R v Fisher

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
FISHER v R [2008] NSWCCA 103

FILE NUMBER(S):
2006/00005251

HEARING DATE(S):
12 December 2007

JUDGMENT DATE:
15 May 2008

PARTIES:
Gregory Joseph FISHER
Regina

JUDGMENT OF:
Grove J Hulme J Simpson J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
06/11/0134

LOWER COURT JUDICIAL OFFICER:
Geraghty DCJ

COUNSEL:
Crown: Ms J Girdham
Applicant: M Thangaraj

SOLICITORS:
Crown: S Kavanagh
Applicant: S O'Connor

CATCHWORDS:

LEGISLATION CITED:

CASES CITED:

TEXTS CITED:

DECISION:
Grant leave to appeal against sentence
Dismiss the appeal

JUDGMENT:

- 23 -

IN THE COURT OF
CRIMINAL APPEAL

2006/0005251
GROVE J
HULME J
SIMPSON J
Thursday 15 May 2008

R v Gregory Joseph FISHER

Judgment

GROVE J: I agree with Hulme J.
HULME J: Following pleas of guilty, on 24 November 2006 this Applicant for leave to appeal was sentenced by Geraghty DCJ in respect of 10 offences. In summary form the offences were:-

(i)On 20 November 2003, supplying 693.4 grams of 4-Hydroxybutanoic Acid;-

On 20 November 2003, supplying 106.2 grams of cocaine;
On 20 November 2003, supplying 62.6 of methylenedioxymethylamphetamine;
On 20 November 2003, supplying 316.5 grams of 4-Hydroxybutanoic Acid;
On 20 November 2003, procuring the importation into Australia of not less than a trafficable quantity of cocaine, viz: 277.5 grams;
Between 20 November 2003 and 14 January 2005 supplied not less than a commercial quantity of 4-Hydroxybutanoic Acid;
Between 20 November 2003 and 14 January 2005 supplied not less than a commercial quantity of cocaine;
Between 20 November 2003 and 14 January 2005 supplied not less than a commercial quantity of 3,4 methylenedioxymethylamphetamine;
Between 20 November 2003 and 14 January 2005 supplied not less than a commercial quantity of Ketamine;
Between 20 November 2003 and 14 January 2005 supplied not less than a commercial quantity of methylamphetamine.

(In the understanding of the charges and in remarks that follow, it must be recognised that the Drug (Misuse and Trafficking) Act includes an expanded definition of supply, and includes having in possession for supply.)
The sentences imposed were:-

Count	Commencing Date	Fixed Term or Non-parole Period	Full Term
2	13 July 2005	13 months Fixed Term
3	13 September 2005	13 months Fixed Term
4	13 November 2005	13 months Fixed Term
1	13 January 2006	20 months NPP	35 months
5	13 March 2006	2 years 7 months NPP	5 years
6	13 March 2007	5 years 6 months NPP	8 years
7	13 May 2007	5 years NPP	7 ½ years
8	13 July 2007	5 years NPP	7 ½ years
9	13 September 2007	5 years NPP	7 ½ years
10	13 November 2007	5 years NPP	7 ½ years

The effective sentence imposed by his Honour was thus one that totalled 9 years and 10 months, including a non-parole period of 7 years and 4 months.

6 The first 5 offences were the subject of one indictment and the remaining offences were the subject of a second. The first 4 offences breached s25(1) of the New South Wales Drug (Misuse and Trafficking) Act and, involving what are described as indictable quantities, each rendered the Applicant liable to imprisonment for 15 years. The last 5 offences breached s25(2) of the New South Wales Drug (Misuse and Trafficking) Act and each rendered the Applicant liable to imprisonment for 20 years. Subject to an understanding that an indictable quantity must be less than the minimum commercial quantity, the ranges of quantities encompassed by those provisions are:-

Drug	Indictable Quantity	Commercial Quantity
4-Hydroxybutanoic Acid	50 grams and up	1-4kg
Cocaine	5 grams and up	0.25-1kg
3-4 MDMA	5 grams and up	0.25-1kg
Ketamine	12.5 grams & up	1.25-5kg
Methylamphetamine	5 grams and up	0.25-1kg

Subject to the limitations expressed in the legislation or inferred by this Court, for each of the 6th to 10th offences, the New South Wales Parliament has provided a standard non-parole period of 10 years.

The fifth offence breached s233B of the Customs Act (C’th) and rendered the Applicant liable to imprisonment for 25 years. A trafficable quantity of cocaine covers from 2 grams to 2 kilograms.

In connection with count 1 on the first indictment his Honour took into account 9 further offences:-

1	Supply of 21.97 grams of Ketamine
2	Supply 97.75 grams of Methylamphetamine
3	Supply 35.4 grams of Amphetamine
4	Supply 19.2 grams of Ketamine
5	Possession of cocaine
6	Possession of 3,4 MDMA
7	Possession of Lysergic acid
8	Possession of methylamphetamine
9	Possession of $15,100 reasonably suspected of being the proceeds of supply of prohibited drugs

In connection with count 1 on the second indictment (the offence I have numbered 6) his Honour took into account one further offence namely possession of Dexamphetamine.

The grounds of appeal relied on by the Applicant are:-
1.His Honour erred by partially accumulating the sentences imposed in relation to counts 1-4 of the first indictment.
2.His Honour did not afford the Applicant a sufficient discount in respect of the assistance he provided to law enforcement authorities.
3.His Honour failed to consider the Applicant’s medical condition in determining the appropriate head sentence.
4.In determining that the sentences should be served partly cumulatively, his Honour did not have regard to his finding of special circumstances.
5.The sentence imposed upon the Applicant was manifestly excessive.
Matters that bear on these grounds of appeal include the following:
Some time prior to 11 November 2003 when his trial on the charges commenced, the Applicant was charged with 6 offences of, between April and June 2000, dishonestly using his position as a director. It is clear that the Applicant was admitted to bail, and that this and the charging must have been well before 11 November. (It probably does not matter, but I am by no means confident that the information provided to this Court as to the date when the charging occurred is accurate. It would seem that the Applicant was also the subject of other charges that were withdrawn or dismissed.);
On 20 November 2003 he was charged with the offences the subject of the first indictment and again admitted to bail;
On 5 December 2003 he was convicted of the 6 offences mentioned above and again admitted to bail;
On 13 January 2005 he was arrested and charged with the offences the subject of the second indictment and has been in custody since;
On 11 February 2005, he was sentenced by Judge Norrish in respect of each of the 6 offences mentioned above to imprisonment for 20 months including a non-parole period of 6 months, such sentences to be served concurrently and commencing on 13 January 2005;
On 31 July 2006, being the first day of his trial in respect of offences the subject of the first indictment the Applicant pleaded guilty to all 10 offences.
The circumstances of the Applicant’s offending on the 10 drug charges and the matters contained in the Forms 1 appear in a Statement of “Agreed Facts” tendered without objection before Geraghty DCJ. The following account of the Applicant’s offending is taken from that document. On 20 November 2003 police executed search warrants at two premises occupied or used by the Applicant. There they found the drugs and money the subject of the first 4 charges and the multi-offence Form 1, together with empty plastic vials, syringes, electric scales and a number of drug ledgers recording, inter alia, drugs and money on hand, money owed for drug supply and prices. The Applicant was, as has been said, then arrested.

The circumstances of the fifth offence were that the Applicant, who Geraghty DCJ described as the principal, in November 2003 arranged for a co-offender to travel to South Africa, pick up and swallow 83 condoms containing 277.5 grams of cocaine and bring them into Australia. On 20 November, the co-offender was arrested at Sydney airport. The Agreed Facts record that the cost of cocaine in South Africa is $A70,000 per kilogram, that that amount could be sold in Australia for between $111,000 and $200,000 and that the Applicant is known to have cut and stored, presumably other, cocaine which he sold for $7,200 to $8,000 an ounce. At $7,200, that represents something over $250,000 per kilogram.

The charges the subject of the second indictment arose in consequence of the Applicant over a period in excess of a year carrying on, as principal, a drug supply network. This involved him in paying most or all of the rent on about 4 apartments at Potts Point lived in by persons, referred to in the table below who stored, in part in safes provided by the Applicant, and sold drugs directly or indirectly for the Applicant, preparing drugs for sale and assisting the Applicant with stock-taking of drugs on hand. On 13 January 2005 police carried out searches of the premises of the Applicant and premises occupied by those persons.

It is not possible from the statement of Agreed facts to obtain any reliable indication of the total quantity of drugs that the Applicant disseminated into the community but the following summary of information in the Agreed Facts and relating to the offences in the second indictment provides some indication of it. (Where in the Agreed Facts the quantities have been stated in ounces, I have converted these to grams.)
Methylenedioxymethylamphetamine
Each week during the period November 2003 to mid 2004 Walters sold about 300 pills;
In one week Lambourn sold 600 pills;
Each week for some period the Applicant supplied 100 pills to Fintic;
In one week the Applicant supplied 500 pills to Fintic and 500 to Walters;
In a 7½ week period Purvis sold not less than 202 pills;
During the police searches 263.38 grams were found.
Cocaine
Each week during the period November 2003 to mid 2004 Walters sold about 7.08 grams;
Each week from March 2004 Lambourn sold 10-15 grams;
Each week for some period the Applicant supplied 3.5 grams to Fintic;
In a 7½ week period Purvis sold not less than 31.5 grams;
During the police searches 36.97 grams were found.
Ketamine
Each week during the period November 2003 to mid 2004 Walters sold about 7.08 grams;
In a 7½ week period Purvis sold not less than 4 grams;
During the police searches 194.48 grams were found.
4-Hydroxybutanoic Acid
Each week during the period November 2003 to mid 2004 Walters sold about 0.5 litres;
Each week for some period the Applicant supplied 1 litre of GHB to Fintic;
In a 7½ week period Purvis sold not less than 1.9 litres;
The Applicant received at least 4 separate deliveries of commercial quantities.
Methylamphetamine
Each week during the period November 2003 to mid 2004 Walters sold about 7.08 grams;
Each week from March 2004 Lambourn sold 11-16 grams;
Each week for some period the Applicant supplied 28 grams to Fintic;
In a 7 ½ week period Purvis sold not less than 118.5 grams;
On 9 or 10 occasions the Applicant bought 0.25 kg.
During the police searches 33.6 grams (sic) were found.
It will hereinafter be convenient to refer to the Methylenedioxymethyl-amphetamine as “MDMA” and the 4-Hydroxybutanoic Acid as “GHB”. The Methylamphetamine was in crystalline form commonly known as “Ice”.
Although the Statement of Facts is less precise than it might usefully have been in some respects it also contains the following information. Walters was also involved from October 2004 to 13 January 2005 albeit at a lower, undefined, level of activity than indicated in the preceding table as the situation prior to mid-2004. Fintic was active from at least June to 23 October 2004 and the statement in the document to the effect of what the Applicant supplied to Fintic each week, would seem to encompass this 4 month period. On about 25 October 2004, Purvis took over Fintic’s operation and the 7½ weeks period referred to in the table began. In Walters’ safe prior to mid 2004, and in Lambourn’s safe in March 2004, there were commonly stored the following approximate quantities:-
Drug  Walters                Lambourn
GHB  up to 1.5 litres  up to 5 litres
Cocaine                 56.7 grams  56.7 grams
MDMA  100-1000 tablets    500-1000 tablets
Ketamine  a few ozs (say 70 gr)
Methylamphetamine           28.35 gr                 up to 250 grams
The documents tendered on sentence also contained a number of analysts’ certificates which specified, inter alia, numbers, weights and in some cases the purity of what was found during the searches. For present purposes, it is sufficient to record that the weight of the MDMA tablets seized in 2003 varied between about 0.18 gram (with a purity of 33.5 to 44.5%) and 0.29 gram (with a purity of 19.4 to 29.1%) and the vast bulk of those seized in 2005 were of a weight of about 0.3 gram. Most of the latter were not analysed but those that were had a purity varying between 17 and 21%. The purity of the methylamphetamine analysed was generally in excess of 72%. The cocaine varied from under 1% to, in the case of that the subject of the importation charge, 70.8% with most of that analysed falling in the range of 19.7 to 24.6%. When one adds to this the number of containers in which drugs or traces of drugs were found the inference is inescapable that the Applicant was engaged also in “cutting” or diluting drugs which he had acquired.
The purity of the GHB and ketamine was not stated.
For the Applicant’s pleas, Geraghty DCJ allowed a discount of 15%. His Honour increased this discount to 45% on account of the Applicant’s assistance to the authorities in connection with 2 other offences, saying in this regard:-
“… it does seem to me that Fisher has given genuine cooperation to the police. That cooperation is motivated, I believe, not by a sense of remorse or contrition so much as to achieve a reduction in sentence The information he has provided is of significant assistance. So, combining his plea of guilty in each matter, with the quality of the assistance offered in two matters, I consider a total deduction of sentence of 45 per cent to be appropriate. There does not seem to be anything truly exceptional about his assistance. The level of assistance appears to be about what I would expect normally from anyone offering assistance. Any further discount would not reflect the seriousness of these offences…”
One of the “matters” referred to, his Honour described as serious, even extremely serious and the Applicant’s assistance crucial. In relation to the other, his Honour said that investigations had commenced exclusively on the basis of the Applicant’s assistance and that a conviction was undoubted. Because reliance is placed on this by the Applicant, it should also be mentioned that his Honour found that the Applicant’s co-operation with the authorities was “motivated … not by a sense of remorse or contrition so much as to achieve a reduction in sentence”.

His Honour also observed that the fact that the offences were committed on bail was an aggravating feature.
It may also be noted that in arriving at the sentence his Honour imposed in respect of the offence I have numbered 5, he observed:-
“According to Wong and Leung [1999] NSWCCA 420, the indicative head sentence for mid-level trafficable quantity between 200 grams and 1 kg, is 6 to 9 years, but because of Rivadavia (2004) 61 NSWLR 63 and because s16G of the Crimes Act has been repealed, this range must be increased, though not by any mathematic calculation or by applying any specific multiplier. The amount in question in this matter was 227.5 grams of pure cocaine, and therefore is low on the range of the amount. But the offender was the principal in the criminal undertaking. For that reason, it seems to me, while not yet applying a discount to this offence, that the range in the circumstances should be 9 years head sentence and 5 years non parole. When the discount of 45% is applied, the head sentence would be 5 years and the non parole period 2 years and 7 months.”
Subjective Case
The Applicant had in some respects a strong subjective case. He was born in September 1965. Prior to his conviction on the 6 charges of dishonestly using his position as a director, he had no criminal record. Evidence established that by the time he was about 34 the Applicant had achieved a successful business career. However, in 2000 he found out that he was seriously ill with a permanent and life threatening disease and in that year he also was removed from a company he had been instrumental in founding. He became bankrupt and began to use MDMA, ketamine, cocaine, “ice” and liquid ecstasy. He informed Mr Taylor, a psychologist whom he saw in November 2006, that he used these daily from then until the end of 2004.
In a report before his Honour, Mr Taylor observed:-
“… There seems little doubt that Mr Fisher was significantly emotionally disturbed at the time the offences occurred. The nature of his emotional disturbance was such that he would have had periods of significant impairment in his judgment and control which made him vulnerable to engaging in poly drug abuse. This in turn would have further impaired his judgment and control resulting in behaviour which appears to have been abhorrent to him. He expressed feelings of shame and embarrassment concerning his offending behaviour.”
Geraghty DCJ found that his drug taking “led on to supply business in order to pay those debts, presumably to make a living. He expresses deep shame and remorse, and tells me that he has participated in a program known as SMART, Self Management and Recovery Training, which he has been attending while in prison.” His Honour concluded:-
“1.Greg Fisher is truly now remorseful and contrite, and expresses sentiments of abject shame.
2.He has in recent times gained much insight into his abhorrent behaviour.
3.He is, and has been all his life, and continues to be, surrounded by people, by family and friends, who love him and who will support him no matter what he does. He is very fortunate.
4.He is an intelligent and truly gifted individual – one of the community’s high achievers.
5. He has good prospects of rehabilitation.
6.He is unlikely to re-offend, at least to the extent he has and in the way he has, though he is a person who is vulnerable and remains predisposed to drug abuse, as assessed by Dr Taylor.
7. …”
His Honour also made a finding of special circumstances. His reasons for doing so merit quotation:-
“Because of the offender’s serious health issues, which will mean that his imprisonment will be more burdensome than it would have been had he been healthy, and because of the stress which imprisonment is likely to cause, thereby exacerbating his condition, because this is the offender’s first time in custody (the sentences for unrelated offences were backdated to his arrest), and because he will be assisted, in my estimation, by supervision to monitor his rehabilitation, I propose to make a finding of special circumstances.”
Ground 1
His Honour erred by partially accumulating the sentences imposed in relation to counts 1-4 of the first indictment.
In R v Harris [2007] NSWCCA 130 this Court had occasion to consider the concurrency of sentences imposed on an offender guilty of stealing a motor vehicle and on a subsequent occasion breaking into 2 adjoining houses. It was held that the concurrency of the sentences was wrong. The Court pointed out that offences of the nature of those under consideration each involve their own loss or damage, a different victim or group of victims and a separate exercise of an offender’s will and that although the offences might all be inspired by the same motivation, such as an offender’s need for money with which to indulge a drug addiction, each involves its own separate criminality and the offender’s criminality is greater by reason of committing three offences rather than one or two.

The Court’s remarks which, given the submissions in this case bear repetition, included the following:-
In Pearce v R (1998) 194 CLR 610 at [45] the High Court made it clear that a sentence should be appropriate for the offence for which it is imposed. It is a corollary that no sentence should reflect criminality extending beyond the particular offence to which it relates. Thus, if additional or greater criminality inherent in the commission of second, third and subsequent offences is to be punished at all, some accumulation of sentences is almost always required. As was also said in Pearce v R (at [49]:-
‘Further, to make the sentences imposed on those two counts wholly concurrent may also be said to reveal error in that to do so failed to take account of the differences in conduct which were the subject of punishment on each count.’
An increase in the number of offences will commonly also demonstrate a need for greater weight to be given to many if not all of the purposes of sentencing and for the effective sentence to be longer than if only one offence had been committed. Making sentences wholly concurrent means that the second and subsequent effectively constitute no punishment and sends a clear message to those members of the criminal community who chose to live by breaking and entering and stealing or the like that once they have committed one or a few offences, they can continue offending with virtual impunity so far as sentences are concerned. Absent good reason, it should not occur – see R v Brown [1999] NSWCCA 323 at [24]; Mungomery (2004) 151 A Crim R 376 at 381.
Considerations of general and personal deterrence demand that the courts signal to would-be offenders, many of whom in this area are serial offenders, that they can expect punishment for each of their offences.
Nor is it an adequate reason for complete concurrency that a group of offences such as breaking, entering and stealing may be of the same type or committed as part of one criminal spree. As the Court has sought to point out, implementation of a decision to commit another offence will generally involve more loss and damage, and more victims. When it does, there is also a greater entitlement of the community to retribution.
…
Implementation of the principle of totality is perhaps the most common circumstance where concurrency of sentences is justified. However it is important that that principle be properly understood and applied. Perhaps the leading statement of it is an extract from D A Thomas, “Principles of Sentencing” endorsed in Mill v R (1988) 166 CLR at 59 at 63:-
‘The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences to review the aggregate sentence and consider whether the aggregate sentence is just and appropriate.’
Two points may be made. Firstly, the principle is expressed in terms of coming back from the result of a simple aggregation. Secondly, if each individual sentence is appropriate for the criminality of the offence to which it relates, prima facie additional criminality requires an increase in sentence. Obviously the totality principle imposes limits to that last proposition but those limits will rarely if ever go so far as to justify wholly concurrent sentences for all of a series of offences such as those here. Subject to those limits, in general, sentences significantly cumulative should be imposed for separate serious offences of which those here are all examples.
In this connection the Court endorses the remarks of Sully J, though as a member of a two judge bench, in R v Wheeler [2000] NSWCCA 34. At [36] – [37] his Honour said:-
“… (There) is the need to ensure public confidence in the administration of criminal justice; and, in particular, to ensure that there does not emerge in the community at large a perception that there is not all that much to choose between the person who commits one or two offences, and the person who commits six or seven offences, for the reason that somehow or other they all manage to finish up with effective sentences between or among which there is hardly anything in practical terms to choose.
It needs to be clearly understood by all concerned that a person who commits a deliberate series of discrete offences, - and the present applicant's case, is a good example of the kind, - he must not be left with the idea that by intoning references to the principle of totality as though it were some magic mantra, he can escape effective punishment for the offences which follow successively one upon another throughout the whole course of a studied and deliberate course of criminal behaviour.”
Of course, some of those remarks were directed to the circumstances of that case but the principle that underlies them applies here. In November 2003, the Applicant chose to increase his criminality by dealing in 4 prohibited drugs, by possessing 4 to disseminate into the community and by committing 4 offences, not simply one. No doubt in choosing to have a wider range of drugs to sell, he sought to increase his profit.
Both the terms of the statute and common sense make it clear that in the field of drug supply quantity is a relevant factor in an assessment of an offender’s criminality. It is simply absurd to say that so long as the increase in quantity is attributable to a different type of drug, and in this case, kept in the same container, the criminality is not increased and nor should be the sentence. It would have been entirely wrong for his Honour not to accumulate the sentences imposed on counts 1 to 4 of the first indictment. This ground fails.

Ground 2
His Honour did not afford the Applicant a sufficient discount in respect of the assistance he provided to law enforcement authorities.

In addition to the general complaint contained in the above ground, it was submitted that his Honour erred:-
In finding that the Applicant’s assistance was not truly exceptional and only what one would normally expect;
In finding that the Applicant was “motivated … not by a sense of remorse or contrition so much as to achieve a reduction in sentence”; and
In considering the Applicant’s motivation.
In the case of the offence other than the one his Honour described as possibly “extremely serious” the 2 findings referred to, including their limitations, were fully supported by the material that was before his Honour including an uncontradicted hearsay statement of the Applicant to the effect of the second of the findings. In the case of the other offence, the first of the findings was open to his Honour. There was no similar statement, hearsay of otherwise, that expressly indicated the Applicant’s motivation in respect to this other offence but, given the earlier hearsay statement and, as was the fact, the Applicant’s assistance in respect of this offence was not forthcoming until October 2006, his Honour was entitled to conclude as he did. This is so notwithstanding that his Honour elsewhere in his reasons expressed the conclusion that the Applicant was “truly remorseful and contrite”.
Authorities relied on by the Applicant – R v El-Sayed (2003) 57 NSWLR 659 at [31]; Vasquez-Felipe v R (2006) 167 A Crim R 321 at [32]; R v Cartwright (1989) 17 NSWLR 243 at 252; R v Bourchas (2002) 133 A Crim R 413 at [111] - do demonstrate that the discount for assistance is not dependent on the motivation of the person providing that assistance but rather for its utilitarian value. However, when regard is had to the totality of what his Honour said, it is by no means clear that the discount he gave was limited by reason of his conclusion as to the Applicant’s motivation. Rather does the limiting factor seem to have been, if I can slightly expand what his Honour said, that “Any further discount would (mean the sentence did) not reflect the seriousness of these offences”.
In considering this ground it is also of significance to bear in mind the remarks of all of the members of the Court in R v SZ [2007] 168 A Crim R 249 to the effect that a combined discount for a plea of guilty and assistance should not normally (and in the view of the majority only in exceptional cases) exceed 50%. See also R v Sukkar [2006] 172 A Crim R 151 at [54] et seq..
I am not persuaded that the discount of 45% Geraghty DCJ gave the Applicant was inadequate. Thus I would not uphold this ground of appeal.
Ground 3
His Honour failed to consider the Applicant’s medical condition in determining the appropriate head sentence.
I have quoted from his Honour’s judgment a passage that makes it clear that he recognised that the Applicant had serious health issues and took those into account in making a finding of special circumstances. It was submitted on behalf of the Applicant that the Applicant’s condition and recognition his Honour expressly gave to the fact that treatment in prison might not be of the same standard as is available in the community, that the Applicant’s condition meant that he would be in protective custody, and his imprisonment more onerous than for the average prisoner should also have been taken into account in the determination of the head sentence. In this connection reference was made to remarks made in R v Vachalec (1981) 1 NSWLR 351 at 353; McDonald (1988) A Crim R 470; Hameed (2001) 123 A Crim R 213 at [58] and R v Baraket [2004] NSWCCA 201 at [30], [31] and [33].
I agree with the submission. However, it is clear that his Honour did take these matters into account. When he was directing attention to the Applicant’s subjective factors, and before he came to deal with the topic of special circumstances, his Honour specifically addressed the Applicant’s health and the specific factors mentioned above. There is just no basis for the conclusion that his Honour failed to consider the Applicant’s medical condition in determining the appropriate head sentence. This ground fails.
Ground 4
In determining that the sentences should be served partly cumulatively, his Honour did not have regard to his finding of special circumstances.
The gravamen of this ground was that in the effective sentence imposed, the non-parole period of 7 years and 4 months was 74.6% of the total sentence of 9 years and 10 months and that the departure from the 75% ratio contemplated by s44 of the Crimes (Sentencing Procedure) Act in the absence of special circumstances was so slight as to lead to the conclusion that the total sentence imposed did not reflect his Honour’s finding of special circumstances and what he meant to do.

This submission is made good. The matter is put beyond doubt in my mind by the passage I have quoted above wherein the finding of special circumstances is made.

I should add that before reaching the conclusion just expressed, I have wondered whether, the finding of special circumstances being reflected in the non-parole component of the individual sentences (other than the fixed terms for offences 2, 3 and 4), and the length of those being a relevant factor in the determination of the extent of concurrency, his Honour may have regarded the special circumstances as sufficiently reflected in the ultimate sentence. However, with the exception of the sentence for the 6th offence, the commencing date of each sentence was only 2 months later than the commencing date of the sentence before it, and this whatever the length of the preceding sentence or non-parole period. In these circumstances, I see no basis for concluding that his Honour regarded the finding of special circumstances as sufficiently reflected in the limited degree to which one sentence was accumulated on another.

What impact the success of this ground should have on the result of the appeal should be left until the next ground is considered.

Ground 5
The sentence imposed upon the Applicant was manifestly excessive.

The attack mounted under this ground concentrated on the total sentence and the individual sentences imposed in respect of the charges the subject of the second indictment. In the latter connection, attention was drawn to the fact that the non-parole period of 5½ years in respect of the first offence in that indictment, grossed up by adding back the 45% discount allowed, equates to an undiscounted period of 10 years, and that this is the standard non-parole period specified for the offence. Counsel pointed out that the statute provides that such a non-parole period for an offence in the mid-range of objective seriousness is to be set unless that court determines that there are reasons for setting a non-parole period that is longer or shorter than the non-parole period, that this qualification requires a judge to take into account factors other than those bearing on the objective seriousness of the offence, that Geraghty DCJ’s characterisation of each of the offences in the second indictment was on the scale of objective seriousness “not less than mid-range”, and that there were a number of mitigating factors in the case including the Applicant’s impressive history prior to 2000, his Honour’s findings concerning the Applicant’s health and the consequential increase in the burden imprisonment would impose and his Honour’s finding of special circumstances.
It was submitted that when regard was had to these findings, a sentence lower than the non-parole period was appropriate. It was submitted that similar reasoning applied to the, albeit slightly shorter, sentences for other offences in the second indictment.
There is a ready answer to these submissions.
One lies in his Honour’s characterisation of at least a number of offences in the second indictment as “not less than the mid-range” of objective seriousness. That was to grossly undervalue them. In so concluding I do not ignore the fact that the Crown Prosecutor who appeared before his Honour suggested that the offences – he seems to have regarded the matter globally – were “not less than mid-range”. However, judges are not bound by concessions by Crown Prosecutors and his Honour was wrong in following the suggestion in this case.
It may be accepted that this Court should not interfere with such a finding unless it concludes that the finding was not open - see R v Dang [2005] NSWCCA 430; R v Mulato [2006] NSWCCA 282 at [37]; Perry v R [2006] NSWCCA 351; Stanford v R [2007] NSWCCA 73. However in this case his Honour’s finding was demonstrably wrong. The objective seriousness of a number of the offences included in the second indictment was at, or virtually at, the top of the range.
Firstly, it is clear that each offence was committed as part of a commercial operation directed to making money. Secondly, although the Applicant obviously had suppliers, he was the principal of the operation. Thirdly, the operation were well organised. As Geraghty DCJ said, “Gregory Fisher conducted a cynical, well organised criminal enterprise for his own financial gain …”. Fourthly, insofar as each of the offences the subject of the second indictment were concerned, the offending was carried on for a lengthy period and involved deliberate criminality time after time for an extended period.
Fifthly, the quantities the subject of some of the charges included in the second indictment were at the top of the range of quantities encompassed by the offences charged. A consideration of the summaries of quantities supplied and other data contained in the Agreed Facts shows that the sales of MDMA tablets clearly exceeded 1 kilogram, the upper limit for a commercial quantity of that drug. 300 tablets a week (the approximate number sold to Walters) for 6 months would total 7800 tablets. At 0.3 gram per tablet, the total weight would exceed 2.3 kg. There were in addition, not insignificant sales not involving Walters and the 263 grams found during the police 2005 searches.
The Statement of Facts in terms states that the Applicant received at least 4 separate deliveries of commercial quantities of GHB and for much of the period Walters sold 0.5 litres a week – amounts totalling clearly in excess of 4 kg. In the case of methylamphetamine, on 9 or 10 occasions the Applicant bought 0.25 kilograms so the upper limit of a commercial quantity of that drug, 1 kilogram, was clearly reached.
The situation is not as clear in the case of the other drugs. In the case of cocaine, Purvis’ sale of 31.5 grams and the 36.97 grams found at the time of the police searches total over 78 grams; Walters’ sales of 7 grams per week for (say) 6 months would amount to 180 grams and Lambourn’s sales of (taking an average figure) 12.5 grams per week during April to December 2004 would equal 480 grams. There were also sales to Fintic of 3.5 grams per week. Given the period of the latter’s operations and the 31.5 grams sales by Purvis thereafter (of drugs supplied by the Applicant), it seems reasonable to infer, to the criminal standard, that the Applicant’s sales to Fintic were not less than 40 grams. In all these figures 778, and even accepting there is a degree of imprecision in the calculations, the quantity the Applicant supplied was well up in the commercial range.
The information in the Statement of Facts does not justify the conclusion that the quantity of ketamine supplied was as high but the figure would seem to have exceeded 300 grams.
Of course the Applicant is not to be punished for supplying quantities in excess of those charged. Furthermore, when one comes to consider the objective seriousness of the offences, it is clear that the offences must be considered individually – see R v Reyes [2005] NSWCCA 218. Nevertheless, the figures do however demonstrate that, insofar as quantity of 3 of the drugs is concerned, the Applicant’s offending was at the top of the range and in the case of a fourth, well above half way.
A sixth factor to take into account in the case of the offences involving MDMA, GHB and methylamphetamine is that, given the limited quantities found at the time of the police searches, a quantity of not less than the top of the commercial range for MDMA, GHB and methylamphetamine was not merely the subject of deemed supply but actually disseminated into the community.
A seventh factor to take into account in the case of the methylamphetamine is that its purity was high. Given the length of time the Applicant’s operations continued, the number of tablets analysed and the extent of similarity in the quantity of MDMA in the tablets, it is to be inferred that those supplied accorded with that commonly sought or enjoyed by users of that drug. Given the length of time of which the supply of the other drugs continued, a similar inference should be drawn in the case of them.
I do not forget that in R v Way (2004) 60 NSWLR 168 at 86, the Court said that relevant to the objective seriousness of an offence were “matters of motivation (for example duress, provocation, robbery to feed a drug addiction), mental state (for example, intention is more serious than recklessness), and mental illness, or intellectual disability, where that is causally related to the commission of the offence, in so far as the offender’s capacity to reason, or to appreciate fully the rightness or wrongness of a particular act, or to exercise appropriate powers of self control has been affected …” and that in this case there is evidence that the need to feed either a drug addiction or the suppliers who supported that drug addiction was a factor that motivated the Applicant into drug dealing; furthermore, that there is, in the report of Mr Taylor to which reference has been made, evidence of emotional disturbance leading to impairment of judgment and control.
However, relevant to the weight to be given to these matters is that the Applicant is by no means unintelligent, he clearly was able to run a reasonably efficient and well organised business, must have known the damage that the drugs in which dealing could do, and that there were in the community resources, in the form of professionals or bodies like the Salvation Army, to help and that he had a long period in which to reflect on what he was doing. Furthermore, there is nothing in R v Way to indicate any intention to overrule the decision in R v Henry (1999) 46 NSWLR 346 at [202], [278] and [331] that “There is no warrant … to assess a crime induced by a need to fund a drug addiction, as being lower in the scale of moral culpability than other perceived requirements for money”. In these circumstances, such of the Applicant’s personal factors as may be relevant to an assessment of the objective seriousness of his offences are not entitled to more than limited weight relative to the other matters to which I have referred.

It should also be mentioned that in assessing the objective criminality of the Applicant’s offending on the charges in the second indictment, Geraghty DCJ took into account that the Applicant was on bail at the time. He should not have done so for that circumstance is rather a subjective one than one going to the objective seriousness of the offence.
When to this assessment of the objective seriousness of the offences included in the second indictment, one recognises that they were committed while he was on bail on similar charges, his criminality can only be regarded as extreme. But for his other subjective circumstances, a sentence equal to the 20 years maximum for each of the offences involving MDMA, GBH, and methylamphetamine would have to be the subject of serious consideration. Of course, those other subjective circumstances were such that a sentences of 20 years for these offences might not have been appropriate but whether the circumstances of each of these offences is judged by comparison with the statutory maximum or with the standard non-parole period, starting points before allowance for pleas and assistance significantly higher than 10 years for each of these offences were required.
That conclusion has an obvious relevance also to the complaint that the total effective sentence imposed on the Applicant was manifestly excessive. However also relevant in that connection is the degree of accumulation of sentences that Geraghty DCJ ordered.
Save in the case of the offence I have numbered 6, the commencing date of each sentence was only 2 months later than the commencing date of the sentence before. Thus the effective sentence imposed for a number of the Applicant’s offences was 2 months. Given that the non-parole period imposed for offence 6 was 5 years and 6 months and the non-parole periods for offences 7, 8 and 9 was only 5 years, the non-parole periods for these last 3 offences were wholly subsumed within the non-parole period of the sentence for offence 6 and no effective punishment was imposed for those other 3 offences.
For reasons apparent in the references to, and quotation from, R v Harris above, such results were grossly inadequate responses to many of the Applicant’s offences.
Conclusion
Having regard to the conclusions just expressed, it is not necessary that I deal further with the sentences imposed in respect of the offences in the second indictment relating to the supply of cocaine and ketamine or with the sentences imposed in respect of the offences the subject of the first indictment beyond saying that I am satisfied that none of the individual sentences were manifestly excessive and the 2 months deferral of the commencing dates, where that occurred, also grossly inadequate.
Although there are a number of other errors favourable to the Applicant in Geraghty DCJ’s sentencing of him, I have said enough to demonstrate that the Applicant was extremely fortunate to receive no higher sentences than he did. While certainly there was error in the relativity between the effective non-parole period and the total effective sentence, both were so low that I would not contemplate reducing either.
I propose that the Court make the following orders:-
(i) Grant leave to appeal against sentence;
(ii) Dismiss the appeal.
SIMPSON J: I agree with Hulme J
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LAST UPDATED:
28 May 2008

[2008] NSWCCA 103

15 May 2008

Key Legal Topics

Areas of Law

Criminal Law

Legal Concepts

Sentencing

Manifestly Excessive

Appeal