Des Rosiers v R

[2006] NSWCCA 16

Reported Decision: 159 A Crim R 549

New South Wales

Court of Criminal Appeal

CITATION:	Des Rosiers v Regina [2006] NSWCCA 16 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	23 January 2006
JUDGMENT DATE:	10 February 2006
JUDGMENT OF:	McClellan CJ at CL at 1; Howie J at 2; Latham J at 3
DECISION:	Leave to appeal granted: Appeal allowed; Quash the sentences imposed by Black DCJ on 24 February 2005: For the offence of Supply a Large Commercial Quantity of LSD, and taking into account the offences on the Form 1 a non-parole period of 12 years to date from 20 April, 2004, expiring 19 April 2016, the balance of the term being 6 years, expiring 19 April 2022; For the offence of Supply an Indictable Quantity of MDMA a non-parole period of 5 years to date from 20 April 2004, expiring 19 April 2009, the balance of the term being 2 years 6 months, expiring 19 October 2011; For the offence of Supply a Traffickable Quantity of Cannabis, a non-parole period of 2 years, to date from 20 April 2004, expiring 19 April 2006, the balance of the term being 1 year, expiring 19 April 2007; For the offence of Supply LSD, a sentence of 2 years fixed term to date from 20 April 2004, expiring 19 April 2006. The applicant is eligible for release to parole on 20 April 2016.
CATCHWORDS:	Sentence appeal - Supply large commercial quantity of LSD - Imposition of sentence in excess of maximum penalty - Failure to comply with Pearce - Relevance of standard non-parole period.
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Cramp [2004] NSWCCA 264 R v Itaoui [2005] NSWCCA 415 R v Mills (2005) 154 A Crim R 40; [2005] NSWCCA 175 R v Way [2004] NSWCCA 131 Pearce v The Queen (1998) 194 CLR 610 R v O’Neill [2005] NSW CCA 353 R v Tadrosse [2005] NSWCCA 145 R v Felton [2002] NSWCCA 443; (2002) 135 A Crim R 328 R v Mangelsdorf & Ors (1995) 83 A Crim R 272 R v Nai Poon (2003) 56 NSWLR 284 R v Dang [2005] NSW CCA 430 R v Thomson and Houlton (2000) 49 NSWLR 383; 115 A Crim R 104 R v Johnstone [2004] NSWCCA 307 R v Holyoak (1995) 82 A Crim R 502 at 507 R v Crowley (1991) 55 A crim R 201 R v Hunter (1984) 36 SASR 101 R v Yates [1985] VR 41 R v Bazley (1993) 65 A Crim R 154 R v Cumberbatch (2004) 144 A Crim R 253 R v Gallagher (1991) 23 NSWLR 220 Markarian v The Queen [2005] HC 25 [37] R v So [2004] NSWCCA 362 R v Fakhreddine and Doudar [2004] NSWCCA 354 Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 No. 1 of 2000 (2002) 56 NSWLR 146 R v Pellew [2004] NSWCCA 434 at pars 36 and 37 R v Mills [2005] NSWCCA 175 at par 53
PARTIES:	Applicant - Henry Edgar Des Rosiers Crown - G Rowling
FILE NUMBER(S):	CCA 2005/1727
COUNSEL:	Applicant - P Byrne SC Crown - G Rowling
SOLICITORS:	Applicant - Wroth Hall, Hinterland Legal Crown - S Kavanagh
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/51/0140
LOWER COURT JUDICIAL OFFICER:	Black QC DCJ

2005/1727

McCLELLAN CJ at CL
HOWIE J
LATHAM J

10 February 2006

HENRY EDGAR DES ROSIERS v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Latham J

2 HOWIE J: I agree with Latham J

3 LATHAM J: The applicant seeks leave to appeal against the sentences imposed by Black QC DCJ at Lismore District Court on 24 February 2005. The applicant pleaded guilty at Lismore Local Court to four charges in the following terms:

(i) Supply a large commercial quantity of LSD pursuant to
s 25(2) of the Drug Misuse and Trafficking Act 1985 (DMTA)


(ii) Supply an indictable quantity of MDMA; s 25(1) DMTA

(iii) Supply a traffickable quantity of cannabis; s 25(1) DMTA

(iv) Supply a prohibited drug, namely LSD; s 25(1) DMTA

4 Four further charges, being possess LSD, cultivate cannabis, goods in custody and possess a prohibited drug, were the subject of a Form 1 for the purposes of sentencing on the supply large commercial quantity charge.

5 His Honour imposed a sentence of 18 years’ imprisonment in respect of the supply large commercial quantity charge, specifying a non-parole period of 12 years. A sentence of 12 years’ imprisonment with a non-parole period of 8 years was imposed on each of the charges (ii) and (iii). On the supply LSD charge, a fixed term of 2 years’ imprisonment was imposed. All sentences were to be served concurrently, commencing on 20 April 2004, the date upon which the applicant was arrested. It should be noted at the outset that his Honour was required to sentence according to s 44 of the Crimes (Sentencing Procedure) Act 1999 as it stood after 1 February 2003, that is, by setting a non-parole period first, then determining the balance of the term in respect of each offence. Whilst this was not a matter raised on the appeal, it would appear that his Honour has committed a technical error, identified as such in R v Cramp [2004] NSWCCA 264, in that the applicant was sentenced according to the pre-existing s 44; see also R v Itaoui [2005] NSWCCA 415 and the cases cited therein by Howie J at par 17. This of itself does not justify interference by this Court, but it is relevant to the question of re-sentencing, in the light of what follows.

6 The charges arose out of a search conducted on the applicant’s premises on the north coast of New South Wales. The statement of facts tendered on sentence (Exhibit B) was summarised by his Honour in the briefest of terms, namely that “as a result of information [the police] had acquired, [they] attended upon the home or the premises occupied by the offender and in there they found a substantial quantity of pieces of paper impregnated, or to be impregnated with LSD. They found that some of them already had been impregnated. They found a quantity of the drug known as MDMA and they found an appreciable quantity of cannabis.” (ROS page 2). The information in fact acquired by police included the product of a lawfully obtained telephone intercept linking the applicant with a person known as Phillip Martin. It appeared from the conversations between the applicant and Mr Martin that Mr Martin was preparing blotting paper under the instructions of the applicant. The applicant had requested 50,000 to 100,000 items and had indicated a need to send money to Thailand. Federal Police ascertained that an associate of the applicant travelled to Thailand on 9 March 2004 returning on 14 March 2004.

7 Following the execution of the search warrant on the applicant’s premises on 20 April 2004, the following items were seized:

(a) 19 vials of LSD in liquid form, being a total of 196 grams (98 times the large commercial quantity)

(b) 101 sheets of blotting paper containing 1,000 heart-shaped logos printed on each sheet


(c) 90.6 grams of MDMA (72 times the indictable quantity)

(d) 724.4 grams of dried cannabis leaf (more than twice the traffickable quantity)

(e) Three cannabis plants (Form 1 offence)

(f) Ten pieces of blotting paper, commonly referred to as tabs, impregnated with LSD (Form 1 offence)
(g) Six white capsules containing a prohibited drug (Nexus) (Form 1 offence)

(h) $2,340 in cash (Form 1 offence)

8 The applicant admitted to the possession of these items. Later that same day, members of the Federal Police executed a search warrant at the residence of Mr Martin. During the execution of that warrant, 101 sheets of blotting paper with 1,000 heart-shaped logos printed on each sheet, identical to those seized from the applicant’s premises, and ten sheets of blotting paper with various logos printed on each (1,000 logos per sheet) were also seized.

9 In the course of an interview between Federal Police and Mr Martin, the latter claimed that the sheets of blotting paper containing the logos had been produced on the instructions of the applicant, by way of payment of a debt of $3,500 owed by Mr Martin to the applicant. The relevance of this information lies in the applicant’s purported explanation for his involvement in the offences, provided to a Probation and Parole Officer for the purposes of a report dated 30 November 2004 (Exhibit E). The applicant maintained that he owed a favour to a long-time friend whose partner asked for the applicant’s assistance in the storage and transportation of the LSD. An explanation in the same terms was provided to Ms Seidler, Clinical and Forensic Psychologist, for the purposes of her report dated 19 November 2004. Clearly, the applicant’s account was not consistent with the content of Exhibit B. His Honour noted that there was no evidence to support the applicant’s assertions in this regard.

10 The Australian Federal Police estimated that the liquid LSD was capable of producing 82,000 individual doses or tabs, based on a dosage of 50 micrograms of LSD per tab. There was some discussion in the course of the sentencing proceedings as to the reliability of that estimate, in the light of the possibility that individual dosages may in fact contain 100 micrograms of LSD per tab. The quantity of MDMA was estimated to produce something between 500 and 1500 individual doses, depending upon the purity of the ultimate product. Based on the estimates of the number of doses available from the liquid LSD and MDMA and from the cannabis, the Federal Police estimated a total street value of all of the drugs seized from the applicant’s premises at between $837,000 and $2,581,000 approximately. The LSD alone was said to have a street value of between $820,000 and $2,460,000. However, his Honour ultimately arrived at the conclusion that a more sound estimate of the value of the LSD was between $200,000 and $1,500,000.

11 The supply of a small quantity of LSD charge arose out of the supply by the applicant to a 22 year old female acquaintance of one paper tab impregnated with LSD, on 7 February 2004.

12 The grounds of appeal filed on behalf of the applicant assert four specific errors on the part of the sentencing Judge. In addition, it is argued that the sentence imposed on the applicant was, in all the circumstances, manifestly excessive and that a lesser sentence was warranted in law. Before addressing the grounds of appeal, it is necessary to make some preliminary observations of the remarks on sentence, which were unfortunately attended by patent error.

13 At the beginning of the remarks on sentence, his Honour referred to the maximum penalty in respect of the second, third and fourth charges as 18 years’ imprisonment, apparently in reliance upon the written Crown Submissions which became Exhibit D in the proceedings. Regrettably, the error was not corrected by the applicant’s counsel. The applicable maximum penalties are 15 years’ imprisonment in respect of charge (ii), 10 years’ imprisonment in respect of charge (iii), and 15 years in respect of charge (iv) when prosecuted on indictment. It may be seen that a sentence in excess of the maximum penalty was imposed in respect of charge (iii). The sentence imposed in respect of charge (ii) represents 80 percent of the statutory maximum; however, taking into account the erroneous maximum penalty against which his Honour assessed the gravity of the offence, it would appear that his Honour intended to impose a head sentence representing two-thirds of the maximum penalty.

14 His Honour next referred to the standard non-parole period (15 years) prescribed for the offence by s 54 of the Crimes (Sentencing Procedure) Act 1999 and to this Court’s decision in R v Way [2004] NSWCCA 131. Apart from noting that it was “not to be regarded as either a starting post or a finishing post or anything apart from that”, there was no further discussion of the relevance of the standard non-parole period to the sentencing exercise being undertaken. The Crown’s written submissions on sentence canvassed the authorities relating to Way and sought to place the offence “well beyond the middle range of objective seriousness”, having regard to the quantity of the drug and its commercial value. In these circumstances, his Honour erred in not identifying a basis for departing from the standard non-parole period. Nowhere in the remarks on sentence does his Honour assess the objective gravity of the offence in terms of the spectrum of offences of this type, nor is there any attempt to meet the requirements of s 54B(4) of the Crimes (Sentencing Procedure) Act; R v Mills (2005) 154 A Crim R 40; [2005] NSWCCA 175.

15 The applicant’s counsel in this Court conceded that the supply large commercial quantity offence lies in the upper range of objective gravity, a concession properly made in my view when one has regard to the quantity of LSD and the evidence pointing to the large scale production of LSD for profit.

16 The remainder of the remarks on sentence deal with the applicant’s co-operation with the investigating police, his age and personal circumstances, the pleas of guilty, the importance of general deterrence, the applicant’s prior good character and the finding of special circumstances. His Honour then passes to a determination of “the minimum time that must be spent in custody in respect of these matters.” His Honour acknowledges that he must take into account the principles in Pearce v The Queen (1998) 194 CLR 610. He also acknowledges that “these are separate offences and could, if appropriate, be dealt with by separate cumulative sentences”. There follows a decision to impose wholly concurrent sentences, absent any explanation for that course, and a reference to the principle of totality “in arriving at the sentences I regard as appropriate”. The minimum period of custody is then fixed at 12 years. Despite his Honour’s earlier reference to the minimum custodial term for the criminality represented by the various offences, a non-parole period of 12 years is imposed for the supply large commercial quantity offence, and all remaining sentences are subsumed within that sentence.

17 One can readily appreciate the difficulty inherent in sentencing the applicant for a number of offences, one of which overshadowed the others to such an extent that any accumulation would result in an overall sentence of considerable magnitude. That said, it was nevertheless incumbent on his Honour to determine individual sentences for each charge commensurate with their individual objective gravity, and then to consider questions of concurrency and accumulation. Disregarding for present purposes the error in relation to the maximum penalties applicable to charges (ii) and (iii), it cannot be maintained that the same sentence was warranted for each of those offences, given that one involved an indictable quantity and the other involved a trafficable quantity. The latter was capable of summary prosecution, whereas the former was not. For these reasons, I am of the view that his Honour did not comply with Pearce, despite his stated intention to have regard to it.

18 I return to the grounds of appeal. Not surprisingly, the applicant relies upon the error in the imposition of sentences according to the wrong maximum penalties for charges (ii) (iii) and (iv).

19 The Crown acknowledges, as indeed it must, that this error has been demonstrated. However, the Crown submits that it has not been shown that in the circumstances of this case, a lesser sentence was warranted in law. That submission is made regarding the sentence imposed for the offence of supply large commercial quantity of LSD, whilst at the same time acknowledging that his Honour failed to comply with the requirements of Pearce v The Queen (1998) 194 CLR 610.

20 It is not always the case that a sentence imposed by reference to a wrong maximum penalty necessarily requires the Court to re-sentence; see R v O’Neill [2005] NSW CCA 353; R v Tadrosse [2005] NSWCCA 145. However, it is necessary, in my view, to re-sentence the applicant in the circumstances of this case for the very reason identified by the Crown, that is the failure to abide by the requirements of sentencing in accordance with Pearce, and because of the imposition of a sentence in excess of the maximum penalty prescribed by law. The same approach was taken by this Court in R v Felton [2002] NSWCCA 443: (2002) 135 A Crim R 328 (another example of sentence according to the wrong maximum penalty and failure to follow Pearce) wherein Howie J said:

Judges of the District Court must understand that the principle in Pearce is considered by this Court to be fundamental to the proper exercise of the sentencing discretion: See R v AEM (2002) NSW CCA 58. A failure to comply with it will almost inevitably mean that this Court will be required to allow an appeal and vary the sentence.”

21 Given the necessity to intervene and re-sentence the remaining submissions on behalf of the applicant may be briefly dealt with. The applicant contended that his Honour erred in failing to have regard to an apparent concession by the Crown on the sentencing proceedings that the drug LSD should be treated as a drug in the mid-range of seriousness. Counsel relied upon the South Australian decision of R v Mangelsdorf & Ors (1995) 83 A Crim R 272 in support of the proposition that LSD should be treated as a less serious drug than heroin, but more serious than cannabis. Reliance was also placed on a report prepared by Professor Starmer dated 16 February 2005, which was Exhibit 1 before his Honour. Professor Starmer expressed the view that LSD had a “wide margin of safety and no human fatality due to direct toxicity of the drug has been reported”.

22 In the course of his remarks, his Honour said:

There has been some reference in argument as to whether LSD is either more harmful or less harmful than other forms of drugs. I take the view that that is not a productive exercise. They are illegal and that is that.

23 The submissions on this ground disregard the statements of this Court in R v Nai Poon (2003) 56 NSWLR 284 and R v Dang [2005] NSW CCA 430. In the course of the latter decision, Howie J said:

This Court no longer approaches the evaluation of the seriousness of a particular supply offence by distinguishing between different types of drugs according to the perceived dangerousness of the drug being supplied. Rather the Court has stressed that the appropriate consideration is the relevant statutory regime and the maximum penalty prescribed for the offence: R v Nai Poon (2003) 56 NSWLR 284: R v Neale (2004) 138 A Crim R 493.

24 His Honour was, therefore, correct to disregard the submissions made before him as to the relative danger attending the consumption of LSD as opposed to another form of prohibited drug.

25 The applicant next complains that his Honour failed to have regard to the absence of relevant aggravating factors and the presence of relevant mitigating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999. It is not contended that the failure to refer to s 21A, in terms of itself, establishes error, rather that by not specifically addressing the matters enumerated under s 21A, his Honour was led to a generally less favourable assessment of the offences than was in fact the case.

26 Of the mitigating factors in s 21A(3), his Honour did refer to the applicant’s prior good character, absence of criminal convictions and the pleas of guilty ((e), (f) and (k)). Reference was also made to a submission on the finding of special circumstances, namely that the applicant’s prospects of rehabilitation were good (h). It appears to me that these factors were all that could be usefully called in aid of the applicant. Counsel in this Court sought to rely on (b), that is, the absence of planning or organisation, but the applicant’s association with Mr Martin and the indications of large-scale production of LSD tabs tended, in my view, to establish planning and organisation. In short, his Honour did not fail to take account of the relevant mitigating factors. There is no substance to this ground of appeal.

27 The applicant further complains of the failure by his Honour to nominate a discount for the pleas of guilty. On that subject, his Honour said:-

As far as the plea of guilty is concerned, I have taken it into account. I do not itemise the discount I have given but I have given a discount in arriving at the sentence I have had to arrive at, but I do not quantify it.

28 The applicant pleaded guilty to all charges at the first available opportunity. That fact does not of itself require the quantification of a discount, or fetter the judicial discretion in that regard, but his Honour gives no reasons for departing from the upper end of the range identified in R v Thomson and Houlton (2000) 49 NSWLR 383; 115 A Crim R 104; (see R v Johnstone NSWCCA 307) assuming he arrived at a discount of less than 25 percent. A refusal to quantify the discount leaves the applicant and this Court in the realm of speculation as to the extent of the discount his Honour had in mind. The applicant’s submission is that his Honour’s starting point was a head sentence of 24 years and that manifest excessiveness is thereby demonstrated. I return to this aspect of the matter below.

29 The applicant’s primary ground of appeal is that the sentence imposed on the applicant was manifestly excessive, having regard to the applicant’s age. Senior counsel submitted that his Honour did not take sufficient account of the applicant’s age (54 at the time of sentence) in determining the sentence ultimately to be imposed. His Honour did, in fact, refer to the applicant’s age, in terms which suggested that it was at the forefront of his Honour’s consideration of the factors affecting sentence. Following a reference to the importance of general deterrence, his Honour said:-

The other counter-balancing factor as I see it is the age of the offender, and that, I do make it clear, has had an impact on me to reduce overall what the sentence I would otherwise have regarded as appropriate because of his age, and in any event when he is in due course released he will be considerably older than he is now. So that accounts why the overall sentence that I have reached here is not perhaps as high as might be warranted, it is because of his age.

His Honour also took the applicant’s age into account in determining that special circumstances existed.

30 The applicant’s counsel acknowledges the force of Allen J’s pronouncement in R v Holyoak (1995) 82 A Crim R 502 at 507 that “it simply is not the law that it never can be appropriate to impose a minimum term which will have the effect, because of the advanced age of the offender, that he well may spend the whole of his remaining life in custody”. However, the submissions contend that it is only appropriate to impose a lengthy minimum term which potentially has that effect where the nature of the criminal conduct is so serious as to justify a conclusion that the offender has forfeited his or her right to live in the general community. No authority was cited in support of this proposition. Reference was made to R v Crowley (1991) 55 A Crim R 201, wherein the Victorian Court of Criminal Appeal dismissed an appeal against an effective sentence of 36 years, including a non-parole period of 24 years, imposed on a 41 year old offender in respect of two murder offences committed six months apart. Whilst accepting that a court may be reluctant to impose a sentence which destroys any reasonable expectation of a useful life after release, the Court went on to observe that it does not follow that every such sentence must on that account be held to be manifestly excessive. Where the offender’s conduct in the commission of the offence served to forfeit the right to any expectation of a useful life after release, the sentence, no matter how “crushing” in that sense, would be within the bounds of the sentencing discretion (at 206). It is apparent that Crowley was not a decision which turned on the age of the offender. There is no basis in principle for confining Allen J’s statement in Holyoak in the manner contended for by the applicant.

31 In any event, this applicant was not of an advanced age in the sense considered by the authorities which bear on this question. In R v Hunter (1984) 36 SASR 101, the offender was 74 years of age. In R v Yates [1985] VR 41 the offender was 68 years of age. In R v Bazley (1993) 65 A Crim R 154, the offender was 67 years of age. In R v Holyoak, the offender was 75 years of age at the time of sentence. In R v Cumberbatch (2004) 144 A Crim R 253, the offender was 72 years of age. Furthermore, his Honour was acutely aware of the significance of the applicant’s age in the light of the non-parole period which his Honour was minded to impose. The applicant’s release at age 66 did not, in my view, destroy all prospects of a useful life thereafter, particularly given the applicant’s good health and his capacity to earn an income, however modest, from his artistic works.

32 The applicant’s submission is that his Honour should have arrived at a “notionally appropriate” sentence, then had regard to the applicant’s age at the expiry of that sentence. The next step would result in the modification of that “notionally appropriate” sentence to account for the limited period of conditional liberty inherent in such a sentence. Then, and only then, according to the submission, should the discount for the plea of guilty be applied. Such an approach, in my view, places undue emphasis on the subjective factor of an offender’s age, at the expense of other objective and subjective factors. There can be no doubt that the age of a given offender is a relevant consideration, but it is one of many factors which contribute to the “difficult balancing exercise which the judge must perform”. R v Gallagher (1991) 23 NSWLR 220; Markarian v The Queen [2005] HC 25 [37].

33 Was the sentence imposed for the supply large commercial quantity offence manifestly excessive? Having regard to the small number of sentences (16) imposed for supply large commercial quantity offences committed after 1 February 2003, (heroin, amphetamine, cocaine and MDMA) following a plea of guilty, it would appear that the sentence imposed on the applicant for this offence exceeds all others. The sentences imposed in respect of those 16 cases range between 10 and 16 years. The applicant’s sentence is the only recorded sentence for supply large commercial quantity of LSD. Moreover, there has been no offender in the applicant’s age bracket (over 50) sentenced for any supply offence relating to this quantity.

34 The fact that the applicant’s sentence surpasses other sentences imposed for the like offence does not justify the conclusion that it is manifestly excessive. The use of the Judicial Commission statistics has limitations; ultimately, an appropriate sentence must be imposed having regard to the features of the particular case: R v So [2004] NSWCCA 362; R v Fakhreddine and Doudar [2004] NSWCCA 354. The features of the applicant’s case were not overlooked by his Honour. There was very little mitigation beyond the applicant’s prior good character, absence of criminal convictions, prospects of rehabilitation and the plea of guilty. The applicant did not give evidence, although a handwritten letter was tendered expressing the applicant’s remorse. In the light of the attempt by the applicant to characterise his offending as a misguided debt of gratitude to a friend and the untested assertion of contrition, I would place little weight on the contents of the applicant’s letter. The applicant’s prior good character and absence of a criminal record could likewise only serve to mitigate the objective gravity of the offence to a limited extent.

35 As noted at par 15, there can be no doubt that the supply large commercial quantity offence lay at least at, if not above, the mid-range of objective gravity. The applicant had the means to distribute at least 40,000 individual doses or tabs of LSD. The absence of any direct evidence of large-scale supply or the recruitment of persons to effect that supply is not to the point. The applicant was clearly in possession for supply to others. The drug was capable of realising a considerable amount of money, even accepting his Honour’s somewhat conservative estimate. In addition, the offences on the Form 1 should not be overlooked. There must be some increase in sentence, above that otherwise appropriate to the circumstances of the primary offence; Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 No. 1 of 2000 (2002) 56 NSWLR 146.

36 For these reasons, I would not regard the sentence as manifestly excessive. I acknowledge the logical result of this finding, that is, that a starting point of 24 years is adopted, before the application of the full extent of the discount for the plea of guilty. I also acknowledge that such a sentence is heavy indeed. However, this was an offence which arguably called for the imposition of the standard non-parole period. His Honour was alerted to the Crown’s submission and could not have failed to appreciate the relevance of that benchmark, even if (as I am inclined to think is the position) he determined to depart from the standard non-parole period because of the plea of guilty. Where the legislature has fixed the standard non-parole period at a level significantly above that imposed for offences committed before 1 February 2003, it is inevitable that sentences for these offences committed after 1 February 2003 will increase, despite no apparent legislative intention to that effect; R v Pellew [2004] NSWCCA 434 at pars 36 and 37; R v Mills [2005] NSWCCA 175 at par 53.

37 It remains to re-sentence the applicant. The Court received an affidavit annexing a letter from the applicant outlining his custodial conditions. He describes his environment as physically and psychologically violent, owing to his incarceration with a number of prisoners serving lengthy sentences for offences of violence, including four “lifers”. The applicant also complains of the absence of vocational courses, educational opportunities, counsellors and caseworkers. These matters are not in themselves sufficient to warrant a review of my finding in respect of the supply large commercial quantity offence, nor do they affect the assessment of the gravity of the remaining offences.

38 Turning to the offences (ii) and (iii), the former was objectively serious in its own right, given the quantity of MDMA at a purity of between 68% and 73%. Taking into account the subjective circumstances of the applicant referred to in par 26 above, and paying due regard to the principle of general deterrence, I consider a sentence of 10 years’ imprisonment appropriate to the circumstances of that offence. Following the application of the discount of 25 percent for the plea of guilty, I would impose a non-parole period of 5 years, the balance of the term being 2 years 6 months. In respect of offence (iii), I consider a sentence of 4 years appropriate to the circumstances of that offence. Applying a discount of 25 percent for the plea of guilty, I would impose a non-parole period of 2 years, the balance of the term being one year. I have found special circumstances for the reasons given by Black QC DCJ. Offence (iv), involving as it did the supply of a single tab of LSD, warrants a sentence of 2 years as a fixed term.

39 In my view, the issues of concurrency, accumulation and totality are to be resolved in this case by recognising that the gravity of the primary offence, and the sentence required to reflect that gravity, are also capable of reflecting the totality of the applicant’s criminality. The remaining offences pale into relative insignificance against the criminality inherent in the primary offence. The principles of denunciation and retribution are of such prominence in the formulation of the sentence for the primary offence that any lesser sentence, merely to allow for a measure of accumulation, would be inappropriate. I would therefore make all sentences concurrent.

40 The orders I propose are:-

i) Leave to appeal granted; Appeal allowed

ii) Quash the sentences imposed by Black QC DCJ on 24 February 2005.

iii) For the offence of Supply a Large Commercial Quantity of LSD, and taking into account the offences on the Form 1, I specify a non-parole period of 12 years to date from 20 April, 2004, expiring 19 April 2016, the balance of the term being 6 years, expiring 19 April 2022.

iv) For the offence of Supply an Indictable Quantity of MDMA, I specify a non-parole period of 5 years, to date from 20 April 2004, expiring 19 April 2009, the balance of the term being 2 years 6 months, expiring 19 October 2011.

v) For the offence of Supply a Traffickable Quantity of Cannabis, I specify a non-parole period of 2 years, to date from 20 April 2004, expiring 19 April 2006, the balance of the term being 1 year, expiring 19 April 2007.

vi) For the offence of Supply LSD, a sentence of 2 years fixed term is imposed, to date from 20 April 2004, expiring 19 April 2006.

The applicant is eligible for release to parole on 20 April 2016.

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28/03/2006 - Correction cover sheet Citation "Des Rosiers" NOT "De Rosiers" - Paragraph(s) cover sheeet