Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Morton v R [2014] NSWCCA 8
• Hearing dates: 13/02/2014
• Decision date: 20 February 2014
• Before: Hoeben CJ at CL at [1]; Schmidt J at [55]; Barr AJ at [56]

Decision

Leave to appeal against sentence granted but appeal dismissed.

• Catchwords: CRIMINAL LAW - sentence appeal - offence of knowingly take part in the supply of a prohibited drug (cocaine) - whether error in the assessment of the discount for the plea of guilty - principles to be applied when assessing the utilitarian value of a plea of guilty - whether applicant bound by concessions made by counsel in sentence proceedings - parity - difference in roles of offenders - no basis for a justifiable sense of grievance - whether sentence manifestly excessive.
• Legislation Cited: Criminal Procedure Act 1986 - s166; Drug Misuse and Trafficking Act 1985 - s25(1)
• Cases Cited: Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520; Loader v R; Dunn v R [2013] NSWCCA 215; Markarian v The Queen [2005] HCA 25; 228 CLR 357; R v AB [2011] NSWCCA 229; R v Cardoso [2003] NSWCCA 15; R v Robert Borkowski [2009] NSWCCA 102;195 A Crim R 1; R v Stambolis [2006] NSWCCA 56; R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383; Tatana v R [2006] NSWCCA 398; Wong v R [2001] HCA 64; 207 CLR 584; Zreika v R [2012] NSWCCA 44
• Category: Principal judgment
• Parties: Ross Leslie Morton - Applicant; Regina - Respondent Crown
• Representation: Counsel: Mr H White - Applicant; Ms S Herbert - Respondent Crown; Solicitors: SE O'Connor, Legal Aid NSW - Applicant; S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown
• File Number(s): 2010/265321

Decision under appeal

• Date of Decision: 2012-12-10 00:00:00
• Before: English DCJ
• File Number(s): 2010/265321

Judgment

1 HOEBEN CJ at CL:

Offence and sentence

On 4 June 2012 the applicant pleaded guilty to one count that between 20 - 26 June 2010 he did knowingly take part in the supply of a prohibited drug, namely cocaine, contrary to the provisions of s25(1) of the Drug Misuse and Trafficking Act 1985, the maximum penalty for which is imprisonment for 15 years.

2 A further charge of knowingly take part in the supply of a prohibited drug (cocaine) was taken into account on a Form 1 and a related driving offence was dealt with pursuant to a certificate under s166 Criminal Procedure Act 1986.

3 On 10 December 2012 the applicant was sentenced by English DCJ to imprisonment with a non-parole period of 2 years, commencing 6 December 2012 and expiring 5 December 2014, with a balance of term of 2 years expiring 5 December 2016.

4 By Notice of Appeal dated 29 October 2013 the applicant seeks leave to appeal against that sentence on the following grounds:

Ground 1 - The sentencing judge erred in the assessment of the discount for the plea of guilty.

Ground 2 - The sentencing judge erred in the application of the principles of parity of sentencing.

Ground 3 - The sentence was manifestly excessive.

Factual Background

5 In early June 2010 NSW Police established a strike force relating to the supply of prohibited drugs in the Surry Hills area of Sydney. As a result of that investigation, Michael Bursach was identified as a person of interest. A telephone intercept warrant was granted over a mobile telephone service used by Bursach. Police also conducted physical surveillance of Bursach. As a result, the applicant, Michael Moskvin and Andrew Mrowiec were also identified as persons of interest.

6 The first act of supply occurred on 19 - 20 June 2010. This was the subject of the Form 1 offence. Bursach arranged for Mrowiec to transport 5 ounces of cocaine (140 grams) to an unidentified purchaser in Brisbane. The applicant gave Bursach the purchaser's details. The applicant discussed the quantity and price with the purchaser. When the applicant was in Queensland, he tried to secure payment for the supply of that 5 ounces of cocaine.

7 Telephone intercepts of conversations between Bursach and the applicant on 14, 18 and 19 June made it clear that arrangements were being made between Bursach and the applicant to deliver cocaine to a person in Brisbane and that a price had been negotiated. Subsequent conversations made it clear that the applicant was in Brisbane and was trying to collect monies for the supply of the 5 ounces of cocaine which took place on 19-20 June.

8 The second act of supply occurred on 25 June 2010 when police stopped Mrowiec as he was travelling north along the Pacific Highway. A search of his vehicle located two brown paper bags, under the driver's seat. Each contained a yellow serviette wrapped around a large resealable bag, inside of which were four further plastic bags containing white powder. The applicant's telephone number was found in the vehicle, recorded in a handwritten note. The white powder was subsequently found to be 8 ounces of cocaine (222.5 grams) with varying purity between 51.5 percent and 56.5 percent. This amount exceeded the "indictable quantity" of 5 grams, but was less than the "commercial quantity" of 250 grams.

9 Between 20 and 26 June 2010 a number of phone conversations took place between the applicant and Bursach which made it clear that the applicant was aware of a purchaser in Brisbane for the 8 ounces of cocaine and that he would make himself available as a contact person for Mrowiec, who was to transport the 8 ounces of cocaine to Queensland. The conversations between the applicant and Bursach made it clear that the applicant knew all the details of the transaction, including the price to be paid for the cocaine.

10 The applicant was arrested in August 2010. He declined to be interviewed and was in custody for 4 days. He was granted bail on 13 August 2010 and at the time of sentence, had been on bail for 2 years, initially reporting daily which was reduced to twice weekly and then once weekly.

Remarks on sentence

11 The applicant did not give evidence. Her Honour reviewed his subjective case as follows. He was aged 55 when the offences were committed and was 57 at the time of sentence. His criminal record included convictions for break enter and steal, false pretences, common assault and two high range drink driving offences. However, his last conviction was recorded in 2005. Her Honour found that his criminal antecedents did not disentitle him to leniency.

12 The applicant was married with one child and was said to be a devoted father, grandfather and husband. He supported an elderly mother in a nursing home. His family were very supportive of him.

13 His employment history was that of an unskilled or semi-skilled labourer. In recent years, he had been unemployed. He suffered from obesity and health problems. These included trigeminal neuralgia (satisfactorily medicated), lymphedema in his lower limbs (requiring the drainage of excess fluid on occasions) and liver disease from alcohol abuse. The applicant did not use illicit drugs.

14 The applicant provided voluntary services to the community. He was said to assist the Salvation Army and the Starlight Foundation. In a letter written to the court, the applicant expressed his regret at becoming involved in the offences and his remorse and contrition, having regard to the harm that drugs cause to the community. He sought to explain his involvement in the offences as in part due to financial hardship.

15 Her Honour then made a series of findings in relation to the offending. She determined a custodial penalty was required because it was necessary to acknowledge specific deterrence and general deterrence in relation to the distribution of illicit drugs into the community. The offending on this occasion was objectively more serious because it was done for financial gain. She noted that the applicant was not a user dealer engaging in crime to support his habit, but also that he was not involved in other forms of criminal activity normally associated with drug supply.

16 In relation to the applicant's role, her Honour found that his involvement was at a much greater level than that of Mr Mrowiec, who was merely a courier. She found that the applicant was actively involved in facilitating the supply of a significant quantity of cocaine of a relatively high purity purely for financial gain. She found that he was an essential link in the dissemination of the drugs to Queensland on two occasions in such circumstances that his moral culpability was of a reasonably high order for offences of this kind. Her Honour reached this conclusion based on the intercepted telephone calls, his travel to Brisbane, his use of a mobile phone obtained with false details and his acceptance of $2,000 in payment for his involvement.

17 Her Honour considered that the issue of parity did not arise because his co-offenders had very different roles in the offending. In relation to his plea of guilty, her Honour said:

"This offender, unlike his co-offenders, did not enter his plea in the Local Court. It was entered in the District Court. It was entered after the matter had been listed for trial and in those circumstances I find the utilitarian value is lessened and I allow a 15% discount for his plea."

18 Her Honour found the applicant to be truly remorseful and contrite. She thought that it was highly unlikely that he would re-offend and that he had excellent prospects for rehabilitation.

19 Her Honour made a finding of special circumstances because the applicant was in poor health and as a result, his time in custody would be more onerous. In that regard, her Honour noted that it had been many years since he was last imprisoned.

20 Her Honour took into account the Form 1 matter and noted that the penalty to be imposed had to reflect its seriousness. Her Honour gave the applicant credit for the 4 days which he had spent in custody before being granted bail.

Ground 1 - The sentencing judge erred in the assessment of the discount for the plea of guilty.

21 In order to understand the submissions relating to this ground, it is necessary to set out some further background material.

22 The applicant's plea of guilty on 4 June 2012 occurred after protracted plea negotiations. The applicant had initially been charged with two counts of supplying a prohibited drug. On 29 April 2011 he made an offer to the DPP that the primary supply count be amended to knowingly take part in the supply of a prohibited drug and that the secondary supply offence (the Form 1 matter) be withdrawn.

23 The DPP replied on 20 June 2011 rejecting that proposal but offering to accept a plea of guilty to the primary supply count with the secondary supply count to be withdrawn and replaced with a count of knowingly take part in the supply of a prohibited drug being at least 5 grams but no more than 5 ounces of cocaine, this count to be dealt with on a Form 1.

24 The applicant did not accept that proposal and on 22 June 2011 made a counter proposal that the primary supply count be reduced to a count of knowingly take part in the supply of a prohibited drug. He indicated his acceptance that the secondary supply count be reduced to a count of knowingly take part in the supply of a prohibited drug and that this be dealt with on a Form 1 with the proviso that the quantity of cocaine be specified as 5 grams.

25 On 22 June 2011 the following response was received from the DPP.

"I note that the difference between the respective positions at this stage is essentially that your offer with respect to sequence 1 reflects a charge of knowingly take part in, as distinct from an actual supply; and with respect to sequence 3 the quantity concerned is accepted as being 5 grams as distinct from being a question of fact for the sentencing judge as to whether the quantity is 5 grams or 5 ounces (as contended by the Crown).

We are not prepared to accept an offer in the terms you propose. The offer made on 20 June 2011 is our current position."

26 On 23 June 2011 the following email was sent on behalf of the applicant to the DPP:

"I note that the offer made by you in your email of 20 June 2011 is your current position. I am therefore instructed to request for the matter to proceed by way of a waiver of committal hearing when the matter is listed at the Central Local Court on 23 June 2011."

27 The applicant was committed for trial from the Central Local Court to the Sydney District Court on 23 June 2011 in relation to the following offences:

"Supply of a prohibited drug, namely 222.5 grams of cocaine.

Supply of a prohibited drug, namely 140 grams of cocaine."

The applicant's matter was listed for trial on 14 May 2012 and on 3 September 2012.

28 That material was placed before her Honour in the sentence proceedings. Counsel then appearing for the applicant submitted that the "utilitarian value of the plea of guilty by the offender should be considered to be in the range of between 15 percent and 20 percent, having regard to the nature and content of the protracted plea negotiations".

29 The applicant submitted that the plea of guilty entered by him on 4 June 2012, which was accepted by the Crown, was in the same terms insofar as the charges were concerned as the offer made on his behalf on 22 June 2011. He accepted that in his guilty plea insofar as the Form 1 matter was concerned, the quantity of cocaine was agreed at 140 grams, which was different to the 5 grams which he had proposed in the offer. The applicant submitted that this made no difference to the substance of the offer in that it was open to the Crown to accept it, as they ultimately did, but to reserve the factual argument as to the quantity of cocaine for hearing by the sentencing judge. In those circumstances, the applicant submitted a full discount of 25 percent should have been allowed to him.

30 The applicant submitted that he should not be bound by the submissions made by his counsel in the sentencing proceedings since those submissions were wrong. This was because the applicant would have received a 25 percent discount had his offer of 22 June 2011 been accepted as it should have been. The applicant submitted that the Crown's refusal to accept the offer which he had made was something beyond his control and that he should not be penalised because of the conduct of the Crown. The applicant submitted that to find otherwise would mean that the measure of leniency afforded to an offender prepared to plead guilty to a lesser charge fairly available on the evidence would depend on the Crown's attitude. The applicant submitted that such an approach should not be endorsed by this Court (R v Cardoso [2003] NSWCCA 15 at [21]).

31 The applicant submitted that the matter being listed for trial in the District Court was due solely to the conduct of the Crown.

Consideration

32 The applicant's submission should not be upheld. It is based on an incorrect understanding of R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383. This is clear from the analysis of Howie J (with whom Hoeben J agreed) in R v Stambolis [2006] NSWCCA 56 where his Honour said:

"8 The Judge imposed the sentences on the basis that the plea of guilty was made at the first reasonable opportunity and gave the applicant the benefit of a discount of 25 per cent although his Honour found that they were "a little late (understandably)". The Crown did not oppose this finding and on the hearing of the appeal the Crown conceded that it could not assert otherwise in this Court. However, on the available material it appears that the finding by the Judge was erroneous as a matter of principle. I should point out that full argument was not heard on this issue because the Crown did not rely upon this matter as a ground of appeal and counsel for the respondent was obviously not given the opportunity to argue it. However, it is a good example of a common misconception about the discount for a plea of guilty. Although the principles are well established, they are often overlooked.

9 The applicant was arrested shortly after he committed each of the two sets of offences for which he was to be sentenced. In both cases he made full admissions to the police. Yet the applicant did not plead guilty in the Local Court but was committed for trial. He did not plead guilty until 24 May 2005, almost eight months after his arrest for the second offence.

10 Apparently the explanation for this delay was that the Crown was considering its attitude to the offence of escape. The Crown had originally found a bill for that offence and the indictment presented against the applicant contained a count for an offence of escape lawful custody. It seems that the applicant was not prepared to plead guilty to any offence charged against him until the Crown determined that the escape could be dealt with on a Form 1. There was a letter from a Crown Prosecutor placed in evidence before the Judge indicating what facts would be alleged to support the charge and that the count of escape would be removed from the indictment and placed on a Form 1. This letter was dated 20 May 2005. The respondent pleaded guilty to the remaining offences on the indictment four days later.

11 Frankly I do not understand how on the established principles it could be determined that the pleas of guilty for the offences for which the respondent was sentenced were early pleas and that they justified a discount of 25 per cent. There is no utility in a plea of guilty that has not been forthcoming. If the accused is not prepared to plead guilty until the Crown takes some course, then so be it. But if by withholding the plea the offender achieved the result he wanted, I do not understand why he should receive further favourable treatment on the basis that the plea of guilty had utilitarian value when it did not. Rarely, if ever, will the reason why the accused has withheld the plea of guilty be a relevant matter in determining the utilitarian discount. Where it has been used as a bargaining tool in order to achieve a favourable outcome from the Crown in respect of some other charge, I do not understand that this circumstance can excuse the delay or provides a basis for asserting that the plea was made at the first reasonable opportunity.

12 I accept that there may be exceptional cases, where as a matter of fairness to the offender, a discount will be given even though there was no utilitarian value in it. One such situation that has been recognised is where the Crown rejects the accused's plea of guilty to manslaughter and the accused is later acquitted of murder but convicted of manslaughter after trial: R v Oinonen [1999] NSWCCA 310; R v Cardoso [2003] NSWCCA 15. But in R v Harmouche [2005] NSWCCA 398 Hulme J, with whom Sully J and Latham J agreed, wrote:

[38] Undoubtedly, the Respondent on the evidence before, and findings of, Judge Delaney made out an impressive subjective case. He had the factors of a plea, delay and youth arguing for a lesser penalty than would have been appropriate in their absence and was also entitled to have taken into account 134 days, i.e. something over 4 months, pre-sentence custody.

[39] That said, the 25% discount for the Respondent's plea was unduly generous. In giving it his Honour seems to have made a mistake commonly seen in this Court that because a plea was entered at the earliest opportunity (commonly shortly after the Crown reduces a charge) an offender is entitled to that discount. Such an approach is to misread R v Thompson and Houlton (2000) 49 NSWLR 383 and to ignore the rationale for a discount of that degree. The Chief Justice made it clear, at [154-5], that the rationale for a 25% discount was the extent of the utilitarian benefit and the complexity of evidence gathering and of any trial which was avoided. Certainly his Honour made reference to a plea being entered at the earliest opportunity but that was in the context to which I have referred and where his Honour was obviously contemplating the committal stage of criminal proceedings where the community would be saved the costs associated with prosecution of the case from (the beginning of) that stage.

[40] That what I have said correctly reflects what the Chief Justice said derives support from observations of Hodgson JA, with whose remarks Barr J agreed, in R v Dib [2003] NSWCCA 117 where, dealing with a complaint that only 16.7% had been allowed in the case of a plea entered in response to a lesser charge than originally preferred, his Honour said, at [5 - 6]:

-

"If a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been made at the earliest opportunity. There is in any event no entitlement to a 25% discount; and the fact that in this situation there are less advantages to the administration of justice can justify a smaller discount.

This approach may mean that in some cases an offender may obtain a lower discount just because the prosecuting authorities initially brought a greater charge than that ultimately pursued, so that the delay in the plea of guilty was not the offender's fault. But this is consistent with the nature of the discount as being at least in part a recognition of practical advantages, and not merely a recognition of mitigation of culpability."

[41] I myself would go further. Albeit the extent of any discount is a matter in which a sentencing judge has some discretion - although as R v Thompson and Houlton at [159] makes clear, one subject to appellate review - where the rationale for a discount as high as 25% does not exist, a discount of that degree should not be given.

13 In the present case there was no attention paid by the Judge to the real utilitarian value of the pleas of guilty or to the established authority of R v Dib [2003] NSWCCA 117 and numerous other cases holding that there is no entitlement to any particular discount even if the plea of guilty is at the first reasonable opportunity. I cannot understand why the Crown's representative would concede that which was not true, a concession that is often made apparently as part of an agreement with the defence. Even approaching the matter on the rationale preferred by the majority in Cameron v The Queen (2002) 209 CLR 339, by treating the discount as reflecting a willingness to assist the administration of justice, there was no such willingness evident in this case until May 2005."

33 Similar observations were made by Howie J (McClellan CJ at CL and Simpson J agreeing) in R v Robert Borkowski [2009] NSWCCA 102; 195 A Crim R 1. His Honour there set out in point form the principles to be applied by sentencing courts in relation to the utilitarian value of a plea of guilty. Those points were:

"32 ...

1. The discount for the utilitarian value of the pleas will be determined largely by the timing of the plea so that the earlier the plea the greater discount: Thomson at [154]; Forbes [2005] NSWCCA 377 at [116].

2. Some allowance may be made in determining the discount where the trial would be particularly complicated or lengthy: Thomson at [154].

3. The utilitarian discount does not reflect any other consideration arising from the plea, such as saving witnesses from giving evidence but this is relevant to remorse: Thomson at [119] to [123]; nor is it affected by post-offending conduct: Perry [2006] NSWCCA 351.

4. The utilitarian discount does not take into account the strength of the prosecution case: Sutton [2004] NSWCCA 225.

5. There is to be no component in the discount for remorse nor is there to be a separate quantified discount for remorse: MAK and MSK [2006] NSWCCA 381; Kite [2009] NSWCCA 12 or for the "Ellis discount"; Lewins [2007] NSWCCA 189; S [2008] NSWCCA 186.

6. Where there are multiple offences and pleas at different times, the utilitarian value of the plea should be separately considered for each offence: SY [2003] NSWCCA 291

7. There may be offences that are so serious that no discount should be given: Thomson at [158]; Kalache [2000] NSWCCA 2; where the protection of the public requires a longer sentence: El-Andouri [2004] NSWCCA 178.

8. Generally the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced: Stambolis [2006] NSWCCA 56; Giac [2008] NSWCCA 280.

9. The utilitarian value of a delayed plea is less and consequently the discount is reduced even where there has been a plea bargain: Dib [2003] NSWCCA 117; Ahmad [2006] NSWCCA 177; or where the offender is waiting to see what charges are ultimately brought by the Crown: Sullivan and Skillin [2009] NSWCCA 296; or the offender has delayed the plea to obtain some forensic advantage: Stambolis [2006] NSWCCA 56; Saad [2007] NSWCCA 98, such as having matters put on a Form 1: Chiekh and Hoete [2004] NSWCCA 448.

10. An offer of a plea that is rejected by the Crown but is consistent with a jury verdict after trial can result in a discount even though there is no utilitarian value: Oinonen [1999] NSWCCA 310; Johnson [2003] NSWCCA 129

11. The discount can result in a different type of sentence but the resulting sentence should not again be reduced by reason of the discount: Lo [2003] NSWCCA 313.

12. The amount of the discount does not depend upon the administrative arrangements or any practice in a particular court or by a particular judge for the management of trials or otherwise."

34 The observations in R v Robert Borkowski were endorsed by Bathurst CJ (with whom Hoeben J and Johnson J agreed) in R v AB [2011] NSWCCA 229 at [2] - [3]. In R v AB Johnson J (with whom Bathurst CJ and Hoeben J agreed) said:

"30 A person who pleads guilty to a criminal offence is, of course, entitled to dispute facts (beyond the elements of the offence) for the purpose of sentence. Where such a dispute occurs, any contested questions of fact adverse to an offender, must be established to the criminal standard of proof: O'Neil-Shaw v R [2010] NSWCCA 42. An offender is not to be penalised because he or she disputes certain facts on sentence and requires the Crown to prove those facts.

31 The position is analogous to that of a person who goes to trial, who may not be penalised for the manner in which the defence at trial was conducted: Siganto v The Queen [1998] HCA 74; 194 CLR 656 at 666-667 [30]-[34]. However, as is made clear in Siganto v The Queen , a person who goes to trial is not entitled to mitigation for a plea of guilty.

32 Likewise, a person who pleads guilty but puts the Crown to proof on certain factual issues and who loses that dispute, is not entitled to the same discount for a plea of guilty, on utilitarian grounds, as a person who does not require such a contested hearing."

35 Applying those principles to the facts of this case, the plea of guilty was simply not made at the earliest point in time. Even had the offer by the applicant of 22 June 2011 been accepted, there would have been a contest as to the quantity of cocaine which formed the basis for the Form 1 matter. That would occupy court time to decide and would have further eroded the utilitarian value of the plea. In any event, the plea was only entered after the Crown had acceded to the applicant's proposal that the primary count be downgraded from supply to knowingly take part in supply. In that respect, the circumstances are analogous to those in Stambolis.

36 Finally, the submissions by counsel for the applicant in the sentence proceedings accepted that a discount of 15 percent was within an appropriate range. For the reasons set out in the cases quoted, that was a proper concession by counsel for the applicant. He did not, as was submitted in this Court, err in doing so. The applicant in this Court should be bound by the approach taken in the sentencing proceedings. In that regard, the observations by Johnson J (McClellan CJ at CL and Rothman J agreeing) in Zreika v R [2012] NSWCCA 44 at [80] - [82] apply, i.e., "[the Court] ... will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or a contradiction of submissions previously made".

37 It follows that this Ground of Appeal has not been made out.

Ground 2 - The sentencing judge erred in the application of the principles of parity of sentencing.

38 Her Honour sentenced Mrowiec before she sentenced the applicant. In sentencing Mrowiec, her Honour made the following findings:

"(a) He was 61 years of age at the time of sentencing and was a person of good character.

(b) He was at the "bottom rung of the ladder" and delivered the packages. He was not aware of the quantity of drugs, their potential street value or the consequences if he was detected.

(c) In relation to his involvement in the offences, he was to receive $1,000 for the offence of 25 June 2011.

(d) He was allowed a discount of 25 percent for the utilitarian value of his plea of guilty.

(e) His motivation for offending was to provide funds for his girlfriend who lived in Poland and needed money for her medical expenses being an altruistic purpose rather than greed.

(f) He was remorseful and contrite, was unlikely to re-offend and had excellent prospects of rehabilitation.

(g) His sentence would be more onerous due to his age and language problems."

A finding of special circumstances was made. This appeared to be based on his age and language problems.

39 It was common ground that the starting point for the applicant's sentence before the 15 percent discount was 4 years and 8 months and that of Mrowiec, before his 25 percent discount, was 4 years. Mrowiec pleaded guilty to the same offences as the applicant. He was sentenced to a head sentence of 3 years imprisonment with a non-parole period of 12 months. Accordingly, the difference between the head sentences based on the starting points was 8 months and between the non-parole periods was 12 months.

40 The applicant submitted that by reference to the similarities in the co-offender's subjective circumstances, and the part each played in the commission of the offences, such disparity was not justified.

41 The applicant submitted that their subjective cases were similar but that he had significant medical conditions which would make imprisonment more serious for him. The applicant submitted that there was very little difference between his role in the offences and that of Mrowiec and that her Honour had erred in her assessment of the importance of their roles.

42 The applicant submitted that both he and Mrowiec were facilitators and were essential links in the transactions. Both of them had committed the offences for financial gain. The applicant noted that her Honour's basis for the finding of special circumstances in each case was the same.

Consideration

43 The applicant's submissions should not be accepted.

44 Her Honour was in the best position to assess the differences, both subjectively and objectively, in the positions of the applicant and Mrowiec, in that she had not only sentenced them but also their co-offenders, Bursach and Moskvin (Tatana v R [2006] NSWCCA 398 at [28]; Loader v R; Dunn v R [2013] NSWCCA 215 at [91] - [95]).

45 The difference between the applicant and Mrowiec in relation to the part they played in the offences was significant. Based on that difference alone it might well be said that the sentences imposed by her Honour favoured the applicant rather than Mrowiec.

46 The close relationship between Bursach and the applicant emerged clearly from the intercepted phone calls. The applicant was aware of the quantity of drug involved, its price and the identity of the recipient. His role as a facilitator can be seen to be significantly greater than that of Mrowiec in that he not only actively engaged in negotiations concerning delivery and price, but also in relation to the recovery of the monies agreed to be paid by the recipient. This characterisation of the applicant's role as a facilitator was expressly accepted by counsel in the sentencing proceedings.

47 This is to be contrasted with the position of Mrowiec who was purely a courier, played no part at all in negotiations and was not aware of the quantity of drugs involved. The difference in remuneration is significant, i.e., $1,000 for Mrowiec and $2,000 for the applicant. Finally, there was an altruistic element to which her Honour referred in Mrowiec's involvement in the offences, whereas that of the applicant was purely for financial gain.

48 There is no basis for any justified sense of grievance on the part of the applicant. This ground of appeal has not been made out.

Ground 3 - The sentence was manifestly excessive.

49 The applicant submitted that by reference to the function which he was carrying out, the correct characterisation of his conduct was that of an agent acting on behalf of the principal Bursach, rather than being directly involved in the supply. He submitted that the business of supplying drugs was operated by Bursach and others, quite independently of him. By reference to those matters and his more limited involvement, he submitted that his offending was towards the lower end of the range of objective seriousness for offences of this kind. He submitted that his remuneration of $2,000 was relatively small and therefore commensurate with the relatively small role which he played.

Consideration

50 This submission should be rejected. For the applicant to succeed on this ground, he has to establish that the sentence imposed was "unreasonable or plainly unjust" (Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25]). That is a difficult onus to discharge. The matters to which the applicant has referred in submissions do not get close to achieving that result.

51 Her Honour correctly assessed the objective seriousness of the applicant's offending. The quantity of drugs involved was significant and their level of purity was comparatively high. The part played by the applicant in the drug distribution process was important. As her Honour appreciated, given the devastating effect of illicit drugs in the community, only a custodial sentence was appropriate for a person actively engaged in their supply. Having regard to the maximum penalty for this offence, the sentence imposed was well open to her Honour.

52 Statistics provide little assistance in this matter. Those available are limited in number. As has been said many times in this Court, statistics are a blunt indicator of sentencing trends and of necessity, fail to have regard to the particular circumstances of a case. As was said in Wong v R [2001] HCA 64; 207 CLR 584 at 606 and cited with approval by the plurality (French CJ; Gummow, Hayne, Crennan, Kiefel and Bell JJ) in Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [55]:

"55 ...

[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were."

53 Her Honour carefully considered and identified all factors relevant to the sentence and discussed their significance. No error has been identified in her exercise of discretion. This ground of appeal has not been made out.

54 The order which I propose is that leave to appeal be granted but that the appeal be dismissed.

55 SCHMIDT J: I agree with Hoeben CJ at CL.

56 BARR AJ: I agree with Hoeben CJ at CL.

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Decision last updated: 20 February 2014