McKellar v R

[2010] NSWCCA 295

New South Wales
Court of Criminal Appeal

CITATION:	McKellar v R [2010] NSWCCA 295
HEARING DATE(S):	20 October 2010
JUDGMENT DATE:	17 December 2010
JUDGMENT OF:	Simpson J at 1; Hoeben J at 2; RA Hulme J at 3
DECISION:	1. Application for leave to appeal granted. 2. Appeal allowed. 3. The sentence for the offence of supply prohibited drug (on 26 September 2008) of imprisonment for a fixed term of 18 months, dating from 26 February 2010 and expiring on 25 August 2011, is confirmed. 4. The sentence for the offence of supplying not less than the commercial quantity of a prohibited drug (between 23 April 2008 and 2 September 2008) is quashed. In lieu, and taking into account the offence listed on the Form 1, sentenced to imprisonment comprising a non-parole period of 3 years and a balance of term of 2 years. The sentence is to date from 26 May 2010. The applicant will be eligible for release on parole upon the expiration of the non-parole period on 25 May 2013. The total term will expire on 25 May 2015.
CATCHWORDS:	CRIMINAL LAW - appeal against severity of sentence - commercial supply of ecstasy - whether error in relation to maximum penalty - consideration of material in psychological report when offender gave evidence affirming the truth of the history provided - obvious contradictions between agreed facts and matters in report - no error in judge rejecting version in report - totality principle - excessive accumulation of sentences - sentence manifestly excessive
LEGISLATION CITED:	Crimes Act 1900 Drugs Misuse and Trafficking Act 1985 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912
CATEGORY:	Principal judgment
CASES CITED:	Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 Minehan v R [2010] NSWCCA 140 R v MMK [2006] NSWCCA 272; 164 A Crim R 481
PARTIES:	Ryan McKellar (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2009/8615
COUNSEL:	Ms A Francis (Applicant) Mr P Ingram SC (Respondent)
SOLICITORS:	Nyman Gibson Stewart Solicitors Solicitor for Public Prosecutions
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2009/8615
LOWER COURT JUDICIAL OFFICER:	King DCJ
LOWER COURT DATE OF DECISION:	26 February 2010

2009/8615

SIMPSON J
HOEBEN J
R A HULME J

17 December 2010

Ryan McKELLAR v Regina

Judgment

1 SIMPSON J: I agree with R A Hulme J.

2 HOEBEN J: I agree with R A Hulme J and the orders he proposes.

3 R A HULME J: On 26 February 2010, the applicant, Ryan McKellar, was sentenced in the District Court by his Honour Judge King SC in respect of the following offences.

4 For an offence of supplying more than the indictable quantity of 3,4 methylenedioxymethylamphetamine (MDMA) (on 26 September 2008) there was a sentence of fixed term of imprisonment for 18 months to date from 26 February 2010.

5 For an offence of supplying not less than the commercial quantity of MDMA (between 23 April and 2 September 2008) there was a sentence of 5 years, with a non-parole period of 3 years, to date from 26 February 2011.

6 The overall sentence was one of 6 years, with a non-parole component of 4 years, with effect from 26 February 2010.

7 In sentencing for the commercial supply offence, the judge took into account, at the applicant’s request, an offence of dealing with the proceeds of crime. That is an offence contrary to s 193C(1) of the Crimes Act 1900 and attracts a maximum penalty of imprisonment for 2 years and/or a fine of $5,500.

8 An offence of supplying a prohibited drug contrary to s 25(1) Drugs Misuse and Trafficking Act 1985 (the Act) attracts a maximum penalty of imprisonment for 15 years and/or a fine of $220,000.

9 An offence of supplying not less than the commercial quantity of a prohibited drug contrary to s 25(2) of the Act attracts a maximum penalty of imprisonment for 20 years and/or a fine of $385,000. A standard non-parole period for this offence of 10 years is also prescribed in Div 1A of Part 4 Crimes (Sentencing Procedure) Act 1999.

10 The judge also sentenced a number of other offenders who were involved in the same drug supply network as the applicant. Three of them also applied for leave to appeal against the sentences imposed. Although they were dealt with on separate occasions by his Honour, the applications were heard together by consent. However, as no issue of parity was raised in any of the grounds of appeal, it is convenient to deal with each application in a separate judgment. The other applications are the subject of the following judgments: Locke v R [2010] NSWCCA 296; O’Brien v R [2010] NSWCCA 297; Ellis v R [2010] NSWCCA 298.

Facts

11 There were agreed facts before his Honour in each of the four cases which began with general observations to the following effect. The applicants (and others) were involved in a drug distribution network on the Central Coast of New South Wales. Mark Locke and Cameron Ellis were said to be primarily responsible for street level distribution within the network, frequently conducting their supplies as a joint criminal enterprise. They generally operated from a hotel in Toukley. At times they would use ‘runners’ who worked for them.

12 Locke initially sourced his drugs from others, including the applicant, who had a number of customers. At a later stage of the investigation Locke was sourcing his drugs from Ben O’Brien. Cameron Ellis and another offender (Michael Streater) sourced their drugs primarily from Ben O’Brien who, in turn, obtained them from his older brother.

13 From that point the agreed facts focussed upon the offences committed by the individual offenders. In relation to the present applicant, the commercial supply offence related to the applicant’s involvement in the supply of at least 761 MDMA tablets, or an estimated 190.25 grams, in 35 separate transactions between 22 April and 2 September 2008.

14 A search warrant was executed on 26 September 2008 at the applicant’s home. The search revealed his possession for the purpose of supply of 63 tablets, and some fragments, or 19.01 grams, of MDMA.

15 The proceeds of crime offence related to the finding of $6,000 in a safe in the applicant’s bedroom.

16 In setting out his findings as to the objective seriousness of the commercial supply offence, the judge said that the facts disclosed that the applicant had dealt with a minimum of 15 persons in relation to his supply activity; he used other persons on occasions to deliver for him; he sold for cash and also on credit; he was able to meet substantial orders within significantly short periods; he provided a delivery service to private premises, public venues or places and once to a private party; and he also supplied at or in the vicinity of his own private premises.

17 The judge also concluded from the statement of facts that the applicant was supplying the drug for profit and that he was aware that a significant number of the persons who were obtaining it from him were doing so for the purpose of themselves supplying it to others for profit.

18 The judge referred to the fact that the prescribed commercial quantity for MDMA is 125 grams and the prescribed large commercial quantity is 500 grams. He noted that the 190 grams was in the low end of the commercial range but immediately said that “quantity alone is not a determinant of objective seriousness”. He concluded that this offence was within the middle of the range of objective seriousness for such offences.

19 In relation to the indictable supply offence, the judge noted that the indictable quantity is 1.25 grams. Whilst he was of the view that the amount in question was “significantly in excess of the indictable quantity, it was also significantly less than the commercial quantity”. The judge disagreed with a submission by the representative of the Crown that this offence fell below the middle of the range of objective seriousness. He had regard to the fact that the applicant’s possession of the drug was for the purpose of supply and, in the light of the many transactions comprising the first offence, that this was part of “an ongoing commercial operation”. Accordingly he concluded that the offence also fell in the middle of the range of objective seriousness, although towards the lower end of that range.

Subjective circumstances

20 The applicant was 20 years of age at the time of the offences and 22 at the time he stood for sentence. He had no previous convictions. He had been released on bail following his arrest on 26 September 2008 and had not been charged with any further offences in the intervening period.

21 He is the eldest of two children and was raised on the Central Coast. His parents separated when he was about 7 years of age. He lived with his mother until he was 13. By that time his mother had a new partner and a daughter and as a result he felt neglected and moved to Sydney to live with his father for a year. He came to feel displaced in that situation because his father was also in a new relationship and so a year later he moved back to live with his mother.

22 The applicant completed Year 10 at high school and obtained the School Certificate. He was not academically orientated and was diagnosed with dyslexia. He was placed in special classes and this had some effect upon his self-esteem and confidence. He is said to continue having difficulties with reading and writing. Some behavioural problems emerged at school, but not to the extent that he had any involvement with the criminal justice system. The judge found that it was to the applicant’s credit that he had no prior involvement with the police before the present offences.

23 There has been a consistent employment history. He successfully completed an apprenticeship in automotive mechanics between 2004 and 2008.

24 However, binge drinking of alcohol commenced at about the age of 17 and, when about 18, he was introduced by peers to ecstasy. The sentencing judge, drawing from a psychological report, said that the applicant described himself as being tempted and seduced by the drug culture, and that his engagement in that culture provided him with an acceptance and status that had previously been lacking.

25 At some stage after his arrest, the applicant moved to Queensland where he has lived with his father and stepmother. He has a partner with whom he has been in a relationship for three and a half years as at the time of sentence. She also moved to Queensland to live with him where they established a home in Maryborough. A number of references were tendered which spoke of the applicant in a good light in the time he had been in Queensland. He is fortunate to have a supportive family, both in Queensland and New South Wales. His partner gave birth to their son only a few weeks before he was sentenced.

26 The judge was satisfied from the applicant’s oral evidence and the references that were tendered that he had endeavoured to commence a new crime free lifestyle by breaking his connection to the Central Coast and by moving to Queensland. The judge accepted that he had made a conscious decision to effect change and to rehabilitate himself. He referred to the applicant taking on responsibilities in life such as providing for his partner and child and said that he “can reasonably be expected to reflect more maturely on his past conduct and to avoid re-offending”.

27 The judge accepted that the applicant was remorseful and had intentions not to re-offend. He concluded that there was a good prospect of continuing rehabilitation and a low prospect of re-offending.

28 The applicant’s pleas of guilty were entered in the Local Court. As a result, the judge allowed a reduction of the sentences he would otherwise have imposed of 25 per cent.

Ground 1: The Learned Sentencing Judge erred in stating that the maximum penalty for the Count 2 offence of supplying greater than the indictable quantity of MDMA contrary to s 25(1) of the Drugs Misuse and Trafficking Act 1985 is imprisonment for 20 years and/or a fine of $220,000.

29 In commencing his remarks on sentence the judge set out the two charges to which the applicant had pleaded guilty. In relation to the first charge he correctly noted that the maximum penalty was as I have earlier indicated. He also noted the prescription of a standard non-parole period of 10 years. However in relation to the second offence he said:

The maximum penalty is imprisonment for twenty years and/or a fine of $220,000. There is no standard non-parole period in respect of such an offence. (Emphasis added).

30 In terms of imprisonment, the maximum penalty is, of course, 15 years.

31 In written submissions for the applicant it was accepted that it is not in every case where an error by a sentencing judge as to the applicable maximum penalty will result in an appeal against sentence being allowed. In Minehan v R [2010] NSWCCA 140 I reviewed authorities relating to this issue at [67] to [71] and it is unnecessary to repeat what was said there. Counsel who appeared on the hearing of the application (who did not prepare the written submissions), however, contended that what the judge said was “nothing other than a direct and blatant patent error” and that the Court would move immediately to consider the issue of re-sentencing.

32 It appears to me that the reference by his Honour to the maximum penalty being 20 years was a slip. He had been correctly informed by way of a document headed “Crown sentence summary” as to the maximum penalties prescribed in respect of each of the offences. The fact that he correctly noted the maximum fine available for an offence against s 25(1) and that there was no standard non-parole period in respect of such an offence, in contrast to the maximum fine and the prescription of a standard non-parole period for an offence against s 25(2) (to which he had just correctly referred), indicates to me that the judge, despite what he said, had in mind the correct prescription.

33 When the judge sentenced Locke, O’Brien and Ellis some 4 months earlier he correctly indicated the maximum penalty for the s 25(1) offence. I do not think it is a realistic possibility that by the time the judge came to sentence McKellar he thought the maximum penalty in terms of imprisonment for an offence against s 25(1) was exactly the same as for an offence against s 25(2).

34 Moreover, District Court judges (regrettably) are called upon to sentence offenders in relation to drug supply offences almost as a matter of routine. The maximum penalties that apply to the most common of such offences are likely engraved in their memories. I would want to see something a lot more significant than there is in the present case before I would infer that a judge, particularly one so experienced in the criminal law, was unaware of the applicable penalty.

35 However, in deference to the earnest argument that was advanced on behalf of the applicant, if the judge did have in mind that the maximum term of imprisonment for an offence against s 25(1) was 20 years, the question is whether this Court “is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed”: s 6(3) Criminal Appeal Act 1912.

36 In my view a sentence of a fixed term of 18 months for an offence of supplying 19 grams of MDMA that was found by the sentencing judge to have been “part of an ongoing commercial operation” and fell “in the mid range of objective seriousness, although towards the lower end of that range” is relatively modest in the light of a maximum penalty of imprisonment for 15 years. It certainly does not support the contention that the judge forgot what he knew, and ignored what was placed before him, and sentenced on the basis of an incorrect, and 33 per cent higher, maximum penalty.

37 There is no merit in this ground.

Grounds 2 and 3

38 These grounds were not pressed at the hearing of the application.

Ground 4: The Learned Sentencing Judge erred in finding that there was no “significant difference” between the appellant giving evidence or not giving evidence in the weight to be attached to the appellant’s out of court statements to the psychologist.

39 A report by Mr Sam Borenstein, psychologist, was tendered in the applicant’s case on sentence. It included quotation of the following statements made by the applicant to Mr Borenstein which were highlighted in the appellant’s written submissions:

“I was using the drug, I just got into being around people who sell drugs to pass on”.

“I was using, there was extra money, it was helping out a lot”.

“I knew what I did was wrong, I was in a situation, I couldn’t get out of, I owed people money, I was ticking some credit with the dealers”.

“At first I tried to get out of it, it was hard to get away from it all once you earned the extra money”.

“I never came out in front, I was just able to do things everyone else was doing”.

“I had to pay back drug dealers”.

40 The submissions then referred to the following conclusions of Mr Borenstein:

Mr McKellar impressed to be a man of dull to low average intelligence, in keeping with his history. Mr McKellar also has a low emotional intelligence. He displays limited psychological mindedness, though he did display an understanding and recognition of the inappropriateness of his actions and wrong doing.”

“Mr McKellar has always been a follower, and when he saw the opportunity to be included amongst his peer group, in ways he always desired, he readily accepted without fully considering the consequences of his actions.”

“Mr McKellar alleges whilst undertaking such activity over a six to eight month period, he understood it was wrong. He felt caught up in that he owed money to those who supplied him drugs. He feared for his safety if he did not pay it back.”

“Mr McKellar says he spent money on lifestyle, which allowed him a sense of inclusion, status and position within his immediate social group. Mr McKellar had never experienced such recognition and (false) security before. Mr McKellar was driven by his emotional needs. The activities filled a void which was sadly lacking, the result of feeling displaced in his family, in ways described in the body of this report, and also feeling excluded and marginalised by virtue of his learning disability and special placement in school.”

41 The applicant gave evidence in the District Court. He was first asked whether he had read Mr Borenstein’s report. Upon receiving an affirmative response, counsel then asked whether he had told Mr Borenstein the truth. The applicant again answered in the affirmative. Nothing more was raised in the applicant’s evidence in relation to the report or in relation to the things that the applicant had said to Mr Borenstein set out above. There was no cross-examination.

42 It was submitted on behalf of Mr McKellar that if his claim to having been caught up in the drug trade because he owed money to those who supplied him had been accepted, it “may well affect the level of his moral culpability in involvement in these offences”.

43 When the judge came to refer to the report of Mr Borenstein he said:

The offender gave evidence on sentence. Tendered on his behalf were a number of references and a psychological report from Mr Sam Borenstein, clinical psychologist, dated 4 October 2009. The offender adopted what has become the “fashionable” but in my view inappropriate course of adopting what he had told the psychologist as being “the truth” . The only material available to the psychologist on which to base his opinions was what the offender told him, with the exception that he had been provided with what he referred to as the “agreed facts sheet”. Dr Borenstein described the “agreed facts sheet” as summarising the content of telephone taps and the nature of the charges.

In that regard, it is of concern that the psychologist appears to have accepted without criticism the claim by the offender that, “He sold drugs to three or four people, who in turn sold it on to those who used the drugs,” and that while he knew that what he was doing was wrong, he felt that he was in a situation that he could not get out of because he owed money to dealers and “felt caught and forced to participate in such activities in order to honour debts”.

A proper understanding of the facts indicates that the offender was a very active participant in the illegal drug trade for profit to a far wider clientele than “three or four people”, and that he actively canvassed for sales and encouraged sales by supplying on credit, when he estimated his own usage at the time as being no more than four MDMA tablets on Friday and Saturday nights.

In those circumstances, the observation by Mr Borenstein that the offender “impressed as an open and honest historian” may be accepted as an honest, but ill-founded opinion formed by the psychologist.

The danger of relying on self-serving statements made to psychiatrists, psychologists and Probation officers has been the subject of comment in a number of decisions by the New South Wales Court of Criminal Appeal: Qutami (2001) 127 A Crim R 369; McCourty [2002] NSWCCA 335; and Woodgate [2009] NSWCCA 137.

While each of those cases is distinguishable in that the offender did not give evidence to verify the statements made to the respective report writers, there is not a significant difference where the offender gives evidence in the broad brush of “I told the psychologist the truth”, when any part of the report is, as here, discernibly untrue. (Emphasis added).

44 Then, after referring to some aspects of the applicant’s background and how he came to be involved in the “drug culture”, the judge said:

It is not unreasonable to accept that with that history, his commencement in the illicit drug trade was as a follower rather than a leader. However, by the time of these offences, it is clear that he was well past being a follower. Although he claimed to the psychologist that he got caught up in the trade because he owed money to those that supplied him, and feared for his safety if he did not repay his debt, by the time of these offences, it is clear from the nature of the intercepted telephone calls that his participation in the trade was, as partly conceded to the psychologist, to fund a life style he could not otherwise afford.

45 It is not the case that the judge declined to accept any of the material in the report of Mr Borenstein that was sourced from the applicant. Indeed, the judge accepted in large part the account set out in the report of his life history and of the steps that he had taken to achieve rehabilitation subsequent to his arrest. The judge’s acceptance of such matters was at least part of the foundation for the favourable findings he made on issues such as remorse, rehabilitation, and unlikelihood of re-offending.

46 The Crown did not urge any submission upon the judge that he should reject the applicant’s evidence. It would have been necessary for there to have been some challenge in cross-examination before such a submission could fairly have been made. Nevertheless, it was not incumbent upon the judge to accept everything that the applicant had told Mr Borenstein simply because he had given evidence that he had told Mr Borenstein the truth and that he was not cross-examined.

47 In relation to the judge’s statement italicised in the first extract from his remarks above, I would observe that in many cases having an offender simply confirm that the history provided to the author of a report may be a quick and convenient way to deal with the presentation of evidence in a busy court. However, it runs the risk that it may deny to the presiding judge the opportunity to make an assessment of the offender’s honesty, accuracy and sincerity about the subject matter.

48 More pertinently, however, where there are obvious inconsistencies between what an offender is reported to have said to the author of a report and a statement of agreed facts, it is somewhat cavalier to simply give evidence that the report contains the truth but to offer no explanation for such inconsistencies.

49 In this case, Mr Borenstein reported:

Mr McKellar says he sold drugs to three or four people, who in turn sold it on to those who used the drugs.

50 The agreed facts disclosed that the applicant had sold drugs on 35 occasions in a period exceeding 4 months to 15 different people. What the applicant told Mr Borenstein was, in this respect, demonstrably wrong.

51 There were also inconsistencies within the report. Mr Borenstein reported that the applicant had said that, “I couldn’t get out of, I owed people money, I was ticking some credit with the dealers” and “I never came out in front … I had to pay back drug dealers”. Those statements suggest that the applicant was virtually compelled to persist with drug dealing and that he was not making any money out of it. On the other hand, it was also reported that he said, “I was using the drug, there was extra money, it was helping out a lot” and “Mr McKellar says he spent money on lifestyle, which allowed him a sense of inclusion, status and position within his immediate social group”. Experienced counsel who appeared for the applicant in the sentence proceedings conceded that, “it’s clear that while profits were made, they weren’t exorbitant profits”.

52 There was another aspect that called into question the applicant’s credibility. Mr Borenstein’s report included:

Mr McKellar participated in (an) electronic recorded interview. He says of money contained in a safe, namely $6,000, that he had receipts. He planned to travel to the UK to see family, and participate in a family reunion. Mr McKellar says he sold his car.

53 The applicant had asked that an offence of dealing with the proceeds of crime relating to that $6,000 be taken into account. The judge raised this apparent inconsistency and questioned whether the applicant did in fact acknowledge his guilt in respect of that offence. He was informed that the applicant’s instructions were that this money was either directly or indirectly sourced from the supply of drugs.

54 The approach taken by the judge to the claims made by the applicant to Mr Borenstein was one that was well open to him. I would reject this ground.

Ground 5 – Manifest excess

55 Ms Francis, counsel for the applicant, sought leave at the conclusion of her oral submission to rely upon an additional ground: that the sentences imposed were manifestly excessive. The Crown did not oppose this course and leave was granted.

56 Ms Francis relied upon the submissions she had made in relation to the earlier grounds and two additional matters. They were that the judge had “no regard at all to the principle of totality” (because he did not mention it) and that there was an erroneous characterisation of the s 25(1) offence as being at the lower end of the middle of the range of objective seriousness. In support of both matters it was contended that the s 25(1) offence really added nothing to the applicant’s overall criminality.

57 In the assessment of the objective seriousness of that offence the judge referred to the quantity of the drug involved (19 grams) and to it being “part of an ongoing commercial operation”. The commercial quantity offence involved the applicant dealing in 190 grams of the drug over an extended period of time. Being found in possession for the purpose of supply of a further 19 grams some 3 weeks after the end of that period was really part of the same “commercial operation” that constituted the earlier offence. Accordingly, it was submitted that the sentence should have been one ordered to be served concurrently.

58 As previously indicated, the sentence for the s 25(1) offence was one of 18 months. The sentence for the s 25(2) offence was 5 years with a non-parole period of 3 years and the judge accumulated it upon the other sentence by 1 year. It was submitted that the objective gravity of the s 25(1) offence was not such as to warrant the sentence for it effectively comprising 25 per cent of the overall minimum term of 4 years that the applicant is required to be imprisoned.

59 There is some force in these submissions, although it must be borne in mind that the sentence for the s 25(2) offence was relatively modest. I say “relatively” in the sense that there was a standard non-parole period of 10 years. There is no challenge to the judge’s finding that this offence fell in the middle of the range of objective seriousness. The applicant’s plea of guilty and the favourable findings the judge made in respect of a variety of subjective matters justified a sentence significantly less than the standard. The sentence imposed was substantially less.

60 A submission was made by the solicitor for the Crown that there should be some measure of accumulation. There was no submission on behalf of the applicant in opposition to this.

61 The decision as to whether to order sentences to be served concurrently or accumulatively, either in whole or in part, is clearly discretionary but it is guided by principle. In Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41, Howie J succinctly stated:

[27] In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.

62 In R v MMK [2006] NSWCCA 272; 164 A Crim R 481, the Court (Spigelman CJ, Whealy and Howie JJ) stated:

[13] In some cases the fact that a sentence for a particular offence is to be served completely concurrently with another sentence for a different offence will result in a sentence that is erroneously inadequate because it does not reflect the totality of the criminality for which the offender was to be punished for the two acts of offending: see for example R v Brown [1999] NSWCCA 323. This may be so even if the two offences arise from the same precise criminal act, such as the dangerous driving of a motor vehicle on the one occasion: R v Janceski(No 2) [2005] NSWCCA 288. The same principle has been applied to sexual assault offences arising from a single incident of sexual assault: R v Gorman (2002) 137 A Crim R 326. Although, it has been held that a determination of the extent, if any, that a sentence is to be served cumulatively with another sentence is an exercise of discretion on which minds might differ, R v Hammoud (2000) 118 A Crim R 66, that discretion is generally circumscribed by a proper application of the principle of totality.

63 While acknowledging the discretionary judgment involved, it is a matter of concern that the judge did not address any remarks to the question of totality, nor explain the reason for the partial accumulation, let alone the degree.

64 In my view it was open to his Honour to have considered that there was additional criminality inherent in the s 25(1) offence, particularly having regard to the not insignificant quantity of drug involved (15 times the indictable quantity). There was, however, a significant overlap with the criminality inherent in the s 25(2) offence in the sense that it represented a continuation of the same activity.

65 The appropriateness of the sentencing outcome in terms of the totality principle may be tested in this fashion. The commercial quantity offence was a "rolled up” charge, in that it combined numerous individual supply offences committed over a period of time. It would have been open to the prosecution to include within that “rolling up” the applicant’s possession for the purpose of supply of the 19 grams of MDMA on 26 September 2008. That would have extended the period of the commercial quantity offence from about 19 weeks to about 22 weeks and increased the quantity of drug involved from 190 grams to 209 grams. Would the sentence for such a charge be any different from the one in fact imposed? I would answer that question, “Yes, but only marginally so”.

66 I accept that it was open to the prosecution to prefer the two charges as they did. However, a proper application of the totality principle should have seen a lesser degree of accumulation.

67 As to the individual sentences, I am not of the view that either is manifestly excessive. Rather they were relatively modest impositions and well within the range of sound discretionary judgment.

68 I would uphold ground 5. I propose that the individual sentences be maintained but that the commencement of the second sentence (for the s 25(2) offence) be brought forward by 9 months.

Orders

69 I propose the following orders:

1 Application for leave to appeal granted.

2 Appeal allowed.

3 The sentence for the offence of supply prohibited drug (on 26 September 2008) of imprisonment for a fixed term of 18 months, dating from 26 February 2010 and expiring on 25 August 2011, is confirmed.

4 The sentence for the offence of supplying not less than the commercial quantity of a prohibited drug (between 23 April 2008 and 2 September 2008) is quashed. In lieu, and taking into account the offence listed on the Form 1, sentenced to imprisonment comprising a non-parole period of 3 years and a balance of term of 2 years. The sentence is to date from 26 May 2010. The applicant will be eligible for release on parole upon the expiration of the non-parole period on 25 May 2013. The total term will expire on 25 May 2015.

That is a total sentence of 5 years 3 months with a non-parole component of 3 years 3 months.

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