Shalida v R

1. [1]

   GLEESON JA: The applicant, Mr Marinos Shalida, seeks leave to appeal against the sentence imposed upon him in the District Court in relation to a drug offence. The application is brought pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW).

2. [2]

   On 1 April 2022, the applicant pleaded guilty in the District Court to two offences:

   1. (1)

      attempting to possess a marketable quantity of an unlawfully imported border-controlled drug, namely, cocaine, contrary to ss 11.1(1) and 307.6(1) of the Criminal Code Act 1995 (Cth) (being, Schedule – The Criminal Code). The amount involved was 63.17 grams of pure cocaine. The maximum penalty is imprisonment for 25 years and/or 5,000 penalty units; and

   2. (2)

      possession of a prohibited drug, namely cannabis, contrary to s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (the Drug Act). The amount involved was 13.57 grams of cannabis. The maximum penalty is imprisonment for 2 years and/or a fine of up to 20 State penalty units (to a maximum of $2,200).

3. [3]

   On 4 November 2022, O’Rourke SC DCJ imposed a sentence with respect to the Commonwealth offence of 2 years and 6 months’ imprisonment commencing on 31 October 2022 and expiring on 28 May 2025, with the applicant to be released after serving 1 year and 3 months pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) upon entering into a recognizance in the sum of $2,000 without surety, and on condition that the applicant be of good behaviour for 3 years from 30 January 2024. With respect to the State offence, the judge recorded a conviction without imposing any other penalty, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

4. [4]

   Appeal bail was granted by a judge in the District Court on 9 May 2023, and the applicant was released on bail on 12 May 2023.

5. [5]

   The applicant was self-represented in this Court. He seeks leave to appeal the severity of his sentence in relation to the Commonwealth offence on five grounds:

6. [6]

   For the reasons set out below, leave to appeal should be granted and the appeal should be dismissed. A consequential order should be made to adjust the recommencement date of the applicant’s sentence given the time the applicant has been at liberty pending determination of his appeal.

Facts of the offending and course of proceedings

1. [7]

   The applicant’s offending was the subject of findings by her Honour by reference to a statement of agreed facts. Those findings were not in issue on the appeal.

2. [8]

   On 15 February 2021, a cardboard package containing a plywood box consigned to an address of Harris Paneras at Hurstville was identified by Australian Border Force staff. The consignor was stated to be a person in Peru. The contents of the package were listed as “trademark time clock: vintage pendulum clock”. New South Wales Police confirmed that Mr Harry Paneras resided at the Hurstville address and his telephone number was as listed on the consignment note.

3. [9]

   An x-ray examination of the plywood box revealed anomalies around its base: a cavity inside one side of the plywood box concealed a small metallic container. Upon examination, it was found to be packed with a white powdery substance containing an impure quantity of 92.9 grams of cocaine, being a pure quantity of 63.17 grams of cocaine.

4. [10]

   On 18, 19 and 22 February 2021, the applicant made telephone calls to DHL enquiring about the status of the package.

5. [11]

   On 19 February 2021, custody of the package was transferred to New South Wales Police who removed the metal container containing cocaine and replaced it with a similar container packed with an inert substance and the package was returned to its original state.

6. [12]

   On 23 February 2021 at about 10:15 am, police officers posing as delivery drivers performed a controlled delivery of the package to the Hurstville address of Mr Paneras. The package was received and signed for by Mr Paneras’ mother-in-law. The applicant made various calls to Mr Paneras on the day of the delivery: at 11:31 am for 43 seconds; at 11:51 am, the call was not answered; and at 11:57 am for 54 seconds. Mr Paneras arrived home at about 4:45 pm. Police officers, who had earlier obtained a search warrant, entered the Hurstville residence with Mr Paneras. When Mr Paneras approached the cardboard box on the floor of the hallway he leaned over to look at it, and said to police:

7. [13]

   Mr Paneras later provided a statement to police in which he said:

8. [14]

   The applicant telephoned Mr Paneras at 5:00 pm, 5:12 pm and 5:29 pm on 23 February 2021. The calls were not answered as Mr Paneras was speaking to police at that time.

9. [15]

   Police arrested the applicant on 2 March 2021. After contacting his legal representative, the applicant participated in an ERISP. His reply to all questions asked was, “No comment”. Also on 2 March 2021, police executed a search warrant at the applicant’s residence at Arncliffe, during which police located: (a) a clear resealable bag containing 13.7 grams of cannabis, and (b) a notebook containing names and debts alleged to be a drug ledger.

10. [16]

    On 2 March 2021, the applicant was initially charged by way of court attendance notice with three alleged offences: (1) import marketable quantity of border-controlled drug, cocaine, contrary to s 307.2 of the Criminal Code; (2) possess a prohibited drug, cannabis, contrary to s 10(1) of the Drug Act; and (3) possess/attempt to import prescribed restricted substance, somatropine, contrary to s 16(1) of the Poisons and Therapeutic Goods Act 1966 (NSW).

11. [17]

    On 28 October 2021, the third charge was withdrawn and the applicant was committed for trial in respect of the two other offences. He was arraigned in the District Court on 12 November 2021. He entered pleas of not guilty to each offence and the matter was listed for trial on 12 September 2022.

12. [18]

    Commencing in late November 2022, the applicant’s solicitor engaged in plea negotiations with the Commonwealth Director of Public Prosecutions (the Director). On 23 March 2022, the applicant provided written instructions to his solicitor, Mr Simon Joyner, to plead guilty to the offence of attempting to possess a marketable quantity of an unlawfully imported border-controlled drug (cocaine), contrary to s 307.6(1) and s 11.1 of the Criminal Code, and possession of cannabis, contrary to s 10(1) of the Drug Act. On the same date, the applicant provided written instructions to agree to the draft agreed statement of facts prepared by the Director, which was ultimately tendered at the sentencing hearing.

13. [19]

    On 31 March 2022, the Director filed a new indictment charging the applicant with the offence of attempting to possess a border-controlled drug, namely, cocaine, and the quantity being a marketable quantity. The possession offence in relation to the cannabis was charged as a related offence on a s 166 certificate under the Criminal Procedure Act 1986 (NSW). The applicant entered guilty pleas on 1 April 2022.

14. [20]

    At the sentencing hearing on 9 June 2022, counsel for the applicant sought and obtained an adjournment on the ground that the sentence assessment report had only just been received that morning and the applicant’s legal representatives wished to investigate some matters in that report, including why the risk assessment in the report was incomplete. The hearing was adjourned to 4 August 2022. The applicant’s solicitor was not ready to proceed on that date and the hearing was further adjourned to 28 October 2022.

15. [21]

    On 28 October 2022, the applicant was represented by senior counsel, Mr M Johnston SC. His solicitor, Mr Joyner, was unable to attend the hearing as his father had recently passed away and he had family commitments. The Crown tendered without objection the sentence bundle (Exhibit A), the sentence assessment report (Exhibit B), and an email dated 27 October 2022 from Ms Joeleen Sinclair, Community Corrections, to Mr Joyner (Exhibit C). The applicant’s counsel tendered without objection two affidavits from character witnesses (Exhibits 1 and 2) and a psychologist report from Ms Kris North (Exhibit 3). The applicant did not give evidence on sentence.

The sentencing judge’s reasons

1. [22]

   The applicant was aged 30 years at the time of his offending and 31 years at the time of sentence. After summarising the facts and circumstances of the offending which have been outlined above, the sentencing judge assessed the offending as between low and mid-range of objective seriousness taking into account, among other matters, the role of the applicant and the motivation being profit or financial gain, there being no evidence to the contrary. There is no challenge to this finding.

2. [23]

   Her Honour addressed the non-exhaustive list of factors in subs 16A(2) of the Crimes Act relevantly known to the Court at the time of sentencing and the applicant’s subjective features, including his birth in Cyprus and family relationships, his qualification as a lawyer in Cyprus in 2015 and his work as a barrister specialising in criminal law, managing his own practice for two to three years. He also owned a nightclub in Cyprus, which closed in January 2020 due to financial issues. In February 2020, the applicant migrated to Australia for an improved lifestyle and work opportunities.

3. [24]

   Her Honour referred to the applicant’s personal circumstances, including that he was residing with his uncle at the time of the offending; and he reported to Community Corrections substance abuse commencing with cannabis in his mid-20s and later using cannabis and cocaine on a recreational basis. Separately, the applicant gave a history to the psychologist, Ms North, which included:

4. [25]

   Ms North assessed the applicant as suffering from “sedative, hypnotic or anxiolytic usage disorder, moderate in sustained remission”.

5. [26]

   Her Honour noted that the applicant told Community Corrections, as recorded in the sentence assessment report:

6. [27]

   Her Honour referred to the applicant’s expression of remorse to Ms North for his offending and acknowledged that his behaviour had been “reckless”, noting that the plea had been entered and accepted on the basis of the applicant’s knowledge and belief that the cardboard package contained prohibited drugs.

7. [28]

   Addressing the degree of contrition shown by the applicant, her Honour said:

8. [29]

   Her Honour allowed a discount of 15 per cent for the utilitarian value of the applicant’s guilty plea.

9. [30]

   Her Honour found that the applicant had no prior convictions and was a person of good character and that both Community Corrections and Ms North assessed the applicant as having a low-level risk of reoffending.

10. [31]

    Addressing the applicant’s prospects of rehabilitation, her Honour said:

11. [32]

    After referring to the role of comparative cases and the guidepost of the maximum penalty, her Honour concluded that no other sentence than imprisonment was appropriate taking into account all aspects previously outlined in her reasons and the material tendered in evidence, and imposed the sentence indicated.

Application to adduce additional evidence on appeal

1. [33]

   The applicant seeks to rely on additional evidence on appeal in support of grounds 1 to 3. The additional evidence is contained in two affidavits of the applicant dated 5 December 2023 and 13 December 2023. That evidence, to which the Crown objected on the grounds of relevance, is to the following effect:

   1. (1)

      at the time of signing the agreed statement of facts (on 23 March 2022), the applicant’s solicitor, Mr Joyner, assured the applicant that he would be given a 25 per cent discount on sentence; this advice was the primary and sole reason for his decision to plead guilty; and the applicant was unaware that his solicitor had made a written submission seeking a reduction in the range of 15-20 per cent for the applicant’s guilty plea;

   2. (2)

      the applicant denied that he made certain statements attributed to him in the sentence assessment report (being the italicised statements recorded by her Honour in the first and third paragraphs of the quoted reasons set out at [26] above);

   3. (3)

      the risk assessment in the sentencing assessment report was incomplete; and

   4. (4)

      the applicant’s solicitor, Mr Joyner, failed to ensure that the inaccurate and incomplete sentence assessment report was addressed at the adjourned sentencing hearing on 28 October 2022.

2. [34]

   The applicant’s affidavits were admitted on a provisional basis. In turn, the Crown relied on affidavits of Mr Joyner dated 16 February 2024 and 26 February 2024, which were also admitted on a provisional basis. Both the applicant and Mr Joyner were cross-examined.

3. [35]

   The applicable principles for the admission of fresh or new evidence on an appeal against sentence are well-established: see the summary in Stubbings v R [2023] NSWCCA 69 at [40] (Gleeson JA, Davies and Wilson JJ agreeing).

4. [36]

   The distinction between “fresh” and “new” evidence is explained in Barnes v R [2022] NSWCCA 140 at [28] (Hamill J, Gleeson JA and Ierace J agreeing). Fresh evidence is received more readily than new evidence. In this case, the evidence sought to be relied upon by the applicant is “new” evidence, rather than “fresh” evidence, because it was available, but not used, or in the exercise of reasonable diligence it could have been obtained at the time of sentence: Khoury v R [2011] NSWCCA 118 at [107] (Simpson J, Davies J and Grove AJA agreeing).

5. [37]

   When considering whether leave should be granted to rely on additional evidence on a severity appeal, the nature of the inquiry raised by the proposed ground of appeal needs to be kept in mind. The inquiry is an objective one, focused “ultimately, [on] what did or did not occur” in this case in relation to the entering of the plea, the decision of the applicant’s legal representatives not to cross-examine the author of the sentence assessment report and whether a miscarriage resulted. As Hamill J said in Green v R [2022] NSWCCA 230 at [38] (Macfarlan JA and Harrison J agreeing):

6. [38]

   The applicant’s evidence on this topic was contradicted by the evidence given by his solicitor, Mr Joyner, whose evidence should be preferred and accepted for three reasons.

7. [39]

   First, Mr Joyner’s evidence was corroborated in part by contemporaneous emails sent to the applicant. Second, Mr Joyner was an impressive witness who gave his evidence carefully and dispassionately despite the fact that his former client was alleging that his advice was wrong and his representation of the applicant incompetent. Third, the applicant was not a credible witness. His responses in cross-examination, such as attempting to disavow knowledge of the content of the bolded par [9] in the applicant’s written submissions on sentence (see [41(3) and (6)] below) and denying that he attended a conference with Mr Johnson SC and Mr Joyner on 20 October 2022 (see [41(6)-(8)] below), indicated that he was prepared to say anything which he thought might assist his appeal without regard to the truth.

8. [40]

   In any event, the applicant’s evidence concerning the advice given by his solicitor in relation to the discount he would receive if he pleaded guilty is inadmissible as it is not relevant on an appeal against sentence because: (i) there is no challenge to the conviction based on the applicant’s plea of guilty, and (ii), the applicant’s subjective evidence as to why he pleaded guilty is not relevant on sentence.

9. [41]

   If, contrary to my view, the applicant’s evidence on this topic was admitted on this appeal, I would make the following contingent findings:

   1. (1)

      when the proceedings were in the Local Court, Mr Joyner gave advice to the applicant in relation to the discounts that may be applied by sentencing judges for the utilitarian benefit of a plea of guilty, including advice in relation to early pleas of guilty in the Local Court and late pleas of guilty entered after committal;

   2. (2)

      after the applicant was committed for trial, Mr Joyner did not advise the applicant that he was entitled to a 25 per cent discount if he pleaded guilty to the new Commonwealth charge;

   3. (3)

      on 26 May 2022, Mr Joyner provided the applicant by email with a draft outline of submissions on sentence which stated in the bolded final sentence in par [9]:

   4. (4)

      after initially accepting in cross-examination that the bolded portion in par [9] was contained in the draft submissions which he received from Mr Joyner on about 26 May 2022 and that he “did read some of them”, the applicant denied that he read the bolded portion in par [9], then said, “I just had a look but I didn’t go into the reading of the …”, then said “I didn’t see the paragraph before the second, the outline of submissions”. I find that the applicant read the draft submissions on about 26 May 2022, including the bolded final sentence in par [9]; his evidence in cross-examination attempting to disavow knowledge of the content of par [9] cannot be accepted;

   5. (5)

      it should be inferred that the applicant’s reference in cross-examination to “the second, the outline of submissions” was a reference to the revised outline of submissions provided to the applicant during the conference with senior counsel on 20 October 2021 (see (6) below) which also contained the bolded submission in par [9];

   6. (6)

      the applicant attended a conference with Mr Joyner and Mr Johnston of senior counsel on 20 October 2022 during which senior counsel took the applicant through the revised outline submissions on sentence in their entirety, including the bolded sentence in par [9] (which was in the same terms as set out at (3) above);

   7. (7)

      after stating in cross-examination that he was “not sure” he discussed par [9] of the revised outline of submissions with senior counsel on 20 October 2021, the applicant agreed that he was leaving open the possibility that he did have such a discussion. In re-examination the applicant changed his evidence and said that he did not read the revised draft submissions “because I was busy working on my own business”. That evidence cannot be accepted; the sentencing hearing was a week away and the reasonable inference is that the applicant, who had legal qualifications as a barrister in Cyprus, was intimately concerned to read and understand the written submissions to be made on his behalf at the sentencing hearing; and

   8. (8)

      I reject the applicant’s evidence that he only met Mr Johnston of counsel on the day of the adjourned sentencing hearing on 28 October 2022. I prefer and accept Mr Joyner’s evidence that the applicant attended the conference with senior counsel, together with Mr Joyner, on 20 October 2022.

10. [42]

    The applicant complains that the sentence assessment report dated 9 June 2022 was:

    1. (1)

       incomplete in three respects: (a) the risk assessment, (b) the supervision plan, and (c) the unsuccessful verification of third-party relationships with the applicant; and

    2. (2)

       inaccurate in two respects, insofar as it contained the following statements:

11. [43]

    The applicant’s evidence on the topic of the alleged incomplete or inaccurate sentence assessment report should be admitted as it is relevant to the applicant’s contention (although not the subject of a ground of appeal) that the sentencing proceedings miscarried because of the asserted incompetence of his legal representation. A statement of the relevant principles applicable to the determination of a ground raising incompetence of counsel is contained in Monteiro v R; R v Monteiro [2011] NSWCCA 113 at [155] (Simpson J, Hoeben and Price JJ agreeing).

12. [44]

    I make the following findings in relation to the competing and conflicting evidence of the applicant and Mr Joyner’s evidence on this topic:

    1. (1)

       at the conference with senior counsel on 20 October 2022 attended by the applicant and Mr Joyner, there was a discussion about the best way to deal with the issues raised by the sentence assessment report. Senior counsel recommended writing to the author of the report seeking clarification, including whether contacting third parties would occur;

    2. (2)

       Mr Joyner sought clarification from Community Corrections in an email to Ms Joanne Cody on 21 October 2022, as to whether (i) there was miscommunication during her conference with the applicant in June 2022 about the words in the report (set out in [42(2)] above), (ii) there had now been contact with third parties, and (iii) the report needed to be updated or whether Ms Cody would provide oral evidence;

    3. (3)

       on 24 October 2022 Ms Cody responded to Mr Joyner by email stating that (i) the report had not been updated and Community Corrections would only submit an update if the Court requested it to do so, at which point, the Court had not done so, and (ii) she would be in contact with Mr Joyner “tomorrow”;

    4. (4)

       on 26 October 2022 Mr Joyner emailed Ms Cody noting that he had not received a phone call as she had stated and asked if “in the meantime, you would be able to at least complete the risk assessment part of the report”;

    5. (5)

       on 27 October 2022 at 11:22 am, Ms Sinclair emailed Mr Joyner, copied to Ms Cody, indicating that Ms Cody was unavailable that morning, and that as her current supervisor she had reviewed the matter in her absence. Ms Sinclair stated:

    6. (6)

       Mr Joyner sent a copy of the 27 October email to senior counsel on 27 October 2022 by email at 11:43 am. Counsel responded by email at 12:11 pm, “Well done”;

    7. (7)

       Mr Joyner held the view that the concerns which he and senior counsel had with the sentence assessment report had been addressed by the 27 October email without the need for oral evidence from the author of the report and that it was the best position the applicant could achieve without the risk of adverse evidence about the applicant’s comments recorded in the report.

    8. (8)

       Mr Joyner informed the applicant of this advice in a telephone conversation on 27 October 2022. Following that conversation he sent a copy of the 27 October email to the applicant at 2:21 pm stating: “Attached as requested”; and

    9. (9)

       the applicant’s denial that he discussed the 27 October email with Mr Joyner on that date cannot be accepted. I prefer and accept the contrary evidence of Mr Joyner.

13. [45]

    A finding should be made that, although the “risk assessment” and the “supervision plan” were incomplete in the June 2022 report (Exhibit B), these matters were subsequently addressed by Ms Sinclair of Community Corrections in Exhibit C (as referred to at [44(5)] above). Further, accepting that Mr Joyner informed the applicant that Community Corrections did not accept that the sentence assessment report was inaccurate insofar as it recorded statements made by the applicant and that he gave the applicant the advice summarised in [44(7)] above, I reject the applicant’s submission that he was not informed by Mr Joyner of the forensic decision not to cross-examine the author of the sentencing assessment report.

14. [46]

    Insofar as the applicant complains that the sentence assessment report was incomplete because the author was unable to contact third parties, relevantly, the applicant’s aunt, Ms Toula Tsipiras, her Honour’s reasons do not include any reference to the information in the report being unverified. Relevantly, her Honour accepted, consistent with the report, that (i) the applicant was residing with his uncle at the time of the offending, (ii) the applicant was using cannabis and cocaine on a recreational basis in the lead up to the offending, and (iii) the applicant was assessed as being of low risk of reoffending.

15. [47]

    There is no basis to suspect that the decision made by the applicant’s legal representatives not to cross-examine Ms Cody was attended by any mistake or negligence. Nor is there any basis for suspecting that the applicant’s case was compromised by that decision. The forensic decision not to cross-examine the author of the sentence assessment report is capable of a rational explanation. As the Crown submits, cross-examining the author of the report would have only further highlighted the applicant’s attempts to diminish his role in an adverse manner. The applicant should be held to the forensic decision made by his legal representatives.

16. [48]

    For the above reasons, although the new evidence in items (2), (3) and (4) should be admitted, it does not support the applicant’s assertion of incompetent legal representation, let alone that there was any miscarriage of justice. I now turn to the grounds of appeal.

Ground 1: prospects of rehabilitation

1. [49]

   It is said that the sentencing judge erred in failing to take into consideration, or did not give enough weight to, the applicant’s prospects of rehabilitation before imposing a sentence. This ground focused on the following passage in her Honour’s reasons:

2. [50]

   As to the first part of this submission, it is said that it is not clear that her Honour’s finding concerned rehabilitation because the judge did not mention that word in her reasons. That her Honour did not use the word “rehabilitation” is not determinative. The question is whether on a fair reading of her Honour’s reasons the finding that the judge considered the applicant’s “prospects as moderate” is a reference to prospects of rehabilitation.

3. [51]

   As the Crown submits, that her Honour had in mind the applicant’s “prospects of rehabilitation” is apparent from two matters. One is the express statement in her reasons that she was sentencing the applicant in accordance with Pt 1B of the Crimes Act and s 16A in particular, and the word “prospect” only appears once in s 16A of the Crimes Act, relevantly, in subs 16A(2)(n) in the context of “prospects of rehabilitation”. The other is that her Honour provided a detailed summary of the applicant’s subjective case in her reasons which specifically addressed the material relevant to the applicant’s prospects of rehabilitation.

4. [52]

   As to the alternative submission, it is said that her Honour should have found the applicant’s prospects of rehabilitation were “excellent” rather than “moderate”. Her Honour made this finding following a detailed assessment of the applicant’s subjective case, which included the report of the psychologist, Dr North, tendered by the applicant, and the material tendered by the Crown, including the sentence assessment report. Her Honour recounted the applicant’s history, specifically noting that (i) the applicant had established a business with Ms Kensell, (ii) the applicant had a history of previous drug use and mental illness, (iii) the applicant had told the author of the sentence assessment report that he accepted responsibility for his actions, (iv) the applicant stated that he understood the devastating impact drugs have on individuals, families and the community, (v) the applicant had no prior convictions, (vi) the applicant had been assessed as a low risk of reoffending, and (vii) the applicant appears to have the strong support of his extended family. Her Honour also referred to the material in the psychologist’s report and the sentence assessment report from which it was open to find that the applicant was attempting to diminish his involvement in the offending.

5. [53]

   The weight to be given to the evidence relevant to the applicant’s rehabilitation was a matter for her Honour to assess. The finding that the applicant’s prospects of rehabilitation were moderate is not attended by any error. Ground 1 is not made out.

Ground 2: prospects of reoffending

1. [54]

   This ground has two parts. It is said that her Honour erred in finding that the applicant’s prospects of reoffending were moderate. There are two difficulties with this submission.

2. [55]

   One is that it involves a misreading of her Honour’s reasons which are reproduced at [49] above. As concluded in relation to ground 1, the reference to the applicant’s “prospects as moderate” was a reference to rehabilitation, rather than reoffending. The other is that the finding made as to the applicant’s risk of reoffending was favourable to the applicant. Her Honour accepted that the applicant had been assessed as being of low risk of reoffending.

3. [56]

   It is also said that her Honour erred in her assessment of the applicant’s contrition, which finding is set out at [29] above. There are several difficulties with this submission.

4. [57]

   First, the applicant did not give evidence on sentence and thus, her Honour did not have her own opportunity to directly assess the applicant’s expressions of remorse made to third parties. Second, her Honour took into account that the applicant pleaded guilty which evidenced “some contrition”. Third, her Honour weighed the expressions of contrition made by the applicant to third parties against the statements he made to the authors of the sentence assessment report and the psychologist’s report about his role in the offending that were inconsistent with the agreed facts. Those inconsistencies were (i) the statements by the applicant recorded in the sentence assessment report which is reproduced at [42(2)] above, and (ii) the statement by the applicant recorded in the psychologist’s report:

5. [58]

   Importantly, at the sentencing hearing senior counsel for the applicant did not rely on that part of the psychologist’s report in which the applicant described his behaviour as “reckless”. The applicant’s counsel confirmed that the applicant was to be sentenced on the basis of knowledge and belief that a prohibited drug was involved.

6. [59]

   Fourth, the applicant’s senior counsel also accepted at the sentencing hearing that there were some inconsistencies in the statements the applicant made, both to the author of the sentence assessment report and to the psychologist, and that the sentencing judge may infer that was an attempt by the applicant to minimise his role. That concession was properly made.

7. [60]

   It was well-open to her Honour to conclude, as she did, that the statements by the applicant to the authors of the sentence assessment report and the psychological report were “attempts to minimise his role and conduct” in the offending. That finding was relevant to her Honour’s ultimate finding about contrition. No error has been demonstrated.

8. [61]

   Separately from the above matters, the applicant’s written submissions in support of Ground 2 raised three further complaints:

   1. (1)

      the asserted failure by the sentencing judge to confirm that the applicant adhered to his plea;

   2. (2)

      asserted language difficulties that the applicant experienced communicating to the author of the sentence assessment report; and

   3. (3)

      the asserted failure of the applicant’s solicitor to subpoena the author of the sentence assessment report so that she may be cross-examined.

9. [62]

   Contrary to the applicant’s submission, it was not necessary for her Honour to confirm the applicant’s adherence to his guilty plea given the relevant circumstances were as follows.

10. [63]

    First, on 23 March 2022 the applicant signed handwritten instructions to his solicitor to plead guilty to the Commonwealth charge and confirmed the facts in the draft agreed statement of facts were the facts upon which he would be sentenced.

11. [64]

    Second, as already noted, the applicant was arraigned on 1 April 2022 with respect to the Commonwealth offence for which he was sentenced and entered his guilty plea.

12. [65]

    Third, during the sentence proceedings on 9 June 2021 and 28 October 2021, the applicant’s junior and senior counsel respectively conveyed to the sentencing judge that the applicant’s guilty plea was maintained when they each confirmed that the applicant was to be sentenced on the basis of his “knowledge and belief that it was a prohibited drug”, rather than “recklessness” as had been suggested in the applicant’s written submissions on sentence.

13. [66]

    Fourth, the applicant adhered to his plea during submissions by his senior counsel on 28 October 2022, specifically when counsel sought a discount of 15 per cent for the plea that the applicant had entered.

14. [67]

    In addition, the applicant candidly accepted in cross-examination and his oral submissions to this Court that if he had been expressly asked by the sentencing judge whether he confirmed his plea he would have answered in the affirmative.

15. [68]

    The Crown correctly points out that no evidence was admitted during the sentencing proceedings that suggested that the applicant had any difficulties communicating in English. Specifically, no submission was made by the applicant’s senior counsel that such a difficulty was a possible explanation for the fact that the author of the sentence assessment report recorded the applicant asking about “what would be the best thing to say to look better in the eyes of the court?”. The absence of any such suggestion by the applicant’s counsel is unsurprising given the contents of Exhibit C, being the email from Community Corrections stating that its records confirmed that the statement had been made by the applicant.

16. [69]

    Moreover, the applicant’s asserted language difficulties are contradicted by (i) the applicant’s evidence in this Court that he engaged with his solicitor over a period of about 18 months without the assistance of an interpreter and attended court on at least three occasions without requesting that his solicitor or the Director or the Court organise an interpreter for him, (ii) the applicant’s written instructions given to his solicitor on 6 September and 21 September 2021, which display a good capacity to communicate in written English, irrespective of the applicant’s evidence that he used a translation app to assist him in the preparation of those communications, and (iii) the unchallenged affidavit evidence of the applicant’s solicitor, Mr Joyner, that contradicted the applicant’s assertion of (only) average English language proficiency.

17. [70]

    It is said that the applicant’s solicitor failed to comply with the applicant’s instructions to cross-examine the author of the sentence assessment report to the effect that the author had misunderstood the “context” of the applicant asking about “what would be the best thing to say to look better in the eyes of the court?”.

18. [71]

    As noted above, cross-examining the author of the sentence assessment report would have only further highlighted the applicant’s attempts to diminish his role in an adverse manner. No reason has been shown why the applicant should not be held to the forensic decision made by his legal representatives.

19. [72]

    Ground 2 is not made out.

Ground 3: utilitarian discount for applicant’s plea of guilty

1. [73]

   The applicant had to be sentenced in accordance with Commonwealth sentencing law. Relevantly, s 16A(2)(g) of the Crimes Act provides that the matters that the Court must take into account as are relevant and known to the Court included:

2. [74]

   The applicable principles are not in dispute. The authorities concerning the discount for a plea of guilty were analysed in some detail in Bae v R [2020] NSWCCA 35 at [49]-[57] (Johnson J, Bell P and Walton J agreeing). It is well-established that the utilitarian value of a delayed plea is less and consequently the discount is reduced where there has been a plea bargain.

3. [75]

   Further, the fact that the plea to a lesser offence is offered at the first reasonable opportunity does not automatically mean that a full discount for the plea should be given. In R v Dib [2003] NSWCCA 117, Hodgson JA (Barr J agreeing) said in the context of sentencing under State legislation:

4. [76]

   Similarly in Ahmad v R [2006] NSWCCA 177, McClellan CJ at CL (Hislop and Johnson JJ agreeing) said:

5. [77]

   At the sentencing hearing, the applicant’s written submissions acknowledged that an appropriate discount was “in the order of 15-20%”. The Crown’s submission was that the appropriate range was 10 to 15 per cent. When asked by her Honour what discount was appropriate, the applicant’s senior counsel responded, “… it’s in the range of 15%”. As noted, her Honour accepted this submission and applied a 15 per cent discount for the guilty plea.

6. [78]

   The applicant challenges this finding on three grounds. First, it is said that the applicant commenced negotiations in December 2020 for a guilty plea in relation to the Commonwealth offence with which he was ultimately charged and that this is the time at which his guilty plea should be assessed. This submission is inconsistent with the statutory language in s 16A(2)(g) of the Crimes Act, which focuses on the timing of the plea (in this case 1 April 2022), not the timing of negotiations leading to the plea.

7. [79]

   Further, at a factual level, the letter from the applicant’s solicitor to the Director of 17 March 2021 makes plain that there was no unconditional offer by the applicant to plead guilty to the new indictment until the parties had reached agreement in late March 2023 in relation to the draft agreed statement of facts, including the specific removal of references to an earlier package of drugs in August 2020.

8. [80]

   Second, it is said that the applicant pleaded guilty at the first available opportunity to the charge on the new indictment on 1 April 2022. The Crown’s response correctly emphasised that as the applicant’s plea was made after committal for trial it had less utilitarian value as it was a delayed plea.

9. [81]

   Third, it is said that her Honour erred in applying a discount of 15 per cent for the guilty plea for the Commonwealth offence because it was in the “lowest range” referred to in the applicant’s written submissions. It is said that the applicant should receive a 20-25 per cent discount. The premise of this submission is flawed. There is no automatic entitlement to a discount in Commonwealth sentence matters, nor to a discount of one quarter of the sentence that would otherwise be imposed if the plea is an early one: Lam v R (Cth); Lay v R (Cth); To v R (Cth) [2021] NSWCCA 242 at [162] (Wilson J, Payne JA and Fagan J agreeing).

10. [82]

    Her Honour did not err in applying a discount of 15 per cent for the applicant’s delayed guilty plea. As indicated, this finding was in line with the acknowledgment by the applicant’s senior counsel that the appropriate discount was “… in the range of 15%”. Ground 3 is not made out.

Ground 4: immediate release on a recognizance

1. [83]

   The applicant accepted at the sentencing hearing that the threshold of imprisonment in s 17A of the Crimes Act was crossed. His position was that the appropriate sentence could be structured in a way that a sentence of imprisonment be served by way of an intensive corrections order in the community, or a period of imprisonment and release on recognizance pursuant to s 20(1)(b) of the Crimes Act.

2. [84]

   It is said that the sentencing judge failed to consider the applicant’s submission about a sentence of imprisonment with an immediate release on a recognizance. That misunderstands her Honour’s reasons. After taking into consideration “all aspects previously outlined and all of the material tendered on sentence”, her Honour concluded that the threshold in s 17A of the Crimes Act had been crossed and went on to find that the appropriate sentence involved a release on recognizance after a period of imprisonment of 1 year and 3 months. Implicit in that finding was the rejection of the applicant’s submission that the appropriate sentence structure was a period of imprisonment with immediate release on recognizance.

3. [85]

   It is also said that her Honour did not give enough weight to the submission that the recognizance order should relate to the whole of the period of imprisonment. Again, that misunderstands her Honour’s reasons. Plainly, her Honour considered the applicant’s submission in arriving at the recognizance order she made. The weight to be given to the applicant’s submission as to the timing of the recognizance order was a matter for her Honour. On a fair reading of her Honour’s reasons she considered all material matters and concluded that a sentence involving immediate release on recognizance would not have been a sentence consistent with s 16A(1) of the Crimes Act, that is, a sentence of “a severity appropriate in all the circumstances of the offence”. Ground 4 is not made out.

Ground 5: manifest excess

1. [86]

   It is said that the sentence is manifestly unjust and excessive because (i) the sentence “appears to be disproportionate to the offence committed”, (ii) several mitigating factors were either not taken into consideration or not adequately considered, including previous good character, lack of a criminal record, and genuine remorse, (iii) the sentence is inconsistent with sentences handed down in similar cases, and (iv) the sentence fails to adequately consider the potential for rehabilitation and the applicant’s prospects for successful reintegration into society.

2. [87]

   The applicable principles are not in dispute: see Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 at [59]; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [34]. The principles are summarised in Obeid v R [2017] NSWCCA 221; (2017) 350 ALR 103 at [185]-[186].

3. [88]

   Relevantly, in R v Nguyen; R v Pham [2010] NSWCCA 238 at [72], Johnson J (Macfarlan JA and R A Hulme J agreeing) said of sentencing for attempt to possess offences:

4. [89]

   Here, the applicant arranged for the consignment containing the cocaine to be sent to the address of a friend and intended to collect it from that location; the applicant tracked the delivery of the consignment by contacting the courier company on three occasions over a 5-day period; and the applicant knew or believed that the consignment contained prohibited drugs. This is a case in which the principles of general deterrence and specific deterrence were important considerations when sentencing for drug-related offences: Wong v R (2001) 207 CLR 584; [2001] HCA 64 at [64] (Gaudron, Gummow and Hayne JJ).

5. [90]

   There is no merit in the applicant’s complaint that several mitigating factors – good character, lack of a criminal record and genuine remorse – were either not taken into consideration or not adequately considered. As to the first two matters, her Honour made a favourable finding that the applicant had no prior convictions and was a person of good character. As to the third matter, there was no error in the finding that the applicant had not shown real genuine remorse given the finding concerning his attempt to diminish his involvement in the offending (see [28] above).

6. [91]

   Care must be taken in using what has been done in other cases: Hili at [53]. Differences in the facts and circumstances affects the utility of the comparative exercise. As stated in Hili, the range of sentences that have been imposed in the past does not fix “the boundaries within which future judges must, or even ought to, sentence” and past sentences “stand as a yardstick against which to examine a proposed sentence”: Hili at [54] citing Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303]-[305] (Simpson J); Moodie v R [2020] NSWCCA 160 at [80]–[89] (Bell P).

7. [92]

   This Court has frequently said that it is not to the point that the sentence under challenge might be described as severe, whether by reference to other cases or sentence statistics, or whether this Court would have imposed the same or some other sentence. The question is whether the sentence under challenge exceeds the bounds of proper sentencing discretion: Webber v R [2014] NSWCCA 111 at [46] (Fullerton J, Hoeben CJ at CL and Adamson J agreeing).

8. [93]

   Both parties provided the sentencing judge with schedules of comparative cases, showing penalties imposed in broadly similar or related offences. Her Honour noted in her reasons that she had read and considered the comparative sentences provided to the Court, and then correctly observed:

9. [94]

   It is not necessary to refer to all of the comparative cases referred to by the applicant, either before the sentencing judge or in this Court. Review of penalties that have been imposed on offenders, in a variety of circumstances, for attempted possession of a marketable quantity of an unlawfully imported border-controlled drug, confirms that the sentence imposed on the applicant did not exceed the bounds of proper sentencing discretion.

10. [95]

    R v Boutros [2013] NSWDC 291 concerned attempted possession of cocaine which was concealed in a mail consignment; the net (pure) weight was 324.1 grams. A conviction appeal was unsuccessful: Boutros v R [2015] NSWCCA 171. There are some similarities with the present case in that the offender was approaching 30 years of age with no prior convictions. However, there were material differences, including the objective criminality of the offending was assessed as relatively low and the offender was not to be paid or receive any benefit for what he did. The offender was sentenced to 2 years’ imprisonment to be served by way of an ICO. The lesser penalty imposed in this case is not useful in the resolution of the manifest excess ground, given the material differences referred to above.

11. [96]

    Patel v R [2022] NSWCCA 93 concerned several drug-related offences, including attempted possession of MDMA (75.45 grams pure) which was concealed in a mail consignment, trafficking a controlled drug (MDMA – 9.31 grams pure) and two further attempted possession offences were taken into account on a s 16BA Schedule. The offender was 26 years old at the time of offending and of previous good character, however, this was not taken into account in light of the repeated offending, which is a difference with this case. An appeal against the severity of sentence was successful on the basis that the sentencing judge had not taken into account the offender’s demonstrated remorse. (By contrast, in this case there were findings that the applicant was of good character but lacked real genuine remorse.) On appeal, the offender was resentenced to 3 years and 6 months’ imprisonment on the attempted possession charge and 15 months’ imprisonment (with 6 months’ concurrency) on the trafficking charge. A single non-parole period of 2 years’ imprisonment was imposed.

12. [97]

    R v Chew [2022] NSWDC 325 concerned attempted possession of heroin (186.27 grams pure) concealed in a parcel sent from Malaysia, a separate offence of supply prohibited drug, methamphetamine, and an offence of dealing with the proceeds of crime over $100,000 dealt with on a s 16BA Schedule. The offender’s role was found to be low-level and for financial gain of a one-off payment of $500. The offender was 25 years old; he gave evidence on sentence, and there was a finding that he was a person of good character. There also was a finding that he was contrite and had been cooperative with authorities. After applying a 25 per cent discount for an early guilty plea, the offender was sentenced to a term of imprisonment of 3 years and 4 months with a non-parole period of 1 year and 9 months for the Commonwealth offence, and a term of imprisonment of 1 year and 6 months for the State offence, with 9 months’ concurrency. Although the attempted possession concerned a larger quantity of a prohibited drug than that in the present case, the objective criminality of the offender was less than the applicant and the offender had a stronger subjective case than the applicant.

13. [98]

    R v Keelan [2022] NSWDC 387 concerned attempted possession of heroin (239.7 grams pure) in a package consigned to a post office from Kenya. The offender was aged 56 at the time of sentence and had a very long criminal record. He was found to be a low-level participant doing the pickup and later the drop off for reward of no more than $1,000. Although he had a weak subjective case, emphasis was given to his difficult formative years through to adulthood and ongoing use of drugs in pursuit of which he engaged in petty crime throughout his life and had spent a significant part of his adult life in gaol. After a 25 per cent discount for the utility of his plea, the sentence imposed was 3 years and 4 months’ imprisonment with a non-parole period of 2 years.

14. [99]

    R v Taleb [2023] NSWDC 139 concerned attempted possession of methamphetamine (133 grams gross, and 85 grams pure) concealed in a parcel consigned to a caravan park. The objective seriousness of the offending was assessed as below the mid-range. The offender gave evidence on sentence, including of a history of drug abuse. He was assessed as a medium-low risk of reoffending. There were findings of remorse and, given the offender’s drug addiction, that the likelihood of reoffending was more likely to be reduced by providing, as far as possible, rehabilitation intervention and an environment in which that is supported. The offender was sentenced to a term of imprisonment of 2 years and 9 months and immediately released upon a recognizance upon giving security in the amount of $1,000 and complying with the conditions imposed, including undertaking drug and alcohol counselling. Although the applicant placed emphasis on the immediate release on recognisance in this case, this case is distinguishable given the emphasis on rehabilitation in light of the offender’s drug addiction.

15. [100]

    Taking into account the applicant’s subjective features which were mainly favourable, except for the qualified finding as to remorse, the steps he had taken since his offending to turn his life around, balanced against the seriousness of the offending and the range of sentences given in cases appropriately comparable, I am not persuaded that the sentence imposed is unreasonable or plainly unjust.

16. [101]

    Ground 5 is not made out, and the appeal must fail.

Adjustment of sentence considering appeal bail

1. [102]

   As indicated, following the grant of appeal bail on 9 May 2023 the applicant was released on bail on 12 May 2023. As explained in Rao v R [2019] NSWCCA 290 at [150]-[152], the effect of s 18(2) of the Criminal Appeal Act is that the time during which the applicant was at liberty on bail pending determination of his appeal does not count as part of any term of imprisonment under the applicant’s sentence, and the effect of s 28A is to confer power on the Court, where the applicant has been on bail pending the outcome of his or her appeal, to adjust the commencement date of the sentence when dismissing an appeal. See also JC v R [2023] NSWCCA 231 at [149].

2. [103]

   As the appeal is to be dismissed, the sentence must be adjusted to take account of the period of conditional liberty (with the effect that it will expire at a later date) and the applicant must be returned to custody forthwith: Criminal Appeal Act, ss 18 and 28A.

Proposed orders

1. [104]

   For the reasons given above, I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Appeal dismissed.

   3. (3)

      Pursuant to s 28A(2) of the Criminal Appeal Act 1912 (NSW), the applicant’s sentence is to recommence on 29 April 2024.

   4. (4)

      The Court notes for the purposes of s 18(2) of the Criminal Appeal Act that the period of 353 days, being from 12 May 2023 to 28 April 2024 (inclusive of those dates), does not count as part of the sentence of imprisonment imposed in the District Court on 4 November 2022.

   5. (5)

      The Court further notes for the purpose of s 48 of the Crimes (Sentencing Procedure) Act 1999 (NSW) that:

2. [105]

   ROTHMAN J: I have had the advantage of reading in draft the reasons for judgment of Gleeson JA. I agree with the orders proposed and the reasons given by his Honour.

3. [106]

   CAVANAGH J: I agree with Gleeson JA.