Greenaway v R [2013] NSWCCA 270 (8 November 2013)

Last Updated: 12 November 2013

Court of Criminal Appeal New South Wales

Case Title:	Greenaway v R
Medium Neutral Citation:	[2013] NSWCCA 270
Hearing Date(s):	9 October 2013
Decision Date:	08 November 2013
Before:	Gleeson JA at [1] R A Hulme J at [2] Adamson J at [42]
Decision:	1. Leave to appeal against sentence granted. 2. Appeal against sentence dismissed.
Catchwords:	CRIMINAL LAW - sentence appeal - take part in manufacture of large commercial quantity of methylamphetamine - well planned and organised operation - appellant a central part of the organisation - asserted Muldrock error - sentencing judge arrived at head sentence for which notional non-parole period equated to standard non-parole period before reducing for mitigating features - error established - no lesser sentence warranted
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Drugs Misuse and Trafficking Act 1985 (NSW)
Cases Cited:	Bolt v R [2012] NSWCCA 50 Diesing v R [2007] NSWCCA 326 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 R v DW [2012] NSWCCA 66 R v El-Azzi [2004] NSWCCA 455 R v Larsson (unreported, NSWCCA, 11 September 1997) R v Pedavoli [2002] NSWCCA 87; (2002) 128 A Crim R 137 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 Reardon v R [2012] NSWCCA 46 Wong v The Queen [2001] HCA 64; (2001) 207 CLR Zreika v R [2012] NSWCCA 44
Category:	Principal judgment
Parties:	William Greenaway (Applicant) Regina (Respondent)
Representation
- Counsel:	Counsel: Ms A Francis (Applicant) Ms S Herbert (Crown)
- Solicitors:	Solicitors: Legal Aid NSW Solicitor for Public Prosecutions
File Number(s):	2009/983
Decision Under Appeal
- Court / Tribunal:	District Court
- Before:	Toner SC DCJ
- Date of Decision:	30 April 2010
- Court File Number(s):	2009/983

JUDGMENT

1. GLEESON JA: I agree with R A Hulme J.
   
2. R A HULME J: William Greenaway ("the applicant") applies for leave to appeal against a sentence imposed upon him in the District Court at Parramatta by his Honour Judge Toner SC on 30 April 2010.
   
3. The applicant had pleaded guilty to offences of knowingly taking part in the manufacture of a large commercial quantity of methylamphetamine (s 24(2) Drugs Misuse and Trafficking Act 1985 (NSW) - maximum penalty imprisonment for life and/or a fine of 5000 penalty units) and possessing a precursor intended for use in the manufacture of a prohibited drug (s 24A(1) of the same Act - maximum penalty imprisonment for 10 years and/or a fine of 2000 penalty units).
   
4. Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides for a standard non-parole period of 15 years for the manufacturing offence.
   
5. The applicant was sentenced to 15 years 6 months for the manufacturing offence and 4 years for the precursor offence. Both sentences were specified to date from 8 January 2008; he had been in custody since his arrest on that date. The judge set a non-parole period for the first offence with mathematical precision so that it was exactly three quarters of the total term, 11 years 7 months and 15 days. The applicant will become eligible for release on parole on 22 August 2019.
   
6. A notice of application for leave to appeal was filed on 18 April 2013, almost 3 years after the applicant was sentenced. Such delay is deplorable but the Registrar has granted an extension of time so there is no need for the Court to concern itself with that aspect.
   
7. The sole ground of appeal concerns only the manufacturing offence and it relates to how the sentencing judge took into account the prescription of the standard non-parole period. In short, it is contended that there has been Muldrock error: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 ("Muldrock").
   

Facts

8. As best as I can determine (the lengthy statement of facts is hardly a model of clarity), police and the Australian Crime Commission investigated the involvement of the applicant and a number of other men in the manufacture of methylamphetamine. The applicant and Alan George Reardon were the principals. David Gerald McGreevy and Jake Callager were described by the judge as "playing relatively minor subordinate or collateral roles".
   
9. Search warrants were executed at a number of addresses and arrests were made on 8 January 2008. A working clandestine laboratory was found at an address in Annangrove. Some 5.8 kilograms of methylamphetamine had been manufactured. A quantity of pseudoephedrine weighing 14.6 kilograms, the subject of the precursor offence, was also found. Items associated with drug manufacturing activity were found at a number of other places in outer western and north-western suburbs of the Sydney metropolitan area. In addition, $134,000 was found when Reardon's home was searched, and radio scanners were found at the applicant's home. It is evident that the manufacturing activity detected on 8 January 2008 was far from being an isolated episode.
   
10. The judge observed that "this was a planned and organised operation"; "the crimes represent a serious danger to the public"; "the offender is central to these crimes"; "the offender was an organiser of the operation"; "he stood to gain financially from it"; "there is no suggestion that the offender is an addict"; and he "was driven by greed".
    
11. The estimated street value of the methylamphetamine that could be extracted from the pseudoephedrine ranged from $500,000 to $2.7 million.
    

Sentencing of co-offenders

12. Ashford DCJ sentenced McGreevy and Callager on 2 October 2009. They had each pleaded guilty to a single charge of knowingly taking part in the manufacture of a large commercial quantity of methylamphetamine. McGreevy was sentenced to imprisonment for 7 years. Callager was sentenced to imprisonment for 6 years. Each received a combined discount of 50 per cent on account of their pleas of guilty and assistance to authorities, so the starting points for their sentences were 14 years and 12 years respectively.
    
13. Reardon was sentenced by Toner DCJ on 13 August 2010, after he had sentenced the applicant. His Honour imposed a sentence of 15 years after allowing 25 per cent for the utilitarian value of his plea of guilty; hence the starting point was 20 years.
    
14. Reardon appealed to this Court with his sole ground raising a complaint concerned with parity in relation to the sentencing of each of his three co-offenders. It is evident from the extract from the judge's sentencing remarks provided in the judgment of Harrison J (Reardon v R [2012] NSWCCA 46 at [10]) that Toner DCJ found the culpability of each of Reardon and the applicant to have been indistinguishable and intended to adopt the same starting point for Reardon as he had for the applicant. Reardon's complaint of having a justifiable sense of grievance in relation to the sentencing of his co-offenders failed. In relation to the present applicant, the reasoning is encapsulated in the following passage of the judgment:
    

[16] When his Honour sentenced the applicant he said that "[t]he proper sentence for Count 1 is twenty years". When his Honour earlier sentenced Mr Greenaway he said, "[w]ithout any discount the sentence that I would have imposed would have been twenty years imprisonment on Count 1". It remains unexplained why, in the light of the latter remarks, Mr Greenaway was not sentenced to an effective total sentence of 16 years instead of 15 years and 6 months. The so-called error therefore appears in the calculation of Mr Greenaway's sentence rather than in his Honour's application of principles of parity. That error would not in my opinion give rise in this case to a person in the position of the applicant having a justifiable sense of grievance. On the contrary, it may well have theoretically tempted a Crown appeal in Mr Greenaway's case to adjust his sentence to take account of the "error".

Sentencing remarks

15. Aside from incorporating the statement of facts and making the observations about them that I have referred to above, his Honour's sentencing remarks included the following.
    
16. The precursor chemical, whilst found at a different location, was intended to be used at the same laboratory which was the subject of the manufacturing offence. For this reason, the sentences for the two offences would be ordered to be served concurrently.
    
17. The applicant was aged 51. He had a criminal history that was regarded as insignificant. It was described as consisting mainly of traffic offences and some minor drug matters many years ago.
    
18. Because there was a guilty plea the standard non-parole period for the manufacturing offence acted as a guidepost according to R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168. In determining the effect of the standard non-parole period it was important to place the offence and the offender's participation in it within the range of objective seriousness of offences of its type.
    
19. The objective seriousness in terms of the applicant's involvement in the manufacturing offence was "at least in the middle of the range for offences of its type".
    
20. Regard was had to the sentencing of McGreevy and Callager by Ashford J (whose sentencing remarks had been provided). His Honour observed that "this man's role is significantly greater than either of these two".
    
21. His Honour observed that "the subjective case presented for [the applicant] is slim". There were letters from the applicant's wife and from a prison chaplain. Various favourable aspects of the applicant's life were described. The judge said that he accepted most of what appeared in the wife's letter but added "it is difficult to see, however, how it minimises or ameliorates the seriousness of his crimes and his part in them. On the material before me it is not apparent as to why he got involved or instigated and ran such a serious criminal operation".
    
22. The judge accepted that the expression by the applicant of remorse to the prison chaplain was genuine. He also accepted that "he will not re-offend given what will be his age on release and a belief that his remorse is a catalyst to his rehabilitation".
    
23. The sentences were to be reduced by 20 per cent on account of the applicant's pleas of guilty as well as for "other identified discounting factors". It can only be presumed that the latter was a reference to mitigating factors found in the applicant's favour.
    

Ground The sentencing judge erred in his approach to the standard non-parole period by:

(a) using the standard non-parole period as an effective starting point;

(b) engaging in an impugned two step process.

24. Counsel for the applicant drew attention to the following passages from the judge's sentencing remarks:
    

It is important both for the purposes of determining the degree of influence of the standard non-parole period on the sentence and generally to determine where this crime sits in the hierarchy of offences of its type.

Although this is a guilty plea, the standard non-parole period acts as a guidepost in sentencing, see R v Way. It is important in determining its effect to place this offence and the offender's participation in it within the range of seriousness of offences of its type objectively, as I have already noted.

25. It was submitted that, in accordance with the approach mandated in R v Way, the judge "determined the impact of the standard non-parole period and penalty by singularly considering objective matters". He found the offence to be in the mid-range of objective seriousness and identified a starting point for the sentence of 20 years. Without a finding of special circumstances, that would involve a non-parole period of 15 years, exactly corresponding with the standard non-parole period. It was only then that the judge reduced the sentence on account of the applicant's plea of guilty and other favourable subjective circumstances.
    
26. Since the High Court of Australia in Muldrock overruled R v Way, the standard non-parole period, and the maximum penalty prescribed for an offence, take their place as "legislative guideposts" (Muldrock at [27]). What Muldrock proscribed was assigning to the standard non-parole period "primary or determinative significance" in the assessment of sentence and adopting a two-stage approach, commencing with an assessment of whether the offence falls within the middle of the range of objective seriousness and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period (Muldrock at [26] and [28]).
    
27. Assessment of the level of objective seriousness of an offence was not proscribed by Muldrock: Zreika v R [2012] NSWCCA 44, per Johnson J at [45]-[47].
    
28. The applicant's argument depends, in part, upon the coincidence of the selection by the judge of a starting point of 20 years which, ordinarily, would involve a non-parole period that is the equivalent of the standard non-parole period. It was contended that the coincidence is similar to that found in Bolt v R [2012] NSWCCA 50 at [35]- [36] per McCallum J.
    
29. It may well be that the applicant is correct and that this does demonstrate that the judge adopted a two-stage approach to the sentencing task, correct at the time in accordance with R v Way but subsequently impugned in Muldrock.
    
30. An alternative view, however, is that his Honour adopted 20 years as the starting point, not because it equated to a non-parole period the equivalent of the standard, but because he considered that to be an appropriate measure of sentence having regard to the 14 and 12 year starting points adopted in the cases of the lesser co-offenders, McGreevy and Callager. The level of their respective involvement in the manufacturing enterprise compared to that of the applicant would be appropriately marked by the differential in the starting point adopted by Toner DCJ.
    
31. But even if the judge adopted that approach, his approach was two-staged. He arrived at a sentence of 20 years without regard to subjective matters and then reduced it for the plea and other mitigating features. Such an approach is erroneous in itself: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 611-612 [74]- [76]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at 375 [39].
    

Is a lesser sentence warranted?

32. The written submissions for the applicant identified four cases that were said to support the proposition that a lesser sentence is warranted in this case. In oral submissions it was acknowledged that there was no ground of appeal asserting that the sentence for the manufacturing offence was manifestly excessive. But it was contended nonetheless that these cases supported such a proposition.
    
33. The standard non-parole period did not apply in any of the cases relied upon. In my view, comparing cases considered in the absence of a legislative guidepost of a significant standard non-parole period of 15 years is of little assistance.
    
34. In three of the cases, the standard non-parole period did not apply because the offence was committed prior to the introduction of the relevant legislative provision: R v Larsson (unreported, NSWCCA, 11 September 1997); R v Pedavoli [2002] NSWCCA 87; (2002) 128 A Crim R 137; and R v El Azzi [2004] NSWCCA 455. The fourth, and more recent, case, R v DW [2012] NSWCCA 66, was factually dissimilar in that the offence was not part of an entrenched and well organised manufacturing enterprise, as the applicant's offence must be viewed, and the offender did not actually manufacture anything. The standard non-parole did not apply because the offence was one of conspiracy: Diesing v R [2007] NSWCCA 326 at [53]- [54] per Hoeben, Latham and Harrison JJ.
    
35. None of these cases are of any assistance in comparing the sentence imposed upon the applicant with a "range" of comparable sentences.
    
36. The significant comparators in this case are the sentences imposed upon the co-offenders. Nothing more needs to be said about McGreevy and Callager. The details of the sentencing of Reardon have been earlier described. He was found to be at an identical level of culpability as the applicant and the force of his and the applicant's subjective cases were, on balance, indistinguishable: Reardon v R at [10].
    
37. On the hearing of the application, counsel for the applicant sought to dissuade the Court from having regard to the sentencing of the co-offenders on the basis that they were sentenced in the R v Way era and were therefore likely affected by Muldrock error. The problem, however, is that the sentencing remarks of Ashford DCJ in respect of McGreevy and Callager were before Toner DCJ and also before this Court. They do not disclose Muldrock error at all. Both of those offenders had pleaded guilty and so her Honour regarded the standard non-parole period as a guidepost and nothing more.
    
38. The problem for the applicant's submission in relation to the sentencing of Reardon is that his appeal was heard by this Court after Muldrock was decided. He made no complaint of Muldrock error. The only complaint, one of parity, was rejected. His sentence, derived from the same starting point as the applicant's, stands for comparison.
    
39. Two affidavits were read in the event that the Court moved to consider re-sentencing. They disclose that the applicant is performing well in gaol in terms of behaviour, employment and completion of a traineeship. He retains the support of his wife and numerous children. It is regrettable that his wife has endured a very significant health issue whilst he has been in custody. Unfortunately, such hardship is often associated with imprisonment. Whilst undoubtedly all of these matters are important to the applicant, they do not raise anything that would assist either way in the disposition of the appeal.
    
40. Having regard to the significant seriousness of the offence and the sentences passed upon the co-offenders, I am driven to the conclusion that, despite any error of approach by the sentencing judge, no lesser sentence is warranted: s 6(3) of the Criminal Appeal Act 1912 (NSW).
    

Proposed orders

41. I propose the following orders:
    

1. Leave to appeal against sentence granted.
2. Appeal against sentence dismissed.

42. ADAMSON J: I agree with R A Hulme J.
    

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