Furia v R

[2010] NSWCCA 326

New South Wales
Court of Criminal Appeal

CITATION:	Furia v R [2010] NSWCCA 326
HEARING DATE(S):	13 December 2010
JUDGMENT DATE:	21 December 2010
JUDGMENT OF:	Giles JA at 1; Hislop J at 2; RA Hulme J at 3
DECISION:	1. Leave to appeal granted. 2. Appeal allowed. 3. Sentence imposed in the District Court quashed. 4. In lieu, the applicant is sentenced to imprisonment comprising a non-parole period of 8 years with a balance of the term of the sentence of 5 years 2 months. The sentence is to date from 17 February 2009. The applicant will be eligible for release on parole upon the expiration of the non-parole period on 16 February 2017. The total term will expire on 16 April 2022.
CATCHWORDS:	CRIMINAL LAW - appeal and new trial - appeal against sentence - fact finding by sentencing judge - no error in rejection of applicant's evidence - assessment of objective seriousness - parity - sentence manifestly excessive
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Drugs Misuse and Trafficking Act 1985
CATEGORY:	Principal judgment
CASES CITED:	Hamieh v R [2007] NSWCCA 277 Jimmy v R [2010] NSWCCA 60 Ly v R [2008] NSWCCA 262 McBeth v R [2009] NSWCCA 235 Mulato v R [2006] NSWCCA 282 Pham v R [2009] NSWCCA 25 R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 R v Kalpaxis [2001] NSWCCA 119; 122 A Crim R 320 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
PARTIES:	Marco FURIA (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2008/6751
COUNSEL:	Mr A J Bellanto QC with Mr M Gallagher (Applicant) Mr J Pickering (Crown)
SOLICITORS:	Anderson Boemi Solicitors Solicitor for Public Prosecutions
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2008/6751
LOWER COURT JUDICIAL OFFICER:	Marien DCJ
LOWER COURT DATE OF DECISION:	23 July 2009

2008/6751

GILES JA
HISLOP J
R A HULME J

21 December 2010

Marco FURIA v Regina

Judgment

1 GILES JA: I agree with R A Hulme J.

2 HISLOP J: I agree with R A Hulme J.

3 R A HULME J: The applicant pleaded guilty in the District Court to an offence of knowingly taking part in the supply of not less than the large commercial quantity of the prohibited drug 1-phenyl-2-propanone (P2P). This is an offence against s 25(2) of the Drugs Misuse and Trafficking Act 1985. By s 33(3)(a) the prescribed maximum penalty for the offence is imprisonment for life and/or a fine of $550,000. A standard non-parole period of 15 years is also prescribed for the offence: Div 1A Pt4 Crimes (Sentencing Procedure) Act 1999.

4 His Honour Judge Marien SC sentenced the applicant on 23 July 2009 to imprisonment for 16 years, with a non-parole period of 8 years, with effect from 17 February 2009.

5 The applicant seeks leave to appeal on eight grounds.

6 The transcript of the judge’s remarks on sentence is endorsed that there was a “non-publication order as to offender’s name”. For reasons which will emerge in what is to follow, I do not believe there is any justification for any such order to be continued.

Facts

7 There was a statement of agreed facts before his Honour. It disclosed that there was a police investigation concerning the activities of one Jared Treloar. Interception of his telephone service indicated that he had some interest in the manufacture of amphetamine based drugs with the use of P2P and another precursor substance. There was reference in intercepted conversations to “the factory” which police identified as being located in Girraween. Those premises were leased by Fabricio Carocca.

8 There was no suggestion that the applicant had anything to do with any drug manufacturing activity or with any of the several people who were alleged to be so involved apart from Treloar. It became apparent to police monitoring the intercepted conversations that the applicant was, however, involved in discussions relating to the sale of 15 litres of P2P to a buyer identified as “Ritchie”.

9 There were a number of conversations involving Treloar and the applicant between 11 April and 10 May 2007 in which a proposed sale of the P2P to Ritchie was discussed. The first conversation involved Treloar asking the applicant if he still spoke to Ritchie as he, that is Treloar, “has the P2P now”.

10 A number of the conversations involved Treloar speaking with the applicant about drug manufacturing activity. For example, on 14 April he told the applicant that he had made 30 grams of “pure speed” and that the applicant could have it in order to get it tested. The applicant replied that he would, “take it … I’ll move it, like I said I’m desperate for cash”. The statement of facts indicated that this did not in fact occur.

11 There were further discussions in subsequent conversations about Treloar’s drug manufacturing activity as well as about the proposal to sell 15 litres of P2P to Ritchie. Ritchie was said to have been in Hong Kong at this time but the applicant claimed to be in telephone contact with him. The proposal discussed between Treloar and the applicant included that they would seek a sale price of $20,000 to $25,000 per litre and that they would equally share the profit.

12 The applicant had been accepted for enrolment in the New South Wales Police Force and was due to attend the Police Academy at Goulburn on 13 May 2007. There were references to this in the intercepted conversations.

13 Conversations on 8 May were to the effect that Ritchie and the applicant had agreed upon the supply to Ritchie of the P2P. The applicant and Treloar settled upon a sale price of $20,000 per litre. Part of their conversations in this respect involved consideration of the value of other ingredients and of the finished product.

14 There was a conversation on 9 May in which Treloar and the applicant agreed that they needed to settle on terms as between themselves before finalising terms with “them”. The conversations indicate that they had a meeting at a coffee shop at Mount Druitt that evening for this purpose.

15 There were conversations on 10 May to the effect that the supply to Ritchie was confirmed and the only matter remaining was an agreement as to price. The applicant received a text message that afternoon which stated, “landing Sydney in the morning 8am”.

16 Police executed search warrants at Treloar’s home, Carocca’s home, and the “factory” at Girraween on 11 May 2007. A clandestine drug laboratory was found at the latter. Treloar, Carocca and the applicant were arrested.

Subjective factors

17 The judge described the applicant’s subjective case as “strong”. The applicant was aged 25 at the time of the offence. He had no previous criminal convictions and there were testimonials before his Honour further confirming his prior good character.

18 The applicant was the youngest of three siblings. His eldest brother was a serving police officer. Professor Stephen Woods, psychologist, described the applicant as having been raised in a close-knit and supportive environment.

19 He was educated to Higher School Certificate level and gained a number of vocational qualifications in subsequent years. At the time of the offence the applicant was about to embark upon a career as a police officer. Following his arrest and eventual release on bail he obtained a qualification and commenced to work in real estate sales. Material before his Honour indicated that the applicant was highly regarded in this field and had a promising future.

20 The applicant sustained a serious injury when he fell through some plate glass in 2001 and it was necessary for him to undertake a lengthy period of rehabilitation to overcome the effects of his injuries. He was at that stage involved in partnership with another man in a clothing franchise business but it was said that his partner diverted money from the business which led to its failure. The applicant was left with the responsibility for a substantial debt to the Australian Taxation Office.

21 The applicant participated in amateur boxing when at school and in the immediate aftermath. In the course of his rehabilitation he became involved with gymnasiums and in boxing training.

22 Professor Woods’ assessment of the applicant included that there were no signs of “gross abnormal psychopathology, personality disorder or anti-social tendencies”. He found there was a minimal risk of re-offending. He did, however, find that the applicant was suffering “from an underlying Adjustment Disorder and Mixed Anxiety and Depressed Mood”. This condition directly related to his arrest and prosecution and the variety of ways in which it had impacted upon his life.

Grounds 1 – His Honour erred in rejecting the sworn evidence of the Applicant by finding that the Applicant did not intend to advise Police as to the manufacture and supply of the prohibited drug, 1-Phenyl-2-Propanone (or P2P).

Ground 2 – His Honour erred in finding as a fact that the Applicant did not intend to advise Inspector Verera of the manufacture of a prohibited drug on their journey to Goulburn Police Academy.

Ground 3 – His Honour erred in finding as a fact that Inspector Verera did not disseminate to other members of the Police Force, or intend to act upon, information that he received from the Applicant with respect to the manufacture and supply of a prohibited drug that was occurring in a factory in a suburb in Sydney.

23 The applicant sought to persuade the sentencing judge that his involvement in the offence was entirely altruistic. His case was that he was only involved in conversations concerning the proposed sale of drugs because he was gathering information which he intended to pass on to the police. The applicant gave evidence to this effect at the sentence hearing and was cross-examined extensively. The judge did not accept the explanation and provided a number of reasons for reaching that conclusion.

24 It is necessary to briefly summarise the applicant’s version.

25 In late 2006 the applicant was working part-time as a boxing trainer at a gymnasium. One day he found a shotgun in a storeroom. He made an informal report of this to Inspector Verera who was also a family friend. The inspector told him to let him know if it was still there when the applicant next worked at the gym. The applicant was of the impression that some of the patrons of the gymnasium were members of a notorious motorcycle club. He was reluctant to look in the storeroom again for fear of attracting attention. He did so, however, and reported back to the inspector that the gun was still there. Police then obtained a search warrant and seized the weapon.

26 On a subsequent occasion the applicant told the inspector about a person he was training who he understood was involved in criminal activity. The applicant said he had heard from the man Treloar, who he was also training, that this person was purchasing guns. The inspector told him to see what else he could find out. Nothing more appears to have happened in relation to that issue. The inspector’s version was that he was embarking upon a period of leave and so he tasked another officer to contact the applicant. Upon his return from leave the officer told the inspector that nothing had happened.

27 About two months before his arrest the applicant had told the inspector that he had heard someone talking about P2P and that there may be some in a factory or warehouse in Castle Hill or Caringbah.

28 Aside from the three matters just mentioned, the applicant did not pass on any other information. His evidence was that his brother and the inspector were going to drive him to Goulburn on 13 May when he was due to commence at the academy. He said that it was his intention to tell the inspector during the course of the journey about the proposed sale of P2P by Treloar to Ritchie.

29 The applicant said that some arrangements were made for the sale of the P2P but they were delayed by him because he did not want any illegal activity to take place before he went to the academy. His evidence on this point was not entirely clear but it seems to have been his claim that no suspicion would fall upon him as being an informer if the police arrested the others for things they did after he was no longer able to participate.

30 The applicant was arrested at his home on the morning of 11 May 2007. When he was told why he was being arrested he said, “What? You’re joking” and “No, you’re not serious, you’re joking. I can’t. I’m starting at the academy on Sunday”. A little later he said, “It doesn’t matter, it was for an inspector”. He claimed in his evidence that he thought everything would be cleared up when he got to the police station and that it would be realised that he was “processing this information” for the inspector. However, he conceded that he exercised his right to silence and said nothing further to the investigating police about the reason for his involvement in the matter.

31 In cross-examination, the applicant said that he did not keep any notes of his conversations with Treloar and Ritchie. There were 18 conversations summarised in the statement of facts and they occurred over a period of a month. He gave a number of responses when pressed, including, “Why would I keep notes”; “I didn’t want to keep notes” and “I’ve never been told that I should keep notes”.

32 The summary of a telephone conversation that occurred on 8 May 2007 includes that the applicant said that he, “saw the 15 litres today”. He explained that this was not true but he had said this to bolster his credibility with the person he was speaking with.

33 Mr Bellanto QC, who appeared for the applicant both in this Court and in the court below, submitted that there were a number of aspects of the applicant’s evidence which warranted acceptance of his account. They were summarised in written submissions as comprising the following:

1. The telephone intercept material, as summarised in the statement of facts, supported the applicant’s account that whilst he agreed to various “arrangements”, they either did not occur, or were delayed, because he was not seriously intent upon carrying them out.

2. No drugs, or precursors, were ever supplied or even handled by the applicant.

3. When he was arrested on 11 May 2007, the applicant had said, “ it was for an Inspector ”.

4. The applicant had previously disclosed intelligence to the inspector.

5. The applicant had disclosed some information to the inspector about the subject offence.

6. The applicant did not attend the meeting with “Ritchie” at Sydney airport on 11 May as previously arranged but instead intended to meet his girlfriend at Mount Druitt.

7. The applicant had been accepted as a police recruit and was due to commence at the police academy on 13 May.

8. The applicant did not attend or have any connection with the clandestine laboratory at Girraween and was not engaged in the activities carried on there.

9. The applicant did not receive any money or reward from the proposed transaction.

10. There was no evidence that the applicant had actually met “Ritchie” or was associated with Carocca or two other men said to be involved with the laboratory.

11. The applicant had no criminal convictions and was a person of good character.

34 Each of these matters was referred to in a relatively lengthy and carefully reasoned analysis by the sentencing judge of the applicant’s evidence and the submissions made on his behalf.

35 The function of this Court in relation to fact finding by a sentencing judge is limited. The principles were succinctly stated by McCallum J in McBeth v R [2009] NSWCCA 235:

[30] Many of the applicant’s grounds concern the sentencing Judge’s findings of fact. It must be recalled, however, that the task of this Court is confined to determining whether there was error in the sentencing of the applicant on the principles stated in House v The King [1936] HCA 40; 55 CLR 499 at 504-505. This Court’s power to substitute its own findings of fact for those of the trial judge arises only if the Judge “mistakes the facts” in the sense there understood. It is necessary to establish that there is no evidence to support the finding, or that the evidence is “all one way”, or that the Judge has misdirected himself: R v O’Donoghue (1988) 34 A Crim R 397 at 401 per Hunt J, Carruthers and Wood JJ agreeing.

36 Whilst it may well be the case that the 11 factors referred to were matters militating in favour of the applicant’s version, they did not require acceptance of it. Senior counsel for the applicant went further, however, and submitted that the sentencing judge’s findings were affected by error. It was submitted that the judge made findings that were not open to him and that he allowed extraneous and irrelevant matters to intrude into his consideration of the applicant’s evidence.

37 After setting out extensive reasons for his conclusions about various aspects of the applicant’s version, the judge said that he accepted a submission made by the Crown Prosecutor that “there are so many aspects of [the applicant’s] account which raise serious questions as to his credibility that that account simply cannot be accepted”. The following is a summary of his reasons.

38 The judge referred to the applicant’s claim that he thought when he was arrested that everything would be cleared up when he got to the police station. The judge referred to the evidence that the applicant had not told the inspector anything about the proposed drug supply and asked rhetorically, “one wonders how it could have been cleared up upon his arrest by police in speaking to Inspector Verera”? The judge also contrasted the applicant’s claim that he thought that the matter would be “cleared up” with his evidence that he did not even speak with Inspector Verera after his arrest.

39 The judge said that the account of “playing along” with the co-offenders purely for the purpose of gathering information to be passed on to the police defied logic. He referred to the earlier occasion relating to the shotgun at the gym and the applicant’s evidence that he was hesitant in returning to the storeroom to check if the gun was still there. He saw a contrast, saying, “he clearly was not hesitant to deliberately deeply entrench himself in numerous discussions concerning the supply of a large and very valuable quantity of a prohibited drug”.

40 The judge said that he found it very difficult to accept that if the applicant at all times proposed to pass information on to the inspector, why he did not seek to protect himself by at least telling the inspector, another police officer, or his brother, in broad terms what he was doing. The applicant had said in response to a question as to why he did not tell his brother, “I didn’t have that kind of relationship with my brother”. This was described as “hardly a reasonable explanation”, given the matter had nothing to do with the applicant’s personal relationship with his brother.

41 The judge accepted that the applicant was an intelligent man who would have realised that there was a risk that police may intervene and arrest him and his co-offenders. This was another reason he could not accept the applicant’s explanation for not ensuring that the inspector, who was a close family friend, was kept informed of what he was doing. He did not regard the fact that some two months prior to his arrest the applicant had said something to the inspector about P2P being in a factory somewhere in Sydney as constituting the applicant keeping the inspector informed.

42 At this point in his sentencing remarks the judge referred to evidence given by the inspector at a bail application in October 2007 about having received from the applicant the information concerning P2P in a factory. The judge said that he inferred that the inspector took no steps to pass that information on to officers who may be concerned with such a matter because he expected that if that had been done, the applicant would have given evidence of having been contacted by an investigator seeking further information.

43 Next, the judge said that he found it difficult to accept the applicant’s evidence of his reason for deciding not to tell the inspector until they were en route to the police academy. He referred to the applicant’s stated concern that the police might “jump in” and arrest the co-offenders and that this would direct suspicion to himself. The judge reasoned that the applicant could have provided information to the inspector and sought his agreement to ensure there would be no arrests until he had entered the academy. In any event, the judge could not understand how deferring any arrests until that time would have diverted suspicion from the applicant. The fact that he had embarked upon a career as a police officer and had not been arrested would itself have indicated to the others that he was an informer.

44 Reference was then made to the applicant having said that passing on information to the police in relation to the matter would assist him in his own career as a police officer. The judge said that this was “hardly supported by the offender’s inability to acknowledge that keeping a record of his dealings with the co-offenders may have greatly assisted him in this endeavour”.

45 The judge noted that the applicant was not a “passive bystander” in collecting information. The intercepted conversations demonstrated that he was “actively involved in the dealings”. Moreover, the judge referred to the conversations showing that the applicant had a close knowledge of the drug manufacturing process. He also referred to a conversation with Treloar on 2 May 2007 in which the applicant had stated that he would have to get another phone as he was worried about being caught associating with criminals when he joined the police.

46 The judge concluded:

Whilst I accept that there is no evidence connecting the offender with the factory at Girraween, where a drug manufacturing process took place, and I also accept that he did not meet the man “Ritchie”, and I also accept that prior to his involvement in the matter he had provided some information to police and that he was a man of good character, that being a matter relevant to his credibility, when I take into account the various aspects of his account to which I have referred which raise concerns I am unable to accept his account on the balance of probabilities. In coming to that view I have also taken into account his demeanour whilst giving evidence, being a demeanour which at times could be described at the very least as being very hesitant. But I accept that the demeanour of a witness is not determinative of issues of credibility but it is a relevant consideration.

I am satisfied on all the evidence beyond reasonable doubt that the offender was actively involved in this offence for no other reason than to acquire, with his co-offenders, substantial profits. I am satisfied beyond reasonable doubt that by way of the telephone intercepts the offender was caught “red-handed” in the commission of this offence and that he has deliberately set out on a course here to concoct an account which he believed would substantially reduce his culpability in the commission of the offence. Not only does his account defy logic and common sense, it defies belief.

47 Mr Bellanto submitted that the judge had formed an adverse view about the applicant’s version whilst the applicant was giving evidence and this affected the judge’s subsequent consideration of it. Implicit in the submission was that the judge had a closed mind and did not fairly consider the various matters which favoured acceptance of the applicant’s version. I can detect nothing that would support such an inference. The fact that a judge might indicate a level of incredulity about certain aspects of a witness’ evidence as it is being given does not mean that the judge has foreclosed upon an objective consideration of the evidence overall.

48 It was submitted that, "there was nothing inherently unacceptable about the applicant’s evidence” and that “his answers … were reasonable in the circumstances and sufficient to discharge the civil onus”. That is a matter about which minds may legitimately differ.

49 It was submitted that his Honour’s finding about the inspector failing to follow up the intelligence passed to him by the applicant was an “extraneous and irrelevant” factor that should not have intruded into his Honour’s fact finding exercise. I do not regard that as a correct assessment of the judge’s approach. The reference appeared in the middle of an account of various reasons why the judge did not accept the applicant’s version but that does not mean that it was a finding also used in coming to that conclusion. I am satisfied that it was in the nature of a passing observation. The judge did not say that it was a reason for rejecting the applicant’s version, whereas in relation to all of the other matters mentioned he said, or clearly implied, that was the case.

50 In my view no error is disclosed in the manner in which his Honour approached the task of evaluating the applicant’s evidence and the conclusion he reached was one that was well open to him. I would reject each of grounds 1 to 3.

Ground 8 – The applicant seeks leave to adduce fresh/new evidence on his appeal.

51 It is convenient to deal with this ground next. Expressed as it is, it is not really a ground of appeal. However, the point sought to be raised is that there is evidence available to the applicant now that supports the credibility of his claim that he had no intention of meeting with Ritchie at Sydney airport on the morning of 11 May 2007 but was proposing to meet his girlfriend at Mount Druitt for coffee.

52 It is unnecessary to explore the evidence in any detail. The Crown did not dispute it. I accept that it does confirm the claim that the applicant was intent on meeting his girlfriend for coffee and not upon meeting anyone at the airport.

53 Whether the evidence is in truth “fresh” or “new” is extremely dubious but it is unnecessary to deal with that issue because the evidence is of no significance and the absence of it in the court below did not cause or contribute to any miscarriage of justice. This is because the judge did not reject the applicant’s evidence as to what he proposed to do on the morning of 11 May 2007. His Honour said:

The fact that he did not actually meet the man “Ritchie” at the airport again does not necessarily support his case. Those involved in drug trafficking, particularly at the mid level, commonly seek to physically dissociate themselves from co-conspirators or co-offenders. The offender may well have taken the view that he was not going to be seen in the physical company of the man “Ritchie” but he would continue to remain in contact with him by way of telephone or some other electronic means.

54 I interpolate that it was submitted that what appears in the second and third sentences in this extract was not supported by evidence. That submission does not advance the applicant’s case. They were not positive findings of fact. His Honour was referring to a matter which, by experience and common sense, is notorious in drug trafficking cases and suggesting a possible reason why the applicant did not attend a meeting with Ritchie. The important aspect of this passage in relation to the present ground is that the judge accepted the applicant’s evidence that he did not intend to meet Ritchie at the airport.

55 It was put in written submissions that the “new” evidence was “extremely important as it independently confirms the applicant’s evidence that he did not intend for the drug transaction to take place”. That, with respect, is both an overstatement and a misstatement. No drug transaction was going to take place at a meeting with Ritchie at the airport on the morning of 11 May 2007. The evidence of the applicant in cross-examination was:

Q. So you have brought the two parts of the equation together, you’ve brought Ritchie and Treloar together in the same city, haven’t you?
A. No.

Q. You haven’t?
A. No.

Q. How –
A. Ritchie flew into Sydney only for a few hours while he was exiting the country. He didn’t come here to start the whole process. He flew into Sydney only for a few hours as he flew out.

Q. How could you guarantee that Ritchie would not bring money with him and finalise the deal?
A. He wasn’t – to my knowledge he wasn’t planning on leaving the airport. He was just on the stop-over flight. (T31.40).

56 A further point to note is that the “new” evidence is to the effect that the arrangement to meet for coffee at Mount Druitt was made in text messages exchanged with the applicant’s girlfriend on 9 May 2007. There was no evidence of the applicant making any arrangement to meet Ritchie at the airport aside from a text message he received on the afternoon of 10 May 2007 which stated, “landing Sydney in the morning 8am”. Any suggestion that the applicant made the coffee arrangement so as to avoid a meeting with Ritchie was not supported by the evidence.

57 It was open to the judge to have found that the applicant’s case was “not necessarily” supported by the fact that “he did not actually meet the man Ritchie at the airport. His Honour did not reject the applicant’s version in that respect. Consequently, the “fresh” or “new” evidence is of no significance. If it had been before the sentencing judge it would not have made the slightest difference. Counsel for the respondent objected to this Court receiving the evidence. In my view it should be rejected.

Ground 4 – His Honour erred in finding that the Applicant’s involvement was at the mid-range of objective seriousness.

58 Under this ground it is asserted that the judge erred in finding that the offence was in the middle of the range of objective seriousness. Once again, the question is whether the finding was open and not whether this Court would have come to a different view: see, for example, Mulato v R [2006] NSWCCA 282 per Spigelman CJ at [37].

59 The judge took into account the quantity of drug involved, observing that it was 15 times the large commercial quantity, whilst at the same time noting that quantity is not determinative of the seriousness of a drug supply offence. The judge noted that no actual supply had taken place and that no drug was disseminated into the community. He said that he was satisfied that the applicant, “whilst not a principal in the operation, can properly be described as a middle man in the operation”. It was with reference to these matters that the judge announced his finding that the offence fell in the mid-range of objective seriousness for offences of the kind.

60 Later in his sentencing remarks the judge described the applicant as having “made a deliberate decision to involve himself in a most serious drug trafficking operation for no other purpose than to gain financial profit. He admitted that he had a failed business and that he had substantial debt”.

61 Senior counsel for the applicant submitted that the finding of “mid-range” was not open and that the judge should have found that the objective seriousness of the offence was “towards the bottom of the range”. Having regard to the findings of fact made by the sentencing judge, all of which were perfectly reasonable and available, I cannot agree with that assessment. I would reject this ground.

Ground 5 – His Honour erred in finding that no question of parity arose with reference to the co-offender Carocca.

62 This ground may be disposed of quite briefly. Carocca was not a “co-offender”. If he had been a person who had committed a different offence but within the one overall criminal enterprise, the principles recently discussed in Jimmy v R [2010] NSWCCA 60 would fall for consideration. However he was not.

63 Carocca entered an early plea of guilty to charges of knowingly taking part in the manufacture of a prohibited drug, namely 60 grams of 3,4-methylenedioxy-phenyl-2-propanone and possession of an unauthorised firearm. He asked that his guilt in respect of offences of possession of ammunition without a licence or permit and not keeping a firearm safely be taken into account. He was sentenced by his Honour Judge Johnstone on 26 September 2008 to concurrent terms of imprisonment for two years with execution of the sentences suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act.

64 The sentencing remarks of Johnstone DCJ and other documents relating to the case against Carocca were tendered before Marien DCJ who said the following on the question of parity:

Clearly no issue of parity arises here between the offender and the sentencing of the co-offender Carocca, as I say he was sentenced for a different offence and a less serious offence and the sentencing judge made a finding that the objective seriousness of that offence was at the lower end of the range of objective seriousness for offences of that kind. It is also to be remembered that Carocca pleaded guilty at the first reasonable opportunity in the Local Court and that the offence for which he was sentenced does not attract a standard non-parole period.

65 I can see no error in this conclusion. The points of distinction to which the judge referred were, in combination, significant. Moreover, there was no real connection between the offence committed by Carocca and that committed by the applicant. They were not participants in the same criminal enterprise. Carocca leased a factory to persons involved in the manufacture of drugs. The applicant had nothing to do with that activity and nothing to do with Carocca. The only thing connecting their respective cases was that their criminality was uncovered by the one police investigation.

Ground 6 – His Honour erred in not discounting the sentence for the applicant’s assistance.

66 The assistance relied upon under this ground was the provision of information by the applicant about the presence of the shotgun in the gymnasium in which he worked some six months prior to the offence.

67 Mr Bellanto frankly conceded that he had not submitted in the District Court that there should be any reduction of sentence on account of assistance. He submitted in this Court, nevertheless, that the judge should have discounted the sentence, perhaps by 5 or 10 per cent.

68 I accept that s 23 Crimes (Sentencing Procedure) Act, which empowers a court to reduce a sentence on account of assistance rendered by an offender to law enforcement authorities, is not limited to assistance in relation to the offence for which the offender is to be sentenced. However, the matter relied upon in the present case was so remote in time and circumstance, and the assistance provided so relatively minimal, that the judge was not required to reduce the applicant’s sentence.

69 Moreover, there is some force in the respondent’s submission that the reporting of the presence of a shotgun in the gymnasium storeroom was not really a matter of “assistance to law enforcement authorities” but the act of a good citizen, and so was further evidence of the applicant’s prior good character, a mitigating factor which the sentencing judge explicitly took into account.

Ground 7 – The sentence was manifestly excessive.

70 The Court was referred to Pham v R [2009] NSWCCA 25 and Ly v R [2008] NSWCCA 262, sentencing statistics compiled by the Judicial Commission of New South Wales, and a tables of cases downloaded from a sentencing database on the Public Defenders’ website. The tables relate to sentencing for both supplying and manufacturing a large commercial quantity of a prohibited drug. Reference was also made to R v Kalpaxis [2001] NSWCCA 119; 122 A Crim R 320 but that was only in the event that the Court upheld grounds 1 to 3, and perhaps 8, so it may be put aside.

71 The Court was not assisted with submissions as to why any of this material was relevant or how it supported the proposition that the sentence was manifestly excessive.

72 The tables of cases from the Public Defenders’ website do not advance the applicant’s cause. The cases concerning manufacturing offences may be disregarded. Manufacturing prohibited drugs is a different offence which involves some quite different issues compared to supplying prohibited drugs. In relation to the supply offences, four of the five cases pre-date the prescription of a standard non-parole period for the offence in question and for that reason alone are of limited utility.

73 The one case in the table concerning supply offences to which the standard non-parole did apply was Hamieh v R [2007] NSWCCA 277. It involved a sentence of 11 years, with a non-parole period of 7 years, which was imposed for an offence of supplying a large commercial quantity of methylamphetamine. There does not appear to have been a ground of appeal asserting manifest excess and the dominant consideration in the judgment concerns a matter of parity. Indeed, the appeal was allowed on such a ground. I find this case of no assistance.

74 The sentencing statistics relate to six episodes of sentencing for an offence of knowingly taking part in the supply of a large commercial quantity of amphetamines to which a standard non-parole period applied. The sentences range from 4 years to 12 years. Given the extremely limited number of cases, and the non-disclosure of a vast range of factors relevant to sentencing for such an offence, such limited statistics are of no value.

75 Pham v R involved an application for leave to appeal against the severity of a sentence of 10 years, with a non-parole period of 7 years 6 months, for an offence of knowingly taking part in the supply of a large commercial quantity of pseudoephedrine. The sentence was not reduced on account of the utilitarian value of a plea of guilty as the applicant had been convicted after a jury trial.

76 This case is of no assistance to the applicant. The Court concluded that the sentence was not manifestly excessive. It did not otherwise affirm the correctness of the sentence. Indeed, Latham J, with whom Giles JA and Mathews AJ agreed, said (at [26]) that the sentence was “a lenient one”. She further stated (at [27]) that, “a person committing an offence in the midrange of the hierarchy indicated by the maximum penalty is fortunate … to receive a non-parole period so far below the standard fixed for the offence”.

77 Ly v R involved an application for leave to appeal against the severity of a sentence of 12 years, with a non-parole period of 8 years, for an offence of supplying a large commercial quantity of methylamphetamine. The applicant was found to have been in possession, for the purpose of supply, of a quantity of the drug which exceeded the large commercial quantity threshold by 10 per cent.

78 The sole ground of appeal was that there was error in the assessment of the offence as falling in the mid-range of objective seriousness. This Court (Hislop J, Beazley JA and Harrison J agreeing) held that this was a conclusion that was open to the sentencing judge. Hislop J further indicated (at [32]) that the sentence was “in conformity with other sentencing decisions referred to by the applicant and is not shown to lie outside the relevant range of sentences”.

79 The sentence imposed in Ly v R was reduced by 25 per cent on account of the early plea entered by the applicant in the Local Court. Accordingly, it would otherwise have been a sentence of 16 years, the same as imposed in the present case.

80 In the present case the sentencing judge noted that the plea of guilty was entered four days before the applicant’s trial was due to commence. His Honour said that he would reduce the sentence “by a factor falling in the middle of the range, as described by the Court of Criminal Appeal in Thompson and Houlton”. The range “described” in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 was 10 to 25 per cent and so it may be taken the judge had in mind a reduction in the order of 17.5 per cent. No starting point was indicated, but it follows that it was in the region of 19 or 20 years. This is significantly above the sentence that involved a 16 year starting point which was regarded as within “the relevant range” for a mid-range offence in Ly v R.

81 The reduction of about 17.5 per cent in the present case was generous. Howie J remarked in R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 at [31] that it was “difficult to see how, in the usual case, a plea of guilty on arraignment could justify a discount of more than about 15 per cent”. In the present case, the applicant entered his plea of guilty, not on arraignment but, as I have said, four days before his trial was due to commence. A reduction more towards 10 per cent was appropriate.

82 Be that as it may, the starting point 19 to 20 years before reduction for the plea of guilty seems to me to be excessively high. The offence was found to be of mid-range seriousness but also to be taken into account was the subjective case which the sentencing judge described as “strong”. The applicant was 25 at the time of the offence, had no previous convictions and there was a significant body of other evidence confirming his good character. In my view the starting point should have been more in the order of that which was considered to be appropriate in Ly v R. Despite the comments I have made about the level of discount allowed by the sentencing judge for the plea, it would seem fair to the applicant for that same level to be maintained.

83 By way of contrast, the non-parole period of 8 years was, if anything, a lenient one. There was justification for departure from the standard non-parole period of 15 years but it is difficult to see justification for departure to such an extent.

84 For these reasons I propose that this ground be upheld, that the total term be reduced from 16 years to 13 years 2 months but that the non-parole period be maintained.

85 Finally, there should be no order prohibiting publication of the applicant’s name. Non-publication could only be justified if his version as to why he committed the offence had been accepted as truthful.

I propose the following orders:

1 Leave to appeal granted.

2 Appeal allowed.

3 Sentence imposed in the District Court quashed.

4 In lieu, the applicant is sentenced to imprisonment comprising a non-parole period of 8 years with a balance of the term of the sentence of 5 years 2 months. The sentence is to date from 17 February 2009. The applicant will be eligible for release on parole upon the expiration of the non-parole period on 16 February 2017. The total term will expire on 16 April 2022.

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