EF v R

[2015] NSWCCA 36

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

EF v R [2015] NSWCCA 36

Hearing dates:

13 March 2015

Date of orders:

13 March 2015

Decision date:

20 March 2015

Before:

Macfarlan JA at [1]; Simpson J at [2]; Schmidt J at [17]

Decision:

1.Allow leave to appeal against sentence.

2.Allow the appeal.

3.Resentence the applicant to imprisonment for a period of 1 year, 3 months commencing on 8 April 2014.

4.Suspend the execution of the sentence for whole of the term of the sentence.

5.Direct that the applicant be released from custody on condition that he enter into a good behaviour bond for the term of the sentence.

Catchwords:

CRIMINAL LAW – leave to appeal against sentence – whether sentence was manifestly excessive – intensive correctional order – whether intensive correctional order ought to have been considered – whether exceptional circumstances – leave to appeal granted – appeal allowed – applicant resentenced – bond

Legislation Cited:

Crimes Act 1900 (NSW)
Crimes (Administration of Sentences) Regulation 2014 (NSW)
Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 5(1),s 7
Crimes (Sentencing Procedure) Regulation 2010
Drugs (Misuse and Trafficking) Act 1985 (NSW)

Cases Cited:

Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
House v The King [1936] HCA 40; 55 CLR 499
Lambert v R [2015] NSWCCA 22
R v Cacciola (1988) 104 A Crim R 178
R v Cartwright (1989) 17 NSWLR 243
R v Clark (NSWCCA, 15 March 1990, unreported)
R v Gu [2006] NSWCCA 104
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
R v Munday (1981) 2 NSWLR 177
R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225; (2012) 82 NSWLR 60
SZ v R [2007] NSWCCA 19

Category:

Principal judgment

Parties:

EF (Applicant)
Regina (Crown)

Representation:

Counsel:
Ms R Rodger (Applicant)
N Adams (Crown)

Solicitors:
J. Pheils – Solicitor for Public Prosecutions (Crown)

File Number(s):

2013/210811

Publication restriction:

Pursuant to s 7 and s 8(1)(c) of the Court Suppression and Non-publication Orders Act 2010 (NSW), the Court orders the suppression of information tending to reveal the identity of the appellant.

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal Law

Date of Decision:

8 April 2014

Before:

Blanch CJDC

File Number(s):

2013/210811

Judgment

1. MACFARLAN JA: The reasons given by Schmidt J, and the supplementary remarks of Simpson J, reflect the substance of my reasons for joining in the orders made by the Court on 13 March 2015.

2. SIMPSON J: I joined in the orders made on 13 March 2015 substantially for the reasons given by Schmidt J. I wish only to add briefly to those reasons.

3. Although the applicant was legally represented in the District Court, he initially was unrepresented in this Court. (At the instigation of this Court, a grant of legal aid was made and counsel who had previously advised him appeared at very short notice and was of considerable assistance to the Court.)

4. The only ground of appeal notified (whether by the appellant or on his behalf is not clear) was expressed as “sentence manifestly excessive”.

5. The ground so expressed is an assertion of error of one - the last - of the categories of error identified in House v The King [1936] HCA 40; 55 CLR 499. It is, as Schmidt J has pointed out, an assertion that the sentence is “unreasonable or plainly unjust”.

6. That a sentence is unreasonable or plainly unjust is not the only basis on which a sentence may be found to represent an erroneous exercise of the sentencing discretion. The judgment in House envisages error of a number of kinds:

• that the judge acted upon a wrong principle;

• that the judge allowed extraneous or irrelevant matters to guide or affect him or her;

• that the judge mistook the facts;

• that the judge failed to take into account some material consideration;

• finally, that the judge imposed a sentence that was unreasonable or plainly unjust (for reasons that may not be able to discerned).

7. In my opinion, it has not been shown that a sentence of 2 years with a non-parole period of 6 months in respect of a course of drug dealing was unreasonable or plainly unjust. The error demonstrated was not of the last kind mentioned in House.

8. The error, as pointed out by Schmidt J, fell into the fourth House category. It was failure to take into account a material consideration. The material consideration was the availability of sentencing options alternative to full-time custody.

9. In this respect, his Honour was not adequately assisted by the applicant’s legal representative. It seems to have been assumed by all concerned that, because the offence was of drug dealing “to a substantial degree”, non-custodial options were not available.

10. I was a party to the decision of this Court in R v Gu [2006] NSWCCA 104, in which Howie J reviewed a number of decisions to the effect that:

“27 … unless there are truly exceptional circumstances present, a full-time custodial sentence ought to be imposed wherever the offender has been substantially involved in the supply of prohibited drugs …”

Decisions to that effect are legion; one of those is R v Clark (NSWCCA, 15 March 1990, unreported). Nothing in any of those decisions obviates the need for sentencing judges to consider the circumstances of each case individually, including the availability (in a practical sense) of alternatives to full-time custody. The starting point of this exercise is s 5(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”), which forbids a court sentencing an offender to impose a term of imprisonment unless satisfied, after consideration of all possible alternatives, that no penalty other than imprisonment is appropriate. See the discussion in Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [46]-[57] (specifically concerning sentencing of federal offences, but equally applicable to sentencing under the Sentencing Procedure Act).

11. In R v Cacciola (1988) 104 A Crim R 178, accepting that the proposition that drug dealing “to a substantial degree” calls for the imposition of a sentence of imprisonment, is a “policy” or even “a continuing rule”, Priestley JA said:

“… the fact remains that what has been said in Clarke [sic] is something that this Court continues to consider is the proper approach to sentencing, always bearing in mind the need to consider every convicted person’s case on its own merits and in its own circumstances.” (italics added)

A little later, his Honour said:

“Speaking of policy I reiterate what I mentioned before that the sentencing rule which emerges from Clarke [sic] and later cases is a continuing rule, a rule in the sense that it must be taken into account and given serious consideration by sentencing judges on every occasion when there is a case of this kind, although the sentencing judge must, in the end, always exercise his or her own discretion, but the sentencing policy or rule is not to be neglected and put out of sight, nor should there be excessively liberal interpretation of the phrase ‘exceptional circumstances’.” (italics added)

12. I further observe that, at the time these statements of “policy” or “rule” were made, the option of an intensive correction order did not exist. That was introduced into the Sentencing Procedure Act with operation from 1 October 2010: Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 (NSW).

13. It is not only sentencing judges who must give consideration, not only to the “policy” or “rule”, but also the legal representatives of persons charged with criminal offences. Generally speaking, offenders are bound by the conduct of their proceedings by their counsel: see, for example, Lambert v R [2015] NSWCCA 22. Failure to consider, and bring to the attention of the sentencing judge, an optional alternative to full-time imprisonment may be the cause of injustice.

14. The transcript of the sentencing proceeding shows that no reference was made to any alternative to a sentence of imprisonment, including an order that a sentence be served in the community by way of an intensive correction order: see Sentencing Procedure Act, s 7.

15. The Notice of Application for leave to appeal filed for the applicant did not plead error of the kind that has been found to have been established. Having regard to his unrepresented status, I would accept a notional amendment to the Notice.

16. For these reasons I joined in the orders made.

17. SCHMIDT J: On 8 April 2014, Blanch CJDC sentenced EF to a total term of imprisonment of 2 years with a non-parole period of 6 months, for one count of supplying methylamphetamine, contrary to s 25(1) of the Drug Misuse and Trafficking Act1985 (NSW) and one count of dealing with the proceeds of crime ($1,074.10) under s 193B(2) of the Crimes Act1900 (NSW), to which he had entered pleas of guilty. He served his sentence until 4 June, when he was granted appeal bail.

18. EF sought leave to appeal his sentence, on the ground that it was manifestly excessive. He was unrepresented until the hearing of the appeal. In its written submissions the Crown had objected to some of his submissions as being, in truth, evidence as to matters irrelevant to the appeal. At the hearing documents which raised similar matters were tendered without objection and the Crown led evidence as to EF’s post sentencing assistance. All that material was accepted as being relevant on his resentencing.

19. Having heard the parties, leave to appeal was granted, the appeal upheld and EF was resentenced, with reasons for the conclusions reached to be given.

The facts

20. The facts were agreed at trial. EF was arrested on 11 July 2013, when stopped by police for a random breath test. On search, cash and a plastic bag containing orange coloured crystals were found, as well as seven small resealable plastic deal bags which also contained traces of crystals. On examination the bags were found to contain methylamphetamine totalling 8.7 grams at 15% purity.

21. EF gave short evidence on sentencing. He was aged 36 at the time of the arrest and 37 on sentence. He had been the manager of a cotton farm, where he lived. He began using methylamphetamine to keep awake while working 18 hour days. The property burnt down and he and his partner lost all of their possessions and he ended up out of work, when the owners engaged contract workers for whom they did not have to provide accommodation. He later received an insurance payout.

22. EF was selling ice for $100 a gram and methylamphetamine for $300 a gram. He gave evidence that he had bought a 28.3 gram block of methylamphetamine for $3,500 and that he had mainly been selling drugs to support his habit and so that he and his partner could eat. He also described the help his partner had required during her pregnancy, while she had been unwell. He had recently obtained employment with an Aboriginal Corporation.

The sentencing remarks

23. Blanch CJDC noted that:

“Prison sentences are almost inevitable when people deal in drugs for profit and that is frankly acknowledged by Mr Curtis realistically in this case. But the material produced on behalf of the offender is compelling and, in my view, justifies imposing a prison sentence at the low end of the scale.”

24. This conclusion rested on findings that EF’s offending behaviour had significantly related to his own drug use and that he had a prior criminal record. He had a juvenile record of offending which had been dealt with by way of bonds, an adult record for minor matters and driving matters, as well as a suspended sentence for assault in 2002. There were no drug offences before 2013. This was to be his first custodial sentence.

25. His Honour accepted EF’s’ account that he had worked long hours, had begun taking amphetamines, became addicted and then progressed to dealing in drugs. There had also been a marriage breakdown. He had pursued Family Court proceedings to obtain access to his children. He was then in a new relationship and had had another child the day before the sentencing hearing. His partner was present in Court to support him. He was then still in employment, having been granted bail.

26. His Honour noted a psychiatric report which revealed EF had been diagnosed with ADHD, for which he was receiving treatment. There was also in evidence a letter from EF’s partner’s treating doctor, explaining her two highly complicated pregnancies, while under his care.

27. His Honour concluded that EF had “really quite good prospects for rehabilitation”. He was working and had settled down with a supportive partner. He found special circumstances, given that this would be EF’s first time in gaol; his significant drug habit; and his need for assistance on release.

28. His Honour then sentenced EF to concurrent terms totalling two years, with non-parole periods of 6 months for each offence, commencing from 7 April 2014, the following day, given that he had spent only one day in custody after his arrest.

The parties’ cases

29. EF’s case was that he had been advised by his solicitor to seek to have his sentence dealt with by way of an intensive correction order and had been told that this had not been accepted by the Court, but there was no record of such an application having been made or considered. Nor was there any reference to his co-operation with police on arrest, his admissions and the effect of the entry of his plea.

30. The case on appeal was that his Honour erred in not considering an intensive correction order, s 5(1) of the Crimes (Sentencing Procedure) Act requiring that a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

31. EF’s case was that his sentencing hearing had been delayed while a DAL certificate was obtained. He had in that time worked hard at his rehabilitation. After years of infertility, he and his partner were expecting their first child. That had given him the drive to seek employment with the local Aboriginal Corporation.

32. EF said that he had complied with all conditions of his bail, including curfew, for over 12 months, as well as the daily reporting required while on appeal bail. He also attended church and counselling to help him with his drug problems.

33. EF said that while waiting for hearing of his appeal bail application, his prematurely born son had become ill and had required intubation and transfer to the Randwick Children’s Hospital. He had since had another hospital admission for respiratory distress and was very likely to experience similar episodes in the next 12 months.

34. EF’s partner, who had a very complicated medical history had just discovered that she was pregnant. This was unplanned and given her history of repeated hospitalisation when pregnant, meant that there would be no one to care for their son, if she became ill. They leased their home from the local Aboriginal Corporation, which EF feared may not be available to them, if he has to serve his custodial sentence, because his partner is not Aboriginal. She had been given notice to vacate before he was released on appeal bail.

35. The Crown’s case was that there was here no error in the conclusion reached on sentence that a full-time custodial sentence was required in EF’s case. The sentence imposed fell at the low end of the scale.

36. EF’s admissions showed, however, that his drug offence had not been a one-off incident of supply, but that he had been dealing to a “substantial degree”. The two year term imposed reflected the view which his Honour reached as to EF’s circumstances, but they were not established to have been exceptional. Given the benefit which EF received from the finding of special circumstances, it could not be concluded that the sentence was manifestly excessive.

37. The Crown accepted that no reference was made in the sentencing remarks for any discount for EF’s plea. There was no issue that, on the facts, a discount of 25% was warranted, but it was submitted to have been unlikely that Blanch CJDC had overlooked that consideration, even though it had not been mentioned in the ex tempore judgment delivered while his Honour was on country circuit (see R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at [48]).

38. Events that post-date sentencing were submitted not to be relevant on appeal and could not be relied on to disturb the sentence (see R v Munday (1981) 2 NSWLR 177). Nor did the evidence establish exceptional circumstances.

39. As to the ICO, the Crown submitted that such a sentence was not open. Why that was so was not explained. In oral submissions it was accepted that it was available as a matter of discretion under the statutory scheme, but submitted not to be a suitable sentence, given the nature and seriousness of EF’s drug offence and the leniency he had already been afforded

The appeal must be allowed

40. In order to establish that a sentence is manifestly excessive, it must be shown to have been “unreasonable or plainly unjust” (see Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 at 325).

41. As the Crown submitted, in other than exceptional circumstances, in the case of drug supply offences, a custodial sentence will ordinarily be imposed on an offender (see the discussion in R v Gu [2006] NSWCCA 104).

42. Error in this sentencing exercise was demonstrated by the failure to consider an ICO, which was, in this case, plainly unjust and contrary to the requirements imposed by s 5 of the Crimes (Sentencing Procedure) Act.

43. As the Crown accepted, only certain sexual offences are excluded from the ICO system under s 66(1) of the Crimes (Sentencing Procedure) Act1999 (NSW). Drug offences are not. Section 5(1) requires that a sentence of imprisonment only be imposed, if it is also concluded that no penalty other than imprisonment is appropriate

44. Section 7(1) provides that a court that has sentenced an offender to imprisonment for not more than 2 years, may make an intensive correction order. The conclusions which his Honour reached triggered that discretion, which only arises to be exercised, once a sentence of imprisonment of not more than 2 years has been imposed.

45. The Crown’s case that his Honour’s sentence had already extended an appropriate degree of leniency to EF, given the nature of his offending, could not, in all of the circumstances, be accepted.

46. The sentence which his Honour imposed fell at the lowest end of the available range. The maximum penalty for the drug offence was 15 years imprisonment or 2,000 penalty units and for the proceeds of crime offence, 15 years imprisonment. A total term of 2 years was imposed for each offence, with a non-parole period of 6 months. They were made totally concurrent.

47. That sentence reflected not only the nature and seriousness of EF’s offending, but also his particular subjective circumstances; the remorse and contrition he had plainly demonstrated by his plea and other actions; the evidence of the steps he had pursued towards rehabilitation; and the conclusions which his Honour had reached in relation to considerations of deterrence and totality. Those considerations were also reflected in his Honour's finding as to the existence of special circumstances. The result was that this was to be EF’s first custodial sentence.

48. Those same matters were also all relevant to a consideration of whether an ICO should be imposed. That was an important consideration in EF’s case, but one to which no attention was paid at all.

49. As discussed in R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225; (2012) 82 NSWLR 60 at [56], eligibility of an offender for an ICO depends upon an assessment that the person is a "suitable person" (Crimes (Sentencing Procedure) Act (s 67(1)(b)) and the formation of an opinion by the sentencing judge that it is "appropriate in all the circumstances" that an ICO be used (s 67(1(c)). An assessment report is required, with s 70(2) requiring the report to address, amongst other things, matters prescribed by the Crimes (Sentencing Procedure) Regulation 2010.

40. Regulation 14 provides:

“14    Assessment reports

(1)    An offender’s assessment report must take into account, and specifically address, the following matters:

(a)    any criminal record of the offender, and the likelihood that the offender will re-offend,

(b)    any risks associated with managing the offender in the community (taking into account the offender’s response to supervision in the community on previous occasions),

(c)    the likelihood that the offender will commit a domestic violence offence,

(d)    whether the offender will have suitable residential accommodation for the duration of an intensive correction order,

(e) whether any circumstances of the offender’s residence, employment, study or other activities would inhibit effective implementation of an intensive correction order,

(f)    whether the persons with whom it is likely the offender would reside, or continue or resume a relationship, understand the requirements of an intensive correction order and are prepared to live in conformity with them, so far as may be necessary,

(g)    whether the making of an intensive correction order would place at risk of harm any person who would be living with or in the vicinity of the offender,

(h)    any dependency of the offender on alcohol or drugs, or other substance abuse, that would affect the offender’s ability to comply with the offender’s obligations under an intensive correction order,

(i)    any physical or mental health conditions of the offender that would affect the offender’s ability to comply with the offender’s obligations under an intensive correction order,

(j)    the existence and extent of any self-harm risk, including the likely impact of an intensive correction order on that risk, and the availability in the community of the support and treatment services necessary to manage the risk.

(2)    If a child under the age of 18 years would be living with an offender serving a sentence of imprisonment by way of intensive correction, the assessment report must take into account, and specifically address, the effect on the child of that fact.

(3)    If it appears to the officer preparing the assessment report that the offender is homeless:

(a)    all reasonable efforts must be made by the Commissioner of Corrective Services, in consultation with the offender, to find suitable accommodation for the offender, and

(b)    the report is not to be finalised until those efforts have been made.

(4)    An offender’s assessment report must also include an assessment of:

(a)    factors associated with his or her offending that would be able to be addressed by targeted interventions under an intensive correction order, and

(b)    the availability of resources to address those factors by targeted interventions under an intensive correction order, and

(c)    any issues relevant to the administration of an intensive correction order in respect of the offender that may be relevant to the court’s determination of an appropriate date to be fixed for the commencement of the sentence.”

51. It is the Crimes (Administration of Sentences) Regulation 2014 which now deals with mandatory and other conditions for ICO’s. Relevantly, it provides:

“186   Mandatory conditions for intensive correction orders

The following are the mandatory conditions of an intensive correction order to be imposed by a court under section 81 of the Act:

(a)   a condition that requires the offender to be of good behaviour and not commit any offence,

(b)    a condition that requires the offender to report, on the date fixed as the date of commencement of the sentence or on a later date advised by the Commissioner, to a local office of Corrective Services NSW or other location advised by the Commissioner,

(c)    a condition that requires the offender to reside only at premises approved by a supervisor,

(d)    a condition that prohibits the offender leaving or remaining out of New South Wales without the permission of the Commissioner,

(e)    a condition that prohibits the offender leaving or remaining out of Australia without the permission of the Parole Authority,

(f)    a condition that requires the offender to receive visits by a supervisor at the offender’s home at any time for any purpose connected with the administration of the order,

(g)   a condition that requires the offender to authorise his or her medical practitioner, therapist or counsellor to provide to a supervisor information about the offender that is relevant to the administration of the order,

(h)    a condition that requires the offender to submit to searches of places or things under his or her immediate control, as directed by a supervisor,

(i)    a condition that prohibits the offender using prohibited drugs, obtaining drugs unlawfully or abusing drugs lawfully obtained,

(j)    a condition that requires the offender to submit to breath testing, drug testing or other medically approved test procedures for detecting alcohol or drug use, as directed by a supervisor,

(k)    a condition that prohibits the offender possessing or having in his or her control any firearm or other offensive weapon,

(l)    a condition that requires the offender to submit to surveillance or monitoring (including electronic surveillance or monitoring) that a supervisor may direct, and comply with all instructions given by a supervisor in relation to the operation of surveillance or monitoring systems,

(m)    a condition that prohibits the offender tampering with, damaging or disabling surveillance or monitoring equipment,

(n)    a condition that requires the offender to comply with any direction given by a supervisor that requires the offender to remain at a specified place during specified hours or that otherwise restricts the movements of the offender during specified hours,

(o)    a condition that requires the offender to undertake a minimum of 32 hours of community service work a month, as directed by a supervisor from time to time,

(p)    a condition that requires the offender to engage in activities to address the factors associated with his or her offending as identified in the offender’s assessment report or that become apparent during the term of the order, as directed by a supervisor from time to time,

(q)    a condition that requires the offender to comply with all reasonable directions of a supervisor,

(r)    a condition that requires the offender to submit to a medical examination by a specified medical practitioner, as directed by a supervisor, in relation to the offender’s capacity to undertake community service work or to otherwise comply with the offender’s obligations under the intensive correction order.

187   Additional conditions that may be imposed by sentencing court

The following are the additional conditions that may be imposed on an intensive correction order by the sentencing court under section 81 of the Act:

(a)    a condition that requires the offender to accept any direction of a supervisor in relation to maintaining or obtaining employment,

(b)    a condition that requires the offender to authorise contact between any employer of the offender and a supervisor,

(c)    a condition that requires the offender to comply with any direction of a supervisor as to the kinds of occupation or employment in which the offender may or may not engage,

(d)    a condition that requires the offender to comply with any direction of a supervisor that the offender not associate with specified persons or persons of a specified description,

(e)    a condition that prohibits the offender consuming alcohol,

(f)    a condition that requires the offender to comply with any direction of a supervisor that the offender must not go to specified places or districts or places or districts of a specified kind.”

52. These conditions reflect that ICOs are directed at various purposes of sentencing, including deterrence and rehabilitation, as to which it was observed in Pogson at [122] - [125]:

“122   Although it is common for judges, when considering the subjective characteristics of an offender, to evaluate the prospects of the person reoffending and to express an opinion as to whether the person is unlikely to reoffend, it could never be said that a person who has once offended would never reoffend. Furthermore, a person who has offended will always be in need of the opportunity to establish themselves as a law abiding and productive member of the community. Rehabilitation is a concept which is broader than merely avoiding reoffending.

123   A finding that an offender is not likely to reoffend may often be made not only because of expressions of remorse, but because the fact that the offender has been caught, convicted and punished (which may include extra-curial punishment) will operate to deter the offender from future wrongdoing. Deterrence will operate in respect of an offender even though the offender may not have restructured his or her thinking so that they thereafter consciously determine to re-establish themselves as a positive member of society.

124   By contrast to deterrence, rehabilitation has as its purpose the remodelling of a person's thinking and behaviour so that they will, notwithstanding their past offending, re-establish themselves in the community with a conscious determination to renounce their wrongdoing and establish or re-establish themselves as an honourable law abiding citizen: Vartzokas v Zanker at 279 (King CJ).

125   In this sense, every offender is in need of rehabilitation. Some may need greater assistance than others. It has been commonplace to speak of "paying your debt" to society. That phrase, in colloquial parlance, captures the essence of rehabilitation, enabling the offender to re-establish him or herself as an honourable member of the community.”

53. Those conditions include conditions with which EF had been complying while on bail, both before and after being sentenced. The evidence led on sentencing unquestionably raised for consideration whether an ICO should be utilised in EF’s case. That explains the advice he said he had been given by his solicitor, prior to sentencing. He had also been advised that he was likely to be assessed as suitable for such an order. Similar advice was obtained before the hearing of the appeal. It was not put in issue by the Crown,

54. The failure to seek such an order, appears to have been the result of oversight. The transcript of the sentencing hearing reveals that it was very short. That efficiency was at the expense of justice.

55. EF was called to give short evidence and was shortly cross-examined. The submissions advanced on his behalf were also brief. Reference was made to his record; his work to support his partner during her difficult pregnancy; his remorse and acceptance of responsibility for his offending; his good prospects of rehabilitation; and his candid admissions as to his offending. It was then submitted:

“Your Honour, it’s a matter that I would respectfully suggest that your Honour would have to consider a custodial sentence. First time in custody, I ask your Honour to take that into consideration. If your Honour is mindful of imposing a fulltime custodial sentence, I’m certainly not suggesting your Honour shouldn’t, that your Honour would then find special circumstances on the basis that he’s a man who has some medical problems in terms of ADHD; first time in custody; good prospects of rehabilitation.”

56. The Crown’s submissions were even briefer. In their entirety they were:

“Your Honour knows the facts, obviously. He’s got 8.7 grams of drug in his possession, the Crown says in possession with the purposes of supply, maybe some for his own use. He’s pleaded guilty to having money in his possession from the sale of drugs. He’s told the court that he was selling drugs for $300 a gram. He paid, I think it was, $3,500 for an ounce, therefore was a $5,000 profit between the purchase price and the sale price. He does say that he used some of those profits to support his own habit.

At the end of the day, this is a person who is supplying drugs for financial gain.”

57. As recently discussed by Simpson J in Lambert v R [2015] NSWCCA 22 at [39], ordinarily an offender is bound by the conduct of his case at first instance, but that is not an absolute rule.

58. Here it seems that his Honour was not adequately assisted in a busy circuit sitting. Neither he, nor either of the parties’ legal representatives, made any reference to the question of whether there should be a utilitarian discount for EF’s early pleas, as there obviously should have been. Nor were submissions directed to whether an ICO should be considered, even though the circumstances were such that it was a sentencing option which properly arose for consideration.

59. His Honour’s reasons were shortly given and delivered ex tempore. Given his Honour’s experience and the conclusion which he reached that the concurrent sentences which he imposed would be at the lowest end of the scale, it should be accepted that the discount, while not mentioned, was not overlooked.

60. The same conclusion is not available in respect of the question of an ICO. In this case, in my view, considerations of justice require that this important oversight be addressed on appeal. This was not a case where it was apparent that an applicant would not be found suitable, if assessed for an ICO. To the contrary, EF’s offending, his circumstances and his ongoing record of compliance with conditions of bail, all matters relevant to an assessment of his suitability for an ICO, suggested that there were real prospects that he would be found suitable, if assessed.

61. In the result the proper course was for the appeal to be upheld and EF resentenced

Resentence

62. Further evidence received on resentencing revealed relevant matters which had occurred post sentencing, which had to be taken into account. That included that EF had served some 2 months of his sentence, before being granted conditional bail; his compliance with those conditions; the ongoing efforts he had pursued at rehabilitation after sentencing; and that he had obtained permanent employment, in an environment where random drug testing is conducted.

63. The Crown also led evidence as to EF’s very considerable assistance to law enforcement authorities, which gave rise to the exercise of the discretion to impose a lesser penalty under s 23 of the Crimes (Sentencing Procedure) Act (see R v Cartwright (1989) 17 NSWLR 243 per Hunt and Badgery-Parker JJ at 252).

64. The starting point for the penalty imposed was a total sentence of 2 years and 6 months. That sentence was reduced by a combined 50% for the plea and the assistance provided. That reflected the considerable assistance revealed on the evidence, which was of such a kind that it was appropriate to grant a discount at the top of the available range, reserved for exceptional cases (see SZ v R [2007] NSWCCA 19).

65. That sentence was suspended, on EF entering into a bond to be of good behaviour, on conditions proposed by the Crown. That was the appropriate course in circumstances where, in April 2014, imposition of an ICO would have been appropriate. Such a sentence was no longer appropriate in the circumstances which prevailed in March 2015. The sentence imposed on appeal is due to expire in several months.

66. The result was a term of imprisonment of 1 year and 3 months, which, we were satisfied in the circumstances, reflected a sentence which was not unreasonably disproportionate to the nature and circumstances of the offences.

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Decision last updated: 20 March 2015