Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: SPAROS, Luke v R [2013] NSWCCA 223
• Hearing dates: 5 February 2013; supplementary submissions received 10 July 2013
• Decision date: 09 October 2013
• Before: Beazley P at [1]; Fullerton J at [2]; Beech-Jones J at [8]

Decision

(1) Leave to appeal against sentence granted.

(2) Appeal dismissed.

• Catchwords: CRIMINAL LAW - appeal against sentence - importation of commercial quantity of border control drug - supply of commercial quantity of border control drug - whether Form 1 offence was properly taken into account in considering questions of cumulation or concurrence - whether criminality disclosed by Form 1 offences relevant to application of the totality principle - whether retribution was exacted for the Form 1 offence whether full concurrency of the sentences for the importation and supply offences warranted.
• Legislation Cited: - Crimes Act 1900; - Crimes (Sentencing Procedure) Act 1999; - Criminal Code Act 1995 (Cth); - Drug Misuse and Trafficking Act 1985
• Cases Cited: - Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; - Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146; - Attorney General v Tichy (1982) 30 SASR 84; - Blay v The Queen [2006] WASCA 248; 205 FLR 414; - Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41; - Calcutt v The Queen [2012] HCATrans 221; - Johnson v The Queen [2004] HCA 15; 78 ALJR 616; - Mill v The Queen (1988) 166 CLR 59; - Pearce v R [1998] HCA 57; 194 CLR 610; - R v Calcutt [2012] NSWCCA 40; - R v Dionys [2011] NSWCCA 272; - R v Holder (1983) 3 NSWLR 245; - R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; 180 CLR 322; - R v Knight (1981) 26 SASR 573; - R v MMK [2006] NSWCCA 272; 164 A Crim R 481
• Texts Cited: D.A. Thomas, Principles of Sentencing, 2nd ed (1979)
• Category: Principal judgment
• Parties: Luke Sparos (Applicant); The Crown (Respondent)
• Representation: Counsel: Ms A. Francis (Applicant); Ms H.M. Wilson (Crown); Solicitors: William O'Brien Ross Hudson Solicitors (Applicant); Solicitor for Public Prosecution (Crown)
• File Number(s): 2008/257463
• Publication restriction: Nil

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2011-10-28 00:00:00
• Before: Haesler SC DCJ
• File Number(s): 2008/257463; 2008/212320

Judgment

1 BEAZLEY P: I have had the advantage of reading in draft the reasons of each of their Honours Fullerton J and Beech-Jones J. Whilst I agree with the orders proposed by Beech-Jones J, I do not agree with his Honour's reasons as to the proper approach to totality where a court is sentencing for an offence in respect of which further offending is to be taken into account pursuant to the Crimes (Sentencing Procedure) Act 1999, s 33 (Form 1 offences). In this regard, I agree with the remarks of Fullerton J.

2 FULLERTON J: I have read the draft judgment of Beech-Jones J and agree with the orders his Honour proposes. However, for my part, and for the reasons which follow, I would have found error in the sentencing judge's approach to the Form 1 offence in the way comprehended by the applicant's first and second grounds of appeal, but would have dismissed the appeal under s 6(3) of the Crimes (Sentencing Procedure) Act 1999 being well satisfied that a total sentence of 15 years with a non-parole period of 9 years was warranted at law. That would also effectively dispose of the applicant's third ground of appeal which complains that the sentencing judge ought to have ordered full concurrency between counts 1 and 2 on the indictment. In that regard I agree with Beech-Jones J that, irrespective of the offence on the Form 1, partial accumulation was justified in this case to properly account for the distinct criminality in the offending the subject of both counts on the indictment (see [65]-[70] of his Honour's judgment).

3 In expressing my own views, I gratefully adopt his Honour's recitation of the facts, his summary of the statutory context where the question of the use of the Form 1 arises and his identification of the stage in the sentencing proceedings when the error in the approach of the sentencing judge contended for by the applicant occurred. I also gratefully adopt his Honour's analysis of the applicant's revised submissions forwarded to the Court after the further consideration was given to the principled use of Form 1 offences by this Court in Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115.

4 In summary, counsel for the applicant submitted that after taking the Form 1 offence into account when sentencing for count 2, it was not open to the sentencing judge to have regard to the Form 1 offence a second time in determining to accumulate the sentences by six months. She submitted that this was the practical effect of his Honour's finding that "the offence on the Form 1 militates against complete concurrence" (see the sentencing remarks extracted in the judgment of Beech-Jones J at [30]). She went on to submit that after having already taken the Form 1 offence into account in the calculation of the sentence on count 2 (or, using the statutory language, in s 33 of the Crimes (Sentencing Procedure) Act, after taking the offence on the Form 1 into account "in dealing" with the offender for the principal offence), for the sentencing judge to refer to that offending a second time, and to increase the total effective sentence because of it, necessarily involves an impermissible double counting of the impact of the Form 1 offending, an approach which is not sanctioned by the operation of s 33 of the Crimes (Sentencing Procedure) Act and which is contrary to the guideline judgment Re Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146.

5 I agree with Beech-Jones J that the detailed consideration given in Abbas to the principled way that the procedure in s 33 of the Crimes (Sentencing Procedure) Act operates in sentencing practice to increase a sentence for the principal offence did not deal with the question whether the Form 1 offending can also be taken into account as part of the total criminality for totality purposes, the issue raised in this case. However, I do not consider that decision dictates a result in this case adverse to the applicant. To the contrary, as I read the judgment of Bathurst CJ (with whom for practical purposes Basten JA, Hoeben CJ at CL, Garling and Campbell JJ agreed) and, in particular, his Honour's analysis of the reasoning the subject of the guideline judgment, s 33 is intended to empower a sentencing court to take Form 1 offending into account in the calculation of sentence for the principal offence, but at that stage in the sentence proceedings when the court is "dealing with the offender for the principal offence". While it must be acknowledged that the phrase "dealing with the offender" is not defined in the Crimes (Sentencing Procedure) Act, because (as Bathurst CJ observed in Abbas) "the dealing" leads invariably to an increase in the penalty imposed for that offence it seems to me that it is "a dealing" that is intended to operate at the time that the sentence for that offence is imposed and not at the next stage in the sentencing process, when questions of accumulation or concurrency are considered and before the sentencing order is ultimately made. In my view, that interpretation is reinforced by the now settled approach to the way offences on the Form 1 are to be treated after Abbas. Offending which is not the subject of a conviction or an admission of guilt, but which results in an increase in the sentence for the principal offence does so to reflect the need for greater weight to be given to personal deterrence and retribution, in circumstances where no penalty or separate punishment for the uncharged offending can be imposed (see Abbas per Bathurst CJ [22]-[23]).

6 On this analysis, after the criminality disclosed by the Form 1 offence was taken into account by the sentencing judge when he dealt with the applicant for count 2, and which resulted in a heavier sentence than would have been imposed had he been sentenced on that count in the absence of the Form 1 offending (see the passage of the sentencing judgment extracted at [30] of the judgment of Beech-Jones J), it was not open to his Honour, when determining whether some degree of accumulation between the two counts was warranted, to inflate, or extend the term of the effective sentence by taking the Form 1 offending into account a second time. That is not to say that accumulation by six months between the two counts in this case was unwarranted. Rather, it was not the Form 1 offending which dictated that result but the total criminality in the offences for which the applicant was convicted and for which he stood to be sentenced.

7 I accept, of course, that the totality principle operates to ameliorate the effect of two or more sentences being wholly accumulated by obliging the sentencing judge to make an assessment of the overall criminality in the offender's criminal conduct to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. However, in accordance with the approach mandated in Pearce v R [1998] HCA 57; 194 CLR 610, this necessarily occurs after the individual sentences have been imposed, since it is only at that time that any informed assessment can be made of the degree of adjustment necessary to achieve the relativity between the effective sentence and the total criminality in the offences for which the offender has been convicted. In my view, the sentencing judge is not permitted to take into account in that assessment the criminality reflected in the offences the offender asked be taken into account on the Form 1 and for which he or she has not been convicted. I regard the reference to the overall criminality in the various seminal authorities concerned with the totality principle to which Beech-Jones J has referred at [38]-[41] as limited to the offending the subject of a criminal conviction.

8 BEECH-JONES J: This is an application for leave to appeal from sentences imposed by the District Court in respect of two serious drug offences. The application raises a short but important point concerning the manner in which sentencing judges can take into account additional charges filed with the Court pursuant to s 32(1) of the Crimes (Sentencing Procedure) Act 1999 (the "Sentencing Act") in structuring a sentence for two or more offences (so called "Form 1 offences").

9 On 28 October 2011 the applicant was sentenced. He had pleaded guilty to both counts on a two count indictment. Count 1 had charged him with importing a commercial quantity of a border controlled drug, namely cocaine, contrary to s 307.1(1) of the Criminal Code Act 1995 (Cth) (the "import offence"). Count 2 had charged him with the supply of not less than a large commercial quantity of a prohibited drug, namely cocaine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (the "supply offence").

10 In accordance with Division 3 of Part 3 of the Sentencing Act both the prosecution and the applicant requested the sentencing judge take into account a further charge of knowingly deal with the proceeds of crime contrary to s 193B(2) of the Crimes Act 1900 when dealing with the applicant for the supply offence (the "Form 1 offence").

11 In relation to count 1 the applicant was sentenced to a term of imprisonment of 14 years and six months, commencing on 25 January 2008. The sentencing judge fixed a non-parole period of eight years and six months due to expire on 24 July 2016 and a parole period of six years commencing 25 July 2016 and expiring on 24 July 2022.

12 In relation to count 2 the applicant was sentenced to a term of imprisonment of four years and four months consisting of a non-parole period of three years and three months. The sentence for count 2 was fixed to commence on 25 July 2007, with the non-parole period expiring on 24 October 2010.

13 The effect of the two sentences was that the applicant received a total sentence of 15 years and a combined non-parole period of nine years commencing 25 July 2007.

14 After the conclusion of oral argument on the appeal the Court indicated that it would reserve its judgment until the publication of the judgment of this Court constituted by five members in Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 ("Abbas"). The decision in Abbas was published on 22 May 2013. After that judgment the appellant filed supplementary submissions.

The offences

15 It is unnecessary to address the reasons why the sentencing judge backdated the commencement of the sentence for count 2 to 25 July 2007. It need only be noted that his Honour ordered a partial accumulation of the two sentences with the result that the applicant was incarcerated for a period of six months solely on the supply charge. It is only this aspect of the sentencing that is attacked on appeal. No issue is taken with the length of the individual sentences. Accordingly, to address the arguments made on appeal it is only necessary to summarise the facts surrounding the offences. They were set out in an agreed statement of facts tendered to the sentencing judge.

16 In relation to the import offence, the applicant and his co-offender, Alen Moradian, were assisted in the importation of the cocaine by a person whose identity cannot be revealed ("Mr T"). Mr T worked for his family freight business, T International. Mr T provided false importation documents using the names of his firm's existing customers and the products they had previously imported to assist in the importation of cocaine.

17 It appears that, to the knowledge of the applicant and Mr Moradian, Mr T had assisted two other individuals to import cocaine. This led the applicant and Mr Moradian to employ a private investigator to locate Mr T. The private investigator was successful. In October 2006 the applicant and Mr Moradian visited Mr T at his home in an attempt to recruit him. Mr Moradian handed Mr T a bag containing $500,000.00 in cash said to be a "gesture of good will". Further meetings took place in which it was proposed that Mr T assist in the importation of cocaine by providing forged documents and the services of T International. Mr T ultimately agreed.

18 On a number of occasions Mr T met with the applicant, Mr Moradian and another co-offender. Sometime in late 2006 that co-offender attended a meeting with Mr T and handed him $1,000,000.00 in cash. Subsequently, Mr T created the documents to be used to facilitate the importation and provided them to Mr Moradian. Also at some point after July 2006 the applicant used the services of a foreign exchange dealer to change $1,000,000.00 from Australian currency to United States dollars. This sum was used in part payment for the cocaine.

19 Associates of Mr Moradian sourced and packaged the cocaine in the United States. It was packed in 1kg blocks and secreted in packets of "saw blades" in conformity with the documentation provided by Mr T. The shipment of cocaine arrived in Australia on 19 December 2006. It was collected from the cargo company on 20 December 2006 by an employee of T International. The total weight of the shipment was 367kg gross. Mr T contacted Mr Moradian and told him that the shipment had arrived. He drove to a location nominated by Mr Moradian with the shipment placed on the back of the utility vehicle he was driving. Mr T then followed Mr Moradian to a townhouse. The applicant was at the townhouse, where the shipment, including the cocaine, was unpacked.

20 By this time the applicant and his co-offenders were under police surveillance. The police identified various premises being used by the applicant and his co-offenders. On 28 February 2007 police executed a search warrant at one of these locations and found various items associated with the importation, including 657 grams of cocaine.

21 It was an agreed fact that the importation yielded a pure weight of cocaine of between 40 to 60 kg. The commercial quantity of cocaine which founded the s 307.1 charge is 2kgs. The import offence carried a maximum penalty of life imprisonment.

22 The agreed facts contained a description of the applicant's role. He was described as being "subordinate only to Moradian, who was a middle level manager". It was agreed that his role was "significant to give effect to the importation" and that his conduct embraced substantial aspects of it, including: engaging the private investigator to find Mr T; participating in the initial meetings with Mr T; facilitating the renting of various properties used in relation to the importation; receiving and unpacking the cocaine; organising the financing of the importation; and collecting some of the proceeds derived from the importation.

23 The sentencing judge found as follows:

"Here, a very high commercial quantity of the drug with a correspondingly high street value was imported. The offender played a senior role in an enterprise that was well planned and of some sophistication. His role was important to its success. He took a degree of risk with an expectation of large reward. His motivation was personal profit and greed."

24 In relation to the supply charge, the agreed facts reveal that when the cocaine was unpacked the applicant and Mr Moradian supplied a 1kg block of cocaine to Mr T. The price was said to have been "discounted" to $90,000.00, in that it was said that "one normally sold for $150,000 to $190,000 dollars". The sentencing judge referred to this as a "spontaneous gesture to a fellow offender". The maximum penalty for this offence was also life imprisonment (Drug Misuse and Trafficking Act 1985, ss 25(2) and 33, Schedule 1).

25 In relation to the Form 1 offence, the amount in total that was dealt with was $2,452,155.00, constituted as follows. First, by the $500,000.00 in cash that was given by the applicant and Mr Moradian to Mr T in October 2006 as a "gesture of goodwill". Second, by the $1,000,000.00 the applicant provided to the foreign exchange dealer to change into US dollars in part payment for the cocaine. Third, by an amount of $38,155.00 paid in cash by the applicant for a motorcycle given to Mr Moradian as a wedding present sometime between 7 December 2006 and 10 January 2007. Fourth, by the payment by Mr Moradian in the presence of Mr Sparos of $100,000.00 in cash for a motor vehicle in late January 2007. Fifth, by an amount of $814,000.00 in cash found in a vehicle that the applicant and another co-offender travelled in to New South Wales from Queensland in February 2007. By his plea, the applicant accepted that he had dealt with all of the above sums knowing that they were the proceeds of crime. The maximum penalty for that offence was 15 years imprisonment.

Grounds 1 and 2 of the Appeal: Concurrency and the Form 1 Offences

26 Ground 1 of the appeal contends that his Honour erred in the application of the principle of totality in partially accumulating the sentence for the import offence upon the sentence for the supply offence. Ground 2 contends that his Honour erred in accumulating the sentence imposed for the supply offence "on account of the criminality [disclosed by the offence set out] in the form one".

27 It is apparent that both grounds of appeal are solely concerned with only so much of the sentence as was accumulated, namely six months. Counsel for the applicant, Ms Francis, did not differentiate between the two grounds but instead advanced three separate but related points in support of both of them. First, in her initial written and oral submissions Ms Francis contended that the sentencing judge erred in considering the circumstances disclosed by the Form 1 offence in determining whether or not to make the sentences for the import and supply offences wholly concurrent. It was submitted that, as a matter of law, the sentencing judge was precluded from considering those circumstances at that stage of the sentencing process. In her supplementary submissions Ms Francis reiterated this ground. In particular it was contended that the sentencing judge had engaged in "double counting" by considering the criminality disclosed by the Form 1 offence in imposing a penalty for the principal offence, and then again at the point of determining whether the sentence for both offences on the indictment should be partially or wholly concurrent.

28 Second, in oral submissions it was contended that the sentencing judge erred in considering the need for retribution for the conduct disclosed by the Form 1 offence.

29 Third, it was also submitted in the initial submissions that the circumstances of the supply offence mandated that any sentence for that offence be wholly concurrent with that of the import offence. While it is not clear whether this third point was dependent on the success of either of the first two I will address it on both bases.

Form 1 offences and totality

30 In support of her submissions on the first point Ms Francis pointed to the following passage in the sentencing judgment:

"The Form 1

While I must focus on the sentence for the primary offence, a Form 1 can and, as I have indicated, does lead to an increase in the sentence that would otherwise be imposed for the principal offence. Sometimes that increase can be considerable. Here the offender asks that I take into account that he knowingly dealt with the proceeds of crime in the sum of close to two and a half million dollars.

The immense sums able to be taken from users by drug traders are clearly illustrated in this case. The trade in drugs causes immense harm to the community and to individuals. Black money in the community also undermines the community's economic well-being. To willingly participate in the process, knowing what he was doing and knowing the source of the money was illicit, makes this particular matter on a Form 1, when one considers the sum involved, a very serious crime indeed.

Some of the money involved was clearly and intimately involved with the importation, for instance the $500,000 given to Mr T and the $1AUD million changed into US dollars. Other sums involved the movement of the apparent profits of the importation.

In February 2007 the offender travelled with Ahmed Arja to Queensland. On 28 February 2007 the offender and Arja were stopped and searched driving from Queensland to Newcastle with $814,000 in cash in the car. I sentenced Mr Arja to a suspended sentence of fifteen months for his role in this crime. I took into account the utilitarian value of his plea, the delay and his strong subjective case.

The remainder of the money concerned with the Form 1 relates to luxury motor vehicles consistent with the large sorts of profits that can be made by involving oneself with the importation of illicit drugs. The Form 1 matter requires an increase in the sentence for the principal offence and militates against complete concurrence of that offence with that to be imposed for the Commonwealth matters." (emphasis added)

31 Ms Francis submitted that the emphasised part of this passage reveals that the sentencing judge took into account the criminality of the applicant as revealed by the Form 1 offence in determining whether the sentence for the supply offence should be made wholly concurrent with the sentence for the import offence. She initially contended that this reasoning was inconsistent with the judgment of Spigelman CJ in Re Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146 ("Attorney General's Application No 1"). As I have stated later, she reformulated this complaint as one involving double counting by the sentencing judge.

32 In addressing this contention it is important to note both the statutory context in which this issue arises and the relevant stage of the sentencing process at which this asserted error is said to have occurred. The legislative regime is to be found in Division 3 of Part 3 of the Sentencing Act. The relevant direction to a sentencing judge is to be found in s 33, to which there has been no relevant change since the judgment in Attorney General's Application No 1. Section 33 provides:

"33 Outstanding charges may be taken into account

(1) When dealing with the offender for the principal offence, the court is to ask the offender whether the offender wants the court to take any further offences into account in dealing with the offender for the principal offence.

(2) The court may take a further offence into account in dealing with the offender for the principal offence:

(a) if the offender:

(i) admits guilt to the further offence, and

(ii) indicates that the offender wants the court to take the further offence into account in dealing with the offender for the principal offence, and

(b) if, in all of the circumstances, the court considers it appropriate to do so.

(3) If the court takes a further offence into account, the penalty imposed on the offender for the principal offence must not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account.

..."

(emphasis added)

33 Two matters should be noted about s 33(2). First, one aspect of the statutory permission conferred by s 33(2) is that, once it is engaged, the Form 1 offence(s) may be "taken into account" in sentencing for the principal offence. As noted by Hoeben CJ at CL in Abbas at [91] this "leaves open a wide range of factors, including the weight to be given to a particular matter, and how it may be taken into account in a particular case".

34 Second, once the provision is engaged, it operates upon the Court in "dealing with the offender". The phrase "dealing with the offender" is not defined in the Sentencing Act. In this case the relevant "dealing" the subject of the challenge is the exercise of the power conferred by the s 47 of the Sentencing Act to fix a commencement date for the sentence and, in particular, to fix a commencement date prior to the date on which the sentence was imposed (s 47(2)). This is further addressed below.

35 Nothing in the express text of any of the statutory provisions just described purports to limit, in the manner contended for by the applicant, the way in which the sentencing judge was able to "take ... into account" the Form 1 offence when fixing a start date for the supply charge.

36 This conclusion is, of course, not the end of the analysis as consideration also needs to be given to established principles governing the fixing of commencement dates for different sentences. In this context it is important to note that the asserted error in this case did not arise at the point of determining the appropriate sentence for the supply offence but at what is usually the next step in the sentencing process:

"A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality". (emphasis added) (Pearce v The Queen [1998] HCA 57; 194 CLR 610 ("Pearce") at [45] per McHugh, Hayne and Callinan JJ).

37 The body of case law concerning the circumstances in which sentences will be made either fully or partly concurrent or cumulative, including the totality principle, operates upon "dealing" with an offender in accordance with s 33(1) and fixing commencement dates under s 47 (subject to any express provision to the contrary). It is the scope of the totality principle that is relevant to the resolution of the appeal.

38 The High Court's judgment in Mill v The Queen (1988) 166 CLR 59 extracts a number of passages from texts and judgments concerning the operation of the totality principle. These include the following passage from DA Thomas, Principles of Sentencing, 2nd ed (1979) at 56 to 57 (Mill at 62 to 63):

"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'."

(references omitted, emphasis added)

39 Mill also cited the following passage from R v Knight (1981) 26 SASR 573 at 576 (Mill at 63):

"[I]t seems to us that when regard is had to the totality of the sentences which the applicant is required to undergo, it cannot be said that in all the circumstances of the case, the imposition of a cumulative sentence was incommensurate with the gravity of the whole of his proven criminal conduct or with his due deserts. To use the language of Lord Parker L.C.J. in Reg. v. Faulkner, 'at the end of the day, as one always must, one looks at the totality and asks whether it was too much'."

(references omitted, emphasis added)

40 To similar effect in R v Holder (1983) 3 NSWLR 245 at 260 Street CJ described the totality principle as follows:

"The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences."

(emphasis added)

41 Further in Johnson v The Queen [2004] HCA 15; 78 ALJR 616 at [4] Gleeson CJ cited with approval a passage from the judgment of Wells J in The Attorney-General v Tichy (1982) 30 SASR 84 at 92 to 93, which I extract in part:

"When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet. But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct. Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes. Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterised, are really separate invasions of the community's right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not."

(emphasis added)

42 It is clear that the totality principle is a mitigating principle that operates to ameliorate what would otherwise be the harsh effect of simply accumulating the appropriate sentences for each offence for which an offender is convicted (see also R v MMK [2006] NSWCCA 272; 164 A Crim R 481 at [11] per Spigelman CJ, Whealy and Howie JJ). Further, all of the above formulations require that when applying the totality principle the sentencing judge address the "overall criminality involved". In this case the question of principle is whether the assessment of the "overall criminality involved" for the purpose of the application of the totality principle extends to the criminality disclosed in the Form 1 offence. While the above passages were written in a different context and thus do not dictate an answer to the present question they certainly do not provide support for the limitation on s 33(2) contended for by Ms Francis. In my view, they suggest the opposite in that they reinforce the artificiality of excluding the admitted criminality disclosed in a Form 1 offence from the determination of the offender's overall criminality for the purpose of applying the mitigating principle of totality.

43 To this point nothing in the text of the relevant statutory provision or the formulation of the totality principle that governs its exercise supports Ms Francis' first submission. This leads to a consideration of the judgment of Spigelman CJ in Attorney General's Application No 1 (with whom Wood CJ at CL, Grove, Sully and James JJ agreed) and the judgments in Abbas.

44 In Attorney General's Application No 1, the Attorney General applied for a guideline judgment (see Division 4 of Part 3 of the Sentencing Act) concerning the approach to be adopted towards sentencing for offences in respect of which a list of additional charges under s 32(1) of the Sentencing Act has been prepared. Spigelman CJ rejected the Attorney General's contention that a "top down" approach involving the notional formulation of a separate sentence for Form 1 offences should be adopted (see Attorney General's Application No 1 at [25] and [39]). Instead his Honour stated the approach to be adopted in the following passages to which Ms Francis referred the Court:

"[39] The sentencing court is sentencing only for the "principal offence". It is no part of the task of the sentencing court to determine appropriate sentences for offences listed on a Form 1 or to determine the overall sentence that would be appropriate for all the offences and then apply a "discount" for the use of the procedure. This is not sentencing for the principal offence.

[40] In my opinion, it is pertinent to identify the elements to be considered in determining the sentence for the primary offence upon which the commission of other offences, for which no conviction is being recorded, may impinge. The case law has identified a number of distinct and sometimes overlapping purposes to be served by sentencing. In my opinion, not all these purposes are relevant to the process of taking other offences into account, when sentencing for a particular offence, that is, the primary offence.

...

[42] The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s 33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another.

[43] I did not intend these observations to be exhaustive of the elements upon which the fact of other offences may impinge. However, no additional elements for which that could be so have been identified in submissions to this Court. The important point is that the focus throughout must be on sentencing for the primary offence."

45 I have set out these passages in their entirety because there was debate during the appeal as to their meaning and scope. In my view these passages were only directed towards the specific matter that the Court was asked to address, namely the determination of the appropriate sentence to be imposed for the principal offence referred to in s 33(1). Thus these passages are directed to the first step of the sentencing process identified in the passage from Pearce cited above. They are not addressed to the next step identified in the above passage from Pearce, namely, where there are two or more sentences, should the sentences be wholly or partly concurrent or accumulated?

46 Further, the reference to the "principle of totality" in [42] of Attorney General's Application No 1 needs also to be placed in context. Consistent with the above analysis, Spigelman CJ identified that principle as limiting the amount that a sentence for the principal offence could be increased by reference to the offences listed on a Form 1. Spigelman CJ held that such a sentence could not exceed either the maximum for that offence nor that which would be appropriate having regard to the totality of the criminality disclosed by that offence and the offences listed on the Form 1. The reference to "totality" must embrace the conduct listed in the Form 1 as the phrase "totality" has no sensible meaning if only one offence is being considered. In my view this is confirmed by or at least not inconsistent with the judgments in Abbas.

47 Again there is nothing in these passages from Spigelman CJ's judgment in Attorney General's Application No 1 which suggests that the criminality disclosed by Form 1 offences cannot be considered when determining whether the sentence for the principal offence will be made concurrent, in part or in whole, with the sentence for some other offence. To the contrary, given that on my reading of [42] of Attorney General's Application No 1 Spigelman CJ accepted that the criminality disclosed by the Form 1 offences could be considered in applying the mitigating principle of totality to the determination of the sentence for the principal offence, it would seem incongruous if the same approach did not operate at the next stage of the sentencing process.

48 Ms Francis also relied on the statement in [39] of Attorney General's Application No 1, which emphasises that an offender is only to be sentenced for the principal offence, when considered with the following other parts of that judgment:

"[24] The 'top down' approach which, notionally, identifies an appropriate penalty for the full gamut of offences, appears to me to be inconsistent with this principle. No doubt it can be said that even the 'bottom up' approach involves, in a sense, punishment 'for' the Form 1 offences, because the penalty for the primary offence is increased. (See, eg, R v Anderson [1978] AC 964 at 977-978, per Lord Diplock.) But that is not necessarily the case, as I sought to show in R v Barton (2001) 121 A Crim R 185 at 195 [64]. (Lord Diplock's observations were appropriately qualified by Neasey J in R v Jones [1978] Tas SR 126 at 131.)

...

[29] I do not understand Wood CJ at CL's reference in R v Bavadra to the 'totality of criminality' to suggest that a sentencing judge should determine sentences for all the offences before the judge, whether on the indictment or on the Form 1. I understand his Honour to have intended no more than the proposition for which Simpson J referred to R v Bavadra as authority in R v Harris (2001) 125 A Crim R 27 at 31 [23] that a sentencing judge '... should give due recognition to the gravity of those offences'. If, contrary to my understanding, the reference in R v Bavadra was intended to suggest that a sentencing judge was imposing punishment for the Form 1 offences, I would respectfully disagree that this is permissible under the statute. The focus, as I will show below, must be on 'the principal offence' alone."

49 Ms Francis contended that, by considering the gravity of the criminal conduct disclosed by the offence listed in the Form 1 at the point of determining whether the sentence for the supply offence should be wholly or only partly concurrent with the sentence for the import offence, the sentencing judge was not sentencing the applicant "only" for the supply offence. Instead, she submitted, the sentencing judge was in substance punishing him for an offence for which he had not been convicted (cf Attorney General Application No 1 at [24] and [39]).

50 This overstates the effect of these passages from Attorney General's Application No 1. In my view the relevant limitation on the operation of s 33(2) of the Sentencing Act that emerges from all of the above passages from Attorney General's Application No 1 is that no part of the sentencing exercise is to involve the assessment or imposition of any separate sentence for the Form 1 offence(s). This was accepted by all the judgments in Abbas (at [14] per Bathurst CJ, at [64] per Basten JA, at [104] to [105] per Hoeben CJ at CL, at [154] to [155] per Garling J and at [256] per Campbell J). Subject to that limitation, all of these judgments confirm that the reference in s 33(2) of the Sentencing Act to taking into account offences on a Form 1 warrants a consideration of the criminality involved in those offences and can justify the imposition of a longer sentence for the "principal offence". Thus Bathurst CJ stated (at [22] to [23]):

"[22] In my respectful opinion, the approach suggested by Adams J [in R v Dionys [2011] NSWCCA 272 at [10] and R v Calcutt [2012] NSWCCA 40 at [42]] is incorrect if it is interpreted as meaning that a sentence cannot be increased to take into account an additional need for deterrence and retribution in respect of the offences charged by virtue of the Form 1 offences being taken into account. Such an interpretation is contrary, in my opinion, to the meaning of s 33 properly construed and to what was said by Spigelman CJ in Attorney General's Reference. Section 33(1) empowers the Court to take the further offences into account where the preconditions in that section and s 32 are met. It is clear from the provisions of s 33(3) that that could lead to an increase in penalty up to the maximum penalty for the principal offence. The existence of these additional offences may demonstrate the greater need for personal deterrence and retribution in respect of the offence charged. This does not mean the Court is imposing a separate penalty for the Form 1 offences. Rather, as part of the instinctive synthesis approach to sentencing explained by McHugh J in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51]-[54], it takes these matters into account as required by the statute in determining the appropriate penalty for the offence for which the offender is convicted.

[23] That approach would generally, but not universally, lead to the imposition of a sentence longer, and in some cases significantly longer, than would otherwise be required if the Form 1 offences were not taken into account: R v Barton [2001] NSWCCA 63; (2001) 121 A Crim R 185. That does not mean that the principle of proportionality referred to by the High Court in cases such as Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354; Veen v The Queen (No 2) supra at 472 and 477; Markarian supra at [83], is offended. Rather, the fact that the sentence is to be determined by reference to the additional need for personal deterrence and retribution for the offence for which the offender is being sentenced as a result of the Form 1 charges means that the principle of proportionality falls to be assessed by reference to matters which include those additional factors. That does not involve any injustice to the offender who has chosen to avail him or herself of the s 33 procedure. Nor does it mean that the offender is being sentenced for offences for which he or she has not been convicted. This is because the sentence is imposed by reference to the offence for which the offender has been convicted, by contrast to the "top down" approach rejected in Attorney General's Reference."

51 Further at [64] Basten JA stated:

"[Attorney General's Reference No 1] did not reject an effective increase in the sentence for the principal offence on account of the additional criminality revealed in the admitted further offences."

52 Hoeben CJ at CL stated at [104]:

"As Spigelman CJ noted in the guideline judgment at [24], as a matter of semantics it can be said that any increase in the sentence imposed for the principal offence by reference to Form 1 offences, could be characterised as punishment 'for' the Form 1 offences. Such an approach, however, gives too broad a meaning to the concept of 'punish' and would apply to any increase in the sentence for the principal offence based on the Form 1 offences. To follow such an approach, would defeat 'the entire point of the [Form 1] process'."

53 Garling J agreed with Bathurst CJ (at [154]) and "agreed generally" with the additional observations of Hoeben CJ at CL (at [155]). Campbell J stated at [258]:

"In my view, if at the request of an offender the Court is take further offences into account "in dealing with the offender for the principal offence" it is inevitable that regard must be had to the criminality involved in those further offences. By dint of s 33 Sentencing Procedure Act the admitted further offences on the Form 1 are matters which necessarily bear upon the judgment to be reached about the appropriate sentence for the principal offence. No sensible bearing can be taken from them unless some assessment is made of the criminality involved in the further offences."

54 These passages are emphatic in confirming that the criminality disclosed by offences on a Form 1 can and should be considered in determining the appropriate sentence for the principal offence. Of course they are all directed to the first stage of the sentencing process discussed in the extract from Pearce set out above whereas this appeal concerns the second stage. While the judgments in Abbas do not directly deny Ms Francis' contention, they do not provide any support for it either. Further the above extracts confirm that there is a question raised by Ms Francis' proposition which, in my view, has not been answered, namely why should the criminality disclosed by a Form 1 offence be considered at the first stage of the sentencing process but be excluded at the next stage?

55 Put another way, what is the source of the alleged prohibition on the sentencing judge considering the offence disclosed in a form 1 when fixing a commencing date for the principal offence? This is fundamentally a question of statutory construction. On their face the phrases "dealing with the offender" and "take ...into account" in ss 33(1) and 33(2) are more than sufficient to enable a sentencing judge to consider a Form 1 offence when addressing questions of cumulation and concurrency that arise with respect to the principal offence and another offence. With respect to the view expressed by Fullerton J (at [5]), I cannot discern anything in the judgment of Bathurst CJ in Abbas that suggests that the phrase "dealing with an offender" is only a reference to the fixing of the length of a sentence and is not a reference to the exercise of the power conferred by s 47(2) of the Sentencing Act to fix a commencing date for the sentence on a date prior to the date the sentence was imposed. The discussion in Abbas concerning the need to consider the criminality disclosed by the Form 1 offence when addressing the need for greater weight to be given to personal deterrence and retribution all took place in the context of considering the first stage of the sentencing process. I cannot discern anything in that discussion that warrants a reading down of ss 33(1) and 33(2) in their application at the next stage of the sentencing process.

56 An acceptance of the appellant's proposition would require a sentencing judge to approach the first stage of the sentencing process on a basis that includes a consideration of the offence disclosed on a Form 1 and then adopt a different and narrower basis at another stage by excluding the offence disclosed on the Form 1. In my view there would need to be a compelling reason for construing the phrases "dealing with" and "take ... into account" in s 33(1) and (2) so that they had that result. In my respectful opinion none has been demonstrated.

57 Finally I do not consider that the appellant gains any assistance by characterising the sentencing judge's approach in this case as involving a form of "double counting". As I have explained the totality principle operates to mitigate the harsh result that would otherwise ensue if separate sentences were fully accumulated upon one another. The principle is conditioned upon an assessment of the offender's overall criminality. If that assessment is informed by a consideration of the criminality of offences disclosed on a Form 1 that does not amount to the imposition of a separate punishment for those offences without a conviction and nor does it involve "double counting". It is simply another example of how the Form 1 offences operate to reduce the leniency that might otherwise be afforded to an offender. If it were otherwise all consideration of questions of concurrency and accumulation would involve "double counting" in that the criminality of an offence informs both the sentence for that offence and whether that sentence will be made wholly or partly concurrent or wholly cumulative upon the sentence for another offence.

58 In my view it follows that in this case the question for the sentencing judge was whether to make the sentence for the supply charge wholly concurrent with the sentence for the import charge. The governing principle in such a circumstance was stated by Howie J in Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 at [27] (with whom Adams and Price JJ agreed):

"In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."

59 It follows from the above that I consider that it is open to a sentencing judge to consider the criminality disclosed by offences listed in a Form 1 for the purpose of determining whether the sentence for the principal offence to which they relate should be made wholly concurrent, partly concurrent or wholly cumulative upon any sentence to be imposed for other offences. The offences disclosed in a Form 1 may inform the assessment of the totality of the criminal conduct involved. In this case that meant that, if the sentence for the importation offence was such that it comprehended and reflected the criminality of the supply offence and the Form 1 offence, then full concurrency was warranted. If it could not, then at least some partial accumulation was warranted.

60 In this case the sentencing judge analysed the criminal conduct disclosed by the Form 1 offence and concluded that some of it was "clearly and intimately involved with the importation" but that "[o]ther sums involved the movement of the apparent profits of the importation". Thus his Honour concluded that this latter aspect of the dealing in the profits of the importation was an additional matter that meant that partial, albeit limited, concurrency of the sentence for the supply offence with that of the import offence was warranted when considered with the facts of the supply offence. I do not discern any error in that assessment.

Form 1 offences and retribution

61 The second submission made by Ms Francis concerned the relevance of the Form 1 offence to the element of retribution in the sentencing exercise. In the passage from Attorney General's Application No 1 at [42] that I have extracted above Spigelman CJ referred to "the community's entitlement to extract retribution for serious offences when there are offences for which no punishment has in fact been imposed." Ms Francis submitted that this does not authorise the exaction of retribution for the offences on a Form 1 but instead concerns retribution for the principal offence. Ms Francis referred to the judgments of Adams J in R v Dionys [2011] NSWCCA 272 at [10] and R v Calcutt [2012] NSWCCA 40 at [42].

62 This issue was addressed in Abbas. I have already extracted the passage from the judgment of Bathurst CJ at [22] where his Honour held that in sentencing for a principal offence the additional need for retribution arising from the presence of a Form 1 offence nevertheless requires the exaction of retribution for the principal offence and not the Form 1 offence. Basten JA did not address this issue. Hoeben CJ at CL disagreed on this issue, finding that retribution could be exacted for the Form 1 offence(s) (at [100]). Garling J agreed with Bathurst CJ (at [154]) but added that he "agreed generally with the additional observations of Hoeben CJ at CL" (at [155]). Campbell J agreed with Bathurst CJ and expressly disagreed with Hoeben CJ at CL on this issue (at [256]). Although Garling J stated he "agreed generally" with Hoeben CJ at CL, I take his Honour's specific agreement with Bathurst CJ as indicating a preference for that judgment on any matter where there was a disagreement between Bathurst CJ and Hoeben CJ at CL. Thus for present purposes the approach of Bathurst CJ represents the appropriate approach on this issue.

63 However this does not assist the applicant because there is nothing in the sentencing judgment to suggest that his Honour exacted any retribution for the Form 1 offence. The only passage in the sentencing judgment that makes any reference to retribution is where his Honour stated:

"When I formulate my sentence for the State offence I will also take into account the matter on the Form 1 by giving greater weight to considerations of personal deterrence and the community's entitlement to exact retribution for what was, in itself, serious offending."

64 This passage is to be found in an early part of the sentencing judgment in which his Honour recited a number of general principles potentially relevant to the exercise of the sentencing function in this case. The passage is clearly referable to Attorney General's Application No 1 at [42]. However, it is expressed in terms that are ambiguous as to whether retribution should be exacted for the supply offence or the Form 1 offence or both. The topic of retribution is not referred to in any subsequent part of the sentencing judgment. In the end result I am not satisfied that his Honour attributed any weight to the need for retribution in relation to the Form 1 offence.

Whether full concurrency was warranted

65 As I have stated it was not clear whether Ms Francis' third submission that full concurrency was required was dependent on whether error was established in the manner in which the sentencing judge treated the Form 1 offence. Her written submissions contended that full concurrency was mandated. In any event I construe the sentencing judgment as conveying that, even if the supply offence alone was considered, some accumulation was required. I also consider that his Honour was not in error in so concluding.

66 Ms Francis pointed to the following passage in the sentencing judgment:

"As indicated, the supply shared a number of critical elements with the importation as the same cocaine was involved. The significant overlap in the criminality involved means most of the objects of sentencing apply equally to this offence and the importation. Given the way I will structure the sentence the supply offence's non-parole period has been subsumed by the non-parole period for the Commonwealth offence. I am, however, obliged to fix separate sentences for each offence and consider relevant New South Wales sentencing principles when fixing the sentence for the supply offence." (emphasis added)

67 The reference in the above extract to the non-parole period for the supply offence being "subsumed by the non-parole period for the Commonwealth offence" was, in my view, clearly a slip in an otherwise carefully expressed judgment. The balance of the sentencing judgment suggests that his Honour meant to state that it was "largely subsumed by the non-parole period for the Commonwealth offence". Thus earlier in the same passage his Honour stated that "most [i.e. not all] of the objects of sentencing" applied equally to the supply offence and the import offence. When later discussing the circumstances of the supply offence his Honour stated that "[a]s it occurred as an incident of the importation a considerable degree of concurrency of sentences is required", suggesting that some accumulation was appropriate.

68 Further and contrary to Ms Francis' initial written submissions, I do not consider that a sentence structure involving complete concurrency was mandated even if the Form 1 offence was not considered at this stage of the sentencing process. I have summarised the relevant objective facts and his Honour's findings above. The drugs the subject of the supply charge were those that were imported. However, the conduct of the offender in agreeing with his co-offender to sell a kilogram of cocaine to Mr T at a subsidised price was clearly a separate act of criminality over and above his conduct in importing the drugs. In his Honour's words there was a "significant overlap" between the two offences, but it was not complete.

69 As I have stated the appropriate principle to be applied in this context was enunciated by Howie J in Cahyadi at [27]. Leaving aside the Form 1 offence, for the sentencing judge to have made the sentences for the import offence and the supply offence wholly concurrent would have resulted in there being no separate penalty for what was clearly separate criminal conduct on the appellant's part.

70 Finally, I note that in support of her contention that his Honour was required to impose fully concurrent sentences Ms Francis referred the Court to the decision of the Court of Appeal of Western Australia in Blay v The Queen [2006] WASCA 248; 205 FLR 414. In Blay the appellant was charged with aiding the importation into Australia of a large amount of ecstasy contrary to s 11.2(1) of the Criminal Code 1995 (Cth) in so far as it applied to s 233B(1)(b) of the Customs Act 1901 (Cth) and with possessing the same ecstasy with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). The Court of Appeal found that the sentencing judge had erred in not making the sentences for both offences fully concurrent and instead fixing the sentence for one of the offences to commence two years after the other (at [12] per McLure JA, with whom Wheeler JA agreed, and at [75] per Buss JA). However the possession by the offender of the ecstasy which satisfied the elements of the offence under s 6(1)(a) was one of the acts said to constitute the aiding of the importation (see Blay at [7] and [67] to [69]). Accordingly, both McClure JA and Buss JA said that the sentences should have been wholly concurrent because there was an overlap in the elements of the offences and they were part of the one "transaction" or "criminal enterprise"(at [12] and [75]). Critically McLure JA found that the offence under s 6(1)(a) did not increase the "total criminality" (Blay at [12]). In this case, while the drugs the subject of the supply count were part of those the subject of the import count, the supply of cocaine to Mr T was a discrete act of criminality over and above its importation.

71 I would allow the application for leave to appeal but dismiss the appeal.

72 The orders I propose are:

(i) leave to appeal against sentence be granted; and

(ii) the appeal be dismissed.

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Decision last updated: 09 October 2013