Llavallol v The Queen

[2012] NSWCCA 29

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Llavallol v R [2012] NSWCCA 29

Hearing dates:

8 February 2012

Decision date:

09 March 2012

Before:

Basten J at [1]
RS Hulme J at [15]
Schmidt J at [34]

Decision:

1. Leave to appeal is granted.

2. The appeal is upheld.

3. The sentence is quashed and in lieu the applicant is sentenced to a non-parole period of 13 months commencing on 11 February 2011 and expiring on 10 March 2012 with a balance of term of 5 months expiring on 10 August 2012.

4. Direct that the applicant be released on parole subject to the standard conditions.

Catchwords:

CRIMINAL LAW - appeal against sentence -
whether error in failing to apply the provisions of the Criminal Case Conferencing Act - whether error in failing to take into account that the offence was capable of being dealt with in the Local Court - leave to appeal granted - leave upheld - sentence quashed

Legislation Cited:

Crimes Act 1900
Criminal Appeal Act 1912
Criminal Case Conferencing Trial Act 2008
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

Cases Cited:

Do v R [2010] NSWCCA 182
Greer v R [2011] NSWCCA 40
LJ v Regina [2010] NSWCCA 289
Nguyen v Regina [2007] NSWCCA 15
Re Attorney-General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; (2002) 56 NSWLR 146
Bonwick v R [2010] NSWCCA 177
R v Clarke (Court of Criminal Appeal, 15 March 1990, unreported)
R v Crombie [1999] NSWCCA 297
R v El Masri [2005] NSWCCA 167
R v Giang [2005] NSWCCA 387
R v Hanslow [2004] NSWCCA 163
R v Henry [1999] NSWCCA 111; (1999) NSWLR 346
R v Khalad [2001] NSWCCA 169
R v Kalache (2000) 111 A Crim R 152
R v Knapp [2004] NSWCCA 419
R v Kean [2011] NSWCCA 136
R v Liang (Court of Criminal Appeal, 2 June 1995, unreported)
R v Markarian [2003] NSWCCA 8
R v Palmer [2005] NSWCCA 349
R v Ramos (2000) 112 A Crim R 339
R v Thompson; R v Houlton [2000] NSWCC 309; (2000) 49 NSWLR 383
R v Wong & Leung [1999] NSWCCA 420; (1999) 48 NSWLR 340
Tran v R [2010] NSWCCA 183
Wong v R [2001] HCA 64; 207 CLR 584

Category:

Principal judgment

Parties:

Esteban Luis Llavallol (Applicant)
Regina (Respondent)

Representation:

Counsel:
Mr D Barrow (Applicant)
Ms T Smith (Respondent)
Solicitors:
B Sandland, Legal Aid NSW (Applicant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)

File Number(s):

2010/116354

Publication restriction:

None

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2011-02-11 00:00:00

Before:

Freeman DCJ

File Number(s):

2010/116353

Judgment

1. BASTEN JA : The applicant, Mr Llavallol, was found by police on 5 May 2010 to be in possession of 3.21 grams of heroin, being a trafficable amount for the purposes of s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). He entered a plea of guilty and was sentenced by Freeman DCJ on 11 February 2011 to a non-parole period of one year and three months, with a balance of term of nine months, giving a full term of two years imprisonment.

1. On his application for leave to appeal, he asserted that the sentencing judge erred in two respects, namely in failing to:

(a) apply the provisions of ss 16 and 17 of the Criminal Case Conferencing Trial Act 2008 (NSW), in respect of the discount for a plea of guilty, and

(b) take into account the fact that the offence was capable of being dealt with in the Local Court.

1. I agree with the orders proposed by Schmidt J and, subject to what follows, with her reasoning in respect of the errors and the appropriate sentence.

(a) Failure to specify discount for plea

1. The practice of allowing a "discount" for a plea of guilty, presumptively of 25% if entered at the earliest reasonable opportunity, has been accepted, at least since the commencement of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act "), which provided for the court to impose "a lesser penalty than it would otherwise have imposed" in the case of a plea: s 22(1). The court retained a discretion in that regard, but if it declined to impose a lesser penalty it was required, without prejudice to any other requirement to state reasons, to indicate to the offender and make a record of its reasons for not so doing: s 22(2) and (3). The Court gave guidelines in that respect in R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383.

1. When the Criminal Case Conferencing Trial Act commenced on 16 April 2008, it varied the existing requirements by specifying the amount of the discount to be given for a plea at any time before committal for sentence: s 17. Further, it expressly required the sentencing court to indicate to the offender and make a record of the penalty it would have imposed but for the plea: s 16(1). Although the Act had been in force for nearly three years at the time the applicant was sentenced, other cases in this Court referred to by Schmidt J, demonstrate that the present non-compliance is not a unique occurrence. That appears to reflect a degree of unfamiliarity with the legislation on the part of lawyers appearing for both the prosecution and the defence. One explanation may be that its operation is restricted to offences where the committal proceeding is to be heard in the Local Court sitting at the Downing Centre or at Central, in Sydney. Further, it was only originally provided to operate in respect of court attendance notices issued between 1 May 2008 and 1 May 2009: s 5. (That period was extended by regulation to 8 October 2011: Criminal Case Conferencing Trial Regulation 2008 (NSW), cl 6.)

1. In circumstances where neither party adverted to the statutory obligation and where there was no express compliance with it either by way of indication to the offender, or by way of record in the reasons for sentence, it should be inferred that the sentencing judge did not have the provision in mind when passing sentence. Further, there is no unequivocal basis for inferring that a 25% discount was given in this case. The trial judge stated in his judgment (p 2):

"His plea of guilty was entered at the earliest opportunity and those facts are relied upon by Mr O'Brien who appears for the prisoner as evidence of his genuine acceptance of his guilt and remorse for his offending. I think there is force in that submission."

1. What is missing in this passage is an express acceptance of the submission and of the consequence that a 25% discount should be provided.

1. There was little analysis in the course of the present application of the scheme for compulsory conferences, provided by Part 3 of the Act, their purpose in managing criminal proceedings or their relationship to the discounts for guilty pleas provided in Part 4. For present purposes, it is sufficient to conclude that the error has been established and that it is necessary for this Court to assess whether some other sentence is warranted in law, for the purposes of the Criminal Appeal Act 1912 (NSW), s 6(3).

(b) Relevance of proceeding in Local Court

1. The maximum penalties prescribed for a breach of s 25(1) of the Drug Misuse and Trafficking Act depend on whether the matter is disposed of summarily or on indictment. An offence may be disposed of summarily where the quantity of drug involved is less than the indictable quantity, being, in relation to heroin, 5.0 grams. In that event the relevant maximum period of imprisonment is two years. Although, in the present case, the amount of heroin was fractionally above the trafficable quantity (3.0 grams), being 3.21 grams, it was well below the indictable quantity. The matter could therefore have been dealt with in the Local Court: Drug Misuse and Trafficking Act , s 31(1)(c) and Sch 1, in relation to heroin.

1. The matter would not be dealt with summarily if the prosecution elected to proceed on indictment which, it may be assumed, it did in the present case. The basis for that decision of the prosecutor is not to be reviewed by the sentencing judge: however, he or she should consider whether the matter was one which, on the facts before the court, could properly have been disposed of in the Local Court and whether, therefore, the range of sentencing power available in the Local Court should be taken into account, although not limiting the jurisdiction of the District Court: R v Crombie [1999] NSWCCA 297 at [15]-[16] (Woods CJ at CL, Simpson J agreeing).

1. Although in the District Court the prosecutor tendered material which suggested the maximum penalty was two years, the basis for that calculation was not identified in the course of submissions in the District Court and, on sentencing, the judge made no reference to the possibility that the matter might properly have been dealt with in the Local Court.

1. On the basis of the circumstances of offending, as set out by Schmidt J, the prosecution may well have taken the view that this was a borderline case for disposal in the Local Court and therefore elected to have it dealt with in the District Court. However, for the reasons given by Schmidt J, I am satisfied that an appropriate sentence should not exceed the maximum jurisdiction of the Local Court and that the matter could have been properly disposed of in that Court. That view receives support from the sentencing statistics tendered by the applicant.

1. The sentence imposed in this case did not in fact exceed the jurisdiction of the Local Court but, it is at least arguable that, where the Criminal Case Conferencing Trial Act required that the Court indicate and make a record of "the penalty it would have imposed but for the guilty plea", that must be a penalty within its jurisdiction. On that approach, which was assumed to be correct on this application, the effective maximum sentence which the Local Court could have imposed, given the mandatory 25% discount for the plea, would have been 18 months imprisonment. Whether or not that approach is correct, and despite the fact that the District Court (and hence this Court) are not limited to the sentence which could have been imposed by the Local Court, I agree with Schmidt J that the appropriate sentence in this case was 18 months imprisonment, comprised of a non-parole period of 13 months with the balance of term being five months.

1. I agree with the orders proposed by Schmidt J.

1. RS HULME J : Basten JA and Schmidt J are of the opinion that the application for leave to appeal should be granted, the appeal allowed and the Applicant given a lower sentence than that imposed by Freeman DCJ. I disagree.

1. In particular do I disagree with the view that this matter could appropriately have been dealt with in the Local Court. At the time the Crown elected to have the matter dealt with in the District Court and at the time the Applicant was committed for trial, the evidence demonstrated as much and no more than that he was a drug dealer, walking the street in the vicinity of Kings Cross, possessed of 24 packaged drug deals weighing 3.51 grams and of a purity of 36.5%, $2,850 in cash which was presumably the proceeds of about 30 to 60 other such deals, and 2 mobile phones. He declined to be interviewed by police. Presumably the authorities also knew that he had no significant criminal record but given what they did know, it is perfectly understandable, and in my view the only appropriate course, that the Crown chose to proceed in the District Court on the drug supply charge.

1. A fortiori was this so when the Applicant was also facing, whether by way of charge or a Form 1, the further offence of dealing with property suspected to be the proceeds of crime, an offence which, though almost certainly an incident of his drug dealing, was not connected with the offence of the deemed supply of the 3.51 grams so as to make any additional punishment inappropriate.

1. The happenstance that a street drug dealer has merely 3.51 grams of heroin on him at the time of his apprehension provides no grounds for concluding that a charge based on that possession should proceed in a court which has a 2 years limit on its sentencing power. While of course the fact that the power of the Local Court to deal with matters is defined by reference to weight means that weight is obviously relevant, to regard it as the determining factor in a decision whether to proceed summarily is contrary to the tenor of the remarks of the majority of the High Court in Wong v R [2001] HCA 64; 207 CLR 584 at [67] - [73]. Rather should attention be given to an offender's criminality - R v Hanslow [2004] NSWCCA 163 at [21]; R v El Masri [2005] NSWCCA 167 at [29] - criminality to which weight is but one relevant factor.

1. Nor do the Judicial Commission statistics to which the Court was taken persuade me otherwise. They contain no information as to whether or not the offenders reflected in them were active drug dealers or whether other offences were taken into account.

1. And lest it be thought that the matter has been overlooked, it is to be noted also that the evidence of what were found to be mitigating factors relied on before Freeman DCJ did not come into existence until, in part, the Pre-Sentence Report of 3 February 2011 and as to the balance later, when the Applicant entered the witness box on the day of sentence - long after the decision was made to proceed in the District Court.

1. While I agree with the other members of this Court that Freeman DCJ's silence on the topic leads to the view that he did not take into account the possibility that the Applicant could have been dealt with by the Local Court and, because that possibility was potentially relevant he should have done so, the remarks that I have made and the references to authority below indicate that that consideration was of no weight.

1. I agree with the other members of the Court that it should be inferred that Freeman DCJ overlooked the provisions of the Criminal Case Conferencing Act (2008) in his determination of the sentence to be imposed.

1. However, the fact that his Honour overlooked the provisions of that Act - an Act which, as Basten JA has pointed out, is restricted both in location and duration - provides no basis for inferring that his Honour also overlooked far more basic and well known sentencing principles reflected in s 21A(3)(k) of the Crimes (Sentencing Procedure) Act (which includes as a mitigating circumstance that an offender has pleaded guilty and incorporates reference to a lesser sentence in consequence, and to which his Honour's attention was drawn in written submissions on sentence provided by the Crown), and in this Court's decision in R v Thompson & Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; 115 A Crim R 104. Freeman DCJ became a judge in 1986 and must have been referred to these matters hundreds of times.

1. In R v Thompson & Houlton Spigelman CJ, having said that the appropriate range for the discount for the utilitarian value of a plea should be in the range of 10 to 25%, continued at [155], " The top of the range would be expected to be restricted to pleas at the earliest possible opportunity ...". In his remarks on sentence in this case Freeman DCJ observed "His (the Applicant's) plea of guilty was entered at the earliest opportunity and those facts are relied on by Mr O'Brien who appears for the Prisoner as evidence of his genuine acceptance of his guilt and remorse for his offending. I think there is force in that submission."

1. Although the concluding portion of those remarks is directed to a different aspect of the plea, I find it impossible to accept that his Honour's reference to "earliest opportunity" was not an echo of the words used by Spigelman CJ, words that have become a standard expression in the field of sentencing.

1. Freeman DCJ did not in fact say expressly that he had allowed the Applicant any discount for the utilitarian value his plea, but given his Honour's experience and the elementary nature of any sentencing judge's obligation to allow such a discount, I see no basis for inferring that his Honour did not allow, not only a discount, but the 25% discount mandated by s 17 of the Criminal Case Conferencing Act.

1. Accordingly, though Freeman DCJ erred in both of the respects the subject of the grounds of appeal, I am unpersuaded that the errors had any effect on the sentence his Honour imposed.

1. But even if this view be wrong, there remains for consideration, s 6(3) of the Criminal Appeal Act 1912 which enjoins the Court to dismiss an appeal unless "it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed".

1. In R v Wong & Leung [1999] NSWCCA 420; (1999) 48 NSWLR 340 Spigelman CJ, with the concurrence of the other members of the Court referred to "the exceptional threat to our society that is posed by large scale drug use". In R v Markarian [2003] NSWCCA 8, with the agreement of the other members of the Court, I observed at [23]:-

Much, if not most of the work of the courts is taken up with the consequences of the ravages drugs, particularly heroin, inflict on those who take it and, by them, on society. The survey of imprisoned burglars reported in "The Stolen Goods Market in New South Wales" conducted by the New South Wales Bureau of Crime Statistics and Research indicated a median expenditure by heroin users of $1,500 per week and the need to steal goods worth a number of times this amount to feed their habit. On average each such offender is thus costing the community through property losses and the like $200,000 per year. And that says nothing about the violence other offenders resort to, or the waste of life and degradation heroin inflicts on the lives of the tens of thousands of persons it comes to dominate.

1. In R v Khalad [2001] NSWCCA 169, Wood CJ at CL, sitting in a 2 judge bench, made an observation endorsed by all 3 judges in R v Giang [2005] NSWCCA 387:-

(W)hat 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.

1. His Honour was talking at the time of s 25A of the Misuse Drug and Trafficking Act but the last sentence I have quoted provides a strong, if not compelling argument for ensuring that sentences for street dealers provide a very substantial measure of deterrence. So do the other passages I have quoted. It is obvious that sentences imposed hitherto were not enough to deter the Applicant.

1. In evidence the Applicant conceded that he knew "that heroin is an insidious drug. It really destroys your life" and that "in the two weeks that I spent dealing heroin every day I would kick myself and say look Esteban what are you doing, you know what the hell are you doing". His criminality was deliberate. I find it impossible to regard the sentence imposed by Freeman DCJ as outside the legitimate exercise of his Honour's sentencing discretion or to say that some other sentence should have been passed.

1. I would grant leave to appeal but dismiss the appeal.

1. SCHMIDT J : The applicant seeks leave to appeal from a sentence imposed upon him by Freeman DCJ on 11 February 2011. On 21 October 2010, the applicant entered a plea of guilty to a charge of supply a prohibited drug, heroin, (s 25(1) of the Drug Misuse and Trafficking Act 1985). On sentencing, an offence of dealing with property suspected to be the proceeds of crime, (s 193C(1) of the Crimes Act 1900), was taken into account on a Form 1 (see s 32 of the Crimes (Sentencing Procedure) Act 1999). The applicant was sentenced to a term of imprisonment of 2 years, with a non-parole period of 1 year, 3 months. He is eligible for parole on 10 May 2012.

1. The maximum penalty for the supply offence is a fine of 2,000 penalty units or imprisonment for a term of 15 years, or both. The traffickable quantity prescribed for heroin is 3 grams and the indictable quantity is 5 grams. This offence concerned 3.21 grams of heroin, analysed to have a purity of 36.5%. The maximum penalty for the proceeds of crime offence is 50 penalty units or imprisonment for 2 years, or both.

Grounds

1. The grounds advanced were:

"1. His Honour erred in failing to apply the provisions of the Criminal Case Conferencing Act.

2. His Honour erred in failing to take into account that the offence was capable of being dealt with in the Local Court."

The sentencing Judgment

1. There was an agreed statement of facts in evidence to which his Honour referred. His Honour noted that the offender was the subject of a police surveillance operation. On 5 May 2010, when approached by police, he immediately disclosed that he was in possession of heroin. He was found to be in possession of a metal container containing, in total, 24 resealable bags containing heroin. 16 bags each contained 0.2 grams of heroin, (each identified to be a $100 deal) and 8 bags contained 0.1 grams of heroin, (each identified to be a $50 deal). The total weight of the heroin was 3.21 grams. The applicant was also found to be in possession of 2 mobile phones and a total of $2,950 cash, $2,000 of which was bundled into packages of $1,000 each, with the remaining sum loose. This amount was analysed to represent a number of deals ranging from 30 to 60.

1. His Honour found that while the applicant then declined to take part in a recorded interview, he later entered his plea in the Local Court, at the earliest opportunity. His Honour accepted that this evidenced the applicant's genuine acceptance of his guilt and remorse for his offending.

1. His Honour noted the then 40 year old applicant's subjective circumstances, which included that he had an Argentinean background; success at school, until he rebelled in his early teens, associated in his mind with his father's very strict discipline, with accompanying violence. He then commenced alcohol and marijuana use, before moving to heroin, to which he became addicted. His Honour noted the applicant's repeated efforts at abstinence and rehabilitation, and a pre-sentence report, which suggested that the applicant would benefit from entering a residential rehabilitation programme, to strengthen his resolve to abstain from drugs. This was supported by a psychologist's report. His Honour also noted that the applicant resisted a residential course, preferring to remain in the community to work and pursue his studies.

1. His Honour took the view that the applicant underestimated the risks associated with his attempted abstinence, given evidence of a transgression, but noted the encouraging steps which the applicant had taken. He also noted that the applicant had not previously been imprisoned and that his record led to the conclusion that there were special circumstances, justifying a variation in the statutory proportions, otherwise applicable to the sentence.

1. His Honour took the view that imposition of the bond urged for the applicant was not appropriate, given the significant supply in which the applicant had been involved, notwithstanding the applicant's justification that he had only supplied those already addicted and that he supplied a genuine product, not substitutes occasionally foisted on those desperate for drugs. His Honour referred to the approach of this Court in R v Clarke (Court of Criminal Appeal, 15 March 1990, unreported) and later cases, to notions of general deterrence and punishment for those involved in significant supply or trafficking of drugs. He took the view that supply by a user not solely for the purpose of financial gain, did not operate as an excuse, but may remove the offence from the worst class.

1. His Honour took the Form 1 offence into account in the sentence imposed.

The evidence

1. The offender gave evidence. He said that he had grown up in a very violent household, but he had done well academically and socially as a child, until he started rebelling at about age 14, when he began experimenting with alcohol and marijuana, which he came to smoke habitually. He travelled overseas after completing high school and later worked in graphic design, publishing and advertising. At age 25, he began experimenting with heroin, while studying at university and working full-time. He became addicted, but later undertook detox, with support from some of his family members. He moved home and was involved in two car accidents, the second while recovering from the first. The result was an argument with his father, after which he left home and again began using heroin.

1. The applicant married in 2006 and again went through a programme to assist him to get off heroin. He succeeded and was able to obtain work and sustain a fulfilling life, until he was made redundant. He then decided to retrain as a teacher, but didn't succeed. He became depressed and took up heroin again, eventually beginning to sell the drug to satisfy his habit. The result was the destruction of his relationship with his wife.

1. The applicant explained that:

"The people that I was selling to were people that I've known for many years and we would often help each other out in the search for heroin and the way that I could justify it is that at least if me giving them heroin they are getting heroin as opposed to being ripped off and at the same time I could sustain my addiction;

1. The applicant said that he had dealt only for two weeks and that even then he thought that what he was doing was 'ridiculous'. When giving his evidence, he was living with his mother, taking help from a psychologist, undergoing regular urine tests and seeking to live a full, fulfilling life without heroin. On the cusp of turning 40 he had succumbed again once, but since then had not relapsed again. He was working as labourer six days a week, and planned to continue counselling and to pursue further studies in film. In cross-examination, the applicant explained that he would prefer not to take up residential rehabilitation, preferring to work and study and bettering himself in that fashion, even though his psychologist had recommended residential rehabilitation.

Ground 2 - His Honour erred in failing to take into account that the offence was capable of being dealt with in the Local Court

1. It is convenient to commence with Ground 2. By s 29 of the Drug Misuse and Trafficking Act a person found in possession of not less than the traffickable quantity of a prohibited drug, is deemed to have the prohibited drug in his or her possession for supply. It was common ground that the quantity of heroin involved in this offence, 3.21 grams, was more than the traffickable quantity, but less than the indictable quantity (5 grams) and that accordingly, the offence was capable of being dealt with in the Local Court, unless there was an election made (see s 31 of the Drug Misuse and Trafficking Act and s 260 of the Criminal Procedure Act ). In the Local Court the maximum penalty which could have been imposed was 2 years (s 31(3) of the Drug Misuse and Trafficking Act and s 267 of the Criminal Procedure Act ). It was common ground that these were all matters not drawn to his Honour's attention.

1. Indeed, his Honour was seemingly misled by the parties. The Crown's sentence bundle incorrectly referred to a maximum penalty of 2 years for the offence. When his Honour enquired about authorities where higher penalties had been imposed, the Crown drew attention to the maximum penalty for the offence of 15 years, but made no reference to the 2 year jurisdictional limit, if such an offence was dealt with in the Local Court.

1. Nor was there any explanation given as to why the charge had been pursued in the District Court. Further, the applicant's solicitor later incorrectly described the amount of heroin involved as 'just over the indictable quantity'. That quantity is 5 grams. That error was not corrected by the Crown. In the result, the sentence imposed by his Honour was the maximum penalty available, had the matter proceeded before the Local Court.

1. In R v Palmer [2005] NSWCCA 349 it was observed by Hall J:

"14 In dealing with ground 1, it is appropriate to make two preliminary observations:-

(a) there is no specific statutory requirement or obligation to bring into account in determining the appropriate sentence for an offence, the fact that a matter may have been dealt with summarily had no election otherwise been made;

(b) as the Crown, however, has observed, to the extent that the Crimes (Sentencing Procedure) Act 1999 otherwise obliges a sentencing judge to have regard to the general law in determining the appropriate sentences (s.21A(1)), then a number of propositions may be taken from several judgments of this Court.

15 The written submissions on behalf of the applicant and those also on behalf of the respondent refer to a number of decisions of this Court. For the purposes of this application, they are stated in short form as a series of propositions or principles as follows:-

(a) The first is that a judge in the District Court is not bound by the jurisdictional limit imposed on the Local Court when dealing with an offence on indictment which was capable of summary disposal, but may have regard to that limit when the case is one which could appropriately have been disposed of in the Local Court: Regina v. Crombie [1999] NSWCCA 297 at [16]; Regina v. LPY (2002) 136 A. Crim. R. 237 at 240 and Regina v. El Masri [2005] NSWCCA 167 at [30].

(b) Secondly, the fact that a matter could have been dealt with in the Local Court, had the prosecuting authority not elected otherwise, remains a relevant consideration in the exercise of the discretion reserved to the sentencing judge: Crombie (supra) at [15].

(c) Thirdly, however, the relevant decisions that establish that principle do not go so far as to require the sentencing judge to proceed upon the basis that the maximum available sentence is that which could have been imposed in the Local Court. At most they establish that the circumstance identified is to be taken into account. Depending upon the objective and the subjective criminality of the offender, it may properly be regarded as calling for some mitigation of the sentence that would otherwise be imposed in the District Court for an offence prosecuted upon indictment. Where it appears that that circumstance has been entirely overlooked by the sentencing judge, it may properly justify the granting of leave to appeal: Crombie (supra) at [16].

(d) Fourthly, the significance of the loss of the chance of the matter being dealt with in the Local Court varies from case to case. In some cases it would contribute to mitigation of sentence. It is a matter to be taken into account, but is not a universal factor for the reduction of sentence: Regina v. Doan (2000) 50 NSWLR 115.

(e) Fifthly, the failure by a sentencing judge to mention the matter in his or her remarks on sentence and the length of the sentence does not necessarily establish that the sentencing judge failed to have regard to the matter. In some circumstances the length of the sentence may not suggest that the matter was overlooked: Regina v. Depoma [2003] NSWCCA 382 at [17].

(f) Finally, in circumstances where a sentencing judge has made no reference to the summary disposal argument in his or her remarks on sentence, it is necessary to consider whether that omission is indicative of error. One way of testing that proposition is to consider whether the sentence itself appears manifestly excessive in all the circumstances of the case - if the factor had been taken into account and given appropriate weight, a substantially lesser sentence was appropriate in the case: El Masri (supra) at [45] per Johnson, J. (with whom Hunt, AJA. and Hulme, J. agreed)."

1. In Bonwick v R [2010] NSWCCA 177 after referring to these principles, it was observed by Davies J:

"42 This distillation of the principles has been followed more recently in Ciaron McCullough v R [2009] NSWCCA 94 at [25] and in Collins v R [2010] NSWCCA 13 at [16].

43 Whilst it is clear that there is no obligation on the sentencing Judge to regard himself or herself limited by the maximum penalty available in the Local Court, two relevantly important principles emerge from the cases. The first is that the extent of the criminality is an important consideration in having regard to the Local Court penalty: R v Hanslow [2004] NSWCCA 163 at [21]; Regina v Said El Masri [2005] NSWCCA 167 at [29] and McCullough at [26]. Secondly, where it appears that the matter of the Local Court penalty has been entirely overlooked by the sentencing Judge that may properly justify the grant of leave to appeal: R v Crombie [1999] NSWCCA 297 at [16].

44 In the present case, it is likely that the matter was entirely overlooked by the sentencing Judge because it is accepted that neither counsel drew it to the Judge's attention. Further support for that inference derives from the omission of the sentencing Judge to make any reference to the fact that the offences could have been dealt with by the Local Court and from the length of the sentence imposed for each of the offences.

45 This failure to refer to the Local Court limitation on sentence amounts to an error justifying the intervention of this Court. This is because, as the highlighted passages in Palmer make clear, the fact that the Local Court could have dealt with the matter is a relevant consideration to be taken into account."

1. In R v Kean [2011] NSWCCA 136 at [37] a similar oversight occurred. There Adams J observed that the fact that the charge could have been dealt with in the Local Court 'in the normal course, is a matter of significance. Here, the fact that this issue was not raised by counsel and not referred to by the sentencing judge persuades me that it was overlooked. Nevertheless, it was concluded that in the circumstances of that case, the jurisdiction of the Local Court was inadequate; that that court was an inappropriate forum for the offence in question; and that the possibility that it could have been dealt within the Local Court, was ultimately a matter of no weight (see at [40] and [16] per Hulme J.)

1. In this case, while the Crown accepted that the fact that the charge could have been dealt with in the Local Court was relevant to the sentencing exercises and that it was arguable that it had been overlooked, it was contended that, given the applicant's criminality, his offence was too serious to have been dealt with in the Local Court. This was explained to be because while the quantity of heroin involved was not great, the purity of the heroin was high and it was packaged in such a way, as to make it clear that it was going to be sold at street level, in a significant number of deals. The applicant's evidence had also revealed that this was not an isolated occasion of supply, but that he had been engaged in trafficking for some time. In those circumstances, it was submitted that the matter could not have been appropriately disposed of in the Local Court.

1. None of these were matters addressed by the parties below. Nor were they mentioned by his Honour, who not only did not consider them, but who was incorrectly informed that the indictable quantity of heroin was 3 grams.

1. In the circumstances, it seems to me that it must be accepted that the fact that this offence could have been dealt with in the Local Court, was a matter which ought to have been drawn to his Honour's attention as a relevant consideration in the sentencing exercise. It was plainly overlooked by the parties, who incorrectly left the matter before his Honour on the basis that the quantity involved was the indictable quantity. This is a situation entirely akin to that considered in Bonwick v R, with the result that this ground of appeal must also be upheld in this case.

1. He pleaded guilty to the offence with which he was charged, an offence which could clearly have been dealt with by the Local Court, notwithstanding the purity of the heroin involved. The applicant was a street level dealer, found in possession 3.21 grams of heroin, packaged ready to be dealt, albeit by operation of s 29 he was in any event deemed to be involved in the supply of that amount of heroin, it being more than a traffickable quantity. That is at the lower end of the range of offences of this kind, as the Crown conceded.

1. The drug charge offence does not concern the cash with which the applicant was found, which is the subject of the separate Form 1 offence. As to that, the applicant's oral evidence was that he had been engaged in selling heroin for a period of 2 weeks, which explains the cash with which he was found on arrest, suggestive of the sale of 30-60 other deals.

1. The applicant said that at that time he was conscious of the wrongness of what he was doing and that he was then taking active steps to address his addiction, with the assistance of a psychologist. Toxicological reports suggested that he had been relatively successful in that endeavour, with the exception of one incident of relapse.

1. The result of his Honour's approach was a head sentence of 2 years, the maximum available sentence in the Local Court, perhaps after a discount of 25% for the applicant's early plea, as I will explain in relation to Ground 1. The sentencing statistics to which reference was made showed that only 2 offenders of the 384 dealt with in the Local Court received a 2 year sentence. It seems to me, in all the circumstances, that the sentence imposed was manifestly excessive, given the objective seriousness of the offence to which the applicant entered his plea and the relevant aggravating and mitigating factors I have mentioned, which arose to be considered.

1. In my view this ground of appeal was made out.

Ground 1 - Failing to apply the provisions of the Criminal Case Conferencing Trial Act 2008

1. There is no issue that the applicable provisions of the Criminal Case Conferencing Trial Act 2008 were not drawn to his Honour's attention. They entitled the applicant to a 25% discount for his guilty plea. Sections 16 and 17 provide:

"16 Sentencing for certain indictable offences taking into account guilty plea

(1) In passing sentence for an indictable offence on an offender who has pleaded guilty, a sentencing court:

(a) must indicate to the offender, and make a record of, the penalty it would have imposed but for the guilty plea, and

(b) must allow a discount on the sentence for the guilty plea in accordance with section 17 (1) and may allow a discount in accordance with section 17 (2) or (4).

(2) A discount for a guilty plea, in relation to an offence, means a discount for:

(a) the saving in resources and time that would otherwise be expended in a trial for the offence but for the guilty plea, and

(b) the avoidance of the additional trauma to the victim that might be caused by a trial for the offence, and

(c) the contrition that the sentencing court considers that the offender demonstrates by pleading guilty, and

(d) any other benefit associated with or demonstrated by the guilty plea.

(3) Despite subsection (1), a sentencing court must not allow any discount for a guilty plea in the case of a sentence of life imprisonment.

(4) This section does not apply to an offence excluded from the application of this section by section 18.

(5) Subsection (1) (a) does not limit any other requirement that a court has, apart from that paragraph, to record the reasons for its decisions.

17 Discount for guilty plea

(1) If an offender pleaded guilty to an offence at any time before being committed for sentence, the sentencing court must allow a discount for the guilty plea calculated as follows:

(a) if the court imposes a sentence of imprisonment for a term-a term that is 25% less than the term the court would otherwise have imposed,

(b) if the court imposes a fine-a fine that is 25% less than the fine the court would otherwise have imposed,

(c) if the court makes a community service order directing the performance of community service work for a specified number of hours-work for 25% less than the number of hours the court would otherwise have ordered to be performed,

(d) if the court imposes a good behaviour bond for a term-a bond for 25% less than the term the court would otherwise have imposed."

1. In Do v R [2010] NSWCCA 182 a similar error occurred. There the Crown conceded that a material error had occurred, with the result that the sentences had to be quashed and the applicant re-sentenced (at [10]). There was a similar error dealt with on the same basis in Tran v R [2010] NSWCCA 183 and Greer v R [2011] NSWCCA 40. In LJ v Regina [2010] NSWCCA 289 it was held in respect of a similar error that:

"30 The failure to apply the mandated discount is an error of such materiality as to justify the Court's intervention, having regard to the terms of s 6(3) Criminal Appeal Act 1912. I am satisfied that "some other sentence...is warranted in law and should have been passed." The applicant is to be re-sentenced."

1. In this case the Crown took a different position, submitting that even though his Honour did not expressly identify that he had given any discount for the applicant's early plea, he did refer to the plea having been entered at the earliest opportunity in the District Court. It was argued that as an experienced judge his Honour would have been aware that the applicant was entitled to a discount, either under the Criminal Case Conferencing Trial Act , or pursuant to the approach in R v Thompson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383. A mere failure to expressly state that the discount had been given and to identify its quantum, did not necessarily mean that the required discount had not been granted.

1. The Crown submitted, that the sentence imposed itself suggests that the applicable discount was given, his Honour having adopted a starting point of 2 years, 8 months with a non-parole period of 20 months, discounted by 25% to arrive at the sentence imposed. In that event, it followed, on the Crown's approach, that the failure to comply with the requirements of s 16 was merely an error of process, which would not lead to the sentence being set aside as erroneous.

1. In my view it is not possible to say with certainty whether his Honour applied a discount to the sentence imposed, although that appears to have been likely, given that the sentence was imposed after his Honour had noted the early plea. His Honour's judgment otherwise shed no light on that question. It follows that, at the least, there is no issue that his Honour erred in not complying with the requirements of s16.

1. That is a proper basis for upholding this ground of appeal. On re-sentencing the applicant is entitled to a 25% discount.

Re-sentencing

1. Sentencing requires consideration to be given to the objective seriousness of the offence. T here is no question that the applicant was engaged in trafficking, as he admitted. The offence to which the plea was entered involved 3.21 grams of heroin, packaged ready for supply. It was plainly a serious offence involving street level dealing. Since arrest, the applicant was making efforts to deal with his own addiction. On his own evidence, however, the applicant had recognised the wrongness of his offending, which continued nevertheless until his arrest. He entered a plea at the earliest opportunity. It must be accepted that this conduct was consistent with genuine remorse.

1. On the evidence there is a need for both general and specific deterrence to feature in the sentence imposed. The circumstances are such that a custodial sentence is necessary, as has been repeatedly discussed in the authorities in which reference has been made to what was said by Hunt J in R v Clark :

" This Court has, on occasions too numerous to mention, emphasised that sentences involving a substantial general deterrent are to be impose on drug traffickers, and it has indicated that only in exceptional circumstances will a non-custodial sentence 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. What the statement is principally directed to is the trafficking, the dissemination of drugs to others. 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." (Emphasis in the original)

1. There is no question that the supply in which the applicant engaged was for profit, as the applicant admitted in his evidence. His addiction is not a mitigating factor (see R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346.) Nevertheless, it is a factor relevant to assessing the objective seriousness of the offence, (see R v Liang (Court of Criminal Appeal, 2 June 1995, unreported); R v Ramos (2000) 112 A Crim R 339; R v Kalache (2000) 111 A Crim R 152; Nguyen v Regina [2007] NSWCCA 15).

1. That the quantity of heroin involved in the offence for which the applicant fell to be sentenced fell within the jurisdictional limit of the Local Court is also a relevant matter to be considered in fixing the sentence. The applicant's subjective circumstances must also be considered. They include the matters dealt with in his Honour's judgment, to which I have referred. Apart from certain driving offences, the applicant has no record and this is his first time in custody. The applicant's remorse and desire for rehabilitation must be accepted as sincere as his Honour found. His attitude to the value of assistance in his efforts at rehabilitation is something which he needs to reconsider, as his Honour observed. This, too, requires consideration in determining sentence.

1. The pre-sentence report referred to the applicant having a daily habit 18 months prior to arrest, spending $100 to $200 per day, but with employment and after arrest, successful abstention for 3 months, with one relapse during attendance for drug and alcohol counselling. The applicant explained missed attendances in his evidence. Concerns as to ambivalence to addressing causal factors relating to his offending behaviour and the refusal to consider residential rehabilitation resulted, however, in the applicant being assessed as not appropriate for supervision, having been assed as medium/low risk of re-offending and also unsuitable for a community service order, given his unresolved drug issues (s 86(1) of the Crimes (Sentencing Procedure) Act). Despite this view and the advice of his psychologist, in his evidence the applicant persisted in his view that he would not pursue residential rehabilitation.

1. The Form I offence must also be taken into account on sentence. The maximum penalty for this offence was 2 years imprisonment. It must result in an increase in the penalty that would otherwise be imposed, reflecting as it does the proceeds of further supply offences which the applicant admitted (see Re Attorney-General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; (2002) 56 NSWLR 146 at [42]).

1. The applicant is entitled to a 25% discount. But for his early plea the sentence I would impose is 2 years. With discount it is 18 months. His Honour found special circumstances. In the result I would impose a non-parole period of 13 months and a balance of term of 5 months. The applicant would be released to supervised parole as from 10 March 2012 and the balance of his term would expire on 10 August 2012.

Proposed orders

1. I propose the following orders:

1. Leave to appeal is granted.

2. The appeal is upheld.

3. The sentence is quashed and in lieu the applicant is sentenced to a non-parole period of 13 months commencing on 11 February 2011 and expiring on 10 March 2012 with a balance of term of 5 months expiring on 10 August 2012.

4. Direct that the applicant be released on parole subject to the standard conditions.

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Decision last updated: 09 March 2012