Fayd'herbe v R

[2007] NSWCCA 20

New South Wales
Court of Criminal Appeal

CITATION:	Fayd'Herbe v R [2007] NSWCCA 20
HEARING DATE(S):	24/01/07
JUDGMENT DATE:	12 February 2007
JUDGMENT OF:	Adams J at 1; Howie J at 29; Price J at 30
DECISION:	1. Leave to appeal granted; 2. Appeal dismissed.
CATCHWORDS:	Sentence appeal - ongoing supply of ecstasy - whether exceptional circumstances necessary before imposing less than full time custody where substantial dealing - desirability of expressing extent of utilitarian discount
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
CASES CITED:	R v BCC [2006] NSWCCA 130 R v Braithwaite [2005] NSWCCA 451 R v Cacciola (1998) 104 A Crim R 178 16 R v Carrion (2000) 49 NSWLR 149 R v CBK [2002] NSWCCA 457 R v Gip; R v Ly (2006) 161 A Crim R 173 R v Gu [2006] NSWCCA 104 R v Ha (2004) NSWCCA 386 R v Kairouz [2005] NSWCCA 247 R v Khaled [2001] NSWCCA 169 R v Kipic; R v Elias [2004] NSWCCA 452 Mizzi v The Queen [2006] NSWCCA 194 R v Thomson & Houlton (2000) 49 NSWLR 383
PARTIES:	Jonathon Wayne FAYD'HERBE REGINA
FILE NUMBER(S):	CCA 2006/2527
COUNSEL:	Crown: Mr P. Ingram Applicant: Ms N. Mikhaiel
SOLICITORS:	Crown: Director of Public Prosecutions Applicant: -
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/11/0292
LOWER COURT JUDICIAL OFFICER:	Sides DCJ
LOWER COURT DATE OF DECISION:	18/07/2006

2006/2527

ADAMS J
HOWIE J
PRICE J

12 February 2007

Jonathon Wayne FAYD’HERBE v REGINA

Judgment

1 ADAMS J: The applicant, Jonathon Wayne Fayd’Herbe, was sentenced on 18 July 2006 to the offence of an ongoing supply of ecstasy between 7 May and 7 June 2005 contrary to s25A of the Drug Misuse and TraffickingAct 1985. The offence carries a maximum penalty of imprisonment of 20 years and or a substantial fine. The court took into account five further offences on a Form 1 schedule: two of these offences involved actual supply of small quantities of ecstasy contrary to s25(1) of the Act; one was a deemed supply of an indictable quantity (maximum imprisonment 15 years on indictable disposal); one was possession of ecstasy contrary to s10(1) (maximum imprisonment 2 years); and the fifth concerned goods in custody ($180) suspected of having been unlawfully obtained contrary to s527C of the Crimes Act 1900 (maximum imprisonment 6 months). The applicant was sentenced to an overall term of two years and six months with a non-parole period of twelve months commencing 18 July 2006 and expiring on 17 July 2007.

2 The quantities of drugs and amounts involved were small. On four occasions the applicant supplied ecstasy tablets to undercover police officers. The first two occasions each involved the sale of one tablet for $30, the third sale involved two tablets for $50 and the fourth sale involved four tablets for $120. In all, the applicant sold eight tablets weighing 2.46 grams in return for $230, each tablet being approximately 23% pure ecstasy. The fifth transaction occurred some two months after the fourth and involved two ecstasy tablets being sold for $70. These were of a somewhat higher purity. This offence was the first on the Form 1 schedule. About a week later, the applicant sold three ecstasy tablets for $90, an offence giving rise to the second charge on the form 1 schedule. He was arrested soon after this transaction and voluntarily surrendered seven pink ecstasy tablets that had been secreted. His possession of these tablets gave rise to the third offence on the Form 1 schedule. A further three tablets were later found in his possession and it was accepted that these were for the applicant’s own use. This is the fourth offence on the Form 1 schedule. $90 of the $180 found in his possession was the money paid to him by the undercover police officer.

3 The offences occurred during a controlled operation at and near a hotel in North Sydney.

4 As the learned sentencing judge found, the objective seriousness of these offences was well towards the bottom of the range of seriousness for offences under s25A of the Act. His Honour found that they were undertaken to fund the applicant’s own addiction.

5 The applicant did not plead guilty at committal but did so when first arraigned. At the sentence proceedings his counsel submitted to his Honour that the Crown conceded, or would concede, that this was a plea of guilty at the earliest reasonable opportunity. As it happened, the Crown prosecutor did not advert to this matter but it is clear from the approach taken by her that she chose only to deal with those matters which were in dispute. It seems to me, therefore, that the Crown prosecutor’s position was indeed as conveyed to his Honour by counsel for the defence. In this respect the learned trial judge said that his early plea entitled him to considerable leniency but not to the same extent as would have been available had he entered the plea of guilty at the committal stage in the Local Court. His Honour said that, because of the complexity of the matter, he would not specify the discount he allowed.

6 With respect, I cannot see how the complexity of this matter made it difficult to specify the discount: there was only one charge on the indictment although there were five on the Form 1. It was necessary only to pass one sentence. As this Court made clear in R vThomson & Houlton (2000) 49 NSWLR 383, and on numerous subsequent occasions, part of the purpose of specifying the utilitarian discount is to encourage early pleas by giving transparency and predictability to the advantage offenders can expect to obtain if they do so. This purpose would be frustrated if the discount is not disclosed in the overwhelming majority cases (of which, it seems to me, the present is one) where it can be specified. It also makes the task of this Court more difficult when dealing with appeals where the discount is a significant feature of the sentence.

7 However, I would not conclude the failure in this case to specify a discount amounted to error since it should be accepted that his Honour did indeed give a significant discount, I would infer in the order of 20%. For myself, in light of the way in which the matter was put to his Honour, I cannot see why the applicant should not have received the top of the indicative range. However, I do not think that not to have given 25% amounts to an error requiring the interference of this Court.

8 The applicant’s subjective features were dealt with in detail by his Honour and were undoubtedly significant and overall favourable. The following is a summary of his Honour’s remarks in this respect. At the time of the offences the applicant was twenty-six years of age, twenty-eight years of age at the time of sentence. His parents separated because of domestic violence issues when he was very young and the applicant had no contact with his father since that time. The applicant’s mother remarried when the applicant was six and she and the applicant’s stepfather have two children who are the applicant’s stepbrothers. The applicant regards his stepfather as his father and his stepbrothers as his brothers. The applicant’s relationship with his mother appears to have been somewhat strained and the fact that he did not know his father had an adverse effect upon the applicant’s emotional wellbeing. In the two years before the offences were committed, the applicant broke up with his girlfriend of some seven years and both maternal grandparents and his step grandfather died. The applicant had emotional difficulties since he was young which required him to see a psychologist over an eighteen month period from the age of eight. During this time he was diagnosed with dyslexia. He started drinking alcohol as a teenager and was binge drinking regularly by the time he was eighteen years old. He also started abusing ecstasy and amphetamine, gradually increasing his consumption of these drugs. The learned trial judge accepted that he abused drugs and alcohol in an attempt to deal with or cope with his emotional problems. Since his arrest, the applicant completed successfully the MERIT rehabilitation programme and has not consumed drugs or alcohol. The applicant was expelled from school during year 12 because of his destructive behaviour to which his dyslexia and problems with his mother appear to have contributed. However, after school he completed a certificate in hairdressing and has worked fulltime as a hairdresser. His current employer has high regard for him and, though aware of the offence, has supported the applicant since his arrest. The applicant has no prior convictions of any sort and was accepted by his Honour as a person of prior good character. The conditions of his bail severely restricted the applicant’s freedom. This was a matter taken into account by his Honour. Commenting on the objective circumstances, the learned judge observed –

“The offence by its very nature involves pre-meditation. The use of a mobile phone and the fact that all transactions witnessed by the police occurred in or very close to the hotel indicates that the sales were not just spontaneous acts. There is no evidence that he was part of a large drug trafficking network. In the Court’s view he was conducting his own small-scale drug trafficking business, selling small quantities to users. His criminality is towards the lower end of the range of offences…the need to fund his own habit explains but does not excuse his crime.”

9 The learned sentencing judge concluded that the applicant had taken significant steps towards rehabilitation and his expressions of remorse were genuine. His Honour considered there was a “compelling case” of contrition. His Honour thought that the applicant’s prospects of rehabilitation were excellent and it is unlikely that he will re-offend.

10 The learned sentencing judge “anxiously” considered whether the sentence should be served by way of periodic detention in light of the strong subjective case, the vulnerability of the applicant in gaol and the risk to his rehabilitation by exposing him to the adverse influence of the other inmates. In the end, the judge said that he was “not persuaded that periodic detention is the appropriate order to be made in this case”. It seems to me that his Honour considered there is a presumption in a case such as the present against an order for periodic detention.

11 It is contended by counsel for the applicant that to approach the question of sentence in this case in this way is an error, citing R v Braithwaite [2005] NSWCCA 451. In that case the appellant was sentenced on his plea on two counts of supplying prohibited drugs (amphetamine and ecstasy) under s25(1) of the Act, with one charge of possession of cannabis leaf and one charge of goods in custody taken into account on a Form 1. The appellant was arrested when the drugs were detected in his backpack by sniffer dog. The amphetamine was mixed in a powder and separated into 24 small re-sealable plastic bags in various weights, in all 20.89 grams. The ecstasy comprised 47 tablets weighing a total of 17.78 grams, distributed in 10 re-sealable plastic bags. Also in the backpack was a set of electronic scales, a lockable box and an open bag of glucose powder; he had $540 on him. This was the appellant’s first offence of any moment. He was 21 years of age, employed and had taken significant steps towards rehabilitation. The primary judge said that only in exceptional cases would a non-custodial sentence be appropriate for drug traffickers. On the first count (amphetamine), taking into account the Form 1 offences, the appellant was sentenced to 2 years and 7 months with a non-parole period of 9 months and on the second count (ecstasy) a concurrent term of 3 years with a non-parole period of 12 months.

12 Amongst other things, it was submitted that the primary judge erred in failing to determine first the appropriate terms of the sentences and then whether one or both should be suspended under s12 of the Crimes (Sentencing Procedure) Act 1999. Hodgson JA (McClellan CJ at CL and Hall J agreeing) held that the primary judge erred in conflating these issues rather than considering them separately and added –

“Further I do not think it was correct to say that, in all cases of s25(1) offences, it is a pre-condition to suspending the sentence that the offences fall towards the lower end of the scale or that there be exceptional circumstances…[but] I do consider that, in cases such as this of supply of drugs, a strong case needs to be made out to justify suspending the sentence.”

In the result, the Court held that the sentence was manifestly excessive and allowed the appeal, but did not suspend the sentences.

13 In R v BCC [2006] NSWCCA 130 the Crown appealed against the manifest inadequacy of a sentence of 2 years with a non-parole period of 18 months, suspended, for supplying a commercial quantity of ecstasy contrary to s25(2) of the Act, carrying a maximum term of 20 years. A discount of 50% for plea and assistance had been given. In the course of dismissing the appeal, Hall J (James and Simpson JJ agreeing) cited with approval the passage from the judgment of Hodgson JA in Braithwaite which I have quoted above.

14 The approach taken in Braithwaite and BCC must be contrasted with that taken in a large number of other decisions of this Court to the need for exceptional circumstances to be shown in drug trafficking cases before a less than full-time custodial sentence can be considered to be appropriate. The most recent discussion of this issue is, I think, in R v Gip; R v Ly (2006) 161 A Crim R 173 where McClellan CJ at CL usefully set out the relevant line of authority –

“[7] [The primary judge’s] statement of the relevant principles may reflect a misunderstanding and it is appropriate to restate the principles which this Court has previously laid down.
[8] In R v Clark , (unreported, NSWCCA 15 March 1990) Hunt J, with whom Sharp J agreed, considered the circumstances of an offender who had pleaded guilty to two charges of supplying amphetamine and also asked that consideration be given to summary offences, one of possession of cannabis and another of administering amphetamines. In this context Hunt J said at [2]-[3]:
‘This Court has, on occasions too numerous to mention, emphasised that sentences involving a substantial general deterrence are to be imposed on drug traffickers, and it has indicated that only in exceptional circumstances will a non-custodial order be appropriate.
‘That statement is not, as has been suggested, restricted to those cases in which it has been demonstrated that a profit has been obtained. It may be the fact that in each such case a profit was made, as Kirby P pointed out in Regina v Hayes (1987) 29 A Crim R 452 at 463. That fact is not, however, thereby elevated to become a qualification of the statement itself. Insofar as Kirby P may be understood as suggesting to the contrary, [sic] I must respectfully disagree with him. What the statement is principally directed to is the trafficking, the dissemination of drugs to others. That is made clear by Street CJ in Hayes ’ case at 457. The position is worse when there has been a profitable commercial exploitation, but trafficking alone in any substantial degree should normally lead to a custodial sentence.”
[9] Hunt J does not define ‘trafficking’. Applying the dictionary definition it would seem that his Honour had in mind the activity of trading or dealing in drugs.
[10] In R v Bardo , NSWCCA, unreported, 14 July 1992, Hunt CJ at CL returned to the remarks he made in Clark and said at [1]:
“In Regina v Peter Michael Clark (15 March 1990, unreported) this Court repeated previous statements made by it that sentences involving a substantial deterrence are to be imposed on drug traffickers, and that only in exceptional circumstances will a non-custodial order be appropriate. That case was concerned with the supply by the person concerned to a number of different people over a period of time, although not upon a profitable commercial basis. The point which was made was that custodial sentences were normally required, whether or not a profit had been obtained, for ‘trafficking alone in any substantial degree.’ The word ‘trafficking’ clearly carries with it the connotation of supply on more than one occasion.”
[11] His Honour found that in the circumstances of that case the supply of a relatively small amount of drug on one occasion did not amount to trafficking in a substantial degree.
[12] In R v Ozer (unreported NSWCCA 9 November 1993), Hunt CJ at CL had occasion to again consider the concept of trafficking and its consequences when sentencing an offender. His Honour accepted the finding of the sentencing judge that the offence was ‘a limited and isolated event’. For this reason his Honour held that the offender was not ‘trafficking’ in the sense in which his Honour had used that word in the cases of supply on more than one occasion. However, his Honour did not exclude the possibility that involvement in one transaction could be described as trafficking. His Honour said:
‘The sentencing principle stated in Regina v Peter Michael Clark and the other cases does not apply in this case. There are nevertheless obviously cases where, such is the detailed involvement of the accused in the preparation and execution of only the one commercial transaction, a full time custodial sentence is not only appropriate but also necessary.’
[13] My understanding of these various statements is that where a finding can be made that an offender has engaged in repeated offences so that his or her activities can be described as trafficking, a full time custodial sentence should, unless there are exceptional circumstances, be imposed. However, if only one offence can be proved, but the circumstances surrounding that offence indicate that it was the result of a sophisticated commercial arrangement, the objective criminality involved may also require a custodial sentence, unless exceptional circumstances can otherwise be shown.

15 Also frequently referred to is the decision in R vCacciola (1998) 104 A Crim R 178 where Priestley JA (Abadee and Kirby JJ agreeing) said at 182 –

“The rule has been in this Court since before 1990, and has regularly been repeated since 1990 that, as [the primary judge] himself said:
‘Where there is trafficking in illicit drugs, then there must be a gaol sentence except in exceptional circumstances.’
Clark …said that at some length. A series of cases since then in this Court has repeated that proposition. It is one about which there is no room for debate.”

His Honour added (at 184) –

“…[The] policy of the court…as shown in Clark and the long series of succeeding cases should be followed. It should also be recognized that the court regards that policy as a continuing one which the court will continue to enforce.
…[The] rule 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 or put out of sight, nor should there be excessively liberal interpretations of the phrase ‘exceptional circumstances’.”

16 R v Carrion (2000) 49 NSWLR 149 was decided by a five judge bench to resolve transitional problems arising from amendments to the Crimes (Sentencing Procedure) Act 1999. The substance of the appeal involved a sentence for drug dealing. Grove J (with whom the other judges agreed) cited R v Cacciola as reaffirming “that trafficking in illicit drugs must attract full time custodial sentence other than in exceptional circumstances” (ibid at [25]). It is, perhaps, worth noting that Priestley JA in Cacciola referred only to the distinction between a custodial and a non-custodial sentence and the strong statement by Hunt J in Clark refers only to a non-custodial sentence as being exceptional. However, the requirement of full-time custody absent exceptional circumstances has been repeatedly stated, for example in R v Kipic; R v Elias [2004] NSWCCA 452 (per Sully J at [33]) and R v Ha (2004) NSWCCA 386 (per Smart AJ at [20]).

17 In R v Gu [2006] NSWCCA 104 Howie J (Grove and Simpson JJ agreeing) summarised the position as follows –

“[27] …There has been a consistent line of authority in this Court that has made it quite clear that, 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; see R v Blanco (NSWCCA, unreported, 22 October 1987). It applies whether or not the offender has made a profit from the supply of drugs and a profit is an aggravating circumstance: R v Clarke (NSWCCA, unreported, 15 March 1990). Efforts at reform and rehabilitation since the offending will not generally be regarded as amounting to exceptional circumstances: R v Thompson (NSWCCA, unreported, 4 April 1994). The policy behind this line of authority has been held to be a rule to which sentencing judges must give serious consideration: R v Cacciola (1998) 104 A Crim R 178. It has been most recently referred to by Hulme J in R v Harmouche [2005] NSWCCA 398.”

18 What is the general rule for drug dealing offences must, a fortiori, apply to offences under s25A of the Act. In R v CBK [2002] NSWCCA 457 Wood CJ at CL said, at [56-57] –

“[56] …Section 25A of the Drugs Misuse and Trafficking Act 1985 was introduced in order to provide a strong deterrent to those who may be tempted to engage in an ongoing trade in drugs. It needs to be clearly understood that s 25A offences are considerably more serious than s 25 offences, as is indicated by the increase in the maximum available penalty.
[57] …An offender charged with a s 25A offence cannot rely upon an argument that the act of supply was an isolated event. Nor can he expect to receive a sentence of the kind which may be appropriate for a single offence of supply. Significant sentences must be imposed in such cases in order to give effect to the clear legislative intention to discourage the ongoing trade in drugs, which depends entirely upon the availability of a person such as the present applicant.”

19 In R v Kairouz [2005] NSWCCA 247 Wood CJ at CL (Grove and Rothman JJ agreeing) at [86] repeated the following passage from his Honour’s judgment in R v Khaled [2001] NSWCCA 169 –

"[18] It is precisely to the dealers who engage in this kind of conduct, that s 25A is directed, since it is those persons who keep the pernicious trade in heroin rolling. It may well be that an important part of the policy behind this legislation was to impose significant penalties which exist for those offenders who see it as profitable or prudent to immunise themselves from the significant penalties which exist for dealing in single large quantities, and in particular, by selling small enough deals from a stock warehoused elsewhere. I am unable, however, to accept that the section is to be confined to them. It applies equally to dealers such as the present applicant, who engage in an ongoing trade within the meaning of the section.
[19] An appropriate differentiation can be drawn between the various classes of offenders to whom the section applies, by reflecting that in sentences towards the upper end of range within the available maximum of twenty years, for the bigger and more organised dealers, and by imposing lesser sentences for those who are at the bottom of the distribution chain. What is important is to give full effect to the legislative policy that this section operate so as to provide strong deterrent to those who may be tempted to engage in an ongoing trade in heroin and, in particular, to deter those who are minded to stand in their shoes once they are apprehended and sentenced to imprisonment. This is necessary to combat the unfortunate reality that there seems to have been an almost endless supply of street sellers willing to move in once others of their ilk are taken off the streets."

His Honour added (at [87] that “the same considerations apply to other prohibited drugs, particularly methylamphetamine” and went on to say –

“[88] The quantity of the drugs supplied in the case of such an offence is not the only relevant consideration, since as Hulme J pointed out in R v Smiroldo [2000] NSWCCA 120 at [15] the section is aimed at the business of supplying prohibited drugs, and it is the magnitude of that operation, rather than the individual supplies which is of importance.
[89] Similarly in R v Hoon and Pouoa [2000] NSWCCA 137 Dunford J said:
‘[39] The section is directed to the concepts of repetition, system and organisation, and the objective criminality of any offence under the section should be determined by reference to those features, and not merely to the number and quantities of individual instances of supply.’
[90] The seriousness of the offence of supplying drugs on an ongoing basis has also been confirmed in other decisions of this Court, for example, R v Shi [2004] NSWCCA 135, and more recently R v Le [2005] NSWCCA 162 and in R v Preston [2005] NSWCCA 177.”

20 It must be accepted, I think, that a single offence under s25A is more serious than a single offence under s25(1), even if the quantity of drugs supplied on the three occasions comprising the former offence is the same as that supplied on the one occasion comprising the latter offence. This arises not only from the higher maximum term for which s25A provides but also because the element of repetitious trafficking is necessarily part of the criminality to which that section is directed.

21 (For myself, I do not think it is useful to compare abstractly the respective criminality of offences falling within the two provisions. Leaving aside the repetitious trading of small quantities under s25(1), which must be dealt with summarily and carries a maximum of two years’ imprisonment for each offence, the repetitious trading of greater than small quantities on three occasions under s25(1) would theoretically expose the offender to a maximum sentence well above that provided in s25(1). It must also be borne in mind that the maximum sentence is applicable to an offence in the most serious category. In a case where greater than small quantities are successively traded on three occasions within a thirty day period, so that the criminal conduct may be charged either as one offence under s25A or three offences under s25(1), it seems to me that it would be contrary to principle that the sentence in such a case would depend on whether the offender were charged under one or other of the available provisions: identical criminality must needs attract identical outcomes for the same individual.)

22 It is unfortunate that the Court in Braithwaite and BCC was not referred to what can conveniently be called the Clark line of authority; nor have Braithwaite and BCC been dealt with in subsequent decisions of the Court. (Even ships that pass in the night speak to each other in passing.) Were there no contradicting line of authority, I would have preferred, with respect, the approach taken in Braithwaite. Casting sentencing options in terms of exceptions (though frequently done) strikes me as unnecessarily emphatic. To state what should be done in the usual case or normally should be done should be sufficient and accords appropriate respect to the importance of the exercise by the primary judge of his or her judicial discretion. Be that as it may, I think it must be concluded that the weight of decisions of this Court favours the Clark line of authority which, to my mind, is correctly summarised in the passage above quoted from the judgment of Howie J in Gu.

23 The crucial question in this case, as it seems to me, is whether the conduct involved in the offence demonstrates that he was “substantially involved in the supply of prohibited drugs”. If all that was shown were the occasions to which the charge in the indictment referred, I would have concluded that he was not so substantially involved. The small quantity of drugs, the unsophisticated mode of delivery, the limited scope of the dealing and the small sums involved brought the objective criminality well within the exceptional category. It is not suggested that the applicant held himself out as being in a position to supply greater quantities or other drugs, nor was there a suggestion that this was because the applicant saw it “as profitable or prudent to immunise [himself] from the significant penalties which exist for dealing in single large quantities, and in particular, by selling small enough deals from a stock warehoused elsewhere”. It does not appear that the applicant was part of a syndicate or organized group. The Form 1 offences of supply must, of course, be borne in mind but I do not think that they make the applicant’s dealing “substantial” in the relevant sense. The applicant was himself an addict. Even in respect of the seven tablets giving rise to one of the supply counts on the Form 1, the learned trial judge held that some were for actual supply and some for personal use.

24 In my view, the offending here, as the learned sentencing judge found, was at the bottom of the range of criminality for offences falling within s25A. Even if the applicant’s criminality be held to be “substantial” in the Clark sense, in my view it fell well within the exceptional category. In all the cases in this Court that I have looked at in dealing with the Clark principle, the quantities and the extent, organization and sophistication of trading were greatly in excess of this applicant’s.

25 It was submitted by counsel for the applicant in this Court that, taking into account the early plea of guilty, the circumstances surrounding the offence involving the street level dealing of very small quantities of ecstasy, the applicant’s prior good character and excellent prospects of rehabilitation, a full time term of imprisonment was not the only sentencing option open to the learned sentencing judge. There is much to be said for this submission. However, the question for this Court is not whether it was within the learned sentencing judge’s discretion to pass a more lenient sentence but whether, passing the sentence that was imposed, his Honour’s discretion miscarried.

26 With respect, for the reasons I have given, I would have thought that it was open to the learned sentencing judge to have ordered the sentence to be served by way of periodic detention. The statistics maintained by the Judicial Commission show that for offences under s25A only 50% of all offenders are given sentences of full time imprisonment, whilst offenders with no prior offences were given such sentences only in 30% of cases. The number of cases involved is relatively small but these statistics, so far as they go, confirm my own impression that an order for periodic detention was available in the applicant’s case.

27 Accepting that the utilitarian discount afforded to the applicant was in the order of 20%, the starting point for the overall sentence was about 3 years and 2 months. This seems to me to be very much at the higher end of the available range but both it and the non-parole period cannot be said in my view to be appealably excessive (cf Mizzi v The Queen [2006] NSWCCA 194. Nor am I persuaded that the refusal to order that the sentence should be served by periodic detention was wrong.

28 In my view, it cannot be said that the sentence was manifestly excessive. Accordingly, although leave to appeal should be granted, the appeal should be dismissed.

29 HOWIE J: For the reasons given by Adams J I agree with the orders he proposes. I would, however, reserve judgment on the question whether the case was one that might have fallen within the exceptional category justifying a sentence other than one of full-time custody in accordance with the line of authority summarised in R v Gu [2006] NSWCCA 104 and reviewed by the Presiding Judge. This was not a matter on which the Court received any submissions from the parties. I would, however, point out that the amount of drugs supplied by the applicant under the s25A offence was twice the indictable quantity for that drug. The amount supplied in both that offence and the matters on the Form 1 was about four times the indictable quantity over a period of about four months. I would class such an ongoing participation in the distribution of drugs within the community as a substantial involvement in the supply of the drugs.

30 PRICE J: I agree.

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