Mulato v R

[2006] NSWCCA 282

CITATION:

MULATO v REGINA [2006] NSWCCA 282

HEARING DATE(S):

16 February 2006

 
JUDGMENT DATE: 

11 September 2006

JUDGMENT OF:

Spigelman CJ at 1; Simpson J at 45; Adams J at 51

DECISION:

1 Leave to appeal granted and appeal allowed; 2 Sentence quashed; 3 Substitute a non-parole period of five years and a balance of term of three years.

CATCHWORDS:

Sentence appeal - plea of guilty - significance of standard non-parole period - significance of time spent on remand

LEGISLATION CITED:

Crimes (Sentencing Procedure) Act 1999 s 54B(2)
Drug Misuse and Trafficking Act 1985 s 25(2)

CASES CITED:

AT v R [2005] NSWCCA 410
House v The King [1936] HCA 40; 55CLR 499
Markarian v The Queen [2005] HCA 25; 79 ALJR 1048
R v AJP [2004] NSWCCA 434; 150 A Crim R 575
R v Blair [2005] NSWCCA 78; 152 A Crim R 462
R v Davies [2004] NSWCCA 319
R v Hung Lo [2005] NSWCCA 436; 159 A Crim R 71
R v Poon (2003) 56 NSWLR 284
R v Sangalang [2005] NSWCCA 171
R v Shi [2004] NSWCCA 135
R v Way (2004) 60 NSWLR 168
Vu v R [2006] NSWCCA at 188

PARTIES:

Alexander MULATO (Applicant)

v

REGINA

FILE NUMBER(S):

CCA 2005/1953

COUNSEL:

S Odgers SC (Applicant)
D Frearson SC (Crown)

SOLICITORS:

P Katsoulis (Applicant)
S Kavanagh (Crown)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/21/1081
LOWER COURT JUDICIAL OFFICER:	English DCJ

2005/1953

SPIGELMAN CJ
SIMPSON J
ADAMS J

11 September 2006

Alexander MULATO v REGINA

Judgment

1 SPIGELMAN CJ: The facts and grounds of appeal are set out in the judgment of Adams J which I have read in draft.

2 His Honour recasts the grounds of appeal, with the possible exception of Ground 4, as constituting:

“ … different aspects of the fundamental contention that the learned sentencing judge gave too much significance to the standard non-parole period applicable to the offence.”

3 In my opinion, this is not an accurate portrayal of the grounds of appeal or of the submissions.

4 Mr S Odgers SC, who appeared for the Applicant, primarily relied on Ground 6, which is:

“The sentencing judge erred in failing to have proper regard to the maximum penalty when sentencing the Applicant.”

5 With respect to this ground, Mr Odgers submitted that her Honour erred by adopting the standard non-parole period of ten years applicable to this offence as a starting point.

6 Mr Odgers did not contend that the use of the standard non-parole period had the effect that the Applicant’s subjective circumstances were ignored. Indeed, he expressly abjured the proposition that her Honour failed to take into account the relevant subjective considerations. He said that there was no ground of appeal that her Honour had failed to take into account a relevant mitigating factor, but he did submit that she had failed to give proper weight to those matters.

7 The contention that the sentence was manifestly excessive was the subject of the fifth Ground of appeal. As is often the case, a number of the other grounds – namely the second, third and fourth – could explain the excessive nature of the sentence, if that be the case. The contention that her Honour failed to give appropriate weight to the subjective case of the Applicant is the subject of the third ground. However, no doubt because her Honour comprehensively set out the Applicant’s subjective circumstances, Mr Odgers accepted that Ground 3 did not have significant prospects of success considered in isolation.

8 Adams J sets out the passage in her Honour’s judgment which is the basis of the Applicant’s contention that her Honour used the standard non-parole period as a starting point and applied a mathematical calculation from that point. I find it necessary to set out in greater detail her Honour’s course of reasoning.

9 After outlining the facts and circumstances of the police investigation and what was found on the premises, summarised by Adams J, her Honour set out in detail the Applicant’s subjective circumstances including his age, his personal background, the history of family disruption, his personal history of drug abuse and the results of psychological testing. Thereafter and immediately prior to the passage which is quoted by Adams J, her Honour said:

“I am urged on behalf of the offender to find that this case falls below the mid-range of objectively serious matters. Submissions were made that the drugs were of a very low purity and the quantity is considerably less than those in the decisions of The Queen v Shi [2004] NSWCCA 135 and The Queen v Blair [2005] NSWCCA 78. Those cases can be distinguished on their facts, for the simple reason that in Shi the offender was merely a courier carrying the drugs for a friend and as the evidence showed in Blair, he too was a courier and what is referred to as a storeman. Neither offender in those decisions was shown to be the owner of the drugs, nor a principal in any intended transactions, such as the present case.
On the offender’s own evidence, he had the drugs in his possession for the purpose of taking at least some of them to the clubs in the immediate area for the purpose of selling them. He is a supplier in the true sense of the word. It is an offence committed without regard for public safety. Society suffers enormously from those who are addicted, who commit crimes to fund their habit and who become victims in the public health system in seeking to rid themselves of their addictions. Families too suffer as a consequence of those who are addicted.
I have had regard to the provisions of s21A(2) to the aggravating factors, as well as the mitigating factors. There was, I find, a significant degree of planning involved in his activity. He rented the unit. He had a second phone for the purpose of his dealing. He had quantities packaged ready for sale in his motor vehicle and he was planning to attend local clubs that evening for that very purpose. The quantity of methylamphetamine in this offender’s possession was a commercial quantity – namely, 520.1 grams, about 100 grams below the 625 gram mid point in the range of 250 to 1000 grams. The purity was low, as I have already stated – between three and four percent.
He is a young offender with little or no criminal record, someone I find to be both truly remorseful and contrite, an offender who has good prospects for rehabilitation and is unlikely to re-offend. He pleaded guilty on arraignment and whilst perhaps not at the earliest opportunity, the Crown concedes at the earliest opportunity following negotiations. I allow him a 20 percent discount for his plea in that regard.”

10 The succeeding paragraph is set out by Adams J.

Ground 6

11 This ground of appeal is based on the precise terms of the ground which was successful in AT v R [2005] NSWCCA 410.

12 In my opinion, it is unnecessarily convoluted to express a ground of appeal based on an inappropriate use of the standard non-parole period in terms of a failure to have proper regard to the maximum sentence for the offence. As indicated in AT at [36], this approach is based on some observations in Markarian v The Queen [2005] HCA 25; 79 ALJR 1048 at [30]-[31] which confirmed the significance of the maximum penalty as a matter to which regard had to be paid in the course of the exercise of the sentencing discretion. This is not, in my opinion, the error of sentencing principle to which the Applicant’s contentions refer.

13 It is now well established that it is an error of principle to select a specific figure – whether that be a maximum sentence or a standard non parole period or a ‘subliminally derived figure’ (see Markarian at [39]) – and to add or subtract matters item by item in some sort of mathematical process. The reason that this approach constitutes legal error is because it impermissibly confines the sentencing discretion. Indeed, the use of the maximum sentence in such a manner was precisely the error identified by the High Court in Markarian.

14 In R v Way (2004) 60 NSWLR 168 this Court considered the introduction of the standard non-parole period regime into the Crimes (Sentencing Procedure) Act 1999 and specifically the obligation imposed by s54B(2) that:

“…the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.”

15 In Way, this Court determined that the standard non-parole period, like the maximum sentence, was an appropriate benchmark, guidepost or reference point and, as such, had an important role to play in ensuring consistency in sentencing. The standard non-parole period serves a role as a reference point even in the case in which it is not directly applicable, e.g. as here where there is a plea of guilty. (See R v Davies [2004] NSWCCA 319 at [6]; Vu v R [2006] NSWCCA at 188 at [52] and cases referred to therein.)

16 The breadth of the sentencing discretion was confirmed by the express terms of s54B – “there are reasons for serving a non-parole period that is longer or shorter” – and the need to take into account the full range of circumstances referred to in s21A of the Act. This Court affirmed in Way, especially at [127]-[130], that the new regime is consistent with the instinctive synthesis approach to the exercise of the sentencing discretion.

17 In Way, the Court concluded:

“[131] What is not appropriate, in our view, is for a sentencing judge to commence the process for every offence (irrespective of the seriousness, and irrespective of whether the offender’s guilt was established after a trial or by a plea), at the standard non- parole period, and than to oscillate about it by reference to the aggravating and mitigating factors. The problem with that approach is that the standard non-parole period will tend to dominate the remainder of the exercise, thereby fettering the important discretion which has been preserved by the Act.”

18 This reasoning rejects the use of the standard non-parole period as a “starting point” or fulcrum for a mathematical process. Even where the offence attracts a standard non-parole period, because it is in the middle of the range of objective seriousness, error occurs whenever the standard non-parole is used as a “starting point” rather than as a “reference point”. (See R v Sangalang [2005] NSWCCA 171 esp at [19]-[24]; R v Hung Lo [2005] NSWCCA 436; 159 A Crim R 71 esp at [64]-[71].) The description in AT supra at [36] of the maximum sentence as “a more appropriate start point“ should not be understood as indicating a different view.

19 In my opinion, English DCJ did not use the standard non-parole period as a “starting point”. The kind of reverse engineering for which the Applicant contended in this appeal does not do justice to Her Honour’s analysis of the full range of relevant circumstances.

20 As indicated above, her Honour set out the objective circumstances pertinent to the case and no complaint has been made that her Honour failed to take into account any relevant consideration or took into account any irrelevant consideration in any part of this analysis. Her Honour referred to the standard non-parole period, as it was entirely appropriate for Her Honour to do because the standard non-parole period remained an important reference point, even in a context where the standard non-parole does not directly apply because of the guilty plea.

21 Her Honour commenced the relevant passage, which is set out by Adams J, with an express statement that the standard non-parole period did NOT apply to this case because of the guilty plea. The contention that she nevertheless used the ten year period as a “starting point” is based on the following sentence:

“Had this matter gone to trial and this offender been found guilty, I would have imposed a nine year period, having regard to his role as the principal supplier, despite the quantity falling below the range to which I have referred and the purity being low.”

22 The reference to “falling below the range” is a reference to her Honour’s earlier observation that the quantity involved was about 100 grams below the 625 grams mid point of the 250-1000 grams range of a “commercial” quantity for purposes of the Drug Misuse and Trafficking Act 1985.

23 This contention requires the Court to read her Honour’s reference to “having regard to” as “having regard only to”. I do not believe that that is what her Honour meant.

24 The sentence comes immediately after her Honour’s detailed analysis of the full range of objective and subjective considerations, which her Honour linked to the relevant paragraphs of s21A of the Act. I do not accept that these matters were of no account in her Honour’s determination that nine years would have been the appropriate non-parole period in the absence of a plea. Her Honour expressed, in accordance with her obligation to give reasons, that the factor to which she gave particular weight was the Applicant’s role as a “principal supplier” and that that role was not substantially mitigated by the quantity or quality of the drugs involved.

25 In my opinion, her Honour’s reasoning does not suggest that she, in some way, commenced with the ten year period because that was appropriate for a “principal supplier” in a mid range offence and, then “took off” one year for quantity and quality. That is not what she said. In the context of her full treatment of the relevant considerations, it ought not be inferred that she so confined her reasoning. The proposition that her Honour commenced with ten years as a starting point requires a process of reverse engineering for which there is no warrant.

26 When a judge, in accordance with the obligation to provide reasons, including under s54B, identifies the matters that particularly impinged upon his or her mind in the final determination of an appropriate sentence, it is not appropriate to infer that in some way all of the other factors that the judge had set out at some length in his or her reasons were ignored.

27 This analysis also disposes of Ground 1 of the grounds of the appeal alleging a failure to set out reasons.

Ground 2

28 The Applicant submitted that Her Honour erred in determining the objective seriousness of the offence. In a passage from her Honour’s remarks on sentence which I have set out above, her Honour dealt with the submission that the case fell below the mid range of objective seriousness. In a case where, by reason of the guilty plea, the standard non-parole period would not apply, this submission did not need to be expressed in terms of falling below the ‘mid range’, albeit that the standard non-parole period would be entitled to greater strength as a reference point in such a case.

29 Her Honour dealt with this submission by referring to and distinguishing the cases of R v Shi [2004] NSWCCA 135 and R v Blair [2005] NSWCCA 78; 152 A Crim R 462. The purpose of distinguishing these cases, in the manner in which her Honour did, suggests an implicit finding by her Honour that the objective seriousness of the offence was in the middle of the range. This was based primarily on the fact that the Applicant was the principal in the supply, at what is often referred to as ‘street level’, namely sale directly to end users.

30 Although expressed in terms which found their origin in the standard non-parole period statutory regime, which remained pertinent at least as a guidepost, her Honour was, in any event, required to assess the objective seriousness of the offence. As Simpson J has pointed out the difficult, indeed hypothetical, task of determining whether a particular offence falls in “the middle of the range of objective seriousness” differs little from the longstanding requirement to evaluate the objective seriousness of any offence which, as Her Honour has said, “should be approached intuitively and based upon the general experience of courts”. (See R v AJP [2004] NSWCCA 434; 150 A Crim R 575 at [14](iii).)

31 Furthermore, as Simpson J went on to say, relying on Way at [85]-[86]:

“[14] (iv) Circumstances that affect the evaluation of the objective seriousness of an offence include (but are not necessarily limited to) the actus reus, the consequences of the conduct, such factors as impinge upon the mens rea of the offender, matters of motivation, mental state, mental illness or disability (where causally related to the commission of the offence). Factors that affect the circumstances of the offender as distinct from the offence, (for example, youth or prior sexual abuse) do not affect the evaluation of objective seriousness.”

32 The Applicant relies on a number of specific matters to suggest that the offence in this case ought to have been regarded as significantly below the middle of the range.

33 The first matter relied on was that the drug was of lesser objective seriousness compared with heroin and cocaine. However this Court no longer ignores the fact that Parliament has chosen to treat different kinds of drugs in the same way. (See R v Poon (2003) 56 NSWLR 284.)

34 The second matter that the Applicant referred to was the fact that the quantity of drugs was some 16 percent below the mid point of the commercial quantity range and the purity of the drugs was very low at 3-4 percent. Her Honour expressly referred to this matter. It is of relevance but not determinative in determining the objective gravity of the offence.

35 The third matter has given me some pause. This Applicant, albeit a principal, was a street level dealer. Although the operation involved a degree of planning, it was not elaborate or of substantial size. The Applicant’s offence is not clearly within the mid range of objective seriousness.

36 When reaching his conclusion that the objective seriousness of the offence was significantly below the middle of the range, Adams J notes that the offender’s role in the drug trade involved selling small quantities directly to individuals, that the operation involved an unsophisticated level of planning and organisation. This contrasts with her Honour’s finding that there was a significant degree of planning: the rent of a unit, separate telephones, the packaging and system of attending local clubs.

37 Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour. In my opinion it was open, although I have some hesitation in deciding so and find it to be at the lower end of the range which could reasonably be held to be so characterised.

Ground 4

38 The Applicant relies on the fact that her Honour did not make any specific reference to the fact that the Applicant was subject to the additional burdens involved in being held for a substantial period on remand, which situation has been often regarded as rendering a period of custody more difficult than may have otherwise been the case. Her Honour was well aware that the appellant was in custody from 25 October 2003 when she came to sentence on 4 April 2005. Indeed, her Honour backdated the sentence until the date of arrest. Although her Honour made no specific reference to this matter it is not appropriate to infer that she ignored it. She was aware of the facts giving rise to the situation. In any event, this is not a factor of sufficient materiality to justify this Court intervening and re-exercising the discretion.

Ground 5

39 I have accepted that it was open to her Honour to make a finding of mid range seriousness, albeit not definitively so.

40 In order to determine whether the sentence was manifestly excessive, the critical question is whether or not her Honour reflected the subjective case in the sentence, particularly her own conclusion that as the Applicant was a young offender, without a criminal record who was truly remorseful, he had good prospects for rehabilitation and was unlikely to re-offend.

41 I have come to the conclusion that, in the light of the strength of the Applicant’s subjective case, the non-parole period of six years and a head sentence of nine years, seven months and five days is excessive and should be reduced.

42 Her Honour commenced her analysis with a non-parole period of nine years to which she applied the 20 percent discount and thereafter made the finding of special circumstances which reduced the non-parole period. There is no suggestion that her Honour erred in the finding of special circumstances. I share her Honour’s view as to the need for a period of supervision of three years.

43 In my opinion the appropriate non-parole period, before the application of the discount for the plea of guilty, was seven and a half years. The discount would reduce the non-parole period to six years and the application of the statutory ratio indicates a balance of term of two years. The finding of special circumstances, which I have accepted, would reduce the non-parole period to five years.

44 Accordingly the orders I propose are:

1 Leave to appeal granted and appeal allowed.

2 Sentence imposed by English DCJ on 4 April 2005 quashed.

3 Impose a non-parole period of five years and a balance of term of three years.

45 SIMPSON J: I have read in draft the judgments of the Chief Justice and of Adams J. I agree with the Chief Justice. I wish merely to underline my agreement in respect of one matter. Most emphatically, I agree with his Honour’s observations at [37].

46 The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance.

47 One consequence of this (which might aptly be termed a separation of powers) is the need for first instance judges to make clear findings of fact, and clear evaluations of such matters as objective seriousness. Absence of clarity in such findings may result in the need for the appellate court to undertake the task itself.

48 Here, if there was a fault in the approach taken by the sentencing judge, it was in failure to state in clear terms a conclusion as to objective seriousness. Her Honour noted that she was urged to find that the case fell below the mid-range of objective seriousness. She immediately followed that with reference to a series of matters, which, as the Chief Justice has suggested, carry the clear implication that she rejected the proposition put on behalf of the applicant.

49 In my opinion her Honour’s reasons for coming to that implicit conclusion are clear. So also are her reasons, notwithstanding that conclusion, for not imposing the standard non-parole period. Again, in my opinion it is plain that her Honour regarded the mitigating circumstances as a warrant for declining to impose the standard non-parole period. So was, as her Honour recognised, the plea of guilty.

50 What I have said disposes of grounds 1, 2, 3 and 6. In relation to grounds 4 and 5 I agree with the Chief Justice. I agree with the orders that his Honour proposes.

51 ADAMS J:

Introduction

52 On 23 September 2004 the applicant pleaded guilty to an offence under s 25(2) of the Drug Misuse and Trafficking Act 1985 being the supply of not less than the commercial quantity of a prohibited drug, namely methylamphetamine. The maximum penalty for this offence is twenty years or a fine of 3,500 penalty units. The applicant asked that another offence, being the supply of not less than an indictable quantity of ecstasy, should be taken into account. For an offence that falls within the middle of the range of objective circumstances, the first offence attracts a standard non-parole period of ten years’ imprisonment. The quantity of methylamphetamine involved in the first offence was 520.1 grams and the quantity of ecstasy involved in the Form 1 offence was 23.24 grams. On 4 April 2005 the applicant was sentenced (the offence on the Form 1 being taken into account) to an overall term of imprisonment of nine years, seven months and five days commencing 25 October 2003 of which six years was a non-parole period expiring on 24 October 2009. The applicant seeks leave to appeal against the severity of this sentence.

The facts

53 The facts were not in dispute. The following account is taken largely from the reasons for sentence in the District Court. At about 3.30pm on 25 October 2003, information was received from the staff of a resort near Penrith that a large bag containing white tablets was found secreted at the bottom on a plastic bin in the lounge room of one of the units at the resort. These tablets were found when the unit was being cleaned. Police attended and placed the unit under observation. Some hours later, the applicant was observed to drive a motor vehicle registered in the name of one Scott Castle to the premises. He made a number of telephone calls on a mobile phone and was seen to remove bags from the motor vehicle. A short time later, Scott Castle arrived in another vehicle and both he and the applicant entered the unit. Police then arrested both of them. On a further search of the unit, further bags of white and blue tablets with various designs were found in plastic bags. Three bags of tablets were found inside the oven in the unit. The applicant informed police that he put the tablets there as he was holding them for a friend whose name he did not reveal. In his evidence at the sentence proceedings, the applicant candidly admitted that this was untrue and that all the drugs found were in his possession for the purpose of supply. When the applicant’s motor vehicle was searched, police discovered another bag of white tablets in the centre console. The supply of these tablets comprised the offence in the Form 1. On analysis the purity of the drugs found ranged between 3% and 4%

54 Six mobile phones were also found in the unit and the applicant told police that they had been given to him by the same friend. A fake “Brut” body spray tin and a vegetable tin with a fake bottom, both items capable of holding hidden contents, were also located.

55 The applicant gave evidence in the sentence proceedings. Amongst other things, he admitted that he intended to supply some of the drugs which had been found and expressed what her Honour accepted were genuine feelings of remorse and contrition. He said that he intended to sell the three large bags of tablets found in the oven in the unit and the drugs found in the console of the car. He said that he intended to sell these drugs at clubs in the Penrith area, in particular the Penrith Panthers’ Leagues Club and St Mary’s RSL Club. Indeed, he said that he and Mr Castle were on their way to the former club when they were arrested. Of the six phones found in the unit, two were his and one was used, he said, for the purpose of drug dealing.

Subjective features

56 The applicant had a very minor criminal record of no relevance.

57 A pre-sentence report and two psychologists’ reports were tendered. The effect of those reports was adequately set out in her Honour’s reasons for judgment in the following terms –

“[The offender] … has been interviewed by John Machlin, a clinical psychologist and also the Probation Service. His fled El Salvador in 1990 and sought asylum in Australia. His father, who had trained in computers, was unable to find work in that field because of his poor language skills. He did obtain employment and remains employed in the security industry. The offender’s mother undertook nursing in Australia and obtained registration. The offender and his brother apparently had trouble adjusting. Marital conflict developed between the offender’s parents. His mother required hospitalization for depression and his brother attempted suicide.
At one stage, the offender was achieving academically, but his motivation and attitude deteriorated and he left school in year 10. He has held a number of short-term positions of an unskilled nature. He commenced a pre-apprenticeship electrical course and has also obtained certificates in financial services. Whilst he has been in custody, he has worked in a metal shop, packaging, as a sweeper and is currently performing the work as a barber, having completed a brief training period for that purpose.”

58 The learned sentencing judge noted that, at the time he committed the offences, he was abusing ecstasy, cocaine and tranquilisers. Her Honour noted that the applicant did not then consider that he had a problem but has come to recognise that he did. Psychometric testing revealed certain personality traits suggesting that the applicant needs counselling aimed at relapse prevention in preparation for his release. The offender’s family remains supportive of him and will help him on his release. This latter consideration is important since it provides a good foundation for rehabilitation.

The reasons for sentence

59 The learned sentencing judge concluded that the applicant was truly remorseful and contrite with good prospects for rehabilitation. His early plea following negotiations justified a 20% discount for his plea. No complaint is made as to this aspect of the case.

60 In dealing with the objective seriousness of the applicant’s offending, her Honour found that there was a significant degree of planning involved: he rented the unit; he had a second phone for the purpose of his dealings; he had quantities packaged ready for sale and had planned to attend local clubs for this purpose. The learned sentencing judge noted that the quantity of methylamphetamine in the applicant’s possession (520 grams) was about 100 grams below the 625-gram midpoint in the range of 250 – 1,000 grams being a commercial quantity for the purposes of the Drug Misuse and Trafficking Act 1985. She noted that the purity of between 3% and 4% was low.

61 Having dealt with the objective and subjective features of the case, Her Honour went on to say –

“The standard non-parole period of ten years applies to those cases where an offender goes to trial and is found guilty by a jury. In the present case, the offender, of course, has pleaded guilty. The objective seriousness of the matter calls for the imposition of nothing short of a custodial sentence, one which should reflect the need for general and specific deterrence and adequately reflects society’s disapprobation of those who choose to deal in illegal drugs. Had this matter gone to trial and the offender been found guilty, I would have imposed a nine year non-parole period, having regard to his role as the principal supplier, despite the quantity falling below the range to which I have referred and the purity being low. There is no evidence to enable a finding that the offender was supplying purely to support a habit. The only rational inference is that he was supplying in addition to supporting his habit and that is agreed.”

62 Dealing with special circumstances, the learned sentencing judge noted that the applicant was a young man who found himself in custody for the first time and that there was a need for lengthy and supervised rehabilitation to ensure that he did not relapse, however slight that prospect might be. Her Honour, accordingly, found special circumstances existed that warranted the variation of the statutory calculus between non-parole period and the balance of the term “to allow for a lengthy period of supervision which should include relapse prevention, drug and alcohol counselling and generalised counselling”.

The appeal

63 The applicant seeks leave to appeal from the sentence imposed on him. The grounds of appeal were as follows –

1. The sentencing judge erred in failing to give reasons for reducing the standard non-parole period.
2. The sentencing judge erred in the determination of the objective seriousness of the offence.
3. The sentencing judge erred in the determination of the weight to be given to the circumstances of mitigation applicable to the applicant.
4. The sentencing judge erred in failing to take into account the fact that the applicant had been in custody for a substantial period on remand.
5. The sentence imposed was manifestly excessive.
6. The sentencing judge erred in failing to have proper regard to the maximum penalty when sentencing the applicant.

64 With the possible exception of ground 4, on the hearing of the appeal the grounds were essentially reduced to different aspects of the fundamental contention that the sentence was manifestly excessive because the learned sentencing judge gave too much significance to the standard non-parole period applicable to the offence. It was contended on the applicant’s behalf that the learned sentencing judge regarded the standard non-parole period of ten years as the starting point for her Honour’s calculations of the appropriate sentence and that this was a fundamental error.

65 The passage that I have set out from her Honour’s reasons for sentence gives some support for the applicant’s contention as to the mode of reasoning adopted by her Honour. Her Honour categorically stated that had the applicant been convicted following a trial she would have imposed a nine-year non-parole period. Adjusting this non-parole period by 20% for the applicant’s discount yields the figure of seven years, two months and four days which, applying the statutory calculus would produce a head sentence of nine years seven months and five days, precisely that which was imposed by her Honour. There was then a finding of special circumstances which reduced the non-parole period to six years (approximately 62.5% of the total sentence).

66 My initial impression was that the standard non-parole period of ten years was indeed her Honour’s starting point and that this period reflected her Honour’s view of the objective seriousness of the applicant’s offending conduct which she described as a “principal supplier”, giving the applicant a somewhat lesser sentence than the standard non-parole period because the quantity fell below the “mid-range” and the purity was low. It seemed to me that her Honour reasoned that the status of the applicant – namely that of a principal supplier – placed his offence in the middle of the range of objective seriousness but that the quantity and purity of the drugs reduced that level of seriousness by one year. The alternative interpretation requires the assumption that, in the event of a verdict following a trial, the stated appropriate non-parole period of nine years appropriately reflected both the subjective as well as the objective features of the case. Using the standard non-parole period of ten years for a case in the middle of the range of objective seriousness as a benchmark, guidepost or reference point, a nine year non-parole period that takes into account both the objective and subjective features of this case seems to me, with respect, to be manifestly excessive. Whether this reflects an excessive measure of objective seriousness or the giving of too little significance to the relevant subjective features may not be capable of resolution: the figure itself seems to me, with respect, to be manifestly excessive.

67 If the standard non-parole period was the starting point, the substantial subjective features operating in the applicant’s favour were not reflected in the non-parole period imposed (except in so far as they represented special circumstances), since the standard reflects the middle of the range of objective seriousness. Of course, whether starting point or not, the standard non-parole period should not dominate the process: the other elements of the proper exercise of the sentencing discretion must all be given their proper significance.

68 I note that the learned sentencing judge did not increase the penalty that was imposed on the indicted charge because of the matter contained on Form 1, for the reason that it was part of the entire activity of the offending and did not warrant additional punishment. In my respectful view this conclusion was correct.

69 The applicant also contends that the learned sentencing judge erred in categorising the applicant’s offending as being that of a “principal supplier”. I think that her Honour was drawing the distinction between a person who acts on his or her own behalf and one who is acting at the direction of another. In this she was plainly right.

70 In offences involving the commercial supply of drugs, the position of the offender in the drug trade is of considerable significance. This applicant was not a street dealer in the sense that he simply sold enough drugs to support his own habit. He was an addict but the learned sentencing judge’s conclusion that he was in the business of drug supply though he used some of the drugs himself was correct. Nor, with respect, would I differ from the learned sentencing judge’s findings (set out in paragraph 8 above) as to the character of the objective circumstances of the offence. At the same time, the quantity of drugs involved and the nature of the applicant’s supplying by selling small quantities to individuals at entertainment venues placed him, in my view, in a position significantly beneath a supplier on the scale which would bring him or her within the middle of the range of objective seriousness for this particular offence. The nature of planning and organisation was also relatively unsophisticated, reflecting the nature of his business. Accordingly, using the standard non-parole period of ten years as a reference point, the objective seriousness of the offence here suggests the nine years’ commencing point for the non-parole period was significantly too high, even before taking into account the subjective circumstances. Of course, this Court must be careful not to simply substitute its view of an appropriate sentence where error has not been identified or the sentence is not demonstrably wrong in the sense in which the decision in House v The King [1936] 55 CLR 55 deals with appeals from evaluative judgments. Nor should a merely different view of the facts intrude into the disposition of an appeal unless it reflects an identifiable error.

71 The applicant’s favourable subjective circumstances included his (relevantly) clear record, his remorse and contrition and his prospects of rehabilitation. It is also of significance that the applicant was in custody on remand between the date of his arrest on 25 October 2003 and his being sentenced on 4 April 2005. Remand prisoners are held in maximum security prisons and many of the programs available to sentenced prisoners are not available to them. He is presently in B classification but this was not available to him whilst he was on remand. His progression to less rigorous classification has been significantly delayed. Where is a lengthy period on remand, a mere calendar adjustment (as dating the sentence from the date of commencement of incarceration) will not fairly reflect the relative harshness of this form of imprisonment and some downward adjustment of the ultimate sentence is appropriate. I do not accept the applicant’s contention that the learned sentencing judge did not take this matter into account. However, it is another significant feature of the case that, with the other matters that I have mentioned, points to the manifest excessiveness of the sentence. I should mention that the applicant’s affidavit reveals that his prospects of rehabilitation remain good.

72 Bearing in mind all the objective and subjective features of this case, including the maximum penalty and the standard non-parole period, it is my view that the sentence imposed on the applicant was indeed manifestly excessive.

73 I consider that (taking into account the matter on the Form 1) an appropriate overall sentence, before any discount for the early plea, is nine years’ imprisonment. Reducing that overall sentence by the 20% discount (rounding down slightly) yields an overall sentence of seven years imprisonment. I agree with the learned sentencing judge that special circumstances require a variation of the statutory ratio. In my view, an appropriate non-parole period is four years three months.

Conclusion

74 Accordingly, I propose that leave to appeal be granted, the appeal be upheld, the sentence below be quashed and that there be substituted in lieu thereof a non-parole period of four years and three months commencing on 25 October 2003 and expiring on 24 January 2008 with a balance of term of two years and nine months commencing 25 January 2007 and expiring on 24 October 2009. I have read the judgments in draft of the Chief Justice and Simpson J. The essential reason for my proposing a slightly lesser sentence than their Honours is the very substantial proportion of the applicant’s sentence that has been served on remand, in the absence of which I would have unhesitatingly agreed with their Honours’ proposed sentence.

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