Coetzee v R - [2007] NSWCCA 12

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: COETZEE v R [2007] NSWCCA 12

FILE NUMBER(S):
2006/2066

HEARING DATE(S): 8 December 2006

JUDGMENT DATE: 5 February 2007

PARTIES:
Frans Johannes Coetzee (Appl)
The Crown

JUDGMENT OF: McClellan CJ at CL Simpson J Hall J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0525

LOWER COURT JUDICIAL OFFICER: McGuire DCJ

LOWER COURT DATE OF DECISION: 29 April 2005

COUNSEL:
C Toweel (Appl)
D C Frearson SC (Crown)

SOLICITORS:
Van Huyssteen & Botha, South Africa (Appl)
Director of Public Prosecutions (Crown)

CATCHWORDS:
CRIMINAL LAW
Appeal against sentence
supply of cocaine
flooring enterprise disguising drug distribution
whether sentencing judge erred in finding the applicant played a major role
lacked remorse
provided no assistance to authorities
whether applicant acted out of fear
whether sentence manifestly excessive
whether discount given for early plea sufficient
special circumstances justifying variation of the standard non-parol period
impact of delay in sentencing
adjustment allowed for additional days in custody

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

CASES CITED:
MRN v R (2006) NSWCCA 155
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383
R v Yenice (1994) 72 A Crim R 234

DECISION:
1. Leave to appeal granted
2. Appeal allowed and the sentence quashed
3. Sentence the applicant to a non-parole period of six years and nine months commencing on 21 January 2004 and expiring on 20 October 2010 and a total term of 9 years and 3 months expiring on 20 April 2013. The applicant is first eligible for parole on 21 October 2010

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/2066
McCLELLAN CJ at CL
SIMPSON J
HALL J
MONDAY 5 FEBRUARY 2007

COETZEE, Frans Johannes v REGINA

Judgment

McCLELLAN CJ at CL: The applicant pleaded guilty to an indictment charging that on 11 April 2001 at Hornsby in the State of New South Wales he supplied a prohibited drug, namely 24.4 kg of cocaine, being an amount not less than the large commercial quantity of that drug, contrary to s 33(3)(a) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for the offence is life imprisonment.
The applicant was sentenced to imprisonment comprising a non-parole period of six years nine months commencing on 30 January 2004 and a balance of term of two years six months. This amounts to an effective total sentence of nine years three months.
The facts
A statement of the relevant facts was tendered and adopted by the sentencing judge. It reads as follows:
"On 7 January 2001 a joint strike force led by the Drug Squad, State Crime Command with the AFP, commenced into the alleged large commercial quantity of cocaine within the Sydney area.
On 2 February, 2001, the defendant has arranged and paid for the formation of an Australian listed company called Impex Australia Pty Limited to facilitate the importation of a number of black plastic floor crates from South Africa.
On 8 March 2001, approximately 580 single units of black modular flooring has entered the Botany terminal and under instructions of the defendant, other known persons have facilitated its transportation to shed 15, 8 Hargrave Street, Tamworth
This being a storage shed leased by the defendant for the purpose of unpacking and storing the flooring.
On 11 March 2001, two further known persons have entered Australia via Sydney and travelled to Tamworth where they were met by the defendant at Tamworth Airport.
On 14 March 2001, the shipment of flooring has been delivered to the shed 15, 8 Hargrave Street, Tamworth, where it was unpacked by the defendant and the two known persons.
On 17 March 2001, the defendant and two known persons have travelled from Tamworth to the Kennards self storage facility, 105 Pacific Highway, Hornsby. At the time the defendant has enquired about the lease of a storage shed.
The defendant has completed the rental agreement and provided his details and South African driver's licence as identification.
The defendant has paid cash for one month's rental and purchased a lock with two keys to the unit.
The defendant has retained one of these keys and the pin number and supplied another key to the two known persons.
The defendant and two known persons have then travelled back to Tamworth.
On 23 March 2001, the two known persons have returned to the Kennards self storage facility, 105 Pacific Highway, Hornsby, and completed an authority to break lock for unit M 72.
The two known persons have then with the assistance of staff removed the lock and after being left alone placed a new lock on to the storage unit. The two known defendants have then returned to the Tamworth area and returned the key for the Hargrave Street storage shed to a hotel for return to the defendant
On 30 March 2001, the two known persons have left Australia via Sydney.
On 11 April 2001, the defendant has contacted one of the known persons in the US via his mobile phone.
On 19 April 2001, the defendant has then contacted the Kennards self storage complex and advised them that he wished to pay for an additional month's rent for unit M 72 using his visa card and that he needed a new pin for access to the storage unit.
The defendant was advised that a pin could not be sent but that the payment could be accepted.
The defendant further stated that he had two agents coming over to the unit.
On 23 April 2001, the defendant's mobile phone was subject to a lawfully obtained telephone interception.
At 7.38am on 24 April 2001, the defendant contacted a known relative in which they stated, `Dennis (one of the known persons) is in any case, um apparently um there. He um signed over the facility and put another lock on and so on. So I don't know what's going on there.'
The defendant stated, `No well I don't know about that, you know, so I’m going to arrive and just try my own key and if it doesn’t work, then say to the people, what now? You know.'
At 3.16pm on Thursday 26 April 2001 the defendant's mobile phone has been subject to lawful interception in which the defendant had a further conversation with a known relative in relation to instructions for what the defendant should say and do in relation to the Hornsby storage shed.
At the completion of the telephone call the defendant expresses his desire to not talk on the phone any further and that he will communicate via email.
On 27 April 2001, police from the drug squad and APP have executed a search warrant on 79 Harrier Parade, Tamworth, the residence of the defendant. During this search during this time a search of the premises was conducted in the presence of the defendant and recorded on video. During this time a number of items were located including $32,800 in Australian currency.
At 10am in company with the defendant a further search warrant was executed at shed 15 8 Hargrave Street, Tamworth in which a further 577 pieces of black modular flooring were located, a mop, a number of cleaning products and a sheet of plastic attached to the window with, grey electrical tape.
At 1.18pm the defendant was cautioned and participated in an ERISP in which the defendant stated that he had commenced a business in Australia for the importation of the modular flooring for the purpose of selling for profit.
The defendant further stated that due to his busy employment he had been unable to conduct any market research, but that he intended to do so.
The defendant further stated that the two known persons had travelled from the USA to assist in the marketing of the flooring but had not completed in any such activity.
The defendant stated that he was undertaking the business on behalf of the known relative.
The defendant was then shown the authority to break padlock for unit M 72 in which he stated that he was unaware of the lock being broken and had no explanation for it.
The defendant further stated that the $32,800 in cash was part of . $100,000 in cash brought into Australia by the unknown relative in January 2001, This being part payment for a previous debt.
The defendant stated that the $32,800 was all that remained after purchasing a motor vehicle and other expenses.
At 7.09pm a further lawfully intercepted telephone call was obtained in which the defendant contacted the known relative and informed them of the search warrant by police. During this conversation the defendant speaks to the known relative about the explanation given to police in relation to the money seized.
At 9.18am on 28 April 2001 the defendant contacts one of the two known persons and informed them of the search warrant conducted by police.
During this call the defendant is advised not to talk on the phone and call on a pay phone. The defendant agrees.
On 3 May 2001 at gam a further search warrant is executed on 15 8 Hargrave Street, Tamworth where a number of scientific analyses were completed, and all items removed.
On 3 May 2001 at 2.47pm the defendant again contacts the known relative and has a conversation in relation to the actions of police. The defendant specifically advises about the police removing all items including the wooden pallets. The known relative shows considerable concern about this, and states `But, but, clean wood, proper wood.' The defendant stated, `Yes hopefully.'
The defendant had a further conversation in relation to changing his explanation about the source of the money seized, and coached as to his explanation to be offered to police on how the money was obtained.
At 3.54pm the defendant participated in a second ERSP in which he stated that he bought the $60,000 into Australia himself as part of a pension pay out and that he was aware of his obligation to report such amounts entering Australia.
The defendant again denied any knowledge of the cocaine located. On 15 January 2002 after further extensive enquiries by the drug squad, police attended the British Aerospace Section, Tamworth Airport, and at 1.06pm the defendant was informed of his arrest and conveyed to Tamworth Police Station.
The defendant was cautioned and participated in an ERISP. He stated that approximately one to two weeks after receiving delivery of the modular flooring, he had it placed in the Tamworth self storage unit. He then began the lease for the storage shed at Hornsby. He then received a phone call from each of the both known persons, who informed him that a large amount of cocaine had been located in his storage shed. He was advised by one of the known persons to leave Australia. The defendant states that he was extremely concerned about these calls and immediately contacted his girlfriend and arranged for her to fly to Sydney where he would meet with her. The defendant states he discussed his concerns with his girlfriend about the calls and the apparent location of the drugs in the unit at Hornsby.
The defendant further stated that although concerned enough to fly to Sydney, he did not feel concerned enough to travel to Hornsby, or contact the police, or make any enquiries to confirm the information.
The defendant further stated, that although he was the only person in Australia with access to the storage shed at Hornsby, he made no attempt to do so.
The defendant further stated that the reason he obtained the storage shed in Hornsby, was to allow for the showing of the modular flooring to prospective customers, although he had no knowledge of the brand, the cost price, the manufacturer, guarantee or warranty, import costs, competition or whether the flooring was even new or second hand. The defendant further stated that he had in fact made no sales, or contacted any persons in relation to the sale of the items.
The defendant further stated that he had made no attempt to obtain contact details from the two known persons, although he believed them to be in Australia prior for the purpose of developing a market, and having been previously involved in the selling of the products.
The defendant was questioned in relation to the expenses of establishing the business to which he replied that one of the known persons had attended Australia and handed him $10,000 in cash for expenses. This being something the defendant had not revealed in the two previous interviews.
The defendant was questioned in relation to the lawfully obtained telephone intercept in which he was unable to provide answers for the inconsistencies in his previous interviews.
The defendant was charged with the matters now before the Court."
The applicant gave oral evidence on more than one occasion before the sentencing judge. His Honour found that in statements which he had made to the police, which included denials of his involvement, he gave “various versions of events with the clear intention to mislead and deceive.” His Honour found that the applicant told numerous lies and provided accounts minimising his involvement and supplying exculpatory descriptions of his activities including a false explanation as to how he came to possess significant money sums.
In a statement which his Honour described as his “final statement”, made two years after his arrest, the applicant presented a scenario which was different to that which had previously been provided to the police. However, his Honour concluded that it was not possible to find that even this final statement represented “an honest, full and accurate version of what had occurred.” Having observed the applicant his Honour was not persuaded that he was a truthful witness.
His Honour said this:
“Before me, it appears as though he has attempted to adhere as closely as he could to his final version to police.
He presented a highly unlikely account of an agreement between himself and his brother Jacobis to import industrial flooring into Australia. At no point in the prisoner’s evidence as to the alleged scope of the importation of industrial flooring and as to how it was to be financed and marketed did he provide a sensible and credible explanation. The prisoner described the formation of a company Impex Australia Pty Ltd to facilitate the importation of industrial flooring. He claimed that he had been told by his brother that two persons Dennis and Gorgy [sic], would assist him with the unloading of that flooring.
It had been his intention to move to Tamworth to live, and for reasons for which no convincing explanation is advanced, it was decided to transport the flooring to Tamworth after it was landed in Sydney. To this end, he rented premises in that centre.
He claimed that only on the day prior to flooring arriving in Tamworth was he informed by Dennis and Gorgy [sic] that there were drugs contained within the flooring and its packaging.
I simply do not believe that he was not well aware of the presence of the drugs long before this.
It is impossible to accept that the prisoner had any genuine belief that the timber flooring was to be marketed in Australia, as a bona fide operation. No sales persons had ever been engaged, no advertising had been arranged, no facility to demonstrate the product at Tamworth. There were no details of pricing, anticipated profits, landed cost of the timber, how it was to be sold or distributed.
Apparently the proposed method of attracting customers, if the prisoner is to be accepted, was to have the storage shed at Kennards storage depot at Hornsby where a number of pieces of timber would be available for inspection. It is a mystery to me as to who the prospective customers would be and how they would ever be attracted to a storage shed 1.8 metres x 1.5 metres x 1.4 metres. No sensible explanation was offered as to how prospective customers were to be informed of the whereabouts and qualities of the flooring.
On his account Mr Coetzee was aware eighty-four kilos of cocaine had been imported into Australia. He, of course, is charged with an offence involving but 24.4 kilos of that drug and will be dealt with on that basis.
A former colonel in the South African Air Force, he was certainly not an unsophisticated, ill-educated man. He either was aware at all times of the importation, as I believe, or if his version is accepted, he was told shortly before or at the time the drugs arrived at Tamworth.
That consignment of cocaine was worth a small fortune involving millions of dollars, yet the prisoner would have me believe that there was at the same time a genuine commercial operation on foot, selling industrial flooring. He had no qualification or expertise in this field, and it is ludicrous to expect his companions would have engaged in such unplanned, unorganised venture which may or may not result in any profit.
Having regard to the undoubted vast amounts to be made in selling the cocaine, I have not the slightest doubt that the importation of the flooring was to the prisoner’s knowledge, but a device to disguise the drug importation.
I make mention of these matters only to demonstrate my complete scepticism as to the reliability of the prisoner’s final account to the police and of his explanations given before me. This is relevant on the question of any remorse or contrition.”
His Honour went on to express his further scepticism about the applicant’s account that he was surprised to receive the sum of $130,000 which the applicant said was thrust upon him by Gorby with the explanation “this is for helping us around Sydney.” His Honour found, holding “no doubt” about the matter, that the applicant had full knowledge that a substantial quantity of cocaine had been imported into Australia contained within the pallets and packing associated with the flooring. His Honour also found that the applicant was fully aware that compressed cocaine had been placed in the storage unit at Hornsby where it was located by the police.
His Honour also rejected any suggestion that the actions of the applicant were influenced by any threats or duress and rejected any suggestion that his conduct resulted from coercion or deception which had been practised upon him. Although the applicant had claimed to a probation officer that he was unaware that the goods imported contained illegal drugs, his Honour rejected this assertion. His Honour also rejected the proposition advanced to a probation service interviewer that the reason for his failure to report the presence of the drugs, was because of threats of harm to himself and family in Africa, should he contact the police or compromise the illegal activity in any way.
His Honour said that the complications with the applicant’s evidence made it impossible to accurately categorise his status in the hierarchy of the criminal activity. However, his Honour found that he was not some minor functionary in an insignificant position. His Honour found that his participation was central and vital to the success of the scheme. He had arranged the formation of a company to facilitate the importation. Although his Honour did not find that the applicant was responsible for financing the purchase of the cocaine, he nevertheless, concluded that he would have benefited financially in a significant manner from a successful operation.
His Honour determined that by reason of the size of the criminal activity and the prospect of profits it was important to impose a sentence which reflected the need for deterrence, protection of the public and provided appropriate punishment for the applicant.
The applicant had a career as a pilot and flying instructor and his business activities reflect a sophisticated and intelligent person. His Honour found that he was fully aware of the devastating effects of the availability of 24.4 kg of cocaine within the community. Finding that cocaine is a highly dangerous drug, his Honour concluded that the quantity involved in the activity had the potential to corrupt and destroy many people.
His Honour also had access to a pre-sentence report which set out the relevant subjective matters. The applicant was born in South Africa, the eldest in a family of three children. He was brought up in a supportive environment free of significant material or other deprivation. However, his father was killed in a motor vehicle accident in 1992 when the applicant was driving the vehicle. The applicant has been married and divorced on two occasions and has two children aged fourteen and eighteen at the time of sentence who live with their mother in South Africa. He again became engaged in March 2003 and at the time of sentence his fiancée continued to be supportive of him.

The applicant was employed directly from school by the South African Air Force. He served as an Air Force pilot for in excess of twenty-three years. After leaving the Air Force he set up a debt recovery business with his brother.
He came to Australia to work for BAE Systems, as a flying instructor after seeing an advertisement in a local newspaper. Initially that employment required him to live in South Australia, largely at his expense, while learning and obtaining Australian civilian aviation qualifications. He then moved to Tamworth with the BAE Systems College situated at the airport.
His Honour found that there was nothing in his background by way of physical or psychological disability or drugs, which would explain his conduct. His Honour was satisfied that the applicant was motivated by greed. The applicant had a previously unblemished record. Letters from his family and former Air Force colleagues described a series of impressive achievements as a career pilot and instructor. He was well regarded in the South African Air Force and held many responsible positions. He received a variety of merit awards and decorations. His Honour concluded that the reports of his time in custody indicated impressive efforts on the applicant’s behalf to rehabilitate himself.
His Honour found that the applicant’s plea of guilty was not entered at the earliest opportunity, but, nevertheless at an early stage and had utilitarian value, in that it saved the community the cost of a trial and relieved the pressures on the resources of the trial court. His Honour determined that a discount of 15% was appropriate.
There was a delay of 15 months between when the applicant entered his plea of guilty and when he was sentenced. This delay was in part due to difficulties in the sentencing judge being available at convenient times. However, it was also significantly due to the applicant seeking to have his sentence hearing deferred in the expectation that if he cooperated with the authorities in the prosecution of others involved in the enterprise, he may receive more favourable consideration. His Honour found that in reality the prospect of a prosecution of others eventuating was unrealistic and any expectation that the applicant could have given relevant assistance to authorities was misplaced.
The applicant advanced ten grounds of appeal.
Ground A: The learned sentencing judge erred by finding that the applicant was aware of the fact that cocaine would be imported into Australia.
Ground B: The learned sentencing judge erred by finding that the applicant was a major player in the criminal enterprise.
The applicant dealt with grounds A and B together. His version was that he embarked upon a venture in relation to the importation of industrial flooring and belatedly became aware of the existence of cocaine the day prior to its arrival in Tamworth. He thereafter said his involvement resulted from fear and implied threats. On his account there was little which he did to justify the payment of $130,000 that was made to him.
He also said that even when he became aware of the cocaine, he still believed that the industrial flooring project was a bona fide operation. He said he held that belief notwithstanding that there were no sales, no advertising, no facilities to demonstrate the product, no knowledge of landed costs, pricing or how the product could be marketed or distributed.
In his submissions to this Court the applicant challenged the factual findings made by his Honour. It was submitted that his Honour erred both in rejecting the applicant’s evidence and having regard to the other surrounding evidence should have concluded that the applicant was not knowingly involved in the importation of the cocaine and only had a minor role in the enterprise. It was submitted that his Honour had erred by rejecting the applicant’s evidence and, without evidence, concluding that the applicant had a significant role in the criminal activity.
In my view, the findings which his Honour made were clearly open and correct. It is important to appreciate that the applicant was not charged with importing cocaine. Rather, he was charged with supplying a large commercial quantity of the drug. His Honour found that he was either aware at all times of the importation, or was told about it shortly before or at the time the drugs arrived in Tamworth. His Honour was entitled, in my view, to reject the suggestion made by the applicant that he had become unexpectedly entangled in the enterprise and was then unable to extricate himself because of threats, implied or otherwise.
The evidence which I have previously related leads inevitably to the conclusion that the flooring importation exercise was not genuine and was never intended to be genuine. The inevitable conclusion is that the enterprise was always comprised of a major cocaine importation and distribution operation. The timber venture was, as his Honour found, devised in order to provide a cover for the drug distribution operation. Whether or not the applicant was aware that drugs were to be imported before they arrived is not significant. His role in the proposed distribution was an important one. He formed the necessary company and was instrumental in organising the activities in Sydney. His Honour was entitled to sentence him as a major player in the distribution enterprise.
Ground C: The learned sentencing judge erred by not finding that the applicant was threatened and had acted partially out of fear.
His Honour emphatically rejected the applicant’s suggestion that his conduct resulted from coercion or deception. He concluded that his real motivation was greed.
His Honour had the opportunity of assessing the applicant when he gave evidence on 7 June and 24 March 2005. It was clearly open to his Honour to disbelieve the applicant in relation to his suggestion of coercion or deception. No error has been shown in his Honour’s conclusion.
Ground D: The learned sentencing judge erred by finding that the applicant did not have any remorse or contrition.
The sentencing judge found that the applicant’s version of the relevant events should not be accepted and was accordingly sceptical as to the applicant’s assertion of remorse. It was submitted that in this respect his Honour was in error. In support of this submission, it was emphasised that the applicant pleaded guilty at an early stage, had offered assistance to the authorities within days of his arrest, expressed his remorse to Ms Carroll and continued to express it in court. He also expressed regret for his actions to officers of the Probation and Parole Service. In these circumstances, it was submitted that his Honour should have found that the applicant demonstrated deep remorse for his actions.
In my opinion his Honour was correct to be sceptical in these matters. I am satisfied that his Honour’s finding, that the applicant had not been truthful in relating his part in the criminal enterprise was both open and appropriate. It was open to his Honour to reject the applicant’s submission that he had demonstrated remorse and no error has been revealed.
Ground E: In the light of the wrong factual basis upon which the applicant was sentenced, the sentence is manifestly excessive.
The applicant was sentenced to a head sentence of 9 years and 3 months. He submitted that this sentence was manifestly excessive but acknowledges that a head sentence of 8 years would have been within the appropriate range based upon the factual findings advanced in the submissions.
His Honour found that the applicant played a central role in the criminal enterprise which had as its objective the distribution of a very substantial quantity of cocaine. This made a sentence comprised of a substantial gaol term inevitable. The offence carries a maximum penalty of life imprisonment. Even allowing for the fact that his Honour provided a 15% discount for the plea of guilty, the sentence which was imposed was, in my opinion, well within the appropriate range.
Ground F: The learned sentencing judge erred by finding that the applicant had not given assistance to the authorities and as a result thereof was not entitled to any discount for assistance.
The applicant had the onus of establishing an entitlement to have his sentence mitigated by reason of assistance to the authorities. The usefulness of the assistance is a significant consideration: R v Yenice (1994) 72 A Crim R 234.
Although the applicant offered to give evidence against the persons said to be involved in the enterprise he had initially distanced himself from the crime. He made a statement in which he insisted that he had acted under duress and, notwithstanding his knowledge of the cocaine, he believed that he was involved in a legitimate business venture. If, as the sentencing judge found, these assertions were untrue, his statement was otherewise confirmatory of what the police already knew. It provided no basis for laying charges or commencing extradition proceedings against the others who were involved in the enterprise and were residing overseas.
The applicant offered to assist the authorities by obtaining the cooperation of his brother who was involved in the enterprise. However, this offer was conditional upon immunity from prosecution being provided for his brother. The Commonwealth DPP refused the request for immunity and ultimately concluded that the suggested assistance not genuine.
In relation to the suggestion that the applicant may give evidence against the other participants in the criminal enterprise, the evidence does not indicate that there was any real prospect that they would be brought to Australia and tried for the offences. Accordingly, although the offer was made, in my opinion his Honour was correct to assess it as having no utility and accordingly it was not relevant to the ultimate sentencing exercise.
Ground G: The learned sentencing judge erred by not giving the applicant a discount for the early plea of guilty
The sentencing judge determined that a discount of 15% was appropriate for the applicant’s plea. The applicant contended that a greater discount should have been afforded and submitted that the plea was made at the earliest opportunity rather than, as his Honour determined, at an early opportunity.
The applicant was charged on 15 January 2003 and entered his plea in June 2003 after a full brief had been served on him. The applicant submitted that this was the earliest opportunity for him to enter a plea.
The applicant was first interviewed in relation to this offence in April 2001 and denied any responsibility until 17 January 2003. After he had made his plea he attempted to withdraw it in the District Court but that application was ultimately abandoned.
In these circumstances, in my opinion, although the applicant’s plea should be considered as early, he was not entitled to the maximum discount. In my opinion, a discount of 15% was within the appropriate range and no error is revealed: see R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383.
Ground H: the learned sentencing judge erred by failing to find special circumstances justifying a major variation from the ratio prescribed by s 44(2) of the Crimes (Sentencing Procedure) Act 1999 between the term of the sentence and the non-parole period.
The applicant was sentenced pursuant to the sentencing regime applicable to offences committed before 1 February 2003. Accordingly s 44(2) of the Crimes (Sentencing Procedure) Act 1999 required that the non-parole period be not less than three-quarters of the head sentence unless there was a finding of special circumstances. The sentencing judge found special circumstances in the fact that it was the first time that the applicant was sentenced to imprisonment and accordingly stated that the ratio should be varied.
The sentence which was imposed provided a non-parole period of 6 years and 9 months. If there had been no finding of special circumstances the non-parole period would have been 6 years and 11 months. Accordingly, the non-parole period imposed was 73% of the head sentence.
The applicant submitted that apart from the fact that this was his first time in prison the applicant’s prior good character, his age, and the progress which the applicant had made towards rehabilitation were matters which required a greater reduction in his non-parole period than the sentencing judge provided.
In response to this submission, the Crown emphasised that in written submissions made to the sentencing judge, the applicant’s counsel identified only the fact that it was the applicant’s first incarceration and the proffered assistance to authorities to justify a finding of special circumstances. The transcript confirms that this was the submission upon which his Honour was asked to sentence the applicant. In these circumstances, although the Crown accepts that the matters now raised may be relevant to special circumstances, because they were not advanced on this basis at the sentencing hearing, the Crown submitted they must have been taken into account when fixing the non-parole period and additional term. By asking this Court to again consider them and redetermine the appropriate non-parole would effectively be to “double dip.”
In my opinion the Crown’s submissions should be accepted. It must always be borne in mind that a finding of special circumstances and any reduction of the non-parole period is a discretionary matter. That decision will be informed by consideration of the non-parole period which adequately reflects the objective gravity of the offence (R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 [63]). Subjective circumstances may be relevant to the exercise of the discretion but they cannot be allowed to displace a non-parole period which is otherwise appropriate for the offence and the offender. Although in the present case his Honour provided only a modest variation of the standard non-parole period, I am not persuaded that his Honour’s discretion miscarried. This was a very serious offence and whatever be the applicant’s personal circumstances a non-parole period of six years and nine months could not be considered as beyond the appropriate range of sentence.
Ground I: the learned sentencing judge erred by failing to have proper regard to the applicant’s rehabilitation in setting the non-parole period.
Ground J: the learned sentencing judge erred by failing to take into account the 15 month delay between the applicant’s plea of guilty and the sentencing of the applicant.
The applicant dealt with these grounds together. Although there was a delay in sentencing the applicant this was not attributable to any action by the Crown. It was due, in part to the unavailability of the sentencing judge and more significantly, to the steps which were being taken to pursue the applicant’s offer of assistance to the authorities. The trial judge found that that offer was not genuine and was of no practical utility. The applicant conceded in this appeal that a large portion of the delay was the result of defence applications and not the fault of the Crown.
The applicant also emphasised that there was evidence indicating that he had taken advantage of the delay in the proceedings to achieve and demonstrate his rehabilitation or progress towards rehabilitation: In MRN v R (2006) NSWCCA 155 this Court accepted that where during their time in custody before sentence an offender has progressed towards rehabilitation it may be appropriate to ameliorate the offender’s sentence. The sentencing judge was mindful of the efforts which the applicant had made to rehabilitate himself and described them as impressive. In these circumstances it can be accepted that his Honour imposed a non-parole period which, notwithstanding the progress the applicant had made, his Honour considered to be appropriate. I do not consider that the sentence which his Honour imposed was otherwise than within the appropriate range, even having regard to that progress.
Other matters
In summary, I am not persuaded that the discretion of the sentencing judge has miscarried and although I would grant leave to appeal, I would, subject only to what appears below, dismiss the appeal.
There is one further matter. Apparently, the applicant served an additional nine days in custody, which, because of a period he was on bail was overlooked when his sentence was imposed. He is entitled to have those days taken into account. The appropriate adjustment can be made if the appeal is upheld and the applicant resentenced and a sentence which commences nine days earlier is imposed.
Orders
I propose the following orders:
1. Leave to appeal granted.
2. Appeal allowed and the sentence quashed.
3.Sentence the applicant to a non-parole period of six years and nine months commencing on 21 January 2004 and expiring on 20 October 2010 and a total term of 9 years and 3 months expiring on 20 April 2013. The applicant is first eligible for parole on 21 October 2010.
SIMPSON J: I agree with McClellan CJ at CL.
HALL J: I agree with McClellan CJ at CL.

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LAST UPDATED: 18 July 2007