R v Amurao

[2005] NSWCCA 32

CITATION:	R v AMURAO [2005] NSWCCA 32 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	30 June 2004
JUDGMENT DATE:	18 February 2005
JUDGMENT OF:	Ipp JA at 1; Hulme J at 6; Hislop J at 80
DECISION:	Grant leave to appeal; Allow the appeal; Quash the sentences imposed by Judge Gibson in respect of counts 1, 4 5 and 6; Confirm the sentence imposed by Judge Gibson in respect of count 3, viz a fine of $3,000; Confirm the sentence imposed by Judge Gibson in respect of count 2, viz imprisonment for a fixed term of 2 years commencing on 25 July 2002; In respect of count 1, sentence the Applicant to imprisonment for a fixed term of 2 years, commencing on 25 July 2003; In respect of count 4, sentence the Applicant to imprisonment for a fixed term of 1 year and 3 months, commencing on 25 July 2004; In respect of count 5, sentence the Applicant to imprisonment for a fixed term of 2 years, commencing on 25 July 2005; In respect of Count 6 a sentence of 5 years imprisonment be imposed, with a non-parole period of 2 years, both such periods to commence on 25 July 2006; The Applicant will become eligible for parole on 24 July 2008.

PARTIES:	Regina Jose Gulpa AMURAO
FILE NUMBER(S):	CCA 60150/04
COUNSEL:	Crown: E Wilkins Appellant: P Boulten SC
SOLICITORS:	Crown: S Kavanagh Appellant: P Hardin

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/11/0545
LOWER COURT JUDICIAL OFFICER:	JXC Gibson ADCJ

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60150/04

Hulme J
Hislop J

Friday, 18 February 2005

REGINA v Jose Gulpa AMURAO

Judgment

1 IPP JA: I have had the benefit of reading the reasons to be published by Hulme J. Save as set out below I agree with his Honour.

2 In my opinion, having regard to the circumstances of the offence and the discount to which the applicant is entitled for his plea and assistance to the authorities, an appropriate sentence for Count 6 would be 5 years imprisonment.

3 In my opinion, having regard to the totality principle, the maximum effect of sentence which should be imposed on the applicant is one of 9 years imprisonment including a non-parole period of 6 years.

4 Accordingly, while I agree with Orders 1 to 8 proposed by Hulme J, I would order that in respect of Count 6 a sentence of 5 years imprisonment be imposed, with a non-parole period of 2 years, both such periods to commence on 25 July 2006.

5 I record my view that, on this basis, the applicant will become eligible for parole on 25 July 2008.

6 HULME J: On 17 October 2003 Acting Judge Gibson sentenced the abovenamed Applicant for leave to appeal in relation to 6 offences.

7 The charges to which the Applicant pleaded guilty, the statutory provision under which they arise, and the maximum penalty provided for are as follows:-

Count 1: On 26 July 2002, possession of a firearm on which the identification mark was defaced – Firearms Act, s66(b) - 5 years imprisonment.
Count 2: On 26 July 2002 possession of a firearm being a .32 self-loading pistol not being authorised to do so by a licence or permit – Firearms Act, s7A(1) - 5 years imprisonment.
Count 3: On 26 July 2002, possession of ammunition for the firearm without holding a licence or permit for a firearm which takes the ammunition being 11 x .32 calibre rounds – Firearms Act, s65(3) - $5,500 fine.
Count 4: On 26 July 2002, that he supplied a prohibited drug being ten grams of methylamphetamine – Drug (Misuse and Trafficking) Act, s25(1) – 15 years imprisonment.
Count 5: On 28 June 2002 that he supplied a prohibited drug, namely twenty-eight grams of crystalline-methylamphetamine – Drug (Misuse and Trafficking) Act, s25(1) – 15 years imprisonment.
Count 6: On 25 July that he knowingly took part in the supply of an amount of a prohibited drug to wit 137.3 grams of methylamphetamine – Drug (Misuse and Trafficking) Act, s25(1) – 15 years imprisonment.

8 Taken into account in connection with the sixth of these offences was one offence on a Form 1, viz. having custody of goods, i.e. $3,050 in cash, reasonably suspected of being unlawfully obtained.

9 The sentences imposed by his Honour in respect of these offences were, respectively:-

Count 1 Imprisonment for a fixed term of 2 years commencing on 25 July 2002.
Count 2 Imprisonment for a fixed term of 2 years commencing on 25 July 2002.
Count 3 A fine of $3,000.
Count 4 Imprisonment for a fixed term of 3 years commencing on 25 July 2002.
Count 5 Imprisonment for a fixed term of 5 years commencing on 25 July 2002.
Count 6 Imprisonment for 9 years including a non-parole period of 5 years and 9 months, both such periods commencing on 25 July 2003.

10 In the result, the effective sentence imposed on the Applicant was one of imprisonment for 10 years including a non-parole period of 6 years and 9 months, and a fine of $3000.

11 The Grounds of Appeal are:-

Ground 1: His Honour erred by setting a sentence in relation to count 6 which was intended to reflect the Applicant’s criminality in relation to all of the counts for which he stood to be sentenced.
Ground 2: His Honour erred by setting a sentence in relation to count 6 which was intended to reflect the Applicant’s “participation and position” in the offence but which did not reflect or adequately reflect the applicant’s subjective features.
Ground 3: His Honour erred by refusing to mitigate the sentence for the Applicant’s prior co-operation with the authorities.
Ground 4: The sentences when considered as a whole are manifestly excessive.
Ground 5: The sentences in relation to counts 5 and 6 especially are manifestly excessive.
The Facts:

12 In passing sentence, his Honour referred to a set of agreed facts which had become exhibit C1. In summary, they are as follows:

13 In January 2003 the New South Wales Police established Strike Force Turkana to investigate the suspected illegal activities of a “Sing Ma” crime gang.

14 As part of those investigations, on 28 June 2002, a number of telephone calls were lawfully intercepted. Some of these calls were between a Jason Annand and a Paul Ling, while others involved Paul Ling and the Applicant. The telephone calls regarded the supply of one ounce of “Ice” (crystalline methylamphetamine). Ling was heard to instruct Annand as to minimum sale price for the drug, transport for Annand, time and place of the deal and collateral concerns. Intercepted calls between Ling and the Applicant confirmed the supply of the drug will occur, organise delivery and the exchange of money. These events constituted the offence outlined in count 5.

15 On 25 July 2002 another series of telephone calls, some to which the Applicant was a party were intercepted. Later undercover police officers were supplied with 140 grams of crystalline methylamphetamine by 2 other offenders Messrs Annand and Kaewkanlaya in return for some $42,000. These offenders then planned to leave, gain possession of another 140 grams of Ice and return but they were arrested before this could occur. There had also been discussion between these 2 and the police officers about the possibility of the offenders supplying kilos of the drug in the future.

16 There was little expressly stated in the Statement of Facts to link the Applicant to this transaction although it was said that he was outside a nearby hotel. However it was this transaction, (or possibly the supply of the same drug to Messrs Annand and Kaewkanlaya previously), which was the subject of the sixth count and all the ingredients of which were admitted in the Applicant’s plea.

17 At around the same time, the Applicant was arrested outside the Sheraton, and another offender Mr Ling was placed under arrest outside the Hilton. A search of the Applicant by the police revealed him to be in possession of the $3,050 in cash which was the subject of the offence taken into account.

18 Soon after a search of the Applicant’s home was conducted. There the police found the 10 grams of crystalline methylamphetamine, the subject of count 4 (a deemed supply). Also located was a Fabrique National .32 calibre self-loading pistol. It contained 7 rounds, and was found to have had its serial number defaced. A further six .32 calibre rounds, suitable for use with this weapon were found in a tin. These discoveries became the subject of counts 1, 2 and 3. Also found on the Applicant’s premises were a large number of resealable plastic bags which contained residue of crystalline methylamphetamine.

Subjective factors:

19 The Applicant was born in the Philippines and was 48 years of age at the time of the offences the subject of this appeal. Before immigrating to Australia he attained a degree in electrical engineering, but his qualification was not recognised in this country. Accordingly, having immigrated to Australia in 1989, the Applicant sought and attained qualification as an air-conditioning contractor and subsequently worked in St Vincent’s Hospital in that capacity. He gave evidence to the effect that he employed 2 people to help him carry out his business. His Honour accepted the evidence given by the Applicant in relation to his work background.

20 The Applicant met his wife in Australia, the marriage producing four children who, at the time of sentencing, were between 5 and 15 years of age. The Applicant has no criminal record prior to the events the subject of the present appeal, although he claimed to have had an addiction to amphetamines costing up to $2000 a week. Prior to his arrest the Applicant had made no attempt to seek help in relation to his alleged dependency, although claimed during sentencing proceedings to have successfully shaken off his addiction. The Applicant asserted that his involvement in the drug trade was limited and earned him a commission of $2000 per week, from which (owing to his habit) he made no profit. He also asserted to be genuinely remorseful for his actions.

21 Acting Judge Gibson accepted the Applicant’s remorse as genuine, but did not accept as accurate the Applicant’s account of his level of involvement nor his claim to have made no profit from his illegal conduct.

22 To the contrary, his Honour, in his remarks on sentence found “it is clear that this accused was part of a supply line that supplied Ling who was the street leader of an organisation that was involved in, amongst other things, the supply of amphetamines to people in the city region”. Later his Honour found:-

“This operation, objectively, was not a one-off situation. It was a well organised gang and criminal enterprise. Their operation was sophisticated and the prisoner was, on the evidence before me, well up in the scheme of operation.

I am satisfied that he entered into these operations because of greed and a desire to make money. It may well be that he did have some addiction to the drug but the part he was playing in the operation shows a person trusted to handle large sums of money on behalf of a supplier. Whilst he may be a father who loved his wife and children, he did not worry about the trouble he loosed into the community being, in my view, interested only in the money involved.”

23 Elsewhere his Honour noted “The facts disclosed in Exhibit C1 show that the prisoner was anything but a small time player in the incidents that were taking place”

24 During the proceedings on sentence, counsel for the Applicant put to his Honour that the gun, the subject of counts 1 to 3 was an old gun which was handed to the Applicant, and that the Applicant kept it through sheer stupidity. It was asserted that the gun had never been used by the Applicant, nor removed from his premises. In that regard, in his remarks on sentence, his Honour said:-

“The prisoner gives an explanation for having possession of the pistol charge which I cannot accept. When a person in the position of the prisoner was, and engaging in the business that he was, the possession of a pistol denotes only one thing, an intention to use it if he sees it as necessary (sic)”.

25 Elsewhere, in a passage which must be set out in full, his Honour said:-

“I take into consideration, as I said, all those matters referred to above, the subjective features, and all the matters relevant to the prisoner in s21A of the Crimes (Sentencing Procedure) Act. As I have said, the participation of the prisoner was one of some authority in this organisation and the carrying out of their criminal enterprises and with a maximum sentence of fifteen years in relation to count 6, which I have used to assess the prisoner’s overall criminality, and to take into consideration the Form 1, I start by assessing his participation and position as twelve years”.
“I assess as twenty-five percent the allowance to be made in respect to the plea and those matters previously mentioned including utilitarian value and remorse. He does not receive the same discount as his co-offender because he receives no mitigation for co-operation with the authorities.
I have considered this question of special circumstances but have in this case been unable to find any circumstances which would convince me to make such a finding, other than the partial accumulation of count 6 with counts 1 and 2.”

26 The Crown had conceded that the plea was made at the earliest opportunity.

27 So far as co-operation with the authorities is concerned, the Applicant had on 25 September 2002 made an induced statement, and on 22 August 2003 given an undertaking to give evidence against a Mr Sui, said to be a senior member of the drug gang in relation to 3 specified offences of the supply of crystalline methylamphetamine and 1 of possession of 3 ecstasy tablets.

28 The undertaking and a letter of comfort were tendered on 22/8/03 in the course of the Applicant’s sentencing hearing. The letter of comfort said that the Applicant had provided valuable assistance to police and that without the evidence supplied by the Applicant Mr Sui could not have been charged with the 3 offences and if the Applicant did not give evidence, there would be no case against that person. There were other statements in the letter indicating that Mr Ling corroborated much of what the Applicant had to say about one of the offences.

29 However, on 12 September 2003, the Applicant informed one of the police officers in the case that he wished to change his mind and withdraw from giving evidence in Mr Sui’s matter for a reason he described as “private”. The sentencing proceedings were re-listed, and evidence given of the change of stance. His Honour was informed by the Crown that Mr Ling, who remained willing to assist the Crown could give evidence in relation to one charge against Mr Sui. The statements made did not make it clear whether this was one of the charges the subject of the evidence the Applicant had earlier intended to give but it appears to have been so despite the terms of the letter of comfort.

30 In light of some of the debate in this Court, it is appropriate to say a little more about the proceedings before Judge Gibson after the Applicant’s change of stance was made apparent. Counsel for the Applicant raised the possibility that there may still have been some value in the material the Applicant had provided. His Honour responded, “Not according to the police as I understand”. Counsel replied , “That’s really all I can say”.

31 During the hearing of the Applicant’s appeal there was tendered a letter from the DPP advising the Applicant that, notwithstanding his indication that he was not prepared to give evidence, the DPP intended to call him at the committal proceedings against Mr Sui and, relying on the decision of this Court in R v Suteski [2002] NSWCCA 509, possibly tender his statement.

32 I turn to the grounds of appeal.

Ground 1
His Honour erred by setting a sentence in relation to count 6 which was intended to reflect the Applicant’s criminality in relation to all of the counts for which he stood to be sentenced.

33 In my view this ground is made out. Although the Crown submitted that his Honour’s statement “… in relation to count 6, which I have used to assess the prisoner’s overall criminality”, should be regarded as merely a recognition that the offence the subject of that count was not an isolated offence, I do not feel able to so treat the statement. Its terms seem to me to mean more than this. Furthermore, there is the fact that, with the exception of one year, the sentences on all of the other counts were made concurrent with the sentence on count 6 and the statement by his Honour that “where fixed terms have been imposed, it is because to deal it any other way would have been ineffective”. Both of these matters seem to me to argue for the view that much of the Applicant’s criminality in the offences other than possession of ammunition was reflected in the sentence for the 6th count.

34 The periods of imprisonment to which his Honour referred in the context of this count argue in the same direction. The 137 grams of methylamphetamine the subject of the 6th count was little more than half the (just under) 250 grams at the upper limit of the range of quantities encompassed within the statutory offence with which the Applicant stood charged. He was not a principal even if he was, to use Judge Gibson’s words, “anything but a small time player”. Yet his Honour’s starting point in fixing the sentence for the offence the subject of the 6th count was 12 years compared with a statutory maximum of 15 years.

Ground 2
His Honour erred by setting a sentence in relation to count 6 which was intended to reflect the Applicant’s “participation and position” in the offence but which did not reflect or adequately reflect the applicant’s subjective features.

35 In light of the conclusions which I have reached in respect of other grounds it is unnecessary that I pursue this one.

Ground 3
His Honour erred by refusing to mitigate the sentence for the Applicant’s prior co-operation with the authorities.

36 Section 23(1) of the Crimes (Sentencing Procedure) Act provides:-

“A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.”

37 There are set out in s23(2) a number of matters to which a court is required to have regard “in deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes”. These matters include:-

(b) The significance and usefulness of the offender’s assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered.
(c) The truthfulness, completeness and reliability of any information or evidence provided by the offender.
(d) The nature and extent of the offender’s assistance or promised assistance.

38 Such benefits as arise under s23 go in mitigation of punishment. The onus of proving them is thus on an offender – see R v Olbich (1999) 199 CLR 270 at [27]. Apart from the matters to which I have referred there was precious little evidence upon which any conclusion in respect of a number of the matters in sub-paragraphs (b) to (d) could be reached.

39 Nevertheless it does seem to me that the proper inference is that, despite the Applicant’s change of heart, the probability is that there was some usefulness in the assistance by way of information conveyed and indications that at least some of it was truthful and reliable. That conclusion becomes stronger in light of the letter which was tendered in the appeal, but it seems to me the one which Judge Gibson should have drawn in any event.

40 But this only means that there was material upon the basis of which Acting Judge Gibson could have exercised his discretion to impose a lesser sentence. The use of the word “may” in sub-section (1) means that the court had a discretion. However, when regard is had to the purpose behind s23 and the pre-existing practice which it embodied, and to the matters referred to in the immediately preceding paragraph, there was, in the circumstances of this case, only one way in which the discretion should have been exercised. Thus for his Honour to say that the Applicant “receives no mitigation for co-operation with the authorities” was an error.

41 While this conclusion means that I would uphold this ground of appeal, I would also add that the benefit the Applicant should receive would, on the evidence that exists, be very small. I would assess it at approximately 5% of the sentence otherwise thought appropriate. (In this case it is convenient to so deal with the discount acknowledging that, measured by reference to the quantum of a sentence after a discount for a plea has been allowed, the percentage is higher – c.f. R v NP [2003] NSWCCA 195)

Ground 5
The sentences in relation to counts 5 and 6 especially are manifestly excessive.

42 It is convenient to consider this ground prior to ground 4.

43 When considering ground 1 I have remarked on the topics of quantity and the Applicant’s role. He had no prior convictions and although this factor is traditionally given less weight in this field than on others, particularly when the offending is deliberate, it is entitled to some. His Honour accepted that the Applicant was sorry. On the other hand, his Honour found that the Applicant had entered into the operations because of greed and a desire to make money. As his Honour said, echoing many statements in the authorities to like effect, “People who engage in the drug trade in this way must receive condign sentences to deter not only themselves, but those like-minded people who are prepared to enter this trade for the money they can make out of the misery of those upon whom they prey”. There are of course other matters relevant but of less weight.

44 The maximum penalty of 15 years is reserved for a worst case. Notwithstanding the factors which argue for a heavy sentence, I am satisfied that the quantity involved, and the fact that the Applicant was not, or at least was not shown to be, a principal, lead to the conclusion that his criminality was so far from a worst case that the judge’s commencing point of 12 years for count 6 was manifestly excessive. The fact that the Applicant had not previously been convicted adds weight to this conclusion.

45 The quantity involved in the offence the subject of the fifth count, viz. 28 grams was far removed from the sort of quantities one would expect in a worst case situation. It was little more than 10% of the maximum quantity within the relevant range. A fixed term of 5 years – one third of the maximum (including any parole period) and after the Applicant was entitled to credit for his plea – was also manifestly excessive.

46 And, although there was no separate attack on it, the sentence of a fixed term of 3 years on the fourth count was, for similar reasons, also manifestly excessive, given the quantity involved in that count was but 10 grams.

47 I have reached these conclusions without reliance on a further argument advanced on the Applicant’s behalf. It was that Acting Judge Gibson took into account in awarding the Applicant a 25% discount for his plea factors other than its utilitarian value and if such factors were taken into account the discount should have been higher. In light of other conclusions at which I have arrived, it is unnecessary to consider whether there was error in this respect.

Ground 4
The sentences when considered as a whole are manifestly excessive.

48 Section 7(1A) of the Criminal Appeal Act provides:-

“If on any appeal against a sentence under s5(1)… the court quashes or varies the sentence passed at trial on any count or part of an indictment, the court may quash or vary any other sentence passed at the trial:
(a) In relation to any offence charged in any other count or part of the same indictment, or
(b) In relation to any offence charged in any other count or part of any indictment, or
(c) In relation to any offence dealt with under s105 of the Criminal Procedure Act 1986, or
(d) In relation to any back up offence or related offence dealt with under s167 of the Criminal Procedure Act 1986
and pass such sentence, whether more or less severe, in substitution for the other sentence as the court thinks proper, and as may be warranted in law, in respect of the offence.”

49 The conclusion that his Honour reflected in the sentence for count 6 the Applicant’s criminality in relation to all, or at least others, of the counts for which he stood to be sentenced casts doubt on the validity of the other custodial sentences, if indeed it does not inevitably lead to the conclusion that they are affected by error. Certainly the case is one where the Court should examine all of the sentences imposed and, if appropriate, exercise its powers under s7(1A).

50 In that connection, it should be acknowledged that the Crown did not argue that the Court should do so but the possibility, and the reasons for re-examination of the sentences on the counts other than count 6, were expressly raised with counsel for the Applicant and, in light of the first ground advanced for setting aside the sentence on count 6, it would be a travesty of justice to look merely at count 6 or counts 5 and 6. Also, although again the Crown did not make any submissions on the topic, there was raised with counsel for the Applicant the issue of the seriousness of the offences the subject of counts 1 and 2 and the question of penalties for them.

51 Counsel for the Applicant drew the Court’s attention to the Judicial Commission statistics dealing with the supply of amphetamines, observing:-

“A nine year sentence is of the magnitude that would be expected to be imposed for the supply of a commercial quantity or large commercial quantity of methylamphetamine. The Judicial Commission’s statistics demonstrate that only 38% of all offenders charged with supply of less than the commercial quantity of amphetamines receive any form of full time imprisonment. Of those who do receive full time imprisonment, none has ever received a sentence of 9 years imprisonment. Only one offender has received more than 6 years head sentence. That offender, like the Applicant, was charged with multiple counts. The non-parole period of 5 years and 9 months is also completely outside the range. Again only one offender received a longer non-parole period namely 6 years.“

52 Indeed the statistics do tend to bear out the submission that the sentence in respect of count 6 was high and, as I have said, too high. However some further attention to the statistics is warranted. I shall not repeat reservations as to them to be found in R v Derbas [2003] NSWCCA 44 and in cases cited therein but direct attention to those in this area. In doing so, I shall use statistics more recent than those current at the hearing of the appeal, but the pattern is similar.

53 The statistics for “Higher Courts – as at October 2004, sentences from April 1997 to March 2004” for offences committed before 1 February 2003 (when the legislation providing for standard non-parole periods came into force), being the supply of a large commercial quantity of amphetamines, show:-

(i) Of 22 offenders, 21 were imprisoned.
(ii) Of the 21 imprisoned, 8 only were imprisoned for terms greater than 7 years. (These include “consecutive and non-consecutive” terms, i.e. single or cumulative sentences).
(iii) Of these 8, a sentence or sentences totalling-
8 years were imposed on 3,
9 years were imposed on 2, and
10 years were imposed on 3.
(iv) Of the 21, 17 had non-consecutive terms, and of these 17, only 6 were imprisoned for terms greater than 7 years. The number of offenders in each category in the immediately preceding sub-paragraph was 2.

54 The maximum penalty for the supply of a large commercial quantity of amphetamines, i.e. 1 kilogram or more is life imprisonment.

55 The statistics for “Higher Courts – as at October 2004, sentences from April 1997 to March 2004” for offences committed before 1 February 2003 (when the legislation providing for standard non-parole periods came into force), being the supply of a commercial quantity of amphetamines, show:-

(i) Of 61 offenders, 56 were imprisoned.
(ii) Of the 56 imprisoned, 12 only were imprisoned for terms greater than 5 years. (These include “consecutive and non-consecutive” terms, i.e. single or cumulative sentences).
(iii) Of these 12, a sentence or sentences totalling-
6 years were imposed on 8,
7 years were imposed on 1,
8 years were imposed on 2, and
9 years were imposed on 1.
(iv) Of the 56, 49 had non-consecutive terms, and of these 49, only 8 were imprisoned for terms greater than 5 years. The figures in the immediately preceding sub-paragraph varied only in that the number of offenders suffering sentences of 6 years was 4.

56 The maximum penalty for the supply of a commercial quantity of amphetamines, i.e. 250 grams or more but less than 1 kilogram is 20 years imprisonment.

57 For the supply of less than a commercial quantity of amphetamines, the statistics available cover a lesser period. The legislation providing for standard non-parole periods has no application to offences involving these quantities. The statistics for “Higher Courts – as at October 2004, sentences from April 2001 to March 2004” for offences being the supply of a commercial quantity of amphetamines, show:-

(i) Of 374 offenders, 142 were imprisoned.
(ii) Of the 142 imprisoned, 4 only were imprisoned for terms greater than 5 years. (These include “consecutive and non-consecutive” terms, i.e. single or cumulative sentences).
(iii) Of these 4, a sentence or sentences totalling-
6 years were imposed on 3, and
8 years were imposed on 1,
(iv) Of the 142, 126 had non-consecutive terms, and of these 126, only 3 were imprisoned for terms greater than 5 years. The figures in the immediately preceding sub-paragraph varied only in that the number of offenders suffering sentences of 6 years was 2.

58 The maximum penalty for the supply of less than a commercial quantity of amphetamines, i.e. less than 250 grams and, in the “Higher Courts”, more than 5 grams is 15 years imprisonment.

59 Thus,

(i) In the less than commercial quantity category, where the maximum penalty is 15 years imprisonment, only 1 of 374 offenders received a sentence of more than half the maximum and only 4 received sentences of more than one-third of the maximum. ( I repeat that these statistics are from cases in the “Higher Courts” only.)
(ii) In the commercial quantity category, where the maximum penalty is 20 years imprisonment, none of 61 offenders received a sentence equal to or greater than half the maximum and only 1 received a sentence of more than one-third of the maximum.
(iii) In the large commercial quantity category, where the maximum penalty is life imprisonment, 3 of 22 offenders received a sentence of 10 years - equal to half the 20 years maximum sentence for a commercial quantity - and none received a sentence higher than that.

60 A pattern along the lines of that apparent in the preceding paragraphs might be understandable if on only few occasions were the quantities high in the respective ranges or the offenders low in the relevant range of those involved in drug supply. Experience shows that this is not so. While I appreciate that the statistics are said to reflect the collective wisdom of judges as a large group, I remain to be persuaded that the statistics do not reflect systemic leniency and insufficient attention to the statutory provisions. My reservations in this regard are strengthened by the fact that in virtually all cases, including this one, counsel for offenders eschew like the plague any attempt to argue from, or deal with, first principles of sentencing, preferring almost invariably to emphasise the statistics.

61 Counsel for the Appellant also referred the Court to the sentences imposed on some 17 other offenders in support of the claim that the sentences imposed on counts 5 and 6 were manifestly excessive. The Crown responded by pointing out distinctions between the circumstances of those cases and the facts here, distinctions which, I might say, made comparison between many of those cases and that here, pointless. A number were decisions of 2 judge benches. I have considered all of the cases cited but I do not regard it as necessary to deal with them seriatim. I accept that some, including in this Court, have followed the statistics. However in none of the cases was there examination of principle or whether the statistics properly reflected the statutory provisions.

62 Be that as it may, I prefer to base my conclusions as to the proper sentences on the application of first principles such as the terms of the statute, an assessment of where within the criminality envisaged by the relevant provision the particular offence falls – R v Peel (1971) 1 NSWLR 247 at 262 and considerations of the purposes of punishment – see Veen v R [No.2] (1987-1988) 164 CLR 465 at 476.

63 With the concurrence of Heydon JA and Carruthers AJ, I referred at greater length to these and other relevant factors in R v Markarian [2003] NSWCCA 8 at [19-22], quoting at length from some of the authorities wherein the principles have been emphasised and it is unnecessary to repeat what I there said. (The decision in that case is subject to appeal, but I do not understand there to have been any challenge to the propositions in the paragraphs just mentioned.)

64 It is sufficient for present purposes to observe that Parliament has enacted the Drug (Misuse and Trafficking) Act in the belief that the drugs to which it refers are harmful. Experience in the courts indicated that Parliament was not mistaken in that view. Parliament has imposed penalties and to some degree linked those penalties to quantities. The profits to be made from drug dealing are substantial and accordingly there is an attraction to some persons to participate in that activity, whatever Parliament may have said and whatever the deleterious impact the drugs may have on those who use them. As Wood J said in R v Schaal (unreported, 8 September 1989), “Just as those stakes are high, so, however, must be the risks if caught”. While it is too much to hope that drug dealing could be eliminated completely, the extent to which it continues despite the penalties imposed to this time provides a fair indication that they have not been sufficient to achieve Parliament’s aim.

65 The Applicant’s offence the subject of count 6 was not a worst case of the offence with which he was charged. As has been said, the Applicant was not a principal. Furthermore, the quantity was only about half of that at the top of the range (though penalty is not simply proportional to quantity). On the other hand his criminality was deliberate and because of greed and a desire to make money. He was well up in the scheme of operations. Such persons are not easy to detect and, when they are caught, it is important that the punishment reflect fully their role. There is a further matter which seems to me also relevant here. As I said in R v Spiteri (1999) NSWCCA 3 at [39]:-

I take the view that actual imprisonment for, say 10 years, is more than twice as severe as one of imprisonment for 5 years. Having regard to the sorts of terms under consideration for drug dealing a sentence of one of the longer periods is likely to have an impact on an offender’s life in terms of wife, children, job prospects and the like from which he may well never recover and these sorts of considerations also have to be borne in mind.

66 To these matters must be added the Applicant’s subjective factors to most of which, or at least those of any importance, I have referred. In my view, measured against the statutory maximum of 15 years an appropriate sentence for the offence the subject of count 6, before discounts for assistance and plea, is one which involves imprisonment for 8 years. In the case of the offences the subject of counts 5 and 4, the periods should be 4 years and 2½ years respectively.

67 I would afford the Applicant a discount of 25% for the utilitarian value of his plea. Adding the approximate 5% discount for assistance to which I have referred, the result is a total discount of approximately 30%. With some rounding the appropriate terms of imprisonment for these offences become 5.5, 2.75 and 1.75 years with non-parole periods of 4 years, 2 years and 1.25 years.

68 Acting Judge Gibson said of the firearm the subject of the first and second counts:-

“When a person in the position of the prisoner was, and engaging in the business that he was, the possession of a pistol denotes only one thing, and intention to use it if he thinks it necessary. (sic)”

69 With the tenor of this passage, I agree, particularly when, as here, the firearm was found by the police in a loaded state. It behoves the Courts to discourage any tendency for such objects to become just tools of trade for those whose activities are outside the law.

70 Section 7A(1) prohibits the possession or use of a firearm unless the person is authorised to do so by a licence or permit. Given that use in the commission of some offence will, inevitably I think, render the user liable to some higher penalty, it does not seem to me that, in the context of s7A(1), use rather than possession is calculated to be more serious. Indeed, unaccompanied by possession, it is likely to be less so.

71 More dangerous firearms are likely to be the subject of offences under other sections of the Firearms Act and I have the greatest difficulty in seeing what more the Applicant could have done to bring the offence the subject of count 2 into a worst case category. Certainly it was at least close to an offence meriting the statutory maximum.

72 However, for reasons which will become apparent, I need not pursue the question of whether the sentence for count 2 should be increased.

73 I see no ground for interfering with the sentence imposed on the first count save and except that the sentences for the first and second counts should not have been entirely concurrent. To so make them, except insofar as totality may demand, is to fail to recognise the increase in criminality which arises from the commission of both offences as distinct from merely one.

74 Returning to the global picture, the effective sentence imposed by Acting Judge Gibson, was one of imprisonment for 10 years including a non-parole period of 6 years and 9 months, and a fine of $3000. The Applicant was entitled, in addition to a discount for the utilitarian value of his plea, to a further discount which I have assessed at approximately 5% for assistance. This leads me to the view that, in order to demonstrate that the Applicant is receiving some benefit from his assistance, the maximum effective sentence which should be imposed on the Applicant is one of 9 years and 6 months including a non-parole period of 6 years and 4 months.

75 Accumulated, the individual sentences passed by Acting Judge Gibson on counts 1 and 2 and those for counts 4, 5 and 6 which I regard as proper, substantially exceed these figures. In summary these are:-

Count 1 2 years fixed term
Count 2 2 years fixed term.
Count 4 1.75 years with a non-parole period of 1.25 years.
Count 5 2.75 years with a non-parole period of 2 years.
Count 6 5.5 years with a non-parole period of 4 years.

76 Of course totality has to be taken into account and if the result of that is that the effective sentence should be less than the 9 years and 6 months including a non-parole period of 6 years and 4 months to which I have referred, the Applicant should have the benefit of the lesser result. However given the magnitude of the Applicant’s offending and the 2 different areas – firearms and drugs – in which it occurred, no appropriate application of the totality principle leads to that result. However, totality and the need to ensure that the Applicant is not sentenced to imprisonment for longer than the 9 years and 6 months including a non-parole period of 6 years and 4 months will require some adjustment of the sentences indicated above.

77 It was also urged that this Court should find special circumstances and adjust the prima facie proportion between the non-parole and parole portions of the sentence. Reliance was place on the fact that this is the Applicant’s first time in prison and on a suggested need for supervision in relation to his drug addiction when released. The latter aspect is sufficiently answered by reference to Acting Judge Gibson’s findings on the topic and some evidence from the Applicant to the effect that he had overcome his addiction before being sentenced. Not uncommonly the first of these matters is regarded as constituting special circumstances. However, the effective non-parole period is, in my view, already low for the Applicant’s offending and, subject to the matters referred to in the next paragraph, I would not reduce it any lower.

78 “Special circumstances” do exist in the need to structure one of the sentences to effect a parole period which recognises the length of the Applicant’s sentence arising from the accumulation of sentences. Given the existence of 5 sentences, the desirability of dealing in figures which represent whole years and months also justifies a finding of special circumstances.

79 Accordingly, I propose the following orders:-

1, Grant leave to appeal.
2. Allow the appeal.
3. Quash the sentences imposed by Acting Judge Gibson in respect of counts 1, 4, 5 and 6.
4. Confirm the sentence imposed by Acting Judge Gibson in respect of count 3, viz a fine of $3,000.
5. Confirm the sentence imposed by Acting Judge Gibson in respect of count 2, viz. imprisonment for a fixed term of 2 years commencing on 25 July 2002.
6. In respect of count 1, sentence the Applicant to imprisonment for a fixed term of 2 years, commencing on 25 July 2003.
7. In respect of count 4, sentence the Applicant to imprisonment for a fixed term of 1 year and 3 months, commencing on 25 July 2004.
8. In respect of count 5, sentence the Applicant to imprisonment for a fixed term of 2 years, commencing on 25 July 2005.
9. In respect of count 6, sentence the Applicant to imprisonment for a term of 5 years and 6 months, including a non-parole period of 2 years and 4 months years both such periods commencing on 25 July 2006.
10. Record my view that the Applicant will become eligible for parole on 25 November 2008.

80 HISLOP J: I agree with Ipp JA.

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13/07/2005 - Change Judge Gibson to Acting Judge Gibson - Paragraph(s) several