Paxton v R - [2011] NSWCCA 242

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Paxton v R [2011] NSWCCA 242
Hearing dates: 19 May 2011
Decision date: 11 November 2011
Before: Tobias AJA at 1
Johnson J at 2
Hall J at 237
Decision:
Leave to appeal against sentence granted.
Sentences imposed upon the first, second and third counts are quashed.
On the first count, the offence of supplying a large commercial quantity of MDMA (ecstasy), taking into account the matters on the Form 1, the Applicant is sentenced to imprisonment comprising a non-parole period of 13 years commencing on 10 May 2012 and expiring on 9 May 2025, with a balance of term of six years commencing on 10 May 2025 and expiring on 9 May 2031.
On the second count, the offence of supplying a commercial quantity of cocaine, the Applicant is sentenced to imprisonment comprising a non-parole period of six years and six months years commencing on 10 May 2009 and expiring on 9 November 2015, with a balance of term of two years and two months commencing on 10 November 2015 and expiring on 9 January 2018.
On the third count, the offence of supplying a large commercial quantity of methylamphetamine, taking into account the matters on the Form 1, the Applicant is sentenced to imprisonment comprising a non-parole period of 12 years commencing on 10 May 2010 and expiring on 9 May 2022 with a balance of term of four years commencing on 10 May 2022 and expiring on 9 May 2026.
The sentence on the fourth count, receiving stolen goods, is confirmed, namely a fixed term of imprisonment for three years commencing on 10 May 2008 and expiring on 9 May 2011.
The earliest date upon which the Applicant will be eligible for release on parole is 10 May 2025.

Catchwords: CRIMINAL LAW - sentence - pleas of guilty - supply large commercial quantity of MDMA (ecstasy) (8.497 kg) - supply commercial quantity of cocaine (335.3 grams) - supply large commercial quantity of methylamphetamine (2.314 kg) - receiving stolen property (jewellery worth $104,000.00) - Form 1 offences of supply commercial quantity of heroin, supply cannabis and dealing with property suspected of being proceeds of crime - finding that Applicant operating a "one stop shop" supplying different drugs from premises - total effective non-parole period of 21 years with seven years' balance of term - claim of error in assessment of objective seriousness and in failing to set non-parole periods for standard non-parole period offences - claim that sentences manifestly excessive and that total sentence was crushing - some errors demonstrated - Applicant resentenced to total effective non-parole period of 17 years with a balance of term of six years
Legislation Cited: Drug Misuse and Trafficking Act 1985
Crimes Act 1900
Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999
Cases Cited:
R v Paxton [2009] NSWDC 326
Wong v The Queen [2001] HCA 64; 207 CLR 584
Markarian v The Queen [2005] HCA 25; 228 CLR 357
R v Kalache [2000] NSWCCA 2; 111 A Crim R 152
R v Walsh and Little [2005] NSWSC 125
R v Sellars [2010] NSWCCA 133
R v MacDonnell [2002] NSWCCA 34; 128 A Crim R 44
Melikian v R [2008] NSWCCA 156
R v Stanbouli [2003] NSWCCA 355; 141 A Crim R 531
R v Giammaria [2006] NSWCCA 63
R v Fisher [2008] NSWCCA 102
Kwon v R [2011] NSWCCA 58
R v Gao and Lim [2007] NSWCCA 343
Corby v R [2010] NSWCCA 146
Adams v The Queen [2008] HCA 15, 234 CLR 143
R v Blair [2005] NSWCCA 78; 152 A Crim R 462
R v Lee [2007] NSWCCA 234
R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80
R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106
The Queen v Olbrich [1999] HCA 54; 199 CLR 270
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Hristovski v R [2010] NSWCCA 129
R v Dunn [2004] NSWCCA 346
Aguirre v R [2010] NSWCCA 115
Tan v R [2010] NSWCCA 207
R v Nikolic [2007] NSWCCA 232
R v Gao and Lim [2007] NSWCCA 343
R v Stricke [2007] NSWCCA 179
Ly v R [2008] NSWCCA 262
Vigo v R [2009] NSWCCA 98
R v Folbigg [2005] NSWCCA 23; 152 A Crim R 35
Wong v R [2010] NSWCCA 160
Stock v R [2011] NSWCCA 49
Lowndes v The Queen [1999] HCA 29; 195 CLR 665
Hili v The Queen [2010] HCA 45; 85 ALJR 195
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
R v MAK [2006] NSWCCA 381; 167 A Crim R 159
Ta'ala v R [2008] NSWCCA 132
Barton v R [2009] NSWCCA 164
Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154
R v Attallah [2005] NSWCCA 277
Ma v R [2007] NSWCCA 240
R v MA [2004] NSWCCA 92; 145 A Crim R 434
Attorney General's Application Under Section 37 Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146
Texts Cited: ---
Category: Principal judgment
Parties: Mark Allan Paxton (Applicant)
Regina (Respondent)
Representation: Mr PR Boulten SC (Applicant)
Ms S Dowling (Respondent)

File Number(s): 2009/8173
Publication restriction: ---
Decision under appeal

Citation:

R v Paxton [2009] NSWDC 326

Date of Decision:

2009-11-06 00:00:00

Before:

His Honour Judge Berman SC

File Number(s):

---

Judgment

TOBIAS AJA : I agree with Johnson J.

JOHNSON J : The Applicant, Mark Allan Paxton, seeks leave to appeal with respect to sentences imposed at the Newcastle District Court on 6 November 2009.

As will be seen, the Applicant was sentenced to substantial terms of imprisonment. The Applicant had committed several serious drug supply offences and an offence of receiving stolen jewellery valued at more than $100,000.00. The questions for this Court to consider are whether patent error is demonstrated with respect to the sentences passed or latent error in the form of manifestly excessive sentences.

The Sentences Imposed

Following pleas of guilty, the Applicant was sentenced by his Honour Judge Berman SC to terms of imprisonment for the following offences:

Offence	Maximum Penalty	Standard Non-Parole Period	Sentence Imposed
Count 1 - On about 9-10 May 2008 supply more than the large commercial quantity of MDMA (ecstasy) (8.497 kg) contrary to s.25 Drug Misuse and Trafficking Act 1985 (â€œDMT Actâ€) (large commercial quantity of MDMA - 500 grams)	Life imprisonment	15 years	Non-parole period of 16 years from 10 May 2013 to 9 May 2029 with a balance of term of seven years from 10 May 2029 to 9 May 2036 (Form 1 offences were taken into account - see [5] below)
Count 2 - On about 9-10 May 2008 supply more than the commercial quantity of cocaine (335.3 grams) contrary to s.25 DMT Act (commercial quantity of cocaine - 250 grams)	20 yearsâ€™ imprisonment	10 years	Fixed term of imprisonment for eight years from 10 May 2009 to 9 May 2017
Count 3 - Between 16 March 2008 and 10 May 2008 supply more than the large commercial quantity of methylamphetamine (2.314 kg) contrary to s.25 DMT Act (large commercial quantity of methylamphetamine - 1 kg)	Life imprisonment	15 years	Fixed term of imprisonment for 12 years from 10 May 2011 to 9 May 2023 (Form 1 offences were taken into account - see [6] below)
Count 4 - Between 19 January 2008 and 11 May 2008 receiving stolen goods (jewellery valued at $104,000.00) contrary to s.188 Crimes Act 1900	10 yearsâ€™ imprisonment	---	Fixed term of imprisonment for three years from 10 May 2008 to 9 May 2011

In passing sentence on the first count, the sentencing Judge was asked to take into account, on a Form 1, an offence of dealing with property suspected of being the proceeds of crime ($2,700.00 in cash) contrary to s.193C(1) Crimes Act 1900 and an offence of supplying more than the commercial quantity of a prohibited drug (heroin) (an admixture of 468.3 grams of heroin and rice) contrary to s.25(2) DMT Act. The commercial quantity of heroin is 250 grams and a large commercial quantity is one kilogram.

6In passing sentence on the third count, the sentencing Judge was asked to take into account, on a Form 1, two offences of supplying a prohibited drug (cannabis) (an actual supply of 3.149 kilograms and a deemed supply of 2.673 kilograms) contrary to s.25(1) DMT Act. The indictable quantity of cannabis is one kilogram and the commercial quantity is 25 kilograms.

7Accordingly, the Applicant was sentenced to a total effective non-parole period of 21 years commencing on 10 May 2008 and expiring on 9 May 2029, with a balance of term of seven years commencing on 10 May 2029 and expiring on 9 May 2036.

Grounds of Appeal

8The Applicant relies upon the following grounds of appeal:

(a) Ground 1 - The learned Sentencing Judge erred in his characterisation of the objective seriousness of the supply offences (Counts 1-3).

(b) Ground 2 - His Honour erred in not properly identifying the objective seriousness of Count 3.

(d) Ground 4 - The sentences imposed for each of the supply offences are manifestly excessive.

(e) Ground 5 - The total effective sentence is manifestly excessive.

Facts of Offences

9An Agreed Statement of Facts was tendered on sentence in the District Court. Given the issues raised on appeal, it is appropriate to spell out, in some detail, the nature and extent of the Applicant's drug supply operation as contained in the Agreed Statement of Facts.

10As will be seen, the Applicant's operation revealed a significant level of organisation, and a wide range of illicit products for sale, in the Balmain house which was the centre of his activities.

Background

11In November 2007, Lake Macquarie Police established a Strike Force to investigate the supply of drugs in the Newcastle area. The main target of the investigation was Frank Orchard ("Orchard").

12In February 2008, a co-offender, Darren Burnett ("Burnett"), offered to act as a drug courier for Orchard. Orchard asked Burnett to source a reliable supplier of methylamphetamine who was capable of supplying 10-20 ounces (.28 to .56 kilograms) of ice each time, every couple of weeks.

13Police had Orchard under 24-hour surveillance. Lawful intercepts of the telephones of Orchard and Burnett were undertaken. Evidence obtained in this way established that Orchard conducted a very busy drug supply business.

14By mid-February 2008, Burnett was unable to source the quantities required by Orchard to maintain his level of business activity. His contacts led him to Sydney.

Involvement of the Applicant from March 2008

15On 14 March 2008, a contact of Burnett introduced him to the Applicant, described as "the guy from Balmain" . The Applicant, then aged 33 years, was living on his own in a house in Birchgrove Road, Balmain.

16The Applicant and Burnett met in a car at the Balmain Leagues Club carpark. The Applicant produced about an ounce of methylamphetamine in ice form. Burnett sampled about half a gram of this and determined that it was high quality. The Applicant told Burnett that he could supply 15 ounces of ice at a bulk rate of $6,500.00 per ounce.

17The Applicant provided Burnett with his mobile telephone number. The Applicant led Burnett to his house in Birchgrove Road, Balmain. Real estate checks established that the Applicant was the tenant of those premises, and that the Applicant had indicated to the real estate agent that he needed to rent the premises whilst a property which he owned (at Redfern) was being renovated.

18Between 14 and 17 March 2008, Orchard was recorded telling customers that supplies would be available in the near future.

19On 15 March 2008, contact was made between the Applicant and Burnett where agreement was reached on a price of $7,500.00 for an ounce of ice. Orchard gave Burnett $110,000.00 and directed him to purchase 10 ounces of ice for $75,000.00, and 16 ounces (one pound) of methylamphetamine in speed form for the quoted price of $35,000.00.

Events on 17 March 2008

20In the early hours of 17 March 2008, Burnett went to the Applicant's house in Birchgrove Road, Balmain. He told the Applicant he wanted to buy 10 ounces of ice and gave the Applicant $75,000.00. The drugs were to be delivered later that morning. The Applicant telephoned a contact and the money was picked up. Later that morning, the 10 ounces were delivered. The Applicant met that contact in the front bedroom of his house. The Applicant then supplied the methylamphetamine to Burnett.

21At his house, the Applicant had three bags of methylamphetamine in speed form, premixed with a cutting agent. The Applicant showed Burnett three bags of methylamphetamine with different prices written on each bag - $25,000.00, $35,000.00 and $45,000.00. Burnett purchased the $35,000.00 bag, which weighed 16 ounces.

22Whilst waiting for the drugs to be delivered, the Applicant showed Burnett the different types of drugs he could procure. They included ecstasy (MDMA), cocaine, LSD and heroin. The Applicant told Burnett that he could sell tablets for $11.00 each if a minimum of 1,000 were purchased, or for $10.00 each if a minimum of 10,000 were purchased. As will be seen, several thousand MDMA tablets were located when the Applicant's premises were later searched, the large majority of them being packaged in 1,000 tablet lots.

23The Applicant went upstairs and returned with a Tupperware container, which appeared to contain a white plaster with rice grains mixed in. The Applicant told Burnett this was heroin, and that he had mixed rice into it to absorb the moisture, resulting in a brick of set admixture. The Applicant offered this for sale at $10,000.00 an ounce. Burnett accepted a small sample, but declined the offer to purchase.

24The ice was delivered to the house. The Applicant supplied Burnett with 737 grams of ice, which he took from the house (part of Count 3).

Events in April 2008

25On 6 April 2008, another deal was organised with a supplier other than the Applicant, as Orchard had not been happy paying $7,500.00 per ounce. However, Orchard was not happy with the quality of the drug from the other supplier. Contact was made again between Burnett and the Applicant. The Applicant asked Burnett to travel down to Balmain on 13 April 2008. Text messages passed between the Applicant and Burnett. In one text message, the Applicant enquired when Burnett was going to arrive at Balmain, saying "Hey bro can you call when you pull up dogs go sik" . That call referred to two pit-bull terriers owned by the Applicant which became aggressive when they heard cars at the front of the house.

26On 13 April 2008, the Applicant provided a sample of ice to Burnett, who tested it and was satisfied it was of high quality. He ordered 18 ounces (half a kilogram), with the Applicant stating that he could supply that quantity for $115,000.00.

27Whilst Burnett was at the Applicant's house on 13 April 2008, the Applicant showed him some items of jewellery. A robbery had occurred at the Mondial jewellery store in the Queen Victoria Building on 19 January 2008, with close to $2 million worth of jewellery being stolen. This jewellery came from that robbery. The Applicant enquired of Burnett as to whether he was interested in buying any of the jewellery items. The Applicant had mainly rings and loose stones, pink and white diamonds, with some of the items still bearing price tags. The Applicant offered the items for sale at one-third of the price on the tags. Burnett bought a $2,500.00 ring for $800.00 for his partner. This ring was discovered later by police in Burnett's house when a search was conducted at the time of his arrest.

28When the Applicant's house was searched on his arrest on 9 May 2008, police located jewellery from the Mondial robbery worth $104,000.00 (Count 4).

29On 15 April 2008, Burnett collected $117,000.00 from Orchard. He had inflated the cost per ounce of the methylamphetamine so as to make a $2,000.00 profit himself from the deal. Burnett arrived at the Applicant's house at about 7.00 pm, and the Applicant supplied him with 18 ounces of ice for $115,000.00 (part of Count 3).

30During that visit, Burnett asked the Applicant whether he sold cannabis, saying "What about pot, you've got everything else" . The Applicant told Burnett that he was getting a couple of pounds the following day.

31On 17 April 2008, Burnett offered to buy from the Applicant the heroin that had been shown to him (see [23] above) together with some of the diamonds (see [27] and [28] above).

Events in May 2008

32On 8 May 2008, Burnett gave the Applicant $110,000.00 for 18 to 20 ounces of methylamphetamine. He also arranged to buy some cannabis from the Applicant.

33On 9 May 2008, Burnett travelled to the Applicant's house in Balmain to collect the methylamphetamine. When Burnett arrived, the Applicant was out on his motorbike collecting the drugs. On his return, the Applicant supplied Burnett with 20 ounces of methylamphetamine (part of Count 3).

34While at the house on 9 May 2008, Burnett asked the Applicant whether he could still buy cannabis. The Applicant went to a large duffle bag on the lounge room floor, opened it and tossed one pound bags of cannabis, 10 in total, to Burnett. Burnett concealed the 10 bags of cannabis in a spare tyre which was placed in the boot of Burnett's vehicle (first offence on Form 1 on Count 3).

35Burnett had not paid for two ounces of the methylamphetamine or the cannabis, so the Applicant entered a debt of $45,000.00 into a ledger book ($32,000.00 for the cannabis and $13,000.00 for the methylamphetamine).

36Burnett asked the Applicant for, and was given, a small quantity (3.5 grams) of methylamphetamine. Burnett said that as he had been awake for so long, he needed something to keep him alert. The Applicant had distinctive small resealable plastic bags, some with smiley faces, red devil heads and other logos (see [45] below). Burnett used part of this drug on the way home. When he was arrested later that day, he had in his pocket a small resealable plastic bag with red devil heads printed on it. The bag contained .5 grams of methylamphetamine in ice form, with a purity of 71%.

37Burnett drove back to Newcastle and contacted Orchard, intending to drop the methylamphetamine over to him.

Arrest and Search on 9 May 2008

38At this point, police co-ordinated the arrests of persons including the Applicant and Burnett. At 10.20 pm on 9 May 2008, a search warrant was executed on the Applicant's house at Balmain and on the homes of Burnett and Orchard as well.

39At the Applicant's home, in various locations, the police found a total of 517.3 grams of methylamphetamine (part of Count 3).

40The heroin offered by the Applicant to Burnett was found, with the total weight of the admixture being 468.3 grams, with a purity of 4.5%. Supply of this drug was taken into account on sentence (first offence on Form 1 on Count 1). The commercial quantity of heroin is 250 grams. The Prosecutor in the District Court explained that, although it was unusual for a charge of supplying a commercial quantity of heroin to be placed on a Form 1, this course had been taken because of the quite low purity of the drug (T20.22-29, 6 November 2009).

41Police found $2,700.00 in cash in the Applicant's house. This offence was taken into account on sentence (second offence on Form 1 on Count 1).

42Police also found a total of 2.673 kilograms of cannabis in the Applicant's home. This offence was taken into account on sentence (second offence on Form 1 on Count 3). The indictable quantity of cannabis is one kilogram.

43Methylamphetamine was located in several places in the Applicant's house. In the freezer in the kitchen, a plastic resealable bag was located containing 445.1 grams of methylamphetamine with a purity of 3.5%.

44Also located was a knotted plastic freezer bag containing 25.4 grams of methylamphetamine with an unknown purity.

45The coffee table in the lounge room of the Applicant's house had a drawer which contained a white plastic hinged flip top container, which appeared to be a sample pack. Inside this pack, amongst other prohibited drugs, were eight small resealable plastic bags each containing methylamphetamine, with a total amount of 5.8 grams. Some of these bags bore unique logos, being red devil head bags and yellow smiley face bags.

46Also in the coffee table drawer was a brown paper bag containing two plastic resealable bags, with a total of 41 grams of methylamphetamine at 6.5% purity.

First Count - Supply More Than Large Commercial Quantity of MDMA

47Police also located a total of 38,700 tablets of MDMA (ecstasy) weighing 8.497 kilograms, bagged in lots of 1,000 (Count 1). A large commercial quantity of MDMA is 500 grams.

48In the front bedroom of the house, police located a blue Gant brand duffle bag, which was closed with a zipper and had a padlock attached. The packaging for that padlock was located in the kitchen bin. The key was on a keyring which also held the key to the Applicant's motorcycle. Within the duffle bag, police found five blue Coles' brand chiller bags, each closed with a zipper.

49The first chiller bag had "Green stars x 5 & extras" written on the top of the bag in black marker pen. Within the bag were three plastic freezer bags, knotted at the top. Each bag contained green MDMA tablets with a star logo. The total weight of the three bags was 678.3 grams with an average purity of 33%. Each bag contained approximately 1,000 tablets. Also within this bag were two loose orange-pink tablets (a total of 3,002 tablets).

50The second chiller bag had "Pakmen orange x 8" written on the top of the bag in black marker pen. Within the bag were seven knotted plastic freezer bags, each containing pink pills, each with a "Pacman" logo. Each freezer bag held an average of 225 grams, corresponding to 1,000 MDMA tablets per bag. The total weight in this bag was 1,580.7 grams, with an average purity of 32.5% (a total of 7,000 tablets).

51The third chiller bag had "Green swirls x 9" written on the top of the bag in black marker pen. The bag contained seven plastic freezer bags knotted at the top, each containing green MDMA tablets marked with a swirl logo. Again, the bags were divided into 227.2 gram weight, being about 1,000 tablets. The total weight in this chiller bag was 1590.4 grams at an average purity of 33%. There were also two loose purple MDMA tablets with an alien logo, weighing 0.4 grams in total (a total of 7,002 tablets).

52The fourth chiller bag had "Stars orange x 17" written on the top of the bag in black marker pen. In this bag were 11 plastic freezer bags knotted at the top. Each bag contained orange-pink tablets with a "star" logo. The bags were in 224 gram weights. The total weight in this bag was 2,466.7 grams, with an average purity of 31.5%. There were a further 29 tablets with various logos loose in the bottom of this bag, with these weighing 6.1 grams (a total of 11,029 tablets).

53The fifth chiller bag had "Green V x 14" written on the top of the bag in black marker pen. The bag contained 10 plastic freezer bags tied with a knot. Eight of the bags contained green tablets with a "V" logo. The total weight of these was 1,791.3 grams. Two of the bags contained blue tablets with a "Pacman" logo. The total weight of these was 220.3 grams (a total of 10,000 tablets). These tablets bore the same colour and logo as the MDMA tablets found at Burnett's house, which had previously been offered to him by the Applicant.

54In the front bedroom, on the bottom shelf of the wardrobe, police located a plastic freezer bag knotted at the top. This contained pink MDMA tablets with a "star" logo weighing 106.3 grams, this equating to about 500 tablets.

55In a drawer of the coffee table in the lounge room, police located a brown paper bag containing several plastic resealable bags with approximately 100 green MDMA tablets (weighing 20.2 grams) and one purple MDMA tablet (weighing 0.19 grams).

56In the coffee table drawer, police also located a knotted plastic freezer bag, containing green tablets with a "V" logo. These tablets bore the same colour and logo as those found in the fifth chiller bag in the front bedroom (see [53] above). These tablets weighed 22.6 grams, totalling approximately 110 MDMA tablets.

57In the white plastic-hinged container sample pack in the coffee table drawer, amongst other prohibited drugs, there was a single orange-pink MDMA tablet with a star logo weighing 0.2 grams. This was similar to the tablets found in the fourth chiller bag in the wardrobe in the front bedroom (see [52] above).

58In the blue Gant duffle bag, there was a silver pencil case. It contained, amongst other things, one plastic resealable bag containing nine white MDMA tablets with a crown logo (weighing 2.2 grams) and a plastic resealable bag containing one white tablet with an animal logo (weighing 0.2 grams).

59In total, there was 8.497 kilograms of MDMA, comprising more than 38,700 tablets (Count 1).

Second Count - Supply More than Commercial Quantity of Cocaine

60Police also found a total of 335.3 grams of cocaine, bagged into one-ounce lots (Count 2). A commercial quantity of cocaine is 250 grams and a large commercial quantity is one kilogram.

61In the front bedroom of the house, police located a "Fitness First" sports bag which was closed with a zipper and locked with a padlock. That padlock was opened by the same key as opened the padlock on the Gant duffle bag which contained MDMA tablets (see [48] above). Within the "Fitness First" sports bag, was a smaller "Fitness First" toiletries bag.

62The toiletries bag contained a plastic freezer bag, which held a further five knotted plastic freezer bags. Each bag contained some 27.86 grams (one ounce) of cocaine, with a total weight of 139.7 grams.

63The toiletries bag also contained a large resealable plastic bag which contained a further three bags of cocaine, each of which weighed about one ounce, with a total amount of 83.5 grams of cocaine.

64Located as well within the toiletries bag was a brown paper bag which contained three plastic resealable bags. Each plastic bag contained three bags of cocaine, each weighing about one ounce. There was a total amount of 83.6 grams of cocaine in the paper bag, with a purity of 48.5%.

65In addition, the drawer of the coffee table in the lounge room contained one plastic resealable bag of cocaine weighing 28.5 grams.

The Hydraulic Compressor and Ram

66In the courtyard at the rear of the Applicant's house, police located a hydraulic compressor and ram.

67In the front bedroom, police located a plastic tub which contained three pieces of trimmed pine timber, a steel-based plate, a steel box section and a steel pressing plate. These timber and metal pieces fitted together with the hydraulic ram.

68Senior Constable Christopher Burston, a police officer with extensive engineering qualifications and experience, examined these items. He said that they had been constructed with a high degree of accuracy. He expressed the opinion that the timber fitted between the metal plates to offer more protection to the item being compressed. He stated that it was an assembly used to compress a substance into a hardened brick-like object. Analytical testing revealed traces of cocaine on the one piece of wood which was examined.

69Detective Senior Constable Jayson Heyward, from the Chemical Operations Unit of the State Crime Command Drug Squad, expressed the opinion that the press would have been used to compress cocaine, heroin or cannabis into blocks. He stated that presses such as this "are not normally seen at street level but more reserved for middle to high level drug syndicates" .

Cutting and Binding Agents

70Police located several large bags of substances, which were capable of being used as cutting agents, in the Applicant's house. They were as follows:

(a) in a kitchen cupboard, two plastic bags labelled "whey" , weighing 1.99 kilograms - analysed as mannitol;

(b) in a kitchen cupboard, a further two plastic bags labelled "whey" , weighing two kilograms - analysed as mannitol;

(c) in a kitchen cupboard, a large plastic resealable bag containing three plastic resealable bags, all found within a bag labelled "whey" - analysed as mannitol in an amount of two kilograms;

(d) in a kitchen cupboard, a Glad resealable plastic bag containing 13.4 grams of sodium bicarbonate;

(e) in a kitchen cupboard over the fridge, a plastic bag containing 382.8 grams of dimethyl sulfone;

(f) in a kitchen cupboard, a bag containing 857.6 grams of mannitol.

71Detective Senior Constable Heyward stated that the cutting agents found in the house could be combined with any of the powdered drugs found on the premises.

72Detective Senior Constable Heyward observed that the presence of the press, the location of cocaine on a piece of wood used within that press, the cutting and binding agents found in the house and the large amount of cocaine found in the house led him to the opinion that the press had been used to compress cocaine into blocks.

73In total, police located 335.3 grams of cocaine in the Applicant's house.

74Detective Senior Constable Heyward analysed the substances referred to at [70] above. He stated that dimethyl sulfone is available commercially as a dietary supplement for animals. It is used as a bulking or cutting agent, that is an agent used to dilute the purity of a prohibited drug and increase the total weight of the mixed drug. He stated that it is also used as a binding agent in that it assists "with the adhesion of a compound when it is placed under pressure, subsequently resulting in a solid brick like compound being formed" .

75Detective Senior Constable Heyward stated that mannitol is used in preventing or treating excess body water in certain kidney conditions. He said that in the illegal drug world, he has frequently seen it used as a bulking or cutting agent, and as a binding agent. He said that use as a binding agent would be the most likely explanation for its presence in the Applicant's house.

76He stated that sodium bicarbonate is available commercially over the counter. He had frequently seen it used as a bulking or cutting agent, more so than a binding agent, because of its physical properties.

77He observed that all three products are readily available and are easily absorbed into the human body, with little effect on the human system. Accordingly, they are ideal for use in drug manufacture. The substances will not mask the active (prohibited) drug with which they are mixed when consumed by the user.

The Applicant's Subjective Circumstances

78The Applicant was born in May 1974 and was aged between 33 and 34 years at the time of the offences. He was 35 years' old at the time of sentence.

79The Applicant gave evidence in the sentencing proceedings. In a number of respects, his evidence was unsatisfactory. His Honour made several findings arising from the Applicant's evidence, some of which were unfavourable to the Applicant.

80The Applicant had lived with his parents and siblings, leaving school in Year 9 when aged 15 years. He then worked as a deckhand with Sydney Ferries for 15 years. After leaving Sydney Ferries, the Applicant worked as a roofer.

81There was no presentence report or other form of report (such as a psychological or psychiatric report) tendered in the sentencing proceedings.

82A number of references were tendered which confirmed the Applicant's prior employment as a deckhand with Sydney Ferries.

83The Applicant said that he commenced to use ice in the period of 12-18 months before his arrest in May 2008.

84The Applicant had a prior criminal history for serious driving offences, including drive manner dangerous (June 1996), drive with mid-range PCA (August 2002), drive with mid-range PCA (November 2002), driving whilst disqualified (three counts) (April 2004), driving whilst disqualified (September 2004) and driving whilst disqualified (March 2006).

85The driving whilst disqualified offences dealt with in April 2004 led to the imposition of good behaviour bonds requiring the Applicant to accept the supervision and guidance of the Probation and Parole Service, and to accept counselling for the purpose of drug and alcohol rehabilitation. A suspended sentence was imposed upon similar terms.

86Penalties of escalating severity were imposed thereafter for the Applicant's recidivism with respect to driving whilst disqualified, with a community service order being granted in September 2004 and then a sentence of full-time imprisonment imposed in March 2006, varied in May 2006 at the Parramatta District Court to a sentence to be served by way of periodic detention.

87It appears that the Applicant did not comply with the terms of his periodic detention. In January 2007, the State Parole Authority revoked his periodic detention and directed that he serve imprisonment for a period of five months commencing in June 2007 and expiring in November 2007, with a non-parole period expiring on 21 August 2007.

Some Findings of the Sentencing Judge

88The District Court sentencing hearing was of relatively brief duration. After the Applicant gave evidence, comparatively short submissions were made by counsel for the Applicant (who did not appear in this Court) and by the Prosecutor. The sentencing Judge proceeded to sentence the Applicant later that day, after taking an adjournment to reflect upon the question of sentence.

89Given certain submissions made in this Court, it is useful to set out several of his Honour's findings, commencing with the opening comments in his remarks on sentence. His Honour said: R v Paxton [2009] NSWDC 326 at [1]-[2]:

"1 HIS HONOUR: Mark Allan Paxton appears to be sentenced after having supplied enormous quantities of drugs, quantities rarely seen in the courts. Overall he supplied about eight and a half kilograms of ecstasy, 335 grams of cocaine, 2.3 kilograms of methylamphetamine, almost half a kilo of an admixture of heroin, and almost 6 kilograms of cannabis. Those figures alone show the enormous extent of Mr Paxton's criminality.

2 In looking at the appropriate sentence to impose upon him there is not much assistance that can be gained from other cases due to the fortunate rarity of offending of this extent. The Crown referred me to the case of R v Kalache (2000) 111 A Crim R 152, and also the case of Regina v Walsh and Little [2005] NSWSC 125 who supplied and manufactured drugs, and more than Mr Paxton was involved in. But it is to be remembered that they were all dealt with before the introduction of standard non-parole periods, a significant factor affecting the sentences I will ultimately announce on Mr Paxton."

90His Honour summarised the facts of the case and adverted to the applicable maximum penalties and standard non-parole periods. His Honour observed (at ROS [5]):

"It is not an exaggeration to say that the offender appears to have been able to supply large quantities of whatever drug was sought. He was operating, in effect, a one-stop shop."

91The sentencing Judge referred to the Applicant's subjective circumstances, before moving to make findings concerning his involvement in these substantial crimes. His Honour said at ROS [23]-[26]:

"23 The offender had an unremarkable upbringing. He lived with his parents, his brother and his sister. He left school at fifteen, halfway through Year 9, and then spent fifteen years working as a deckhand on Sydney ferries. Three ferry captains have provided references in support of the offender's good character at that time. They say things such as:

'When I received the information regarding Mark and the charges I was bewildered and saddened that Mark would be involved in such activities. I find this out of character.'

24 The three ferry masters are no doubt shocked at what they have learnt about the offender's substantial wrongdoing.

25 After the offender left Sydney Ferries he worked roofing for a while and then whilst living in Redfern started using ice. This was a year or a year and a half before his arrest. It was not long before he was addicted and got into debt because he was using ice every day to deal with his depression but unable to work because a friend of his whom he relied on for transport lost his licence. He accumulated a fairly modest debt of $5,000 or $6,000 and was told by his drug suppliers who had been supplying him on credit that he could pay off that debt by assisting them in their drug supply activities. He says this went on for four or five months until he was arrested.

26 The offender tried to minimise the extent of his criminality by saying that all that he was really doing was providing a house for the drugs to be left at. He said that, 'They would leave stuff at my house.' This significantly understates the offender's conduct. He provided much more than simply premises. It was his job, which he seems to have enthusiastically accepted, to sell the drugs. He was tasked with much more than providing the premises. He was a drug dealer, not simply a drug minder."

92His Honour stated (at ROS [27]) that he would allow a 20% discount for the utilitarian value of his pleas of guilty.

93The sentencing Judge then referred to the offences which carried standard non-parole periods, and said at ROS [28]-[32]:

"28 I mentioned that three of the offences have standard non-parole periods. Of course, they are not of direct application because of the offender's pleas of guilty but they remain as a guidepost. I am satisfied that the offence involving ecstasy is in the upper range of objective seriousness of offences of that type. The quantity involved, seventeen times the large commercial quantity, is all that really needs to be referred to as justifying that finding.

29 As far as the other matters are concerned, I note that the methylamphetamine supply matter involved two and a half times the large commercial quantity, and so I find that objectively that is above the mid range.

30 In relation to the remaining matter of supplying the cocaine, that is at the mid range.

31 Of course, standard non-parole periods are difficult to apply when there must necessarily be partial accumulation. Nevertheless, as I have said, I have had regard to the standard non-parole periods as a guidepost. They indicate with some considerable force the attitude that the legislature takes to large scale drug supply offences. As I mentioned before, when a comparison is made between the overall sentence I will ultimately impose on Mr Paxton and other large scale drug suppliers or drug manufacturers dealt with before standard non-parole periods were introduced, it must be remembered that it was the clear intention of the legislature that sentences for standard non-parole period matters would increase as a result of the change in the law.

32 Let me say something in general about why the legislature has responded in the way it has to offences of this kind. The extent to which the community suffers through offences of this type cannot really be underestimated. Those of us who have been involved in the criminal law for many years understand the close relationship between a large proportion of offending and drug use, drug addiction and drug supply. There is barely a person appearing for sentence for a charge of armed robbery, break enter and steal, or even shoplifting who does not say that their need for money arose out of their need to fund their addiction. All of us suffer because of offences committed by people like the offender, not just those who become addicted to drugs."

94His Honour returned to the Applicant's evidence (at ROS [34]-[35]):

"34 The offender gave evidence. The Crown asked him to name other people involved in the operation and he refused to do so because he said that he was in fear of his life and was worried for the safety of his family. I want to make it clear that the offender is not to be punished for the attitude he took. It simply means that he does not get a discount. It also perhaps means that any finding of remorse might have been harder to make but, in any case, there was no evidence of any remorse expressed by the offender, at least as far as s 21A is concerned.

35 The offender said that he went into this so that he could pay off his debt. Whether or not that was initially the case, it is clear that the offender adopted his role enthusiastically. I do not accept on the balance of probabilities that the offender was going to stop once he had paid his debt off. The offender agreed that he was not living a life of poverty. If the offender's sole motivation had been to pay off the debt, one might have expected that he would have taken other steps to have reduced the debt apart from simply supplying drugs. The offender did this for financial gain in any case. It may not have been the case where he was a non-user dealer involved in this operation only because of the financial reward it could bring him, but it was nevertheless a financial gain to him to be able to pay off his debt."

95Before passing sentence, his Honour said at ROS [36]:

"It is never a pleasant task to impose a lengthy sentence on someone as young as Mr Paxton but it is necessary to do so. General deterrence is of prime importance in cases of this kind. The money involved in drug supplying provides a powerful incentive for potential drug suppliers to put to one side any qualms they might have about the harm they are causing individual drug users and the community in general. Offenders like Mr Paxton must understand that if they choose to involve themselves in drug supply, especially to the extent that Mr Paxton did, they will go to gaol for a very long time. The ability of courts to respond when offences of this kind are detected is limited. The courts have rather blunt tools, but they must use them when they can in order to perform the ultimate function of protecting the society in which we live. For this reason, very lengthy sentences will now be imposed upon Mr Paxton."

Grounds 1 and 2 - Grounds Asserting Errors in Characterisation or Identification of Objective Seriousness of Drug Supply Offences Which Attracted Standard Non-Parole Periods (Counts 1-3)

96It is convenient to deal with Grounds 1 and 2 together, as those grounds concern the characterisation or proper identification of the objective seriousness of the drug supply offences which carried standard non-parole periods.

Submissions for the Applicant

97Mr Boulten SC, for the Applicant, submitted that, in finding that the first count lay in the "upper range of objective seriousness of offences of that type" , the quantity of the drug was treated as the prime, if not the only, consideration grounding the finding. He submitted that a similar approach had been taken with respect to the third count which was found objectively to be "above the mid range" .

98Mr Boulten SC submitted that reliance on quantity of a drug as the prime factor in fixing sentence involved error, relying upon Wong v The Queen [2001] HCA 64; 207 CLR 584 at 609 [70] and Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 373 [33].

99Senior counsel for the Applicant developed this submission, contending that error was demonstrated by the sentencing Judge's treatment (in ROS [2], [31] at [89] and [93] above) of the decisions in R v Kalache [2000] NSWCCA 2; 111 A Crim R 152 and R v Walsh and Little [2005] NSWSC 125. He submitted that both R v Kalache and R v Walsh and Little involved a significantly higher level of criminality than the case of the Applicant. Mr Kalache was found to be the principal and co-ordinator of a drug supply operation (unlike the Applicant) and his offences involved quantities which, in total, were more than double those involved in the Applicant's case. Further, Mr Kalache was not, at any relevant time, a user of drugs and he had previous convictions for supplying a prohibited drug and was, as well, in breach of parole.

100It was submitted that the offences of Mr Walsh involved larger quantities of drugs and also offences involving weapons and the destruction of property, so that the circumstances of his case were different from those of the Applicant.

101It was observed that the sentencing Judge had found (in ROS [26] at [91] above) that the Applicant was a drug dealer, and not simply a drug minder, and that no finding had been made that he was a principal or higher ranking operator in a drug-dealing enterprise.

102It was submitted that, in any event, the evidence could not justify a finding that the Applicant was a higher-ranking operator. No evidence of wealth commensurate with someone enjoying the proceeds of large-scale drug dealing was presented. The sentencing Judge accepted the Applicant's indebtedness, together with the finding that dealing was his job, rather than him being a principal of a dealing operation. It was submitted that this suggested that the Applicant was not high in the hierarchy of suppliers, notwithstanding the amount of drugs he held on his premises.

103Mr Boulten SC submitted that it was not apparent in the remarks on sentence as to what his Honour considered a mid-range offence to be. Senior counsel contended that any mid-range large commercial quantity supply offence will involve a large amount of drugs, and that there is no upper limit on the amount of drugs which can constitute a large commercial quantity. Accordingly, he submitted that the utility in assessing the objective seriousness of the offence in terms of multiples of the threshold of the offence was limited.

104Mr Boulten SC submitted that the usual mid-range large commercial quantity supply will involve some evidence of involvement in a syndicate, or the possession of tools to process drugs, or some other like matter simply by virtue of the amounts involved. It was only at the lower end of objective seriousness (for example, couriers), where such evidence would not be present.

105Putting aside the quantities, Mr Boulten SC submitted that there was little that takes the Applicant's circumstances beyond the middle range. He was found to be a drug dealer, but this was an inevitable finding. He submitted that there must be further identified factors to establish a finding above that range and that quantity alone, particularly when considering offences which necessarily involve large quantities, cannot be enough to raise an offence above the mid-range.

106With respect to the second count, Mr Boulten SC submitted that his Honour had fallen into error in finding that the offence was "at the mid range" without revealing any analysis for this conclusion.

107When regard was had to the Applicant's role, the quantities of drugs and the purity of the drugs, Mr Boulten SC submitted that the sentencing Judge had erroneously overstated the objective seriousness of each of the offences contained in the first, second and third counts.

108In support of the second ground of appeal, Mr Boulten SC submitted that his Honour had erred in finding that the offence contained in the third count lay objectively "above the mid range" , without specifying where in the range the offence fell. Reliance was placed upon R v Sellars [2010] NSWCCA 133 at [11]. In any event, Mr Boulten SC submitted that this offence did not fall above the mid-range at all or, alternatively, the offence was not high in the range of objective seriousness.

Crown Submissions

109With respect to the first ground of appeal, the Crown emphasised the caution adopted by this Court when asked to overturn a discretionary finding characterising the degree of objective seriousness of an offence: R Mulato [2006] NSWCCA 282 at [37].

110The Crown submitted that it was pertinent to observe that no submission had been made on behalf of the Applicant in the District Court concerning the objective seriousness of these offences.

111The Crown accepted that an offender's role in a drug syndicate, and the level of criminality involved, is more important in determining the sentence than the quantity of drugs involved, the latter being neither the sole or even principal determinant: R v MacDonnell [2002] NSWCCA 34; 128 A Crim R 44 at 50 [33]; Melikian v R [2008] NSWCCA 156 at [42]. However, the quantity of the drug remains material, given that the size of the profit and the harm inflicted are likely to be proportional to the weight of the drug: R v Stanbouli [2003] NSWCCA 355; 141 A Crim R 531 at 550 [102].

112The Crown submitted as well, that while a non-principal will normally be dealt with as being less objectively culpable than a principal in a drug supply offence, it does not follow that a non-principal will receive, as of course, a dramatically more lenient sentence: R v Giammaria [2006] NSWCCA 63 at [15].

113The Crown submitted that his Honour's findings that the first count was in the upper range, the second count at the mid-range and the third count above the mid-range were well open to the sentencing Judge.

114The Crown contended that the following features of the Applicant's conduct were common to each count, and supported a finding of at least mid-range objective seriousness for each offence.

115Firstly, the Applicant was engaged in the regular and reliable supply of drugs. This was a sophisticated operation where the Applicant could access virtually any type of drug, in any quantity, at very short notice.

116Secondly, the Applicant was dealing for financial gain. The sentencing Judge expressly rejected the Applicant's suggestion that he was supplying drugs only to pay off his debt. The Crown submitted that, when the insignificant size of the debt is compared to the scale of the dealing, the Applicant's evidence seems ludicrous.

117Thirdly, the Applicant had a wide range of drugs for sale, and the greater the range of drugs a dealer offers for sale, the greater the criminality: R v Fisher [2008] NSWCCA 102 at [31].

118Fourthly, the Applicant was involved in the cutting, bulking and packaging of the drugs and the negotiation of prices. The presence of the hydraulic press indicated that the Applicant prepared the drugs for sale.

119Fifthly, the Applicant was more than a mere warehouser or even salesman. He negotiated discounts for bulk sales and was a proactive participant in organising sales. Given the huge quantity of drugs which he had, and the ease and speed with which he could obtain them, the Crown contended that the Applicant was very close to the principals in the syndicate.

120In addition to the features of the offending common to all three supply charges, the Crown submitted that the feature of the first count that takes it to the upper range of objective criminality is the quantity of the drugs (17 times the large commercial quantity of MDMA), with the quantity and range of drugs made available for supply being clearly relevant to the assessment of objective criminality.

121The Crown submitted that the features of the third count which took it above the mid-range of objective seriousness are the amount of drugs involved (two-and-a-half times the large commercial quantity for methylamphetamine) and the number of separate instances of supply that constitute this offence: Kwon v R [2011] NSWCCA 58 at [32].

122Further, the Crown submitted that the fact that most of the drugs were seized by police before being distributed did not reduce the Applicant's objective criminality: R v Gao and Lim [2007] NSWCCA 343 at [18]ff; Kwon v R at [34]-[35].

123The Crown did not make any separate submission concerning the Applicant's argument that error was disclosed in the conclusion, without analysis, that the second count lay at the mid-range.

124The Crown submitted that the sentencing Judge's findings on objective seriousness were open to him and should not be disturbed.

Decision Concerning Grounds 1 and 2

125In approaching these grounds of appeal, it is necessary to read fairly the entirety of his Honour's remarks on sentence. A practical approach should be taken by this Court in assessing remarks on sentence, with an emphasis upon substance (and the resulting sentence) and not just matters of form: Corby v R [2010] NSWCCA 146 at [51]. An assessment of objective seriousness is appropriate, although this does not require an elaborate verbal formula: Corby v R at [50].

126In addition, it is necessary to keep in mind that the 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, so that 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: R v Mulato at [37]. The question is whether the particular characterisation of the objective seriousness of an offence was open to the sentencing Judge.

127The DMT Act adopts a type of quantity-based penalty regime by fixing quantities (including commercial and large commercial quantities) of certain drugs, distinguishing between those drugs in setting such quantities, but otherwise making no distinction between them in terms of maximum penalties. The position is broadly analogous to that taken with importation and possession offences contained in the Criminal Code 1995 (Cth) : Adams v The Queen [2008] HCA 15, 234 CLR 143 at 146 [2].

128However, there are at least two significant distinguishing features as between the Commonwealth and New South Wales statutory schemes. Firstly, the New South Wales statutory scheme incorporates standard non-parole periods for offences of supplying a commercial or large commercial quantity of a prohibited drug. There is no corresponding provision in Commonwealth law.

129Secondly, Division 314 of the Criminal Code 1995 (Cth) lists the applicable trafficable, marketable and commercial quantities for each type of drug, with the specified quantities based on the pure amount of the drug. However, s.4 DMT Act provides that "a reference to a prohibited drug includes a reference to any preparation, admixture, extract or other substance containing any proportion of the prohibited drug" . Accordingly, under New South Wales law, it is the total quantity of the substance (containing any proportion of a prohibited drug) which is pertinent for the purpose of classification of the offence. Nevertheless, purity of the drug is one of the factors to be considered when determining where an offence falls in the range of objective seriousness: R v Blair [2005] NSWCCA 78; 152 A Crim R 462 at 472 [56].

130In relation to Commonwealth drug importation offences, it has been said that, although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported: Wong v The Queen at 607-608 [64]; R v Lee [2007] NSWCCA 234 at [23]-[24].

131Further, the statements by the High Court in Wong v The Queen do not suggest that, in an appropriate case, the amount of the drug involved in an importation is not a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type. In many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved, where otherwise the circumstances of the importation were the same or very similar: R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80 at 102 [110]; R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R at 237 [72](e).

132Although the propositions referred to at [130] and [131] relate to Commonwealth importation offences, the reasoning is readily applicable to New South Wales drug supply offences as well. Where the structure of the Act involves a quantity-based penalty regime, with maximum penalties and standard non-parole periods escalating as the quantity of the relevant drug crosses from one quantum-based category into another, it is understandable that the quantity of drugs remains a very material consideration in assessing the objective seriousness of an offence. The decisions of this Court in R v MacDonnell , R v Stanbouli and Melikian v R are consistent with these propositions.

133I do not interpret the statements of the sentencing Judge at ROS [28]-[29] (see [93] above) as confining attention solely to the quantities of the drugs for the purpose of making findings concerning the objective seriousness of the first and third counts. His Honour made findings elsewhere in the remarks on sentence concerning the role of the Applicant in the supply of drugs, incorporating the conduct falling within the first and third counts. As mentioned, it is necessary to read fairly the entirety of the remarks on sentence in considering this ground.

134I accept the submissions of the Crown (at [114]-[119] above) concerning the overlapping conduct of the Applicant, which is common to all three counts. It would be artificial to narrowly consider the facts which relate exclusively to each of the three counts in determining the role of the Applicant in these drug supply offences. The overlapping conduct of the Applicant ought be considered, in conjunction with the evidence concerning the quantities of each of the three types of drugs in question. Of course, it is necessary to guard against any impermissible aggravating finding as a result of consideration of factors common to the three offences.

135An assessment of the Applicant's role is not to be determined by the selection of a label which might properly attach to him. As with a person to be sentenced for a Commonwealth importation offence, the criminality of a New South Wales drug supply offender ought be assessed by consideration of the involvement of the offender in the steps taken to effect the drug supply offences. Problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise as, in many cases, the full nature and extent of the enterprise is unlikely to be known to the Court: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at 279 [19].

136In the present case, although the Applicant gave evidence at the sentencing hearing, he sought to distance himself from the multitude of drugs, and the items of stolen jewellery, located in his house. He declined to give any meaningful evidence concerning the identity and roles of others involved in the drug supply enterprise (T15, 6 November 2009). It is understandable that the sentencing Judge took a circumspect approach in assessing the Applicant's evidence. He made few concessions against interest and, in significant areas, sought to deny (or at least not accept) the undeniable.

137In my view, the Agreed Statement of Facts disclosed a state of affairs which permitted the following conclusions.

138The Applicant was the sole occupant of the Balmain premises in the relevant period between March and May 2008. As the detailed description set out above reveals, located at various points throughout the house were different drugs, packaged mainly in quantities designed for supply to other suppliers, including sample bags. The Applicant negotiated with Burnett concerning price, and took opportunities (when Burnett was present in the house) to offer other drugs, and stolen jewellery, for sale.

139Also located in the premises were items of equipment which ought be concluded were the paraphernalia of a substantial drug supplier. There is no credible evidence of other persons attending the premises for the purpose of using this equipment to cut drugs. Further, cutting agents were located in different cupboards in the house occupied by the Applicant, and used by him as a residence. The appropriate inference is that the Applicant utilised the cutting agents and the equipment as part of his multipurpose activity in the preparation, negotiation and sale of prohibited drugs.

140Although the Applicant contended in evidence that he was working off a debt (in the order of $5,000.00-$6,000.00) in performing drug supply duties from the Balmain house, that assertion did not line up credibly with all the known facts. As with all drug suppliers, it was necessary for the Applicant to source prohibited drugs from others. The nature of the operation revealed in the evidence, as conducted from the Balmain premises, did not suggest that he was a mere functionary on behalf of others. As the Crown submitted, he was no mere warehouseman or salesman. Rather, the Applicant acted in an entrepreneurial way, conducting a type of drug convenience store or supermarket, where a range of drugs were available for sale. The Applicant was prepared to offer other types of drugs for sale, no doubt secure in the knowledge that he had ready supplies of the range of drugs. The packaging and labelling of bags containing drugs pointed to a systematic operation, with the Applicant, at one point, utilising a form of ledger in recording a drug debt.

141There were variations in the purity of the drugs, an issue relevant to an assessment of objective seriousness (see [129] above). Some care is required in drawing conclusions by reference to evidence of purity: R v Attallah [2005] NSWCCA 277 at [221]; Ma v R [2007] NSWCCA 240 at [50]-[55].

142The first count involved 38,700 tablets of MDMA (ecstasy). It might be expected that the tablets would be on-sold to end users in that tablet form, so that purity levels were not as significant. To the extent that it is known, the purity levels of these tablets appeared to be in a range of 31%-33% (see [49]-[52] above).

143The second count involved bagged cocaine, with one portion having a purity of 48.5% (see [64] above).

144The third count reveals the supply of methylamphetamine with purity levels between 3.5% (at [43] above) and 71% (at [36] above).

145The commercial heroin supply Form 1 offence involved an admixture with a heroin purity of 4.5%, a low purity level which contributed to the offence being dealt with on a Form 1 (see [40] above).

146I have kept in mind Mr Boulten SC's submission that particular care is required in the assessment of objective seriousness of a large commercial quantity supply offence. The presence of cutting and binding agents and equipment such as the hydraulic compressor and ram may be more likely in a large commercial quantity case, because of the quantity of drugs involved and the intermediate stage of supply, usually at the wholesale level. There may be evidence of substantial wealth, and trappings of wealth, on the part of principals engaged in large-scale drug supply.

147Here, the sentencing Judge accepted that the Applicant was a drug user. His Honour left open the question whether a relatively small drug debt led the Applicant into this activity, finding that he adopted his drug-dealing role "enthusiastically" and that he was not going to stop when the debt was paid off (at ROS [35] at [94] above). These findings were open to the sentencing Judge.

148Having considered the submissions of the parties, I am persuaded that it was not open to the sentencing Judge to find that the first count lay in the upper range of seriousness for offences of this type. In reaching this conclusion, I have had particular regard to the quantity of the drug and the role of the Applicant. The quantity was some 17 times the large commercial quantity. However, the relevant large commercial quantity commences at 500 grams and has no upper limit. This is pertinent to an assessment of objective gravity. The Applicant operated the drug supply business from the Balmain premises. The evidence did not indicate that he employed others as part of the business. The evidence did not indicate a limited financial return to the Applicant, but it did not point either to the trappings of wealth frequently associated with drug syndicate principals. In my view, the evidence did not permit a finding that the offence lay more than moderately above the middle range of objective seriousness, at a point clearly below the upper range.

149It was open to the sentencing Judge to find that the second count lay at the mid-range.

150With respect to the second ground of appeal concerning the third count, the finding that the offence lay above the mid-range lacks precision. However, I am satisfied that the appropriate finding was that the offence lay slightly above the mid-range and that this is the way in which his Honour approached sentence on this count.

151I am not persuaded that the sentencing Judge's reference to the decisions in R v Kalache and R v Walsh and Little (see [89] and [93] above) demonstrates error. I take his Honour's comments to mean that these earlier cases were examples of large-scale drug supply offenders at a time before the commencement of the standard non-parole period system. His Honour was not utilising the sentences imposed in those cases as representing a comparable benchmark, which was to be moved upwards because of the introduction of the standard non-parole period system, in their application to the Applicant's case. His Honour was alive to the differences in quantity of drugs involved in those decisions to the quantities which applied to the Applicant's case.

152The sentencing Judge's point was that the Applicant's case represented a very serious example of a person involved in the supply of prohibited drugs, in various forms and substantial quantities. It was clear that the Applicant was to be sentenced for his offences after an assessment of all relevant factors, including the standard non-parole periods which applied as guideposts on sentence. I do not think that the Applicant gains support for his grounds of appeal from the sentencing Judge's references to these earlier sentencing decisions.

153The Applicant has demonstrated error concerning the first count, but not the second count, under the first ground of appeal. The third count is the subject of complaint under the first and second grounds. It is apparent that his Honour approached the matter upon the basis that the third count lay slightly above the mid-range, a view that was clearly open.

154The consequences of these findings will be considered later in this judgment.

Ground 3 - Failure to Set Non-Parole Periods for the Second and Third Counts

Submissions

155Mr Boulten SC submitted that his Honour fell into error in imposing fixed terms of imprisonment for the second and third counts, contrary to s.45(1) Crimes (Sentencing Procedure) Act 1999 .

156The Crown accepted that these sentences involved errors of law. However, the Crown submitted that the appropriate course was to treat the fixed term selected by his Honour in each case as the non-parole period, for the purpose of imposing substitute sentences which complied with the law and reflected the intention of the sentencing Judge.

157Mr Boulten SC submitted that such an approach would be wrong in this case as sentences of that length would be excessive. He contended that lesser sentences of imprisonment ought be fixed for those offences.

Decision

158It is common ground that the fixed-term sentences imposed on the second and third counts involved error as these were standard non-parole period offences, and a sentencing court cannot decline to set a non-parole period for those offences: s.45(1) Crimes (Sentencing Procedure) Act 1999 . Fixed-term sentences are not available for standard non-parole offences: R v Way at 179 [47]; Hristovski v R [2010] NSWCCA 129 at [7], [64]-[65].

159As the ground of appeal correctly alleges error in this respect, it is appropriate for this Court to intervene so that the Applicant is sentenced according to law on these counts.

160This Court has observed that a fixed term of imprisonment reflects the non-parole period component of a sentence: R v Dunn [2004] NSWCCA 346 at [161]; Hristovski v R at [65]. Applying this approach, if the Court otherwise rejects the Applicant's remaining grounds of appeal, the appropriate course would be, as the Crown submits, to substitute sentences of imprisonment on the second and third counts which comprise a non-parole period and a balance of term. If the non-parole period reflects the fixed term imposed in the District Court, then the result will be the imposition of a longer sentence of imprisonment on each of these counts. This course is available in an appropriate case under s.6(3) Criminal Appeal Act 1912 : Aguirre v R [2010] NSWCCA 115 at [31]-[36]; Hristovski v R at [65].

161It is appropriate to record the conclusion that the Applicant has made good the third ground of appeal. The question of what sentences ought be imposed in substitution for these erroneous sentences should await an assessment of the remaining grounds of appeal.

Grounds 4 and 5 - The Individual Sentences and the Total Effective Sentence are Manifestly Excessive

162It is convenient to deal with these grounds of appeal together. Although I have upheld the first ground of appeal with respect to the first count, and the third ground of appeal, it will be of assistance to set out and consider the arguments concerning Grounds 4 and 5.

Submissions for the Applicant

163Mr Boulten SC submitted that the sentence imposed on the first count involved a total term of imprisonment for 23 years with a non-parole period of 16 years. Allowing for a 20% discount for the Applicant's plea of guilty, the notional starting point of the head sentence was about 27 years and seven months and a non-parole period, in accordance with the statutory ratio, would be about 20 years and seven months. On this approach, Mr Boulten SC observed that the starting point non-parole period was more than five years longer than the standard non-parole period for this offence.

164Mr Boulten SC submitted that a number of cases have now come to be considered by this Court in relation to the large commercial supply of MDMA, with a convenient summary of many of these cases being contained in Tan v R [2010] NSWCCA 207 at [21]-[33]. Mr Boulten SC pointed to the sentence imposed on the offender in Tan v R and upon other offenders in R v Nikolic [2007] NSWCCA 232 and R v Gao and Lim [2007] NSWCCA 343.

165Reliance was also placed upon R v Stricke [2007] NSWCCA 179, a Crown appeal against sentence for large commercial supply of MDMA.

166With respect to the third count, Mr Boulten SC submitted that the decisions of this Court in Ly v R [2008] NSWCCA 262 and Vigo v R [2009] NSWCCA 98 supported the contention that the sentence imposed on the third count was manifestly excessive.

167With respect to the second count, Mr Boulten SC observed that a fixed term of eight years' imprisonment had been set where the standard non-parole period was 10 years and the maximum penalty 20 years' imprisonment. Mr Boulten SC submitted that it would appear that his Honour deducted the 20% discount for the plea from the standard non-parole period of 10 years, resulting in a fixed term of eight years. If this is what occurred, it was submitted that no benefit had been provided to the Applicant for his lack of prior convictions or his subjective case. It was submitted that the penalty for this offence was manifestly excessive.

168In support of the fifth ground of appeal, Mr Boulten SC submitted that an examination of the cases referred to, including Tan v R and R v Nikolic , indicated that the total sentence imposed upon the Applicant for these offences fell above that appropriate for a person not found to be in the highest range of offenders.

169Mr Boulten SC submitted that the Applicant, now 36 years of age, will not be eligible for release until he is 56 years of age. It was submitted that the total sentence imposed on him is crushing in all the circumstances.

170Whilst a maximum penalty of life imprisonment was available to the Court, Mr Boulten SC submitted that his Honour did not impose it, nor would he have been justified in doing so. He submitted that the sentence imposed approaches the point at which it is distinguishable only in theory from a life sentence, in the sense discussed in R v Folbigg [2005] NSWCCA 23; 152 A Crim R 35 at 87 [190]. Absent a finding that the Applicant approached the worst class of offenders, it was submitted that the total sentence must be excessive.

171Mr Boulten SC submitted that there was no discussion of totality of the remarks on sentence. Whilst the sentences imposed do contain a measure of concurrence, he submitted that, taken as a whole, the length of the sentence imposed was manifestly excessive.

Crown Submissions

172The Crown submitted that it had not been demonstrated that the sentences, viewed individually or collectively, were manifestly excessive.

173It was submitted that the appropriate way to consider any submission about manifest excess is to gather the salient facts of the case, and to then assess them by reference to the maximum applicable sentence and the standard non-parole period: Wong v R [2010] NSWCCA 160 at [14]. Here the maximum sentence on the first and third counts was life imprisonment with a maximum penalty of 20 years' imprisonment on the second count.

174With respect to the Applicant's reliance upon other cases in support of the claim of manifest excess, the Crown submits that there is real difficulty with comparisons with other sentencing decisions in support of an argument of manifest excess, in particular where those decisions are relatively few and were not referred to at first instance: Stock v R [2011] NSWCCA 49 at [42].

175The Crown accepted that the sentences imposed upon the Applicant are lengthy, and are towards the upper end of the range of sentences imposed for offences of this kind. However, the Crown submits that the range of sentences properly available for these offences was not determined by consideration of other cases or Judicial Commission statistics, but by consideration of the facts by reference to the maximum penalty and, where appropriate, the standard non-parole period.

176The Crown submits that it should also be borne in mind that the sentences imposed on the first and third counts took into account very serious offences on Forms 1. The sentences needed to reflect the totality of the criminality involved.

177If the Court accepted that his Honour's findings as to objective seriousness were open, then the Crown submitted that the sentences imposed, whilst lengthy, cannot be regarded as manifestly excessive.

178The Crown acknowledged that the non-parole period on the first count (which took into account one count of supplying more than the commercial quantity of heroin and one count of dealing with the proceeds of crime) must have taken, as a starting point, a period of 20 years and seven months. However, the Crown submitted that this reflected the fact that the offence was found to be in the upper range of objective seriousness, together with the two Form 1 offences. When viewed in the context of a standard non-parole period of 15 years and a maximum penalty of life imprisonment, it was submitted that this sentence is not manifestly excessive.

179With respect to the third count (which took into account two counts of supplying an indictable quantity of cannabis), the Crown accepted that the starting point for the non-parole period of 12 years must have been a period of 15 years. The sentencing Judge had found this offence to be above the mid-range of objective seriousness, and the non-parole period ultimately imposed was three years less than the standard non-parole period for this offence. The Crown submitted that this was not manifestly excessive.

180With respect to the second count, the Crown submitted that a starting point of 10 years, which was the standard non-parole period, was not manifestly excessive.

181The Crown submitted that the decision whether or how to accumulate sentences involved the exercise of discretion, and that the degree of accumulation imposed by the sentencing Judge was appropriate given the number of discrete offences and different drugs involved: Stricke v R at [32].

182The Crown submitted that the quantity and range of drugs supplied by the Applicant were extremely serious, and that the findings of objective seriousness were well open to the sentencing Judge.

183While the imposition of fixed terms on the second and third counts was erroneous, the Crown submitted that these periods were subsumed within the non-parole period on the first count, so that the Court should not intervene on those sentences.

184The Crown submitted that no other less severe sentence is warranted in law, so that the appeal should be dismissed.

The Concept of Manifest Excess

185To establish a ground claiming manifest excess, it is necessary for the Applicant to demonstrate that the sentence under challenge is unreasonable or plainly unjust: Markarian v The Queen at 370-371 [27].

186It is, of course, a basic principle, that, absent error, the Court of Criminal Appeal may not substitute its own opinion for that of the sentencing Judge merely because (if it be the case) the Court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his discretion: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at 671-672 [15].

187Nor is appellate intervention on the ground of manifest excess justified simply because the result arrived at in the District Court is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where error is established in accordance with the principles in House v The King [1936] HCA 40; 55 CLR 499 at 505: Hili v The Queen [2010] HCA 45; 85 ALJR 195 at 207-208 [58].

Decision Concerning Ground 4

188Ground 4 requires the Court to consider whether the sentence imposed on each count was manifestly excessive. Ground 5 involves an assessment whether the sentencing Judge's approach to accumulation and totality gave rise to a total effective sentence that was manifestly excessive.

189I have found that his Honour erred in the assessment of objective seriousness of the first count. In these circumstances, I will reserve further consideration of this count until assessment of resentencing for this offence.

190I have determined earlier in this judgment (at [150]) that, on the basis on which the matter was argued and dealt with, it was open to his Honour to find that the third count lay above the mid-range. On the basis on which the matter was dealt with below, I would place the offence slightly above the mid-range. This conclusion has been reached having regard to the Applicant's role, the quantity of the drug and its purity.

191In approaching the question of sentence, it was also necessary to keep in mind the findings made concerning the Applicant's motive in becoming involved, and remaining involved, in the offence, these matters bearing upon the Applicant's moral culpability.

192It may be taken that, before the 20% discount for the plea of guilty, his Honour assessed the matter as warranting a minimum term of imprisonment of 15 years. Upon the assumption the fixed term of 12 years' imprisonment may be taken as an effective non-parole period (if his Honour had imposed a non-parole period and a balance of term), then such a conclusion was open to the sentencing Judge having regard to the finding of the objective seriousness of this offence.

193It is necessary to keep in mind that, in passing sentence on the third count, his Honour was asked to take into account (on a Form 1) two offences of supplying cannabis, being an actual supply of 3.149 kilograms, and a deemed supply of 2.673 kilograms. If these offences had been prosecuted separately on indictment, the maximum penalty for each offence would have been imprisonment for 10 years.

194It was necessary for the Court to take into account the Form 1 matters with a view to increasing the penalty that would otherwise be appropriate for the third count. The Court gives greater weight to personal deterrence and the community's entitlement to extract retribution for serious offences, when there are other offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given, when sentence is imposed for the primary offence: Attorney General's Application Under Section 37 Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146 at 159 [42].

195Accordingly, assessment of penalty for this offence did not involve a sole focus upon the Applicant's activities in supplying a large commercial quantity of methylamphetamine.

196Further, the offence contained in the third count was committed over a period of two months, and involved a variety of acts on the part of the Applicant which gave rise to a very serious offence.

197The Applicant's age, criminal history, subjective circumstances and prospects of rehabilitation were to be taken into account as well. They assisted the Applicant to an extent, but not to a substantial extent.

198I am not persuaded that a sentence involving a non-parole period or minimum term of 12 years' imprisonment on the third count was unreasonable or plainly unjust.

199I turn to the second count. I have found earlier in this judgment (at [149]) that it was open to the sentencing Judge to find that the offence of supplying a commercial quantity of cocaine lay at the mid-range. Once again, this conclusion has been reached having regard to the Applicant's role, the quantity of the drug and its purity.

200Again, it is necessary to keep in mind the findings made concerning the Applicant's motive in becoming involved, and remaining involved, in the offence, these matters bearing upon the Applicant's moral culpability.

201There are no Form 1 matters attaching to the second count.

202Once again, the Applicant's age, criminal history, subjective circumstances and prospects of rehabilitation assist him, but not to a substantial extent.

203In all the circumstances of the case, I am persuaded that the sentence imposed on the second count is manifestly excessive. In reaching this conclusion, I have had regard to all the objective and subjective factors bearing on sentence for this offence. The quantity of cocaine (335.3 grams) exceeded the commercial quantity (250 grams), but was a considerable distance from the large commercial quantity (one kilogram). The conclusions expressed at [148] above concerning the Applicant's role have similar application to this count. In due course, I will propose that the Applicant should be resentenced on this count.

Decision Concerning Ground 5

204Ground 5 complained of manifest excess by reference to issues of accumulation, concurrency and totality. As I propose that the Applicant ought be resentenced, it is not strictly necessary to resolve the ground by reference to the sentences passed in the District Court. However, these issues will arise again when resentencing the Applicant. It is useful to record a response to the submissions which have been made.

205His Honour applied a measure of accumulation for the sentences on each of the four counts. The focus of argument in this Court has been directed to the sentences for the drug supply offences contained in the first, second and third counts.

206It must not be overlooked, however, that there was an additional and significant crime contained in the fourth count, involving the receiving of a substantial quantity of stolen jewellery, which the Applicant was marketing as part of the commercial enterprise operated from the Balmain premises. No challenge has been made by the Applicant to the sentence imposed for that offence. The process of accumulation involved a period of imprisonment for one year being solely attributable to this offence. That course was well open to the sentencing Judge in the circumstances of this case.

207The total effective sentence comprised a non-parole period of 21 years with a balance of term of seven years. Of the minimum term of 21 years, a period of one year was solely referable to the fourth count, a period of two years was solely referable to the second count and a period of two years was solely referable to the third count. The non-parole period of 16 years for the first count commenced to run from 10 May 2013 following the period of five years attributable to the second, third and fourth counts.

208The principles to be applied with respect to concurrency, accumulation and totality were stated by Howie J in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at 47 [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."

209An assessment of these issues in the present case called for attention to the three serious drug supply offences, together with the further serious drug supply offences which required practical recognition on sentence for the Form 1 offences on the first and third counts. Although there was overlap between the various drug supply offences given the nature of the operations conducted by the Applicant from the Balmain premises, it remained the fact that there were serious supply offences relating to each of a number of different prohibited drugs. A level of accumulation was appropriate given the different offences and the different prohibited drugs involved in those offences: R v Stricke at [32]-[34].

210Mr Boulten SC submitted that his Honour did not refer expressly to the totality principle. It is apparent that his Honour had regard to relevant principles with respect to accumulation. I do not accept that the experienced sentencing Judge in this case failed to apply the totality principle. His Honour was well aware that a substantial sentence was being imposed, and his observations at ROS [36] (see [95] above) emphasise his Honour's consciousness of the impact of the total sentence to be imposed upon the Applicant.

211Mr Boulten SC submitted that the total sentence upon the Applicant was crushing. He called in aid some observations made in R v Folbigg at 86-87 [187]-[190].

212The relationship between the totality principle and the concept of a "crushing sentence" was considered by this Court in R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at 164-165 [15]-[18], where Spigelman CJ, Whealy and Howie JJ said:

"15 ... Whenever the Court sentences an offender for multiple offences, including when there are different victims, or sentences an offender who is already serving a sentence after conviction for other offences, it is necessary for the judge to ensure that the aggregation of all of the sentences is a 'just and appropriate measure of the total criminality involved': Postiglione v The Queen (1997) 189 CLR 295 at 307-308 per McHugh J. The need to maintain an appropriate relationship between the totality of the criminality involved in a series of offences and the totality of the sentences to be imposed for those offences arises for at least two reasons.

16 The severity of a sentence is not simply the product of a linear relationship. That is to say severity may increase at a greater rate than an increase in the length of a sentence. As Malcolm CJ said in R v Clinch (1994) 72 A Crim R 301 at 306:

... the severity of a sentence increases at a greater rate than any increase in the length of the sentence. Thus, a sentence of five years is more than five times as severe as a sentence of one year. Similarly, while a sentence of seven years may be appropriate for one set of offences and a sentence of eight years my be appropriate for another set of offences, each looked at in isolation. Where both sets were committed by the one offender a sentence of 15 years may be out of proportion to the degree of criminality involved because of the compounding effect on the severity of the total sentence of simply aggregating the two sets of sentences.

17 The second matter that is considered under the totality principle is the proposition that an extremely long total sentence may be 'crushing' upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there may be of rehabilitation and reform. Of course, in many cases of multiple offending, the offender may not be entitled to the element of mercy entailed in adopting such a constraint.

18 A sentencing court must, however, take care when applying the totality principle. Public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]. For similar reasons in a case such as the present where an offender who is already serving other sentences comes to be sentenced for additional offences, the impression must not be given that no, or little, penalty is imposed for the additional offences."

213I do not take the observations of Sully J in R v Folbigg at 86-87 [187]-[190] as providing a principle which guides an assessment of a "crushing sentence" . In Ta'ala v R [2008] NSWCCA 132, Grove J (Campbell JA and myself agreeing) said at [40]-[42]:

"40 Sully J added that a head sentence (as the total effectively was) of 40 years with a non parole period of 30 years was so 'crushing' as to manifest covert error. Although that offender was liable on each of four counts to a sentence of life imprisonment, it is self evident that the sentencing judge had determined that such sentences not be imposed. Sully J agreed with his reasons for so concluding. It scarcely needs to be said that if one were to engage in comparative descriptions, a life sentence would be more 'crushing' than any determinate sentence, at least if it is scheduled to expire before the attainment of anticipated life expectancy.

41 It was observed in Folbigg that the situation of the individual offender was such as to lead to prediction that she may have been 66 to 76 years of age before she might be paroled. The appellant was born on 13 December 1981.

42 Courts are not unfamiliar with descriptions of sentences as 'crushing' but that does not articulate some applicable test. A life sentence would presumably fall within the ambit of that description but the legitimacy of availability of a life sentence is not open to challenge. Whilst the language in Folbigg is general in terms it does not purport to, nor could it, detract from the well established principle that justice is individual and each offence and each offender requires assessment."

214The statements in Ta'ala v R at [42] have been applied by this Court: Barton v R [2009] NSWCCA 164 at [26].

215An assessment whether a particular sentence is a "crushing sentence" must have regard to the offence or offences committed by the offender, the maximum penalties and standard non-parole periods relevant to those offences, and all objective and subjective factors which should be appropriately brought into account on sentence, together with principles concerning accumulation, concurrency and totality. As Grove J observed in Ta'ala v R at [42], "justice is individual and each offence and each offender requires assessment" .

216It will be necessary to apply these principles concerning accumulation, concurrency and totality when resentencing the Applicant.

Resentencing the Applicant

217So far in this judgment, I have:

(a) upheld the first ground of appeal concerning the first count - it was not open to the sentencing Judge to find that the offence lay in the upper range of objective seriousness of offences of this type;

(b) upheld the third ground of appeal - the fixed-term sentences for the second and third counts were contrary to law and sentences comprising a non-parole period and a balance of term ought to have been fixed;

(c) upheld the fourth ground of appeal concerning the second count - the sentence for that offence (when treated as the effective non-parole period) was manifestly excessive.

218It is necessary for the Court to consider whether a lesser sentence or sentences should be imposed: s.6(3) Criminal Appeal Act 1912 . I am satisfied that the Applicant should be resentenced on the first, second and third counts.

219If error was established and the Court determined to resentence the Applicant, the Court was asked to do so by reference to the material before the District Court. There was no affidavit sought to be read for the Applicant at the hearing in this Court, in the event that the Court moved to resentence.

220Given the limited material placed before the District Court for the Applicant on sentence, members of the Court raised with counsel at the hearing the question whether, in the event error was established, application was to be made under s.12(2) Criminal Appeal Act 1912 for the matter to be remitted to the District Court. Counsel sought an opportunity to take instructions on that question. On 24 May 2011, the Court was informed that, in the event the Court found error, the Applicant did not seek remittal to the District Court and asked that this Court proceed to resentence the Applicant. On 25 May 2011, the Crown concurred with this approach.

221It is appropriate that the Court proceeds on this basis.

222With respect to the first count, I have accepted the Applicant's submission, in support of the first ground of appeal, that his Honour erred in his characterisation of the objective seriousness of the offence. It is necessary to keep in mind the maximum penalty of life imprisonment and the standard non-parole period of 15 years to be taken into account as a guidepost, amongst other relevant factors, on sentence. This offence lay slightly above the mid-range of objective seriousness of offences of this type. This conclusion has been reached having regard to the Applicant's role, the quantity of the drug and its purity.

223In approaching the question of sentence, it is also necessary to keep in mind the findings made concerning the Applicant's motive in becoming involved, and remaining involved, in the offence, these matters bearing upon his moral culpability.

224The Applicant was aged 33-34 years at the time of the offence. The immaturity of youth could not be claimed as a factor bearing upon his transgressions: R v Nguyen; R v Pham at 127 [72](k). The Applicant had a limited criminal history. There was no prior offence of drug supply. However, the Applicant had repeated offences of driving whilst disqualified which did not assist him in an assessment of his attitude towards compliance with the law.

225In passing sentence on the first count, the Court is to take into account on a Form 1, an offence of supplying more than the commercial quantity of heroin, together with an offence of dealing with property suspected of being the proceeds of crime. Had the offence of supplying more than the commercial quantity of heroin been prosecuted separately on indictment, the maximum penalty would have been imprisonment for 20 years, with a standard non-parole period of 10 years. Of course, the offence was not prosecuted separately, but (for reasons explained at [40] above) was included on a Form 1 to be taken into account on sentence for the first count.

226It is necessary for this Court to take these offences into account in passing sentence on the first count, approaching the issue in the way referred to at [194] above.

227Although the quality of heroin contained in the admixture of 468.3 grams of heroin and rice was not great, it remains the fact that the Applicant was actively marketing heroin, as part of the multi drug supply enterprise being conducted at the Balmain house. It is necessary for the sentence on the first count to give proper and appropriate account to this offence, as well as the proceeds of crime offence.

228Having regard to all relevant factors, including the maximum penalty, the standard non-parole period, the objective seriousness of the offence, the subjective circumstances of the Applicant and the Form 1 offences, and after applying the 20% discount for the plea of guilty, a head sentence of 19 years' imprisonment should be passed. Because of the measure of accumulation to be applied, I find special circumstances so that a non-parole period of 13 years will be fixed.

229The Applicant should be resentenced on the second count. That offence lay at the mid-range of objective seriousness. Having regard to all relevant factors, including the maximum penalty, the standard non-parole period, the objective seriousness of the offence and the subjective circumstances of the Applicant, and after applying the 20% discount for the plea of guilty, a head sentence of eight years and eight months should be passed. I do not find special circumstances so that the non-parole period will be one of six years and six months.

230The third count lay slightly above the mid-range of objective seriousness. Having regard to all relevant factors, including the maximum penalty, the standard non-parole period, the objective seriousness of the offence, the subjective circumstances of the Applicant and the Form 1 offences, and after applying the 20% discount for a plea of guilty, a head sentence of 16 years' imprisonment should be passed. I do not find special circumstances so that the non-parole period will be a period of 12 years.

231The fixed term of three years' imprisonment on the fourth count should be confirmed.

232Having regard to the principles set out above (at [208]-[209], [212]-[216]) concerning accumulation, concurrency and totality, a measure of accumulation is necessary in this case. I am satisfied that the measures of accumulation adopted by the sentencing Judge concerning the fourth count (one year) and the third count (two years) remain appropriate. The sentence is to be reduced for the second count. In these circumstances, I am satisfied that the measure of accumulation for that offence should be one year. I have kept in mind the totality principle (and the included concept of a "crushing sentence" ). It is appropriate that, of the effective non-parole period of 17 years, one year will relate solely to the fourth count, one year will relate solely to the second count and two years will relate solely to the third count.

233The total effective sentence will comprise a non-parole period of 17 years with a balance of term of six years.

234In my view, an effective non-parole period of 17 years reflects the minimum period which the Applicant should spend in prison for these serious crimes, having regard to all the elements of punishment including the objective gravity of the offences, the Applicant's subjective circumstances, rehabilitation and personal and general deterrence: R v MA [2004] NSWCCA 92; 145 A Crim R 434 at 440 [33].

235For completeness, I note that it does not appear that the decision in Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154 bears directly upon the particular issues raised on this appeal.

236I propose the following orders:

(a) leave to appeal against sentence granted;

(b) sentences imposed upon the first, second and third counts are quashed;

(c) on the first count, the offence of supplying a large commercial quantity of MDMA (ecstasy), taking into account the matters on the Form 1, the Applicant is sentenced to imprisonment comprising a non-parole period of 13 years commencing on 10 May 2012 and expiring on 9 May 2025, with a balance of term of six years commencing on 10 May 2025 and expiring on 9 May 2031;

(d) on the second count, the offence of supplying a commercial quantity of cocaine, the Applicant is sentenced to imprisonment comprising a non-parole period of six years and six months commencing on 10 May 2009 and expiring on 9 November 2015, with a balance of term of two years and two months commencing on 10 November 2015 and expiring on 9 January 2018;

(e) on the third count, the offence of supplying a large commercial quantity of methylamphetamine, taking into account the matters on the Form 1, the Applicant is sentenced to imprisonment comprising a non-parole period of 12 years commencing on 10 May 2010 and expiring on 9 May 2022 with a balance of term of four years commencing on 10 May 2022 and expiring on 9 May 2026;

(f) the sentence on the fourth count, receiving stolen goods, is confirmed, namely a fixed term of imprisonment for three years commencing on 10 May 2008 and expiring on 9 May 2011;

(g) the earliest date upon which the Applicant will be eligible for release on parole is 10 May 2025.

237HALL J : I agree with Johnson J.

**********

Decision last updated: 11 November 2011

Medium Neutral Citation:	Paxton v R [2011] NSWCCA 242
Hearing dates:	19 May 2011
Decision date:	11 November 2011
Before:	Tobias AJA at 1 Johnson J at 2 Hall J at 237
Decision:	Leave to appeal against sentence granted. Sentences imposed upon the first, second and third counts are quashed. On the first count, the offence of supplying a large commercial quantity of MDMA (ecstasy), taking into account the matters on the Form 1, the Applicant is sentenced to imprisonment comprising a non-parole period of 13 years commencing on 10 May 2012 and expiring on 9 May 2025, with a balance of term of six years commencing on 10 May 2025 and expiring on 9 May 2031. On the second count, the offence of supplying a commercial quantity of cocaine, the Applicant is sentenced to imprisonment comprising a non-parole period of six years and six months years commencing on 10 May 2009 and expiring on 9 November 2015, with a balance of term of two years and two months commencing on 10 November 2015 and expiring on 9 January 2018. On the third count, the offence of supplying a large commercial quantity of methylamphetamine, taking into account the matters on the Form 1, the Applicant is sentenced to imprisonment comprising a non-parole period of 12 years commencing on 10 May 2010 and expiring on 9 May 2022 with a balance of term of four years commencing on 10 May 2022 and expiring on 9 May 2026. The sentence on the fourth count, receiving stolen goods, is confirmed, namely a fixed term of imprisonment for three years commencing on 10 May 2008 and expiring on 9 May 2011. The earliest date upon which the Applicant will be eligible for release on parole is 10 May 2025.
Catchwords:	CRIMINAL LAW - sentence - pleas of guilty - supply large commercial quantity of MDMA (ecstasy) (8.497 kg) - supply commercial quantity of cocaine (335.3 grams) - supply large commercial quantity of methylamphetamine (2.314 kg) - receiving stolen property (jewellery worth $104,000.00) - Form 1 offences of supply commercial quantity of heroin, supply cannabis and dealing with property suspected of being proceeds of crime - finding that Applicant operating a "one stop shop" supplying different drugs from premises - total effective non-parole period of 21 years with seven years' balance of term - claim of error in assessment of objective seriousness and in failing to set non-parole periods for standard non-parole period offences - claim that sentences manifestly excessive and that total sentence was crushing - some errors demonstrated - Applicant resentenced to total effective non-parole period of 17 years with a balance of term of six years
Legislation Cited:	Drug Misuse and Trafficking Act 1985 Crimes Act 1900 Criminal Appeal Act 1912 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Paxton [2009] NSWDC 326 Wong v The Queen [2001] HCA 64; 207 CLR 584 Markarian v The Queen [2005] HCA 25; 228 CLR 357 R v Kalache [2000] NSWCCA 2; 111 A Crim R 152 R v Walsh and Little [2005] NSWSC 125 R v Sellars [2010] NSWCCA 133 R v MacDonnell [2002] NSWCCA 34; 128 A Crim R 44 Melikian v R [2008] NSWCCA 156 R v Stanbouli [2003] NSWCCA 355; 141 A Crim R 531 R v Giammaria [2006] NSWCCA 63 R v Fisher [2008] NSWCCA 102 Kwon v R [2011] NSWCCA 58 R v Gao and Lim [2007] NSWCCA 343 Corby v R [2010] NSWCCA 146 Adams v The Queen [2008] HCA 15, 234 CLR 143 R v Blair [2005] NSWCCA 78; 152 A Crim R 462 R v Lee [2007] NSWCCA 234 R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80 R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106 The Queen v Olbrich [1999] HCA 54; 199 CLR 270 R v Way [2004] NSWCCA 131; 60 NSWLR 168 Hristovski v R [2010] NSWCCA 129 R v Dunn [2004] NSWCCA 346 Aguirre v R [2010] NSWCCA 115 Tan v R [2010] NSWCCA 207 R v Nikolic [2007] NSWCCA 232 R v Gao and Lim [2007] NSWCCA 343 R v Stricke [2007] NSWCCA 179 Ly v R [2008] NSWCCA 262 Vigo v R [2009] NSWCCA 98 R v Folbigg [2005] NSWCCA 23; 152 A Crim R 35 Wong v R [2010] NSWCCA 160 Stock v R [2011] NSWCCA 49 Lowndes v The Queen [1999] HCA 29; 195 CLR 665 Hili v The Queen [2010] HCA 45; 85 ALJR 195 Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 R v MAK [2006] NSWCCA 381; 167 A Crim R 159 Ta'ala v R [2008] NSWCCA 132 Barton v R [2009] NSWCCA 164 Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154 R v Attallah [2005] NSWCCA 277 Ma v R [2007] NSWCCA 240 R v MA [2004] NSWCCA 92; 145 A Crim R 434 Attorney General's Application Under Section 37 Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146
Texts Cited:	---
Category:	Principal judgment
Parties:	Mark Allan Paxton (Applicant) Regina (Respondent)
Representation:	Mr PR Boulten SC (Applicant) Ms S Dowling (Respondent)
File Number(s):	2009/8173
Publication restriction:	---
Decision under appeal	Citation: R v Paxton [2009] NSWDC 326 Date of Decision: 2009-11-06 00:00:00 Before: His Honour Judge Berman SC File Number(s): ---