Garner v The Queen

[2009] NSWCCA 79

New South Wales
Court of Criminal Appeal

CITATION:	Garner v R [2009] NSWCCA 79
HEARING DATE(S):	19 February 2009
JUDGMENT DATE:	5 May 2009
JUDGMENT OF:	McClellan CJatCL at 1; James J at 2; Buddin J at 62
DECISION:	1.Leave granted to appeal against the sentence for offence 2. 2.Appeal against the sentence for offence 2 allowed. 3.Sentence imposed by the sentencing judge for offence 2 quashed. 4.In lieu thereof sentence the applicant to a non-parole period of one year four months commencing on 29 August 2008 and expiring on 28 December 2009 and a balance of the term of one year four months. 5.Direct that the applicant be released on parole on 28 December 2009.
CATCHWORDS:	CRIMINAL LAW — Sentencing — drug offences — whether motive sheer greed — sentence for one offence manifestly excessive — less severe aggregate sentence for all offences warranted
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act Crimes Act Drug Misuse and Trafficking Act Firearms Act
CASES CITED:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act (2002) 56 NSWLR 146 R v Bacon (2000) 120 A Crim R 28 R v Brown [2001] NSWCCA 367 R v Connell [2003] NSWCCA 90 R v Decandia (NSWCCA 8 July 1994) R v Fogg [2002] NSWCCA 395 R v Hofer [2001] NSWCCA 544 R v Meres; R v Dineen [2003] NSWCCA 193 R v Smiroldo (2000) 112 A Crim R 47
PARTIES:	Allen John GARNER Regina
FILE NUMBER(S):	CCA 2007/5635
COUNSEL:	P Strickland SC - Applicant V Lydiard - Respondent
SOLICITORS:	Mark Klees & Associates S Kavanagh (Solicitor for Public Prosecutions)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/11/0450
LOWER COURT JUDICIAL OFFICER:	Mcguire DCJ

- 18 -

2007/5635

McCLELLAN CJ at CL
JAMES J
BUDDIN J

TUESDAY 5 MAY 2009

GARNER, Allen John v R

Judgment

1 McCLELLAN CJ at CL: I agree with James J.

2 JAMES J: Allen John Garner applied for leave to appeal against sentences imposed on him in the District Court for four offences of supplying a prohibited drug and one offence of possessing an unregistered firearm, to all of which he had pleaded guilty.

3 The sentences imposed by the sentencing judge were:-

For an offence of supplying 8.4 gms of methylene-dioxymethylamphetamine (referred to in the proceedings on sentence as offence 1 or charge 1), a fixed term of imprisonment of 12 months commencing on 29 August 2007.

For an offence of possessing an unregistered firearm (referred to in the proceedings on sentence as offence 3 or charge 3), a fixed term of imprisonment of 3 months commencing on 29 August 2007.

For an offence of supplying 1.35 gms of methylene-dioxymethylamphetamine (referred to in the proceedings on sentence as offence 4 or charge 4), a fixed term of imprisonment of 6 months commencing on 29 August 2007.

For an offence of supplying 12.6 gms of methylene-dioxymethylamphetamine (referred to in the proceedings on sentence as offence 5 or charge 5), a fixed term of imprisonment of 12 months commencing on 29 August 2007.

For an offence of supplying 38.09 gms of methylamphetamine (referred to in the proceedings on sentence as offence 2 or charge 2) and taking into account six additional offences (four offences of possessing a very small quantity of cannabis leaf (2.9 gms, 1.34 gms, 5 gms and .8 gm), one offence of possessing a very small quantity of methylamphetamine (.37 gms) and one offence of goods in custody ($2,565 in cash)), a sentence of imprisonment consisting of a non-parole period of two years commencing on 28 August 2008 and a balance of the term of one year nine months.

4 As I have already indicated, all of the sentences for offences 1, 3, 4 and 5 commenced on 29 August 2007 and they have, accordingly, now expired, whereas the sentence for offence 2 commenced on 28 August 2008 and is still current. The total of the head sentences is four years nine months, with fixed terms and a non-parole period totalling three years.

5 Supplying a prohibited drug is an offence under s 25(1) of the Drug Misuse and Trafficking Act for which the maximum penalty is imprisonment for 15 years and/or a fine of 200 penalty units. Possession of a prohibited drug is an offence under s 10(1) of the Drug Misuse and Trafficking Act for which the maximum penalty is imprisonment for 2 years and/or a fine of 20 penalty units. Possession of an unregistered firearm is an offence under s 36(1) of the Firearms Act for which the maximum penalty is imprisonment for 10 years. Goods in custody is an offence under s 527C(1)(a) of the Crimes Act for which the maximum penalty is imprisonment for 6 months and/or a fine of 20 penalty units.

Facts of the offences

6 Agreed statements of the facts of the offences were admitted into evidence in the proceedings on sentence and in his remarks on sentence the sentencing judge read those statements, which are fairly lengthy, verbatim. The Crown’s written submissions contained a summary of the agreed facts, which was not the subject of any dispute and which has the advantage of being much more concise than the agreed statements themselves. I will now set out the Crown’s summary:-

“The applicant initially came to the notice of the police after a report from a community source that he was supplying drugs in the Sutherland Shire from his white Toyota Hilux utility.
On 28 December 2006, the applicant was observed driving his white Toyota Hilux in Miranda. He was stopped by police, cautioned and asked about the presence of prohibited drugs in the vehicle. He replied that there were needles in the car and that there could also be drugs. The applicant’s vehicle was then searched and police located a total of 38.09 grams of methylamphetamine (charge 2) contained in a number of small resealable bags; a container holding 34 white tablets containing 8.4 grams of 3,4 methylenedioxymethylamphetamine (charge 1); as well as 2.9 grams of cannabis leaf (no. 1 on Form 1).
During the search of the applicant’s vehicle, police discovered a Nokia mobile telephone which rang continuously while police spoke to the applicant, as well as drug paraphernalia such as 65 small resealable bags and two electronic scales.
A search of the applicant revealed the sum of $2,565 in his possession (no. 4 on Form 1). In relation to the money, the applicant told police that he bought scrap metal as part of his business.
After being cautioned by police, the applicant denied knowledge of the items located by police. Later that day, police obtained and executed a search warrant on the applicant’s home. A search of the applicant’s bedroom revealed 1.34 grams of cannabis leaf (no. 2 on Form 1); three resealable bags with a white crystalline substance containing 0.37 grams of methylamphetamine (no. 3 on Form 1); and a resealable bag with 6 tablets amounting to 1.35 grams of 3,4 methylenedioxymethylamphetamine (charge 4).
The applicant made partial admissions with regards to the crystalline substance and the vegetable matter, but denied any knowledge of the tablets.
The applicant informed police of the presence of an antique firearm, which police located in a cupboard drawer. The applicant was not registered to possess the firearm (charge 3).
The applicant was initially refused bail in relation to these offences, however, was released on conditional bail on 10 January 2007.
On 24 March 2007, the applicant was again stoped by police in his white Toyota Hilux. On that occasion, police located 5 grams of cannabis leaf (no. 5 on Form 1). He was subsequently charged and again granted conditional bail.
On 29 August 2007, police stopped the applicant who was again driving his white Toyota Hilux. When asked if there were any prohibited drugs in the vehicle he replied that he did not think so, but there were some needles. On searching the vehicle police located a resealable bag containing 0.8 grams of cannabis leaf under the front passenger seat (no. 6 on Form 1); the applicant stated that it was not his. Police also located a white crystalline substance which amounted to 12.6g of methylamphetamine (charge 5) in the glove box; the applicant stated that this too was not his and that he did not know how it had gotten there.
Following his arrest on that occasion, the applicant was refused bail.”

Remarks on sentence

7 The sentencing judge noted that the applicant had a number of previous convictions for supplying prohibited drugs. The applicant was at liberty on bail when on 24 March 2007 he committed the fifth of the additional offences to be taken into account and was again at liberty on bail when on 29 August 2007 he committed offence 5 and the last of the additional offences to be taken into account. The sentencing judge found that the applicant was a “determined” drug supplier and stated that he disbelieved evidence the applicant had given in the proceedings on sentence that, to the extent to which he supplied drugs, the applicant was supplying merely to a close circle of friends, indeed to only a couple of close friends.

8 The sentencing judge accepted the applicant’s evidence given in the proceedings on sentence that he was a regular drug user. His Honour referred to part of a report by the psychiatrist Dr Olaf Nielssen in which Dr Nielssen had recorded information about the applicant’s use of drugs which had been supplied to Dr Nielssen by the applicant. His Honour said:-

“He told Dr Neilssen, psychiatrist, that his pattern of use was to take a small amount of drug each morning, usually about 0.1 grams. He took amphetamine because it made him feel good, reduced his worries and gave him more energy to get things done and to cut down the need to sleep. He was formerly dependent on heroin but was able to control his dependence with methadone maintenance. His intake of Ice had increased from intermittent to daily use over several years. He told the psychiatrist that he had not previously attempted to stop using amphetamine…”

9 Urine analysis testing performed in May, June and July 2007 had indicated that the applicant had been using amphetamine, cannabis and cocaine during that period. The applicant gave evidence that since he had been incarcerated on 29 August 2007 he had ceased using drugs but it is unclear whether the sentencing judge accepted this evidence.

10 In his remarks on sentence the sentencing judge made the following important findings:-

“Aged fifty-one he has extensive experience in the transport industry, and at the relevant time was operating a successful scrap metal business employing a staff of three. That business was improving and his evidence was to the effect that he was making up to $4,000 a week. Given that he was not an addict supplying to fund a habit, and given that he was conducting a successful business with a substantial income, there was no other sensible reason or motive for his conduct other than sheer greed.”

11 The sentencing judge accepted evidence given by the applicant in the proceedings on sentence that the firearm the subject of the firearms charge had been delivered to him by its owner who wanted to sell it as an antique, that it had been in the applicant’s house only two days, that it was more than a hundred years old, that the applicant had no ammunition for it and that the applicant had on 28 December 2006 revealed its presence to the police. The agreed facts included that the firearm was an antique and that the applicant had informed police of its presence. The sentencing judge said that he would treat the firearm offence as reflecting a low degree of criminality.

12 The sentencing judge considered that the additional offences which were to be taken into account in sentencing the applicant for offence 2 were, taken individually, “not really serious” but “of significance when considered in toto”.

13 The applicant was 51 years old at the time he was sentenced. He was divorced, with no dependants. He was the sole carer of his father who was 88 years old and in ill health.

14 With regard to the applicant’s plea of guilty and assistance he had provided to the authorities, his Honour said:-

“It is to the offender’s credit that he entered pleas of guilty at the earliest opportunity. This and the tangible assistance he has rendered to the authorities will stand him in good stead. Whether he is remorseful and contrite I do not know. However his plea of guilty is of real utilitarian value and his tangible assistance to the authorities entitles him to major consideration. I will reduce his sentence by forty percent.”

15 The sentencing judge found that the applicant had some prospects of rehabilitation and made this finding the basis for finding special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act.

16 His Honour considered that it was necessary for the sentences to be imposed to give effect to the purposes of sentencing of general and personal deterrence. The applicant had not been deterred from committing further drug offences by his previous convictions or by his having been arrested and charged with the offences of 28 December 2006 and the offence of 24 March 2007.

17 Near the conclusion of his remarks his Honour said:-

“With certainty I state that it is my intention to impose an overall sentence, by way of concurrent fixed terms and an accumulated sentence, of four years and nine months, which is to comprise a non-parole period of three years and a parole period of one year and nine months.”

The application for leave to appeal against sentence

18 A notice of application for leave to appeal against sentence was not filed until 17 October 2008, nearly 12 months after the date of sentencing. In the notice two grounds of appeal were stated, namely:-

1. The sentencing judge erred in finding that the motive or reasons for the offence were sheer greed.

2. The sentences imposed were manifestly excessive.

19 I will consider each of the grounds of appeal in turn.

Ground 1. The sentencing judge erred in finding that the motive or reasons for the offence were sheer greed.

20 I have already quoted, but it is convenient to repeat, the part of the remarks on sentence in which his Honour made the finding which is challenged. His Honour said:-

“Aged fifty-one he has extensive experience in the transport industry, and at the relevant time was operating a successful scrap metal business employing a staff of three. That business was improving and his evidence was to the effect that he was making up to $4,000 a week. Given that he was not an addict supplying to fund a habit, and given that he was conducting a successful business with a substantial income, there was no other sensible reason or motive for his conduct other than sheer greed.”

21 In the proceedings on sentence conducted on 16 November 2007 the applicant had in evidence in chief given the following evidence about his business.

“Q. You’d set yourself up into a little business hadn’t you?
A. Yes, yes.
Q. You were operating a scrap metal business at Taren Point?
A. Yes.
Q. When did you set that business up?
A. About fifteen months ago, roughly.
Q. That was in like a factory unit?
A. Yes a factory unit and yard, yes.
Q. Near the Taren Point Marina?
A. Yes it was in – there are factories in where the Marina is and it was in there.
Q. Were you doing well or coping?
A. Yes.
Q. How was it going?
A. The business was starting to really go well, I was employing three people on a casual basis and it was the business was just getting better and better.
Q. What were you doing?
A. I would buy and sell scrap metal, I would buy it off people then clean it up and resell it to like, Sims Metal and places like that.
Q. What sort of money were you making out of that business?
A. Towards the end I was making you know, sometimes up to four thousand dollars a week.
Q. Profit?
A. Profit, yeah.”

22 In the proceedings on sentence the applicant was cross-examined by the representative of the Crown but was not asked any questions about his business.

23 A pre-sentence report dated 15 August 2007 which was admitted into evidence in the proceedings on sentence stated under the heading “Education/Training/Employment”:-

“Having extensive experience in the transport and labouring industries, Mr Garner now operates a scrap metal business. At times he employs three casual staff.
From his net weekly income of $1000, Mr Garner reportedly pays $260 per week rent for his industrial site.”

The sentencing judge did not refer to this part of the pre-sentence report in his remarks on sentence.

24 It was submitted by counsel for the applicant that:-

(1) The sentencing judge had erred in saying that the applicant’s evidence in the proceedings on sentence was that “at the relevant time”, that is at the time of the offences or at least at the time of the offences of 28 December 2006, the applicant was “making up to $4000 a week” from the business.

(2) The sentencing judge had erred in not treating the figure of $4000 per week as being a gross and not a net figure.

(3) The sentencing judge had erred in not having had regard to other findings he had made about the extent of the applicant’s own use of drugs and other evidence admitted in the proceedings on sentence about the cost to the applicant of the applicant’s use of drugs.

It was further submitted that as a result of these errors his Honour had erred in concluding that there was no other motive for the applicant committing the offences than sheer greed.

25 I consider that submission (1) should be accepted. The applicant, who was giving evidence on 16 November 2007, said in his evidence that he had set up the business “about 15 months ago, roughly”, that is in about August 2006, that the business had been improving and that “towards the end”, that is towards the date of his final arrest on 29 August 2007, he had been making $4000 a week, although, even then, only “sometimes”. It was erroneous for his Honour to say that the applicant’s evidence was that at the time of the offences (or at least at the time of the majority of the offences, those committed on 28 December 2006) the applicant was making up to $4000 per week from the business and to base a further finding upon that misstatement of the applicant’s evidence.

26 As to (2), it was submitted by counsel for the applicant that the figure of $4000 per week, even when it was being achieved, was a gross figure from which, in order to arrive at a net figure, there had to be deducted the expenses of the business, including the wages of three employees, the costs of buying the scrap metal and the rent for the business premises.

27 In support of this submission counsel for the applicant referred to the statement in the pre-sentence report that the “net weekly income” of the business was only $1000 and that out of that weekly income the applicant had to pay $260 in rent for the premises of the business.

28 However, the applicant, when giving evidence was asked by his counsel whether $4000 a week was “profit”, and the applicant said “profit – yeah”. It is possible that by “profit” the applicant meant a gross profit (that is the difference between sales revenue and the direct cost of sales) or some other figure other than an ultimate net profit (for example, the profit of the business before payment of rent for the premises). However, having regard to the applicant’s own evidence that the figure of $4000 a week was “profit”, I do not consider that I should find that it would have been an error on the sentencing judge’s part to treat $4000 per week, when it was achieved, as being the profit of the business.

29 As to (3), the sentencing judge in other parts of his remarks on sentence accepted that the applicant was a regular drug user and referred to what the applicant had told Dr Nielssen about the extent of his use of drugs, including his daily use of amphetamine, without any indication that the sentencing judge did not accept as being true what the applicant had told Dr Nielssen. The pre-sentence report stated that “at the time of the offences he (the applicant) was reportedly consuming up to $100 worth of amphetamine a day”.

30 If the applicant was not making up to $4,000 per week from his scrap metal business, it is more likely that the motive for part of the applicant’s supplying of drugs at the time of the 28 December 2006 offences was to obtain money to fund his own use of drugs.

31 I have held that the sentencing judge did err in saying that the applicant’s evidence in the proceedings on sentence was that at the time of the offences (or at least at the time of the majority of the offences) the applicant was making up to $4000 per week from his scrap metal business. This misstatement by the sentencing judge of the applicant’s evidence formed the basis of the finding that the applicant was conducting a successful business with a substantial income, which was one of the two premises for his Honour’s conclusion that there was no motive for the applicant’s conduct other than sheer greed. His Honour’s misstatement of the applicant’s evidence and the other, unchallenged, evidence in the proceedings on sentence about the applicant’s use of drugs and the cost of that use of drugs also weakens the other premise for his Honour’s conclusion, namely that the applicant was not an addict supplying (at least in part) to fund his own drug habit.

32 I would uphold the first ground of appeal.

Ground 2. The sentences imposed were manifestly excessive

33 Counsel for the applicant’s submissions in support of this ground in his written submissions of 17 October 2008 were quite brief. It was submitted that the sentences imposed, that is the totality of the sentences, were manifestly excessive, having regard to the combined discount of 40 per cent for the early pleas of guilty and the assistance, the relatively small quantities of drugs involved in the offences and the fact that the applicant was himself a drug addict, and that the sentence for offence 2, considered by itself, was manifestly excessive.

34 In its written submissions the Crown disputed that either the sentences generally or the sentence for offence 2 were manifestly excessive. It was submitted that only limited weight could be given to the fact that the applicant was himself addicted to drugs. As to the sentence for offence 2, the Crown pointed out that the quantity of the drug was about eight times the indictable quantity, that the maximum penalty for the offence was imprisonment for 15 years, that in sentencing for offence 2 the sentencing judge was required to take into account the six offences on the Form 1 and that two of the offences on the Form 1 (nos 5 and 6) had been committed while the applicant was at liberty on bail.

35 In the Crown’s written submissions it was stated that the sentencing judge’s starting point in determining a sentence for offence 2, before allowing the combined discount of 40 per cent for the plea of guilty and the assistance, would have been 5 ½ years. This calculation of the starting point for the sentence for offence 2 as having been 5 ½ years was not disputed by counsel for the applicant and was, indeed, adopted by counsel for the applicant. It was, however, erroneous. If the sentencing judge allowed a discount of 40 per cent so as to arrive at a head sentence of three years nine months (45 months), then the putative head sentence, before allowing the discount, would have been six years three months (75 months) and not five years six months.

36 At the actual hearing of the application counsel for the applicant informed the Court that he was focusing on the sentence for offence 2; indeed, he said that he was abandoning any appeal against the sentences for the other offences. Accordingly, the second ground of appeal was limited to a contention that the sentence for offence 2 was manifestly excessive.

37 I have already noted that the application for leave to appeal against sentence was not filed until 17 October 2008. By the time the application was filed all of the other sentences, that is all the sentences for offences other than offence 2, had expired.

38 If the application for leave to appeal had been filed before the sentences for the other offences had expired, the Crown could have given consideration to lodging a Crown appeal against the sentences for the other offences, while those sentences were still current, and, whether or not a Crown appeal was brought, this Court, depending on when the application was heard, could have given consideration to varying the sentences for the other offences pursuant to s 7(1A) of the Criminal Appeal Act, while those sentences was still current. It should, however, be pointed out that, although the application for leave to appeal was not filed until 17 October 2008, a notice of intention to appeal was filed promptly on 5 December 2007 and extended on a number of occasions, so that the Crown had early notice that an application for leave to appeal against sentence might be brought.

39 Senior counsel for the applicant gave the court an explanation of why the delay in filing the application had occurred. The exhibits which had been provided by the District Court registry to the applicant’s solicitors had not included the letter giving details of the assistance the applicant had provided. Senior counsel for the applicant had formed the opinion that an attempt should be made to obtain access to the letter of assistance in order to check whether a sufficient discount had been allowed for the assistance and, rather than “fragment” any application, the filing of the application should be deferred until after access had been obtained.

40 An application was made to the sentencing judge to obtain access to the letter of assistance but, notwithstanding various undertakings offered on behalf of the applicant, the sentencing judge declined to allow access. Ultimately, senior counsel for the applicant was able to inspect the letter of assistance in a court registry. It was only after this inspection had taken place that the application for leave to appeal against sentence was filed. Senior counsel informed the court that, to his knowledge, the applicant had never been advised by any person, and had not instructed any person, to delay commencing his appeal against sentence until after the sentences for offences 1, 3, 4 and 5 had expired.

41 Senior counsel for the applicant is well and favourably known to this Court and I consider that his explanation for the delay should be accepted and that the Court should proceed on the basis that the commencement of the application was not deferred for tactical reasons. In these circumstances I do not consider that the Court should dispose of the application by refusing leave to appeal.

42 At the hearing of the application it was suggested in the course of the argument that the sentencing judge might have decided to reflect in the sentence for offence 2 most of the criminality in all of the offences and to make the sentences for the other offences relatively short and concurrent with each other and that, even if the sentence for offence 2, considered by itself, was held to be manifestly excessive, the totality of the sentences was not manifestly excessive and was appropriate to reflect the totality of the criminality in all of the offences; and, this being so, the second ground of appeal should be rejected.

43 At the conclusion of the oral hearing of the application counsel were directed to lodge written submissions on the question whether, if the Court were to find that the sentence for offence 2, considered by itself, was manifestly excessive, the Court could nevertheless decline to intervene and dismiss the appeal, on the grounds that the totality of the sentences appropriately reflected the totality of the criminality in all of the offences and no less severe aggregate sentence would be warranted.

44 Pursuant to this direction, written submissions were lodged by both parties.

45 An initial question is whether the sentence for offence 2 was manifestly excessive, considered simply as a punishment for the criminality in offence 2 (but also taking into account the additional offences).

46 As the sentencing judge quantified the combined discount he was allowing for the plea of guilty and the assistance provided by the applicant, it is legitimate to refer to what the putative sentence would have been, before allowing the discount. As I have already noted, the putative sentence would have been six years three months, and not five years six months as assumed by the parties.

47 The methylamphetamine the subject of offence 2 was in resealable bags and was clearly in the applicant’s possession for the purpose of supply. The quantity of the drug was 38.09 grams. The trafficable quantity for methylamphetamine is 3 grams and the commercial quantity is 250 grams.

48 I have already upheld the first ground of appeal that the sentencing judge erred in finding that the motive for the offences, and in particular offence 2, was sheer greed. The sentencing judge clearly treated this finding as an aggravating factor.

49 The six additional offences were to be taken into account in sentencing the applicant for offence 2 and two of the additional offences had been committed while the applicant was on bail. The additional penalty because additional offences are taken into account in sentencing for an offence need not be small (Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act (2002) 56 NSWLR 146).

50 On the other hand, four of the six additional offences were for possession of quite tiny amounts of cannabis leaf. The largest of the amounts was 5 grams, whereas under the Drug Misuse and Trafficking Act the “small quantity” applicable to cannabis leaf is 30 grams. Another of the offences was possession of a tiny amount of methylamphetamine (.37 grams). The small quantity prescribed for methylamphetamine is 1 gram. The applicant was a user of both cannabis leaf and methylamphetamine.

51 The remaining additional offence was possession of $2,565 in cash. The agreed facts of the offences include that, when asked about the cash, the applicant told police that he bought scrap metal for his business. By agreeing that this offence should be taken into account in sentencing him the applicant was conceding that the cash was reasonably suspected of having been unlawfully obtained; however, he was not conceding that the cash was in fact connected with drugs.

52 The Court was referred by counsel for the applicant to a number of cases which were collected in what was described as a comparative table of cases. Only limited assistance can be obtained by an examination of other cases but the other cases to which we were referred by counsel for the applicant do suggest that the sentence passed on the applicant was excessive. The other cases to which the Court was referred include R v Decandia (NSWCCA 8 July 1994), R v Smiroldo (2000) 112 A Crim R 47, R v Bacon (2000) 120 A Crim R 28, R v Brown [2001] NSWCCA 367, R v Hofer [2001] NSWCCA 544, R v Fogg [2002] NSWCCA 395, R v Connell [2003] NSWCCA 90 and R v Meres; R v Dineen [2003] NSWCCA 193.

53 In my opinion, had there been no discount for a plea of guilty and assistance, a sentence of six years three months would have been manifestly excessive as a punishment simply for the criminality in offence 2 (and the additional offences) and, consequently, a sentence of three years nine months, after allowing the combined discount, should be regarded as manifestly excessive and I would uphold the second ground of appeal insofar as it relates to the sentence for offence 2.

54 A further question is whether, even if the sentence for offence 2 was, as I have held, manifestly excessive, nevertheless no less severe aggregate sentence would have been warranted to reflect the total criminality in all the offences; so that, if this Court can dismiss an appeal against sentence, where there are sentences for multiple offences, on the grounds that no less severe aggregate sentence would have been warranted to reflect the total criminality in all the offences, that power could be exercised in the present case.

55 I am not persuaded that no less severe aggregate sentence than that imposed was warranted to reflect the total criminality in all of the offences.

56 It is true that all of the sentences for the other offences were made to commence from the same date, that the two longest sentences of 12 months each (for offences 1 and 5) were made fully concurrent with each other and that the lesser sentences of three months for offence 3 and six months for offence 4 were completely subsumed in the longer sentences.

57 On the other hand, the sentence for offence 2 was made fully cumulative on the sentences for the other offences. Of the other offences, offence 3, the firearms offence, was, on the agreed facts and the evidence of the applicant which the sentencing judge accepted, a very minor offence and hardly called for any sentence of imprisonment and offence 4 of supplying 1.35 grams of methylenedioxymethylamphetamine was, for a drug offence, a very minor offence. If there was any inadequacy in the sentences for offences 1 and 5, particularly in making them fully concurrent with each other, that inadequacy was offset by what I consider to be the manifest excessiveness of the sentence for offence 2.

58 As I have reached a conclusion that it is not the case that no less severe aggregate sentence would have been warranted to reflect the total criminality in all the offences, it is unnecessary to determine the question of principle which was the subject of the parties’ further written submissions. The Court is indebted to counsel for these submissions, although, ultimately, it was unnecessary to determine the question to which the submissions were directed.

59 As I consider that the applicant’s appeal against the sentence for offence 2 should be allowed, it is necessary to re-sentence the applicant for offence 2. Earlier in this judgment I set out the objective facts of the offence and the subjective circumstances of the applicant and I will not now repeat what I said.

60 In my opinion, an appropriate head sentence before allowing a combined discount for the plea of guilty and the assistance provided by the applicant would be 4 ½ years. I would allow a combined discount, as the sentencing judge did, of 40 per cent, producing (with slight rounding off) a head sentence of two years eight months. I would find special circumstances in the circumstances which the sentencing judge found to be special circumstances and I would divide the head sentence between a non-parole period and a balance of the term so that the total of the fixed terms (12 months) and the non-parole period of the sentence for offence 2 bears the same proportion to the total head sentences as that adopted by his Honour (three years to four years nine months). Accordingly, the non-parole period of the sentence for offence 2 would be one year four months and the balance of the term would be one year four months.

61 In my opinion the following orders should be made:-

1. Leave granted to appeal against the sentence for offence 2.

2. Appeal against the sentence for offence 2 allowed.

3. Sentence imposed by the sentencing judge for offence 2 quashed.

4. In lieu thereof sentence the applicant to a non-parole period of one year four months commencing on 29 August 2008 and expiring on 28 December 2009 and a balance of the term of one year four months.

5. Direct that the applicant be released on parole on 28 December 2009.

62 BUDDIN J: I agree with James J.