R v Walker

1. [1]

   LEEMING JA: I agree with Weinstein J that this Crown appeal should be dismissed, and in light of his Honour’s judgment I can express my reasons very concisely.

2. [2]

   Ground 1 challenges the findings of objective seriousness made by the primary judge. The challenge is a very narrow one. As Weinstein J points out, the Crown had said at the sentencing hearing that the manufacturing count should have been regarded as “above the mid-range” while her Honour found it to be “within mid range”, and in relation to the supply count, the Crown had said that it should be regarded as “at or above the mid-range” but her Honour found it to be “below the mid-range, but not appreciably so”.

3. [3]

   I mean no criticism of the primary judge when I say that these distinctions are inherently vague and poorly defined. As much has often been observed: see for example Towse v R [2022] NSWCCA 252 at [12] and Kapua v R [2023] NSWCCA 14 at [121]-[123]. There are also cases where it is unhelpful to locate objective seriousness on some metaphorical range; an example is manslaughter: see Paterson v R [2021] NSWCCA 273 at [32]-[33]. But those difficulties do not deny that it may be useful and indeed orthodox for a sentencing judge articulating his or her assessment of objective seriousness, which is and always has been a critical component of the sentencing process, to do so by reference to a range: see Bektasovski v R [2022] NSWCCA 246; 407 ALR 125 at [11] and the cases there cited. This Court received no submissions on any general proposition concerning refraining from locating objective seriousness on some range, but as presently advised the fact that a description of something so inherently qualitative as the objective seriousness of particular offending is imprecise does not make it wrong to deploy it. The self-evidently qualitative, rather than quantitative, descriptions by reference to a range, for all their limitations and imprecision, facilitate a measure of transparency, and thus assist in exposing the basis upon which a sentencing judge exercises a discretion. They may also permit a measure of agreement between the Crown and the offender at a sentencing hearing, or in the absence of agreement, they may assist to sharpen the parties’ submissions on objective seriousness. Indeed, my impression is that that is the role they played in the present case.

4. [4]

   In the present case, the sentencing judge was confronted with competing submissions as to objective seriousness, both expressed in terms of a range, and which were only marginally apart. The position resembles that stated in R v Pearce [2020] NSWCCA 61 at [59]:

5. [5]

   I agree with Weinstein J’s conclusion that no appealable error has been established in her Honour’s assessment.

6. [6]

   Ground 2 contends that the sentence was manifestly inadequate. The sentence of 9 years imprisonment, incorporating a 25% discount for the applicant’s guilty pleas, was a lenient one for very serious drug offending coupled with a firearms offence. On the other hand, there was an unusually strong subjective case, given the applicant’s age, remorse, prospects of reoffending, lack of relevant antecedents, role as carer for his disabled wife and the likelihood that he himself suffered from a mild intellectual disability. I am unpersuaded that it should be inferred that the discretion has miscarried.

7. [7]

   YEHIA J: I have had the considerable advantage of reading the judgment of Weinstein J in draft. I agree with the proposed orders and with his Honour’s reasons.

8. [8]

   WEINSTEIN J: The Crown appeals against the sentence imposed upon the respondent, Glen Walker, by Flannery SC DCJ on 20 February 2023 in the District Court at Port Macquarie pursuant to s 5D of the Criminal Appeal Act 1912. The Crown’s appeal is of right.

9. [9]

   The sentence the subject of appeal is an aggregate sentence imposed with respect to four offences to which the responded pleaded guilty in the Local Court, and with respect to which he was entitled to a 25% discount pursuant to s 25D of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act). Two sequences (1 and 8) had offences attached on a Form 1, which her Honour took into account when sentencing Mr Walker.

10. [10]

    The following table, adopted from the Crown’s written submissions, sets out, inter alia, the indicative sentences for each sequence against their corresponding maximum penalty and standard non-parole period:

11. [11]

    Her Honour imposed an aggregate sentence of 9 years imprisonment with a non-parole period of 6 years, finding special circumstances. The sentence commenced on 4 June 2021 and will expire on 3 June 2030. The respondent will be eligible for release to parole on 3 June 2027.

12. [12]

    The Crown’s Notice of Appeal was filed in time but specified only one ground of appeal, that being manifest inadequacy (now ground 2). A ground of manifest inadequacy falls within the last category of case identified in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40 (House). It may be contrasted with an allegation of specific error. On 7 June 2023, the Crown filed an Application for Leave to Rely on an Additional Ground of Appeal, being ground 1.

13. [13]

    The Crown relies on two grounds of appeal:

    1. (1)

       Her Honour erred in her assessment of the objective seriousness for sequences 1 and 7; and

    2. (2)

       The sentence imposed is manifestly inadequate.

14. [14]

    As argued in this court by the Crown, the specific error in ground 1 assists to explain why the sentence was manifestly inadequate.

15. [15]

    For the following reasons, I would grant leave to rely on the additional ground of appeal and dismiss the appeal.

Facts of the offending

1. [16]

   Her Honour sentenced Mr Walker in a busy list at a country circuit at Port Macquarie. So much is evident from the transcript of the proceedings which occupies a mere four pages. There is some doubt about whether her Honour sentenced Mr Walker on a statement of Agreed Facts, which formed part of exhibit “A” or a Summary of Sentence Facts, prepared at the request of her Honour [1] , which was tendered by the Crown as exhibit “B”, although it appears that her Honour sentenced the respondent upon the latter [2] . Nothing turns upon that question. Her Honour summarised the facts as follows [3] :

The Sentencing Proceedings

1. [17]

   The Crown tendered a sentencing bundle and a summary of the Agreed Facts. [4] The respondent tendered a report of Lee Knight, clinical nurse consultant (forensic mental health) dated 9 February 2023. [5] He was not required for cross-examination. The respondent also tendered an undated reference from his daughter [6] , and an extract from the Australian Bureau of Statistics Life Tables which demonstrated that the respondent’s life expectancy is in the range of 25 – 26 years [7] . Also tendered was a newspaper article about the respondent receiving a Certificate of Merit from Sir Roden Cutler in 1977 for rescuing an elderly man from drowning in Bateau Bay [8] .

2. [18]

   The parties relied primarily on their written submissions. Senior counsel for Mr Walker, Mr Dennis SC, submitted that the parties were not particularly far apart as to the assessment of objective seriousness of the offences. The parties diverged as to the extent of the respondent’s remorse, his prospects of rehabilitation, special circumstances and the effect of Mr Walker’s age on the sentence to be imposed.

3. [19]

   With respect to the manufacture charge, it was submitted by Mr Dennis that the co-accused Jones and Lapraik were the principals and that Mr Walker’s role was that of the cook, which he conceded was an important and essential role. Senior Counsel observed that it was Mr Jones and Mr Lapraik who stood to profit most from the enterprise.

4. [20]

   Mr Dennis submitted that the quantity of the drug was but one factor involved in the assessment of objective seriousness. He conceded that the offending was a part of ongoing conduct and that the motivation was financial gain, but he observed that the level of planning and the motivation for financial gain was inherent in this type of offending. He submitted that the manufacture offence was at or above the mid-range, the supply offence was at or below the mid-range, having regard to Mr Walker’s role, the role of other people and the quantity, and that the firearm offence was below the mid-range. It was conceded that the possess precursor offence was a serious example of such an offence, with which the Crown agreed.

5. [21]

   The Crown submitted that although the quantities seized were manufactured in the one instance rather than over a period of time, the objective seriousness of that offence was above the mid-range of objective seriousness for the following reasons, which her Honour cited in her remarks:

6. [22]

   With respect to the supply offence, the Crown submitted that it was at or above the mid-range of objective seriousness. With respect to the firearm offence, the Crown submitted that it was made more serious because it was connected to the manufacture offence, and was in the mid-range.

Remarks on sentence

1. [23]

   Her Honour gave her judgment immediately after hearing the parties’ brief submissions. At the outset, she noted the maximum penalties for each offence and the statutory non-parole periods for each of sequences 1, 7 and 8. Her Honour agreed with the parties that it was important not to double count the criminality of sequences 4 and 5 on the Form 1 attaching to sequence 8, as they were essentially aggravating features of the possess unauthorised pistol offence (sequence 8).

2. [24]

   Her Honour reduced the indicative sentences she otherwise would have imposed by 25% to reflect the utilitarian value of Mr Walker’s early pleas of guilty.

3. [25]

   Her Honour made the following findings with respect to objective seriousness:

4. [26]

   Her Honour then considered the respondent’s subjective case. Her Honour extrapolated and accepted the following from the report of Mr Knight and the reference of the respondent’s daughter.

5. [27]

   Mr Walker was 61 years old. He had a “relatively minor” criminal history which her Honour found did not disentitle him to leniency. He had been remanded in custody since his arrest on 4 June 2021. Mr Walker considered that he had a happy childhood, although he had meningitis as a young child and suffered a brain injury, which resulted in him having poor memory and learning difficulties. His mother died from cervical cancer when he was 18, soon after which his father left the family home. He made a suicide attempt after his mother died.

6. [28]

   The respondent left school after completing year 10 and commenced a boilermaking apprenticeship at age 17. When he was a child, he rescued people from drowning and received an award from the Royal Humane Society.

7. [29]

   Mr Walker worked from age 14 packing shelves at a supermarket. He was then continuously employed as a mechanical hydraulic repair mechanic working on heavy plant machines. His longest period of unemployment was about six months in the late 1980s. Prior to his arrest, he had lost his job due to the Covid-19 lockdowns. He survived on his savings, including his superannuation which had lost a considerable amount of money. It was in this context that Mr Walker agreed to participate in the drug manufacturing operation. He was approached by his co-accused and participated in the commission of the offences for financial gain, as he was unemployed and his superannuation had lost value.

8. [30]

   Mr Walker used cannabis and heroin from the age of 16 until his arrest. He had been prescribed pethidine and morphine for headaches as a child and commenced taking heroin when he ceased taking that medication ceased at 16 years of age. He had been on a methadone programme for 40 years and is currently prescribed 14 mg a day. He had never received drug and alcohol counselling, but had not used illicit substances since entering custody, where he was working in the woodwork shop. He had no ongoing connection with his co-accused.

9. [31]

   Mr Walker’s wife of 40 years suffered a traumatic brain injury and other physical injuries about 18 years ago and has NDIS funding. She was cared for by her two children and it was Mr Walker’s intention to return to live with her upon his release from custody. He had the support of his wife, his children and his brother. His daughter has hypertension which has caused heart problems and kidney disease.

10. [32]

    Mr Walker expressed regret to Mr Knight and to his daughter. Mr Knight considered that Mr Walker was likely to have a mild cognitive impairment and that he suffered from an opioid use disorder which is in partial remission in a controlled environment, managed with methadone. It was recommended that the respondent engage with drug and alcohol services on his release from custody.

11. [33]

    Her Honour accepted that the respondent was remorseful, drawing upon what he told his daughter and Mr Knight. She found that his prospects of rehabilitation were reasonable, taking into account his age, the period since he last committed an offence before these offences and the circumstances in which he had committed these offences. A finding of special circumstances was made taking into account that Mr Walker had spent the entirety of his time in custody in a Covid-19 lockdown environment. Her Honour accepted that the length of the sentence would allow for a significant period on parole.

12. [34]

    Her Honour took into account the matters on the Form 1 and observed the agreement between the parties that the Form 1 matter attaching to sequence 1 would only marginally influence the sentence imposed as it was fairly typical for money to be in possession in relation to such an offence.

13. [35]

    Her Honour had regard to the purposes of sentencing set out in s 3A of the Sentencing Act and was satisfied that no penalty other than imprisonment was appropriate. Her Honour sentenced the respondent to an aggregate sentence of 9 years with a non-parole period of 6 years. The statutory ratio was deviated from 75% to 66% on account of special circumstances. In accordance with s 53A(2) of the Sentencing Act, her Honour set out the indicative sentences for each sequence, allowing for a 25% discount for the early pleas of guilty. For those sequences attracting a statutory non-parole period, her Honour indicated a non-parole period in accordance with s 54B of the Sentencing Act.

Crown Appeals

1. [36]

   Recently, in Kramer v R; R v Kramer [2023] NSWCCA 152 at [131] – [132], McNaughton J, with whom Davies and Hamill JJ agreed, said the following with respect to Crown appeals against sentence:

2. [37]

   When error is found, this Court should ordinarily exercise its residual discretion to not interfere with a sentence if it is otherwise within the appropriate range: see for example R v Eaton [2023] NSWCCA 125 (Eaton) per Hamill J (Lonergan and Ierace JJ agreeing). Intervention is not justified simply because the sentence imposed below is different from those imposed in other cases. Rather, intervention will be warranted only when an appellate court concludes that there must have been some misapplication of principle that is apparent from the reasons or otherwise: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 (Hili).

Ground 1 – error in assessment of objective seriousness

1. [38]

   Mr Balodis, who appeared on behalf of the Crown, submitted that the sentencing judge erred in her assessment of objective seriousness with respect to sequences 1 and 7, which he said demonstrated an error of the kind identified in House. Mr Trevallion, who appeared on behalf of the respondent, says that her Honour’s findings were open to her.

2. [39]

   At the outset it is instructive to observe that the Crown’s complaint is that with respect to sequence 1, her Honour erred in assessing objective seriousness “within the mid-range” when she ought to have assessed it “at above the mid-range”. With respect to sequence 7, the Crown submitted that her Honour erred in finding that the objective seriousness fell “below the mid-range, but not appreciably so”, when she ought to have found it “at or above mid-range”.

3. [40]

   In my opinion, this case demonstrates the opacity of findings about objective seriousness, and about which this Court has had much to say over the years, in particular since Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (Muldrock). In my view, assessing objective gravity bespeaks more of art than science.

4. [41]

   The Crown submitted that both sequence 1 and sequence 7 are very serious examples of offences of their kind, and that the standard non-parole periods for both offences have significance because her Honour assessed the objective seriousness of both offences at or about the mid-range. The respondent submits that the factors which the Crown relied upon (to which see below) do not by themselves, or in combination, justify a conclusion that her Honour’s findings on objective seriousness were not open to her.

5. [42]

   The Crown submitted that the seriousness of this offending was elevated for a variety of reasons, including that the respondent was physically involved in the manufacture, that he provided the venue where the manufacture took place, that he had previously concealed the equipment and chemicals to avoid detection, that the operation was of some sophistication, and that his financial motivation and participation was emblematic of a participation in a wider sophisticated criminal syndicate. Thus, in his submission, her Honour’s assessment was not open to her.

6. [43]

   Before her Honour, the Crown Prosecutor submitted that the offender’s role was indispensable, although she accepted that Jones was the “money man” and that Lapraik was Jones’s “right-hand man”. In this Court, the Crown took issue with her Honour’s finding that “Mr Walker was not a principal in the enterprise, although his role was essential as he provided both his expertise and his property for the manufacture of MDMA” in what she accepted was an ongoing enterprise [11] . The Crown submitted that this finding was not open, because the respondent’s criminality was well within the concept of a “principal”. Counsel for the Crown acknowledged, however, that there is no exhaustive list of factors determining the role of a “principal”: Nguyen v R (2011) 208 A Crim R 432; [2011] NSWCCA 92 at [4]. In oral submissions, the Crown appeared to resile from this submission and said that he did not make a submission that either Jones, Lapraik or the respondent was a principal. Rather, he submitted that they engaged in a partnership without a hierarchy. He submitted that labelling a person’s role was misleading and distracted attention from that which in fact occurred.

7. [44]

   In oral submissions in this Court, the Crown submitted that the respondent, as the manufacturer of the drugs, provided information to Jones and Lapraik as to how to perfect their recipe, although he conceded that the communications about the perfected recipe for the manufacture were in fact between Jones and Lapraik and those on the overseas encrypted service. He submitted that combined with other factors identified by the Crown Prosecutor before her Honour (and referred to at para [21] above), the respondent was in a role greater than that of a mere cook, such that the objective seriousness of sequence 1 must be greater than that found by her Honour.

8. [45]

   Ultimately, Mr Balodis acknowledged that her Honour took into account relevant matters in her assessment of objective seriousness but erred by finding that the respondent was not a principal. Whist he conceded that the respondent took direction from Jones, and to a lesser extent Lapraik, in his submission this did not diminish his role as found by her Honour, which he submitted was not open on the evidence.

9. [46]

   Mr Trevallion submitted that her Honour’s finding with respect to sequence 1 was reasonably open to her. He submitted that the factors which the Crown submitted elevated the seriousness of the offence are consistent with those one would ordinarily expect to feature in an operation of this kind, and as such do not raise the objective seriousness above the finding of the sentencing judge. For example, he argued that “physical involvement” by the respondent in the manufacture was a necessary feature of the offending.

10. [47]

    The Crown submitted that the supply charge was also a serious example of an offence of its kind. The Crown relied upon the quantity of the drug (which it says leads to an inference that it was in the respondent’s possession for the purpose of wholesale supply), its purity, the estimated street value and that the drug the subject of the supply charge was different to that which the respondent manufactured. It was also submitted that the sentencing judge’s conclusion that the respondent was not the principal obscured her Honour’s assessment of what he had done.

11. [48]

    Mr Trevallion submitted that the sentencing judge’s assessment was open to her. He disputed the figures provided by the Crown as to the purity of the drug seized and submitted that the estimated street value in the Agreed Facts was an extrapolation from the weight of the drug. It was submitted that an expert’s opinion, included as part of the agreed facts, was that it could not be concluded whether the drugs were manufactured at the respondent’s property, that most of the drugs seized were not in a saleable form and only 300 grams could be described as a saleable product.

12. [49]

    Mr Trevallion also submitted that there was no evidence that Mr Walker had the capacity to purchase this product for on-sale, and there was also no evidence that he had made large profits from the supply of the prohibited drugs. He submitted that it would be rare for an individual who possessed a large commercial quantity of drugs to sell this quantity at a street level.

13. [50]

    With respect to Mr Walker’s role in the enterprise, Mr Trevallion conceded that his role was an essential one, but he submitted that the respondent was a novice compared to his co-accused Jones and Lapraik. He submitted that despite the sentencing judge’s finding that Mr Walker had an expectation of future production, the agreed facts demonstrate that in conversations between the co-accused, that Mr Walker was in fact reluctant and not committed to future operations. Mr Trevallion argued that there could be no finding beyond reasonable doubt that the respondent was to be a part of a future manufacture, and that the finding that the respondent sat below his co-accused, i.e., was not an equal, was open to her Honour. Mr Trevallion pointed to the fact that it was his co-accused who sought advice on ANOM about the manufacturing process and in particular, the recipe.

Consideration

1. [51]

   In Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 (Markarian), McHugh J confirmed the task required of a sentencing judge at [51]:

2. [52]

   The task of assessing the objective seriousness of an offence is quintessentially one for the sentencing judge and is an essential element of the sentencing process: see for example Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118; R v Campbell [2014] NSWCCA 102; Yeung v R [2018] NSWCCA 52 (Yeung); Kochai v R [2023] NSWCCA 116.

3. [53]

   This Court’s review of a sentencing judge’s findings of objective seriousness must be in accordance with the principles stated in House, as there are a range of correct findings. In Mulato v R [2006] NSWCCA 282 at [37], Spigelman CJ said:

4. [54]

   While it is an essential feature of the sentencing judge’s task to identify the objective seriousness of an offence, it is also clear that a sentencing judge is not required to place the objective seriousness on a range or scale. In Eaton, Hamill J said at [57] and [59]:

5. [55]

   When a sentencing judge does identify where on a hypothetical scale the objective seriousness of an offence lies after identifying factors relevant to the assessment of objective gravity, in my view it adds little, if anything, to the exercise of instinctively synthesising all relevant factors in the determination of an appropriate sentence, except perhaps by explaining an egregious error in the assessment. In DH v R [2022] NSWCCA 200 (DH v R), Yehia J said at [58] – [60]:

6. [56]

   Furthermore, when the parties are not far apart on the issue of objective seriousness, scrutinising a sentencing judge’s placement of an offence on a hypothetical range is usually unhelpful in determining error. In R v Sharrouf [2023] NSWCCA 137, Dhanji J said at [274]:

7. [57]

   As the authorities make clear, a sentencing judge must take into account all relevant factors, weigh their significance and come to a value judgment about an appropriate and proportionate sentence. Assessing objective seriousness is an essential element of such an exercise. It is not necessary for a sentencing judge to position the offending on a hypothetical range. Here her Honour did nominate where, in her opinion, the objective seriousness fell on a hypothetical range for both sequences 1 and 7 after being invited to do so by counsel. Her Honour appropriately engaged with submissions made by the Crown and the respondent, and in my opinion it was open to her Honour to make the findings about objective seriousness that she did: see DH v R at [62].

8. [58]

   What is important is how a sentencing judge considers the relevant factors in making an assessment of objective seriousness. In this case, during a busy circuit list, her Honour clearly articulated the facts, weighed the competing submissions of the parties and made evaluative assessments of objective seriousness.

9. [59]

   As to the role of the offender and her Honour’s alleged mischaracterisation of him as “not a principal”, the facts demonstrate that the respondent was not expert in the manufacturing process, as he sought the assistance of Jones and Lapraik who in turn sought advice from an international associate on the ANOM chat group about the correct combination and quantities of chemicals to be used. The text messages between Jones and Lapraik in exhibit “A” demonstrate that they doubted the respondent’s commitment to the enterprise, that they gave him directions and that they stood to profit most. In my opinion, to the extent that is ever possible to describe an offender’s role in a drug manufacturing enterprise, her Honour’s description of the offender as essentially that of a cook who provided his property for the manufacture was apt and accords with the Agreed Facts. I observe that any shorthand description, be it principal or cook, ought not to obscure the assessment of what the offender in fact did: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [19]. The Crown does not complain that her Honour failed to have regard to the respondent’s actions and involvement in the enterprise as set out in the Agreed Facts.

10. [60]

    Before her Honour and in this Court, the differences with respect to the findings of objective seriousness between the parties were marginal. It may even be said that their positions were materially identical and depended only on whether or not they were looking from the vantage point of the Crown or the respondent, noting the comments in R v Pearce [2020] NSWCCA 61 at [56] and [58], where the Court (Leeming JA, Rothman and N Adams J) said:

11. [61]

    It follows that in my opinion, the findings made by her Honour as to objective seriousness were open to her and no error is established. I would dismiss ground 1.

Ground 2 – manifest inadequacy

1. [62]

   The Crown submitted that the aggregate sentence imposed by her Honour was manifestly inadequate, that it was unreasonable and plainly unjust and does not reflect the total criminality involved in the respondent’s conduct.

2. [63]

   The Crown’s submissions in many respects reflected those made with respect to ground 1, as both grounds placed significant reliance on the objective seriousness of the offending. The Crown submitted that the indicative sentences for sequences 1, 7 and 8 are themselves manifestly inadequate, and that the aggregate sentence, by virtue of those indicative sentences and because of undue notional concurrence, is manifestly inadequate. Further, the Crown submitted that the aggregate sentence fails to reflect the totality of the respondent’s criminality and fails to give effect to the sentencing purposes of general deterrence and punishment.

3. [64]

   With respect to sequence 1, the Crown submitted that it was more serious than the facts in Bell v R [2019] NSWCCA 271 but less so than that in Martin v R; Martin v R [2021] NSWCCA 316. The former case was a parity appeal and turns on its own facts. There the appellant succeeded and was resentenced to a head sentence of 13 years and 4 months with a non-parole period of 9 years. The latter case is significantly more serious than the present case and concerned methylamphetamine in powder or crystal form to the value of between $122.5 and $245 million. It is not an appropriate comparator. The Crown also noted the cases relied upon in its submissions before her Honour: Greentree v R [2018] NSWCCA 227 (Greentree), which it was submitted was of less criminality but greater penalty than here, and Mori v R [2021] NSWCCA 32 (Mori) and R v James [2017] NSWCCA 287 (James), both of which revealed criminality closer to that of the respondent but where sterner penalties were imposed. A close examination of those cases demonstrates the difficulties associated with relying on cases said to be comparable. Greentree is in most respects the most similar to the current case. In that case, allowing for a 30% discount, the Court resentenced the appellant to an aggregate sentence of 8 years with a non-parole period of 5 years and 6 months. In Mori, where the appeal was dismissed, the sentencing judge applied three different discounts of 11%, 20% and 25%, and imposed a sentence of 12 years 6 months and a non-parole period of 8 years 6 months. In James, which involved significantly more serious firearms offences and five Form 1 matters, the Court allowed a Crown appeal and imposed an aggregate sentence of 12 years and 3 months with a non-parole period of 8 years. Each of these cases turned on their own facts and on distinct findings of objective seriousness.

4. [65]

   In Hili v at [54], French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:

5. [66]

   The Crown appropriately conceded that comparable cases can never be determinative, but he submitted that they demonstrate that the starting point for sequence 1 is manifestly inadequate. In each of the cases relied upon by the Crown, the courts were dealing with aggregate sentences. In my opinion, it is not possible to extrapolate any sentencing principle from the comparable cases with respect to the indicative sentence for sequence 1.

6. [67]

   As to sequence 7, the Crown repeated its submissions with respect to objective seriousness, and submitted that the criminality revealed by this offending should have been reflected to a greater extent in the aggregate sentence.

7. [68]

   With respect to sequence 8, Mr Balodis did not cavil with her Honour’s finding that it was “made more serious because it is connected to the manufacture offence. [12] ” However, he submitted that while her Honour found the objective seriousness of sequence 8 was mid-range, the indicative sentence had a starting point equivalent to the standard non-parole period and a non-parole period well below the standard non-parole period which he said demonstrated error.

8. [69]

   As to accumulation and concurrency, the Crown submitted that ascertaining the extent to which the criminality of a supply offence can be comprehended by the criminality of a manufacture offence will turn on the facts of the case.

9. [70]

   The Crown submitted that the substantial concurrency between the manufacture and supply offence was inappropriate given the distinct criminality between the two. He pointed to the difference between the drugs the subject of the manufacture and supply offences. He submitted that the criminality of sequences 8 and 9 were deserving of greater notional accumulation. Taking into account all these matters, in the Crown’s submission the aggregate sentence does not reflect the totality of the offending.

10. [71]

    Mr Trevallion submitted that the aggregate sentence is not manifestly inadequate. He pointed to the following factors: her Honour’s findings of objective seriousness, her finding that the respondent’s financial motivation was due to impecuniousness, the respondent’s early plea of guilty, the finding of genuine remorse, the absence of a criminal history that entitled the respondent to leniency, the finding of reasonable prospects of rehabilitation and the respondent’s personal circumstances.

11. [72]

    Further, Mr Trevallion submitted that whilst regard may be had to the indicative sentences, the question is whether or not the aggregate sentence is manifestly inadequate. In his submission, whilst it is not impermissible to undertake an analysis of the indicative sentences as well as the notional accumulation, in some ways it is contrary to the policy for aggregate sentences, being the abolition of individual commencement dates, and the Court should avoid overly scrutinising an aggregate sentence’s underlying features. He submitted that each of the indicative sentences were terms that were reasonably open to her Honour.

12. [73]

    Of the comparative cases pointed to the by the Crown, Mr Trevallion submitted that they might demonstrate that this sentence was lenient, but they do not demonstrate manifest inadequacy.

Consideration

1. [74]

   As has been pointed out by the High Court on several occasions, there is no single correct sentence. Rather, a sentencing judge is required to instinctively synthesise, which is “the product of human judgment, based on all the facts of the case, the judge's experience, the data derived from comparable sentences and the guidelines and principles authoritatively laid down in statutes and authoritative judgments”, and means that there are a range of sentences which are correct: see Markarian per McHugh J at 52.

2. [75]

   In Hili at [59], French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said at [59]:

3. [76]

   In an appeal against an aggregate sentence, the question is “whether the aggregate sentence reflects the total criminality involved”: Noonan v R [2021] NSWCCA 35 (Noonan) at [41] per Beech-Jones J, as his Honour then was, referring to Aryal v R [2021] NSWCCA 2 at [50] per R A Hulme J. The indicative sentences are not themselves open to appeal but may reveal the manifest excess or inadequacy of the aggregate sentence: see Noonan per Beech-Jones J; JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 per R A Hulme J (Hoeben CJ at CL and Adamson J agreeing).

4. [77]

   In Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81 at [52] – [54]: Beech-Jones CJ at CL, Garling and Yehia JJ agreeing, said

5. [78]

   The issue is therefore whether or not her Honour’s sentence was sufficient to reflect the totality of the respondent’s criminal activity despite what leniency his subjective case may have attracted. Whilst it is permissible to look at the indicative sentences and accumulation and concurrency, it is only within the context of determining whether or not the sentence was manifestly inadequate.

6. [79]

   I am not satisfied that that the indicative sentences were such that they point to an error in the aggregate sentence. The same can be said for the degree of accumulation. Questions of accumulation and concurrency are matters which fall within the discretion of a sentencing judge: R v Hammoud (2000) 118 A Crim R 66; [2000] NSWCCA 540 at [7] per Simpson J.

7. [80]

   Here, although the aggregate sentence reveals a considerable degree of concurrency, it must be seen through the prism of totality. That required her Honour to impose an aggregate sentence that was just and appropriate to the totality of the offending, taking into account all factors. I am satisfied that her Honour did so.

8. [81]

   The Crown made a submission that the respondent’s subjective case was “unremarkable”, and that “condign” punishment was necessary. I wish to make two comments about that submission. First, in my opinion the respondent’s subjective case was not unremarkable. On the contrary, the respondent pleaded guilty at an early opportunity and he showed genuine remorse, he has reasonable prospects of rehabilitation and he was entitled to some leniency on account of his insignificant criminal history. These findings are not sought to be disturbed on appeal. Further, there was evidence in Mr Knight’s report before her Honour that the respondent’s wife was significantly disabled, that he had lost his employment due to the pandemic and that he likely had a mild intellectual disability. Mr Knight’s report was admitted into evidence, and he was not required for cross-examination. He was a mental health professional with clinical experience in taking a psychosocial history and assessing its significance, and his opinion was entitled to weight in the sentence proceedings: see Lloyd v R [2022] NSWCCA 18.

9. [82]

   Second, the use of the word “condign” appears to have been used synonymously with “stern”. That is incorrect. Synonyms for “condign” in the sentencing context are “appropriate” or “fitting”. That must be so, as her Honour was bound to consider all the purposes of sentencing in s 3A of the Sentencing Act in arriving at a just and proportionate sentence. The facts and circumstances of the offending and this respondent highlight how the various purposes of sentencing pull in competing directions. As the High Court said of s 3A in Muldrock at [20]:

10. [83]

    In my view, her Honour properly considered both the objective seriousness of all the offending and the respondent’s subjective case. Her Honour then synthesised all relevant matters before arriving at the sentence she imposed, as she was required to do. It was conceded by Mr Trevallion that the sentence was lenient. I agree. However in my opinion, it is not unduly lenient and is within the range of appropriate sentences. It is neither unreasonable nor unjust within the meaning of the fifth limb of the statement in House and is not “an affront to the administration of justice which risks undermining public confidence in the criminal justice system”: Green v The Queen; Quinn v The Queen (2011) 244 CLR 262; [2011] HCA 48 at 42 per French CJ, Crennan and Kiefel JJ.

11. [84]

    It follows that in my view the sentence is not manifestly inadequate. I would dismiss ground 2.

Conclusion

1. [85]

   I propose the following orders:-

   1. (1)

      Leave is granted for the applicant to rely on an additional ground of appeal.

   2. (2)

      The appeal is dismissed.