Court on 10 June 2016. After a 25% discount for a plea of guilty at the earliest opportunity and consequent upon a finding of special circumstances, the sentencing judge imposed an aggregate sentence of 8 years imprisonment with a non-parole period of 4 years and 6 months.

12. [12]

    A Form 1 was lodged which indicated that further offences listed therein should be taken into account in relation to each of the offences for which the Applicant was to be sentenced. It is correctly conceded by the Crown, in this proceeding, that such a course was an error of law and the Form 1 was required to relate to one only offence.

13. [13]

    His Honour sentenced on the basis of the Form 1 as filed and, thereby, was led into error. As a consequence, error is disclosed and the Court is required to re-sentence. I will expand on the foregoing.

Offences

1. [14]

   The Applicant was charged with five offences being:

2. [15]

   In the course of the application for leave and appeal, the Applicant and the Respondent (Crown) jointly sought to amend the Form 1 so that it applied only to count 3 above, being sequence 11 in the records relating to the sentencing proceedings.

3. [16]

   The Applicant’s proceedings on sentence were conducted at the same time as the proceedings of his co-offender, who was charged with three offences being the offences referred to above of counts 3, 4 and 5.

4. [17]

   Given the centrality of the parity issue in these proceedings, it is appropriate to set out the indicative sentences for the Applicant and his co-offender, which are as follows:

Facts

1. [18]

   There were agreed facts upon which basis the Applicant was sentenced, which were in the following terms:

2. [19]

   Material was adduced on behalf of the Applicant going to his subjective circumstances. The Applicant gave evidence on sentence and was cross-examined by the Crown.

3. [20]

   In addition to the oral testimony of the Applicant, the Court had before it a pre-sentence report of 16 February 2016 and a record disclosing that the Applicant was a first offender (as was his co-offender).

4. [21]

   The Applicant tendered a letter over his own signature (Exhibit 1 in the sentence proceedings) and a statement by his mother, which included a reference from his school; a record of his having obtained a Bachelor of Industrial Design from University; a letter from a potential employer; material going to his snowboarding expertise and registration of a business name relating to that.

5. [22]

   Further, a psychiatric report from Professor James Ogloff AM, Clinical and Forensic Psychologist, was tendered (Exhibit 3 in the sentence proceedings). Professor Ogloff also compiled a report in relation to the co-offender that was tendered in the proceedings in relation to the co-offender’s sentence.

6. [23]

   It is unnecessary to recite large extracts from the report of Professor Ogloff in relation to the Applicant, but it is clear that the Applicant exhibited “low mood” and “was particularly anxious during the assessment”. His expressed emotion was blunted and he displayed low-concept and was largely dependent on the perception that others have of him (Exhibit 3 [44]).

7. [24]

   Apart from the presentation of very low self-esteem to which Professor Ogloff referred, the Professor also referred to the Applicant’s feelings of inadequacy and shame, the latter being particularly about his offending and the effect it has had on his family. Part of the feelings of inadequacy was the Applicant’s perception of the comparison between him and his older brother.

8. [25]

   Despite a history of serious clinical depression in the Applicant’s family and the Applicant’s reluctance to discuss this history (particularly his mother’s and uncle’s experiences with depression), the Applicant did not have a formal history of depressive illness or anxiety sufficient to enable Professor Ogloff to diagnose a pre-existing depressive illness. This is because, notwithstanding treatment by counselling and medication, the Professor found it “difficult to determine to what extent his depressed mood and anxiety have persisted over time or are the result of his negative life circumstances including his poor adjustment to incarceration”.

9. [26]

   The report suggests that the diagnosis “that most closely captures his presentation is Adjustment Disorder, with mixed anxiety and depressed mood, persistent (symptoms lasting greater than 6 months)”. The Professor however was unable to determine definitively the prognosis of his disorder without a good understanding of his mental health history and outcome.

10. [27]

    The Applicant’s co-offender, on the other hand, gave a more complete psychological history to Professor Ogloff, which included a prior report of a clinical psychologist (15 February 2016, i.e. after incarceration for the offences) from which the Professor could conclude that the co-offender met the criteria for Dysthymia, co-morbid with cannabis addiction. Dysthymia is now (DSM-5) known as Persistent Depressive Disorder.

11. [28]

    It is necessary to recite that the Applicant was arrested and charged on 27 August 2015 and bail was refused. The Applicant has remained in custody since that date. The Applicant entered a plea of guilty at the Local Court on 10 December 2015 (the earliest reasonable opportunity); and the sentence hearing and sentencing occurred on 25 May 2016 and 10 June 2016.

Grounds of Appeal

1. [29]

   The Applicant raises three grounds of appeal:

2. [30]

   As stated at the outset, the Crown concedes that the matter raised in Ground 2 was an error of law that fulfils the standard expressed by the High Court in House v The King (1936) 55 CLR 499; [1936] HCA 40, but does not concede Grounds 1 or 3. Given the concession as to Ground 2, it is necessary for the Court, as presently constituted, to re-sentence. Part of that re-sentencing function involves a consideration of whether a lesser sentence is warranted in law.

3. [31]

   Because other error has already been conceded, it is technically unnecessary to deal with disparity in the sentence appeal. Nevertheless, it is necessary to deal with the appropriate parity between the Applicant and his co-offender in re-sentencing afresh and, in so doing, deal with the principles applicable thereto.

Parity Principle

1. [32]

   The principles of equal justice embody the norm expressed in the term “equality before the law” and are an aspect of the rule of law: Green v R; Quinn v R (2011) 244 CLR 463; [2011] HCA 49 at [28]. The principle, as has been stated a number of times, is a fundamental element in a rational and fair system of criminal justice (and beyond criminal justice).

2. [33]

   Inconsistency in punishment undermines the public perception in the fairness of the criminal justice system and the integrity of the administration of justice. Similarly, equality of treatment enhances the integrity of the justice system and is a matter of continuing importance to the administration of justice and to the community: Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at CLR 610 – 611.

3. [34]

   The principle requires identity of outcome in cases that are relevantly identical and requires different outcomes in cases that are different in a relevant respect. The difference in outcome must reflect differences in the circumstances of the offenders or differences in the cases of the offenders whose sentences are under comparison: Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26; Hilli v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45.

4. [35]

   The principle was and continues to be a reflection of the application of the norm of equality before the law and involves this Court intervening only when there is a justifiable sense of grievance arising from the sentence imposed on another. In imposing a sentence at first instance or in resentencing on appeal, the parity principle must be applied to ensure that a difference in the sentence of co-offenders must reflect, rationally, the differences in the relevant respects of each offender.

5. [36]

   In the submissions of the Crown, the Court was urged to adopt a principle that, in order to give rise to a ground of appeal on disparity, the difference must be “gross, marked or glaring”: Tan v R [2014] NSWCCA 96 at [39], by reference to the discussion by Howie J in England v R; Phanith v R [2009] NSWCCA 274.

6. [37]

   Recently, Hamill J, in dissent (but not, it seems on this question of principle), said in Cameron v R [2017] NSWCCA 229 at [79] and following:

7. [38]

   With respect to Hamill J, I adopt that analysis. In the same judgment, Basten JA referred to international law principles relating to non-discrimination in the law and cited, with approval, Gaudron J in Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461 at 571 with which comments I, with respect, also agree. As Hamill J pointed out at [86] – [90], the addition of an epithet relating to the disparity being gross or glaring does not reflect the test. The test remains whether the principles of equal justice have been misapplied.

8. [39]

   Of course, most cases involve differences between co-offenders. No two offenders are identical. A difference in sentence between one co-offender and another that is intended to reflect a difference in the circumstances of each offender is another example of the exercise of a sentencing judgment. Such a judgment should be the subject of interference only where the difference can be said not to reflect the difference between the relevant offenders.

9. [40]

   In other words, without using epithets or placing a gloss on the principle, different judges may arrive at different conclusions to reflect differences, each of which conclusion may be rational, reasonable and appropriate: see Wan v R [2017] NSWCCA 261 at [42] citing the judgment of the Court in DS v R [2014] NSWCCA 267 at [39], which makes clear that such descriptors are intended to ensure that the principle applies “where the discrepancy between the sentences is not reasonably explained by the degree of difference between co-offenders and their offending”.

Consideration

1. [41]

   It is necessary for the Court to reiterate that the purposes of sentencing described both in s 3A of the Crimes (Sentencing Procedure) Act 1999 and by the common law include punishment, general deterrence, specific deterrence, protection of the community, retribution and reform: Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14. Each of these purposes must be considered together and none can be considered in isolation.

2. [42]

   The process, often described as intuitive synthesis, is one in which the sentencing judge synthesises the objective seriousness of the offence with the subjective circumstances of the offender, bearing in mind each of the purposes of sentencing, and arrives at a result that best achieves a balance in those purposes. All of those purposes are guideposts and often they point in different directions.

3. [43]

   The principle of equal justice, which gives rise to the principle of parity, deals with the concept, as stated, that like should be treated alike and those that are relevantly different should be treated differently in a way that rationally reflects the differences between them.

4. [44]

   In my view, the sentence imposed upon the co-offender is at the very bottom of the range that could have been imposed. Nevertheless, the Crown does not suggest that the sentence imposed is impermissibly lenient. Nor has the Crown appealed the sentence imposed upon the co-offender.

5. [45]

   As a consequence, it is appropriate that the Applicant’s sentence rationally reflect the difference in offending between the Applicant and his co-offender. Were it not for parity, I would not impose a sentence lower than was imposed below.

6. [46]

   The comment that the sentence imposed upon the co-offender was at the bottom of the range or below it takes into account the guidepost that one of the offences carries a maximum penalty of life imprisonment (together with a fine) and a standard non-parole period of 15 years imprisonment.

7. [47]

   The indicative sentence set for count 3 in relation to the Applicant is 4 years imprisonment, with a non-parole period of 2 years imprisonment. For the co-offender, for the same offence, which the sentencing judge wrongly describes as a “large quantity”, as distinct from “a large commercial quantity”, the indicative sentence set was 2 years and 3 months imprisonment with a non-parole period of 18 months. His Honour described the offence, in relation to the co-offender, as “below the mid-range of offending” (AB 205, ROS, co-offender at [47]).

8. [48]

   Each offender received the maximum discount for the plea of guilty at the earliest reasonable opportunity, being 25%. The five offences on the Form 1 are to be given effect in fixing a sentence in relation to count 3 in the Applicant’s charges.

9. [49]

   The Crown submits that there are significant differences in the Applicant’s conduct and that of his co-offender. In part, those significant differences relate to what is said to be the relative objective seriousness of the two offenders and the difference in moral culpability. Further, any sentence to be imposed on the Applicant must take account of the charges in counts 1 and 2, with which the co-offender was not charged.

10. [50]

    As already stated, I do not consider the subjective circumstances of the two offenders to be substantially different: see [23] – [27], supra. Nor do they require significantly different sentences to be imposed.

11. [51]

    Taking into account the Form 1 offences in relation to count 3 and bearing in mind the time of the offences in counts 1 and 2, adds significantly to the totality of the offending with which the Applicant is charged. The Form 1 offences can only be taken into account in fixing a sentence for count 3, but, in so doing, greater regard should be had for the need for specific deterrence and punishment and the greater culpability in relation to the charge in count 3.

12. [52]

    Moreover, the range of offences with which the Applicant is charged discloses offending over a period of approximately two months commencing 2 July 2015 and concluding 27 August 2015, whereas the co-offender’s charges all occurred on one day being 27 August 2015. Further, there are no Form 1 offences attached to any of the co-offender’s charges.

13. [53]

    Further, the two additional charges for which the Applicant was sentenced are each serious, involving, as they do, maximum sentences of 20 years imprisonment and life imprisonment respectively and in relation to the latter charge a standard non-parole period of 15 years imprisonment.

14. [54]

    These additional offences require an appropriately longer aggregate sentence on the Applicant than on his co-offender.

15. [55]

    The indicative sentences set for counts 1 and 2 were 2 years and 6 months imprisonment for count 1 and, for count 2, 3 years imprisonment with a non-parole period of 18 months. Given the existence of a standard non-parole period in relation to the offence charged in count 2, it was necessary for the learned sentencing judge to set a non-parole period in his indicative sentence.

16. [56]

    At the same time, the indicative sentence set in relation to count 3 of the Applicant, which must take account of the Form 1 offences and the need for a sentence to be imposed in the context of the ongoing nature of the offending, was 4 years imprisonment with a non-parole period of 2 years. For the co-offender, the indicative sentence set for the equivalent charge was a head sentence of 2 years and 3 months imprisonment with a non-parole period of 18 months imprisonment.

17. [57]

    For count 4, the sentencing judge set an indicative sentence for the Applicant of 3 years imprisonment with a non-parole period of 18 months imprisonment and, for his co-offender, a head sentence of 2 years imprisonment and a non-parole period of 12 months imprisonment. For count 5, the sentencing judge set an indicative sentence for the Applicant of 2 years imprisonment and, for his co-offender, 12 months imprisonment.

18. [58]

    The Crown submits that the Applicant and his co-offender had significantly different subjective circumstances and significantly different roles in the relevant offences. The difference in subjective circumstances seems to be more a result of the reluctance of the Applicant to discuss his and his family’s mental history than a significant difference in their mental state. Further, they were described as “partners” in the criminal offending and the objective evidence seems to suggest that neither obtained a profit from the offending, but each used the offending to support their own drug habit and such living expenses as they may have otherwise incurred.

19. [59]

    Each offender seems, on the objective material available, to be involved to a similar or like extent in the criminal offending for which they were both charged and any difference in the description of their offending seems to relate more to their use of language than it does to any significant difference in the offending for those three offences with which they were both charged.

20. [60]

    In light of the foregoing comments, the indicative sentence set for the Applicant in relation to counts 3, 4 and 5 does not reflect a rational differentiation between the offending of each of the offenders. The appeal, however, is against the aggregate sentence imposed; not the indicative sentences. Nevertheless, the difference in the indicative sentences discloses a disparity that is unwarranted and, in relation to the sentence to be imposed in this appeal, ought not be reflected in the orders proposed.

21. [61]

    The seriousness of the offences charged in counts 1 and 2, as already stated, requires the imposition of a significant sentence over and above that which would have been imposed were they not to have been committed. The effect of those counts, as already stated, relates to the seriousness of those offences, themselves, and the impact that this kind of offending, over a longer period of time, had on factors relating to specific deterrence, punishment and culpability in the offences charged and may lead to a significant penalty over and above that imposed on the co-offender.

22. [62]

    I propose that the Court set indicative sentences for the offences in the following way:

    1. (1)

       Count 1 – between 2 July and 29 July 2015 Ongoing Supply of prohibited drug, contrary to s 25A(1) of the Drug Act – 2 years and 6 months imprisonment;

    2. (2)

       Count 2 – between 2 July 2015 and 20 August 2015 Supply prohibited drug (large commercial quantity) (3, 4 MDMA), contrary to s 25(2) of the Drug Act – 3 years imprisonment, with a non-parole period of 18 months imprisonment;

    3. (3)

       Count 3 – on 27 August 2015 Supply prohibited drug (large commercial quantity) (3, 4 MDMA), contrary to s 25(2) of the Drug Act (taking into account the five offences on the Form 1) 3 years and 6 months imprisonment, with a non-parole period of 2 years and 6 months;

    4. (4)

       Count 4 – on 27 August 2015, Supply prohibited drug (commercial quantity) (Cocaine), contrary to s 25(2) of the Drug Act – 2 years and 6 months imprisonment, with a non-parole period of 15 months;

    5. (5)

       Count 5 – on 27 August 2015, Supply prohibited drug (methylamphetamine), contrary to s 25(1) of the Drug Act – 18 months imprisonment.

23. [63]

    The foregoing continues the discount of 25% for the Applicant’s early plea of guilty and the finding of special circumstances. It is appropriate, for the reasons explained by the sentencing judge, that the Applicant receive a shorter non-parole period and a longer period during which the Applicant is eligible for parole.

24. [64]

    I propose that the Court impose an aggregate sentence, being a sentence of a non-parole period of 3 years and 9 months, commencing 27 August 2015 and expiring 26 May 2019 and a balance of term of 3 years and 3 months concluding 26 August 2022.

25. [65]

    The Applicant would be first eligible for parole on 26 May 2019.

26. [66]

    I propose the following orders:

    1. (1)

       Leave to appeal be granted;

    2. (2)

       Appeal be upheld;

    3. (3)

       The sentence imposed on the Applicant, Benjamin Adam Miles, by the District Court on 10 June 2016, be quashed and in lieu thereof the following sentence be imposed:

27. [67]

    HAMILL J: I have had the very great benefit of reading the draft judgments of both Leeming JA and Rothman J. I agree with the orders proposed by Rothman J and with the reasons his Honour articulates for those orders. I also agree with the judgment of Leeming JA.