R v Hammoud - [2000] NSWCCA 540

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Hammoud [2000] NSWCCA 540

FILE NUMBER(S):
60171/00

HEARING DATE(S): 07/09/2000

JUDGMENT DATE: 15/12/2000

PARTIES:
Regina
Nedhal Hammoud

JUDGMENT OF: Mason P Simpson J Dowd J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/11/0469, 99/11/0701

LOWER COURT JUDICIAL OFFICER: Woods DCJ

COUNSEL:
Mr LMB Lamprati- Crown
Mr JI Doris- Respondent

SOLICITORS:
SE O'Connor- Crown
Baird & Associates

CATCHWORDS:
Crown appeal against inadequacy of sentence
Several offences
Accumulation of sentences
Concurrent sentences
Transparency and totality

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
Firearms Act 1996
Sentencing Act 1989

DECISION:
1. Appeal allowed; 2. Re-sentenced on each charge.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL
MASON P
SIMPSON J
DOWD J
15 December 2000
N60171/00
R v Nedhal HAMMOUD
JUDGMENT

MASON P: I have had the benefit of reading the judgment of Dowd J with which Simpson J agrees, subject to two general qualifications.
I agree with the qualifications enunciated by Simpson J.
Subject to what follows, I otherwise agree with the orders proposed by Dowd J and with his reasons.
I have a real sense of unease with the totality of the sentences. The drug conspiracy charges were very serious, involving criminality of a high order relating to a large commercial quantity of heroin and a commercial quantity of cocaine, conducted by a person entitled to no discount for youthfulness and at a time when he was on bail pending finalisation of murder and wounding accessory charges. The sentences imposed by Judge Woods QC for those drug conspiracy offences were very light and did not, in my view, merit even partial accumulation with the earlier sentences. Had it not been for the so-called double jeopardy principle attending Crown appeals, I would have imposed higher sentences for the drug offences, with the consequence of a more appropriate total sentence than that achieved by the adjustments proposed by Dowd J’s orders.
I agree with the orders proposed by Dowd J.
SIMPSON J: I have read in draft the judgment of Dowd J, and, subject to the two matters to which I am about to refer, I am in general agreement with his Honour’s approach. The two matters on which I wish to comment concern questions of concurrence or accumulation, and the discount on sentence afforded to the respondent by reason of his assistance to the authorities on the principles stated in R v Cartwright(1989) 17 NSWLR 243.
Concurrence or Accumulation
I wish to make it plain at the outset that I agree with the approach taken by Dowd J in the restructured sentences he proposes. My difficulty lies in the proposition expressed by his Honour in paragraph 69 of the draft. I do not agree that for the sentencing judge to take into account, in considering questions of concurrence and accumulation, features that were common to the two conspiracy offences, denotes an invalid reasoning process. Whether or not to accumulate sentences imposed in relation to multiple offences is, in the end, an exercise of discretion to be made in accordance with established principle. Features common to two or more offences are all matters relevant to be taken into account (pointing towards concurrence) as are features indicating the disparate nature of the offences (pointing the other way). There will be many cases in which sentencing judges might take differing views but neither view could be said to be wrong.
As a result of the decision of the High Court in R v Pearce [1998] HCA 57; 194 CLR 610, the question of whether to accumulate sentences for multiple offences has taken on a new dimension. Following Pearce, a judge is required to fix “an appropriate sentence” for each offence, before considering questions of accumulation, concurrence or totality. I take this to mean that, except perhaps in cases of multiple offences committed as part of a single, discrete, episode of criminality, the sentence for an individual offence is to reflect the criminality involved in the offence untainted by reference to the other offences for which that offender is to be sentenced.
Pre-Pearce, it was possible to discern two different approaches to sentencing for multiple offences. The first was to select a single charge (a lead or representative count) and, in accordance with the principle of totality, on that charge impose a sentence that properly reflected the overall criminality involved in all offences. On the remaining counts, comparatively lenient sentences, frequently fixed terms, were imposed. The second approach was, again with the principle of totality in mind, to select a sentence appropriate to the overall criminality and impose that sentence in respect of all or most of the charges. Both of these approaches avoided the need for elaborate exercises in accumulation of sentences.
Neither of these approaches would survive the application of the Pearce principles. In the case of a judge adopting the first approach, the lengthy sentence imposed in relation to the lead or representative count would appear excessive and those imposed on the remaining counts would appear inadequate. None would represent “an appropriate sentence” for the specific offence for which it was imposed. On the second approach, all sentences would appear excessive for the specific charges to which they related, even when the ultimate term to be served was unimpeachable.
The application of Pearce in the present case illustrates the reason that pre-existing sentencing practices need modification. “Appropriate” sentences imposed in relation to each individual conspiracy count would, if made wholly concurrent, fail to reflect the total criminality; if made wholly cumulative, would exceed what totality permits. The only solution is, as proposed by Dowd J, to make the sentences partly concurrent and partly cumulative.
However, to return to my original point, the extent to which the two drug offences had common elements, and were committed during the same period, and involved the same participants, was one relevant consideration in assessing the total criminality, and is relevant in re-sentencing, in determining the extent to which the sentences should be made concurrent.
Discount for Assistance
The sentencing judge discounted each sentence by fifty percent, by reason of the substantial assistance given to police in relation to the charges of murder against Hamzy.
The assistance was integrally connected with the accessory charges to which the respondent pleaded guilty, and not directly related to the drug charges which were quite separate and distinct. That fact, of itself, does not dictate that differential discounts be given. It is not uncommon for discounts to be given for assistance quite unrelated to the offence for which the offender stands to be sentenced. Provision of information about confessions to offences made by others in custody is a not uncommon example of a circumstance in which a sentencing discount is given for assistance that has nothing to do with the offence for which sentence is to be passed.
The rationale for a discount provides the explanation. That rationale was discussed by Gleeson CJ in R v Gallagher (1991) 23 NSWLR 220. An offender who has provided assistance, whether in relation to others involved in his/her own crimes, or in relation to other crimes, is entitled to some recognition of that assistance on public policy grounds, that is that the assistance has contributed to or is expected to contribute to the apprehension or successful prosecution of other offenders; because the giving of assistance may be the evidence of remorse or contrition; and because incarceration of a known informer is likely to be more onerous. All these factors operate regardless of whether or not the assistance is associated with, or diverse from, the particular offence on which the offender is to be sentenced. It is not, therefore, necessarily the case that assistance provided in relation to one criminal enterprise but not another will result in a discount of the sentences related to the enterprise in respect of which assistance was given, but not other offences. If a prisoner is known to be an informer, and therefore to be at risk whilst in prison, it is hardly likely that those from whom the threats are feared will distinguish between the offences in respect of which the information is provided.
It is, however, open to a sentencing judge to vary the discount applicable to different sentences: Gallagher at 230-231, and in this case there was good reason to do so. The respondent was, in effect, being sentenced in relation to two distinct criminal enterprises, each giving rise to a separate set of offences, those being the drug offences on the one hand, and those associated with the murder of Toumazis on the other. In relation to the murder, the respondent gave direct and significant assistance. In relation to the drug conspiracies, he was less forthcoming. That alone, even taking into account the common factors of more onerous incarceration and public policy, would warrant consideration being given to differential discounts. The fact that the respondent did not make full disclosure in relation to the drug conspiracies is a powerful reason for moderating the discount in relation to those sentences.
A fifty percent discount on the accessory sentences, while in my view at the very top of the available range, could be justified. But that is not so when the drug charges are considered. I agree that those discounts exceeded the range available in the exercise of legitimate discretion.
For these reasons, and, except where these reasons disclose a different view, otherwise for the reasons expressed by Dowd J, I agree with the orders his Honour proposes.
DOWD J: This is an appeal by the Director of Public Prosecutions under s5D of the Criminal Appeal Act 1912, against sentences imposed upon Nedhal Hammoud, the respondent, by Woods QC DCJ in the Sydney District Court on 9 March 2000.
On 8 March 2000, the respondent had adhered to pleas of guilty on the charges set out hereunder, and was sentenced in respect of each charge, as follows:
Conspiracy, between 11 and 16 June 1999, to supply a large commercial quantity of heroin contrary to ss25(2), 26, and 33(a) of the Drug Misuse and Trafficking Act 1985 (“The Drug Act”). This offence carries a penalty of 5000 penalty units or imprisonment for life, or both.
On this count, the respondent was sentenced to two years and 6 months, to commence from 19 August 1999, and to expire on 18 February 2002, and an additional term of two years and six months to commence on 19 February 2002, and to expire on 18 August 2004.
Conspiracy, on 16 June 1999, to supply a commercial quantity of cocaine, contrary to ss25(2), 26, and 33(2)(a) of the Drug Act, which carries a penalty of a fine of 3500 penalty units or imprisonment for twenty years, or both.
The respondent was sentenced to a fixed term of two years imprisonment to commence on 19 August 1999, and to expire on 18 August 2001.
Possessing on 19 August 1999 an unlicensed firearm, contrary to s7(1) of the Firearms Act 1996, which carries a penalty of ten years imprisonment.
The respondent was sentenced to twelve months imprisonment, commencing on 19 August 1999, and expiring on 18 August 2000.
Accessory after the fact to murder between 30 May 1998 and 1 June 1998, contrary to s349(1) of the Crimes Act, which carries a penalty of imprisonment for twenty-five years.
The respondent was sentenced to a minimum term of six months imprisonment to commence on 19 February 2002 and to expire on 18 August 2002. An additional term of six months was imposed to commence on 19 August 2002, and to expire on 18 February 2003. Two counts of conceal serious offence on a Form 1 were taken into account in this sentence.
Accessory after the fact to wounding with intent to cause grievous bodily harm, between 30 May 1998 and 1 June 1998, which carries a penalty of five years imprisonment, contrary to s350 of the Crimes Act.
The respondent was sentenced to a minimum term of six months imprisonment to commence on 19 February 2002, and to expire on 18 August 2002. An additional term of six months was imposed, to commence on 19 August 2002 and to expire on 18 February 2003.
The respondent was arrested on the drug offences on 19 August 1999. Bail was refused and he has remained in continuous custody since that date.
Facts Concerning the Accessory Offences
A group of five males, including a Kris Toumazis and a Nicholas Lambos were drinking at a night club in Paddington at about 3am on 30 May 1998. An altercation arose between these men and the respondent over comments made to a female in the respondent’s company. The altercation continued outside the night club, where the respondent was joined by Bassam Hamzy and Kader Chakaik.
As the five men left in a motor vehicle, Chakaik kicked the vehicle a number of times. The driver of the vehicle, together with Toumazis and Lambos, left the car and chased Chakaik, Hamzy and the respondent in an area near Oxford and West Street, Paddington. Hamzy produced a pistol and discharged seven shots, wounding Toumazis in the chest, causing him to fall to the ground. He was shot again in the hip by Hamzy. Toumazis later died in hospital. Lambos received a wound in the chest and shoulder region. He was later found by police and taken to hospital.
Chakaik, Hamzy and the respondent ran along West Street, and were called upon to stop by police, one of whom fired at the three men, after the police contend that Hamzy raised his pistol in the direction of the police.
The respondent escaped by taxi and met Hamzy and Chakaik in Parramatta. At Hamzy’s suggestion, they proceeded to the Liberty Plains Motor Inn at Lidcombe, where they discussed what had happened.
At the motel, Hamzy told the respondent that all of them “were in it together”, and that they had to get out of it together, and that everything that had happened was because of the respondent. Both at Parramatta and at the motel, Hamzy had a gun, the gun being tucked into his trouser belt. Hamzy told the respondent that he had used the gun.
The two men agreed to go to Melbourne, Hamzy telling the respondent that he was going overseas; that he blamed the respondent for what had happened, and that the respondent was to see things through or “we’ll end it right now”. The respondent understood Hamzy to be threatening him, and as a result, the respondent decided to go along with him.
The two men obtained their passports and flew from Melbourne to Lebanon, Chakaik having flown to Lebanon on 31 May 1998.
In Lebanon, there was a falling out between the respondent and Hamzy, and the respondent was threatened by Hamzy. The respondent travelled to Romania for a few weeks. The respondent’s brother later visited Lebanon and persuaded the respondent to return with him, which happened on 29 September 1998, resulting in the respondent contacting a solicitor and then the police.
The respondent was granted bail, but whilst on bail, committed the conspiracy and unlicensed firearm offences.
Conspiracy to Supply a Large Commercial Quantity of Heroin
Lengthy investigations were carried out by the police internal affairs unit in relation to the supply of prohibited drugs by a serving police officer, Yaghi, and his associates from May 1999. The respondent, through various telephone intercept devices, was identified as one of those associates.
In June 1999, Yaghi telephoned another associate, Moussa, and told him that both the respondent and himself had taken over a heroin supply business from a person whose premises had been raided by the police. Discussions were made about obtaining blocks of number four grade heroin from that person, at a cost of $45,000 per block.
The respondent and Yaghi flew to Melbourne on 13 June 1999, where they were kept under surveillance. They returned to Sydney on 15 June 1999. Telephone intercept recordings were made of discussions about the sale of fifteen blocks of number four grade heroin at a price of $60,000 each, and similar prices, and there were discussions describing the heroin and its place of origin.
It was not contended by the Crown that the heroin was actually supplied, and although there were suggestions that the conspiracy was an attempt at ripping off the participants, there is no doubt that the participants were in earnest in their discussions. There is no issue that the respondent intended that the sale of a large commercial quantity of heroin would be carried out.
Conspiracy to Supply a Commercial Quantity of Cocaine
On 16 June 1999, telephone intercepts revealed discussions between Yaghi, the respondent, and other co-conspirators named Andreou and Droubi, concerning a conspiracy to supply heroin. Discussions indicated a sale price of $4200 an ounce, and quantities including ten and sixteen ounces. Andreou actually asked for the supply of sixteen ounces in one conversation, which the respondent agreed to. There is also reference to the purity of the cocaine as being eighty to ninety percent.
Possess Unlicensed Firearm
Pursuant to a search warrant on the premises of the respondent, Andreou, and another, on 19 August 1999, police located a small quantity of white powder, found to be cocaine. Police also located a loaded Norinco brand .45 calibre self loading pistol under the respondent’s mattress. The appellant was arrested on the possession charge.
Subjective Features
The respondent is twenty-seven years of age, as he was at the time of sentence, and was a security guard by occupation. He had previous Children’s Court Offences for three counts of assault and robbery, and one count of malicious wounding; and convictions in November 1991 for offensive conduct, in January 1998 for aid and abet drive manner dangerous, and June 1999 for violent disorder.
The respondent had been educated to a Higher School Certificate standard and previously worked as a chef and security guard. He has no history of drug or alcohol related problems, and at the time he was taken into custody, he was residing with his parents who gave him a stable upbringing. He is a father of a three year old child.
The respondent gave considerable assistance to the police, and it is accepted that in respect of the murder and wounding offences, the assistance to be given by the respondent is important and significant. The assistance on the drug offences is not as great, it being noted that the respondent has been, to some extent, selective in the assistance with regard to the drug offences.
Structure of the Sentencing
The overall effect of the sentences was that the respondent would spend a cumulative minimum term commencing on 19 August 1999, and concluding on 18 August 2002, and an additional term of two years commencing on 19 August 2002, to expire on 18 August 2004.
I set out below a chart of His Honour’s reasoning process, noting that His Honour took into account, in fixing an appropriate basic sentence, that there was a plea of guilty attracting a discount under s442B of the Crimes Act. I must say that a person of twenty-five years at the time of the offence and, at sentence, twenty-seven years of age, in crimes such as this, being probably older than a significant number of criminals in the justice system, does not seem to me to warrant any significant discount on the basis of his youth.
His Honour discounted each sentence by fifty percent for the assistance given. His Honour then found special circumstances and enlarged the additional term to fifty percent for the con-concurrent sentence.
Submissions on Appeal
I will deal first with the submissions of the respondent. The respondent relied on R v Baker [2000] NSWCCA 85, and in particular, the judgment of Spigelman CJ at paragraph 19, with which I respectfully concur:
“In my opinion there is no warrant for this Court to interfere with the sentencing discretion by her Honour. The authorities make it clear that Crown appeals should be rare. It may be that present practice does not reflect that restriction, nevertheless, successful Crown appeals should be rare.”
It was thus submitted that this Court should not interfere.

The respondent submitted that the sentences imposed do not blatantly cry out for appellate intervention; that His Honour carried out an extremely careful sentencing structure procedure; and that the Crown appeal is, in reality, an expression that the respondent ought to have served a more severe sentence. The respondent submitted that in the circumstances, the sentence of ten years, as the first step for the charge of conspiracy in relation to heroin, was appropriate.
As I have already indicated, I do not think that the age of the offender is of particular relevance, but a plea of guilty, in my view, means that for a conspiracy to supply a large commercial quantity of heroin, notwithstanding that it was a very active conspiracy with a clear intent on the part of the respondent to commit the offence, the sentence of ten years, although light, is not an inappropriate starting point. This still reflects the seriousness of the offence.
I consider that the starting point for the conspiracy to supply the commercial quantity of cocaine is similarly not inappropriate.
In relation to the fourth and fifth sentencing matters, the two accessory charges, His Honour the sentencing judge, expressed himself as reflecting the objective seriousness, taking into account the plea of guilty.
It is submitted by the respondent that His Honour was correct in accumulating the two accessory offences on top of the two conspiracy sentences, and correct in principle by making the unlicensed pistol charge concurrent with the conspiracy charges.
The respondent further submitted that the appropriate discount had been applied; that the assistance was of a high level; that His Honour could not go into the delicate nature of the assistance given; and that the respondent’s assistance continues, notwithstanding the Crown appeal.
It was further submitted that the sentencing statistics admitted into evidence show that the sentence is not out of line with the offences dealt with in the statistics. The respondent further submitted that the sentences achieved as a result of s442B of the Crimes Act are a true application of the principle of discount for assistance; that it is an important qualification that the sentence must not be unduly disproportionate, and that in this case, it was not.
The Crown submitted that the sentences do not reflect the objective seriousness of the crime concerned, and that subjective factors ought not be allowed to outweigh the objective factors. The Crown further submitted that deterrence is a significant aspect of sentencing, and, as one of the main purposes of punishment is to protect the public from people with similar impulses to commit crimes, then a severe punishment is warranted.
The Crown further submitted that in relation to conspiracy, the penalty for the substantive offence is the starting point, and that in expressing a maximum penalty of life imprisonment and a large fine, this is treated by the Parliament as an extremely serious offence. The Crown further submitted, relying on R v Liang (Unreported, NSWCCA, 2/6/1995, Meagher JA, Sully and James JJ), that people who fall into the category of those who sell only, are in the worst category of offence, and that the overall amounts involved with which the conspirators were dealing, as His Honour the sentencing judge, Woods DCJ found, were very substantial quantities indeed. The Crown further pointed out that the drug offences were committed whilst the respondent was on bail for the accessory offences, thus creating an additional aggravating factor.
The Crown also submitted that the maximum penalty available for accessory after murder indicates that this is considered by the legislature to be a very serious offence, and in the present case, the course of conduct engaged in by the respondent, although he contended that he was in fear, constituted very elaborate preparations, and that he was very heavily involved in that offence.
In relation to assistance to authorities, the Crown submitted that fifty percent was in fact a generous discount where, for the drug offences, the assistance given was nowhere near the same order as for the accessory offences, and that this allowance infringed R v Gallagher (1991) 23 NSWLR 220 at 230-231, where Gleeson CJ made it clear that a sentencing judge is not required, where it would be inappropriate to do so, to apply the same level of discount for all offences, and that His Honour here erred. The Crown relied on the fact that s442B(2) of the Crimes Act requires the sentence not to be unreasonably disproportionate to the nature and circumstances of the offence.
The Crown also referred to the decision of Hunt and Badgery-Parker JJ in R v Cartwright (1989) 12 NSWLR 243 at 252:
“The discount will rarely be substantial unless the offender discloses everything which he knows.”
The Crown also submitted that there has been significant double counting, taking into account that the youth factor was used in reducing the basic sentence, and also used under special circumstances, in terms of s5(2) of the Sentencing Act 1989. Section 442B(3)(g) of the Crimes Act requires a court to reduce a sentence, having taken into account that the offender concerned will suffer harsher custodial conditions. Having taken into account the reduction for assistance to be given and to do it also in determining special circumstances, is to give the respondent a double benefit.
In short, the Crown submitted that the overall sentence is manifestly inadequate.
Examination of Submissions
As I have indicated, the fixing of ten years as the appropriate sentence for the conspiracy to supply a large commercial quantity of heroin is within the range, taking into account a discount for a plea of guilty. On the same basis, I consider that the fixing of eight years for the conspiracy to supply a commercial quantity of cocaine is, although at the lower end of the range, within the range of a proper sentence for that offence.
The possession of the unlicensed firearm on the basis of a plea of guilty, in the light of the convictions on other matters to which the possession of the gun is related, is in my view, although low, within the proper range.
As to the sentence on accessory to murder, I accept that an accessory after the fact is of less culpability than accessory to a murder or before. I also accept His Honour’s view that the two accessory offences are largely involved in the same activities and arise out of the same series of incidents. However, even though the respondent says that he was intimidated by Hamzy, the preparation and elaborate plans that went into the accessory offence, and the extent of the accessorial activities, were very substantial. In my view therefore, a two year penalty for an offence that carries twenty-five years is manifestly inadequate, particularly when two other lesser offences were said to be taken into account in the Form 1.
The fact that an offence is taken into account is a recognition of criminal activity which in most cases will increase a sentence from what would otherwise be given. In my opinion, the totality of criminality reflected in this offence is clearly not reflected by a sentence of two years. I would have thought that a proper penalty in the circumstances would have been a sentence of five years on the basis of a plea of guilty.
I consider that the sentence of two years for accessory after the fact to wounding with intent to do grievous bodily harm, being largely coextensive with the other accessorial offence, is within an appropriate range taking into account the plea of guilty.
As I have earlier indicated in relation to the respondent’s youth, for someone who was twenty-five years of age at the time of the drug offences and twenty-seven years of age at the time of sentencing, it is difficult to see how this can be contended by His Honour as being a factor that is relevant on sentencing. These were matters involving a high level of organisation and planning. It was a commercial activity, and it does not seem to me that youth is a sentencing factor of any significant relevance.
In relation to the assistance to authorities, it is clear that the extent of the reduction in relation to the two accessorial offences, may be within an appropriate range, as the evidence which the respondent would give would be fairly cogent and it is acknowledged by the Crown that the assistance is very substantial. Thus, although the reduction of fifty percent is extremely generous in the circumstances of the case, I do not think that this is indicative of error.
The assistance however, in relation to the drug offences, is of a much lesser order than the other offences, and in applying the principles in Gallagher, I would think assistance of the order of fifty percent is unduly generous, and that His Honour has erred in granting a discount of this order. I would have thought that in respect of both drug offences, a reduction allowed of twenty-five percent would have been more appropriate. There is no issue that the respondent was selective in the assistance that he provided.
Section 442B of the Crimes Act makes it clear that a court must not give a reduction which becomes unreasonably disproportionate to the nature and circumstances of the offence, and in my view, his Honour has erred in the extent of the discount in the light of the serious nature of the conspiracy offences.
The appellant claimed that the special circumstances finding of the sentencing judge took into account the youth factor with which I have already dealt, and also the extent to which the respondent would be kept in custody. I consider that the issue of custody is largely subsumed into the discount for the assistance given. However, this would not have precluded the issue of the nature of custody being taken into account, in my view, for assessing special circumstances under s5(2) of the Sentencing Act 1989, although the extent of the lengthening of the additional term should be somewhat more reduced because of the discount already given.
Accumulative Sentences
I agree with the learned sentencing judge that although there are two separate offences involved in the two accessorial offences, the nature of the two offences and the consequent actions were so closely related that it is proper that the sentences be imposed concurrently.
However, In relation to the two conspiracy charges, his Honour’s reasons for making these two sentences concurrent are that they dealt with the same “rogue” policeman, and were during the same period, and therefore the two sentences should be concurrent. In my view, this is an invalid process of reasoning. If two murders had been committed at about the same time, arising out of a connection with the same person, but were nonetheless two separate murders, there is no way that the fact that they were at the same time, or that some relationship to one particular person or co-offender would make it proper that the two sentences be concurrent. This does not reflect the objective seriousness of each of the offences. In fact, it shows a flaw in the sentencing processes, as the sentences for each charge should reflect the criminality of each of these very serious conspiracy offences.
In my view, in all the calculations which his Honour carefully carried out, the ultimate total sentence in no way reflects the total criminality of the five offences to which the respondent pleaded guilty, noting that there were additionally two matters taken into account, and on that issue of totality alone, I consider that there is manifest inadequacy in the total sentences imposed, and that his Honour therefore erred in the sentencing process.
Re-sentencing
Since His Honour dealt with the sentencing of the respondent, the Crimes (Sentencing Procedure) Act 1999 has come into effect and this Court has additional powers to that which his Honour was able to exercise.
In re-sentencing, the court is obliged to take into account the principles commonly called double jeopardy, and the obligation of the court to impose the minimum sentence which a court might have imposed at first instance, rather than a sentence that the court itself considers appropriate for the particular offences.
In accordance with the principles in Pearce v The Queen (1998) 194 CLR 610, it is clearly desirable that a sentence be fixed for each offence and that there be a regime of sentences constructed which reflects the totality of the criminality involved. Therefore, on an appellate basis, I set out below what I consider as the appropriate sentences. In this I have had regard to the principles and procedures set out in R v Bavadra [2000] NSW CCA 292.
I consider that the minimum sentence that might have been imposed for the offence of possess unlicensed weapon, is a period of twelve months. This is a distinct offence for which there is no discount available for assistance, but does reflect the plea of guilty that was entered.
For the offence of accessory after the fact to murder, on the basis of a plea of guilty, and taking into account the assistance to be given, on a re-sentencing basis, a sentence of three years should be imposed, particularly taking into account the two additional offences on a Form 1.
I consider that on a re-sentencing basis, a proper sentence for the offence of accessory after the fact to wounding with intent to do grievous bodily harm, taking into account the plea of guilty and the assistance, should be one year.
On a plea of guilty with the assistance to be given, on a re-sentencing basis, a proper minimum sentence for the conspiracy to supply a commercial quantity of cocaine, is a period of four years, and on the same basis, for the offence of conspiracy to supply a large commercial quantity of heroin, a proper sentence is a period of five years.
I consider, as I have indicated, that the offences of accessory after the fact to murder and accessory after the fact to wounding with intent to do grievous bodily harm, should be concurrent, but that the other offences should be part concurrent and part cumulative to achieve a reflection of the total criminality. I therefore set out the proposed orders below to achieve what I consider is an appropriate total sentence.
I would commence the sentence of twelve months in relation to possess unlicensed firearm, from the date of arrest. I would, for the offence of accessory after the fact to murder, being the sentence of three years, postpone the commencement of that sentence for six months from 19 August 1999, and therefore would commence that sentence from 19 February 2000.
I would propose for the accessory after the fact to wounding with the intent to do grievous bodily harm, a penalty to commence on the same date as the accessory after the fact to murder sentence, namely 19 February 2000.
For the offence of conspiracy to supply a commercial quantity of cocaine, I would commence the sentence of four years on 19 February 2001.
I would commence the sentence for conspiracy to supply a large commercial quantity of heroin from 19 February 2003. For that last offence, I would impose a non-parole period of two-and-a-half years, which I find reflects the special circumstances of the nature of the custody and that the parole period is at the end of the series of partly concurrent and partly cumulative sentences.
The overall effect of this accumulation would be a custodial sentence of a non-parole period of six years, with a total sentence of eight-and-a-half years.
Accordingly, the orders that I would propose are as follows:
The sentences are set aside.
The convictions are confirmed.
On the charge of possessing an unlicensed firearm, that the respondent be sentenced to a fixed term of imprisonment for twelve months from 19 August 1999 to conclude on 18 August 2000.
On the charge of accessory after the fact to murder, that the respondent be sentenced to a fixed term of three years imprisonment to commence on 19 February 2000 partly concurrent with the previous sentence and partly cumulative, to conclude on 18 February 2003.
On the charge of accessory after the fact to wounding with intent to do grievous bodily harm, that the respondent be sentenced to a fixed term of twelve months imprisonment concurrent with the previous sentence to commence on 19 February 2000 and to conclude on 18 February 2001.
On the charge of conspiracy to supply a commercial quantity of cocaine, that the respondent be sentenced to imprisonment for a fixed term of four years to commence on 19 February 2001, partly-concurrent with the previous sentences and partly-cumulative for accessory to murder, and to conclude on 18 February 2005.
On the charge of conspiracy to supply a large commercial quantity of heroin, that the respondent be sentenced to a term of five years imprisonment to commence on 19 February 2003 and to conclude on 18 February 2008. I fix a non-parole period of two years six months to conclude on 18 February 2005, from which time the respondent will be eligible to apply for parole.

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LAST UPDATED: 22/12/2000