R v JRD

[2007] NSWCCA 55

New South Wales
Court of Criminal Appeal

CITATION:	R v J.R.D. [2007] NSWCCA 55
HEARING DATE(S):	14/02/2007
JUDGMENT DATE:	5 March 2007
JUDGMENT OF:	McClellan CJ at CL at 1; Bell J at 2; Howie J at 3
DECISION:	1. The sentences imposed by Judge Donovan are quashed; 2. In respect of the offence under s 178C the respondent is sentenced to a fixed term of 2½ months to commence from 5 January 2007 and to expire on 19 March 2007; 3. In respect of the offence of receiving and taking into account the matters on the Form 1 the respondent is sentenced to imprisonment for a fixed term of 10 months to commence on 20 March 2007 and to expire on 19 January 2008; 4. In respect of the offence of supply the respondent is sentenced to a non-parole period of 16 months to date from 20 January 2008 and to expire on 19 May 2009 with a balance of term of 8 months to expire on 19 January 2010.
CATCHWORDS:	Criminal Law - Sentencing - Crown Appeal - Respondent charged with three offences - judge sentences for each offences separately - imposes suspended sentence on each - whether manifestly inadequate - whether approach to sentencing erroneous - discount for assistance - whether excessive - respondent re-sentenced.
LEGISLATION CITED:	Criminal Appeal Act 1912 - s 5D Drug Misuse and Trafficking Act 1985 - s 25(2) Crimes (Sentencing Procedure) Act 1999 - ss 12, 21A(2)(d), 21A(3)(j), 23(3), 67, 99(c)(ii)
CASES CITED:	R v BCC [2006] NSWCCA 130 R v Wall [2002] NSWCCA 42 Dinsdale v The Queen (2000) 202 CLR 321 R v MAK and MSK [2006] NSWCCA 381 McNaughton v R [2006] NSWCCA 242 R v Zamagias [2002] NSWCCA 17 R v Perez [2004] NSWCCA 218 SZ v R [2007] NSWCCA 19 York v The Queen (2005) 79 ALJR 1919 Johnson v The Queen (2004) 78 ALJR 616
PARTIES:	Regina v J.R.D.
FILE NUMBER(S):	CCA 2006/2494
COUNSEL:	V. Lydiard - Crown H. Dhanji - Respondent
SOLICITORS:	S. Kavanagh - Crown S. O'Connor - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/11/1044
LOWER COURT JUDICIAL OFFICER:	Donovan DCJ
LOWER COURT DATE OF DECISION:	16/10/2006

2006/2494

McCLELLAN CJ at CL
BELL J
HOWIE J

MONDAY 5 MARCH 2007

REGINA v J. R. D.

Judgment

1 McCLELLAN CJ at CL: I agree with Howie J.

2 BELL J: I agree with Howie J.

3 HOWIE J: The Crown has appealed pursuant to s 5D of the Criminal Appeal Act against three suspended sentences imposed upon the respondent by Judge Donovan QC (the Judge).

4 The respondent was before the District Court for three separate and distinct offences. The first was an offence of supplying a commercial quantity of a prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act. The maximum penalty for this offence is relevantly imprisonment for 20 years. There is a standard non-parole period prescribed of 10 years. The second offence was receiving contrary to s188 of the Crimes Act for which there is a maximum penalty of imprisonment for 10 years. In respect of this matter the respondent asked the Judge to take into account two further offences contrary to s 188. The third offence was obtaining credit by fraud contrary to s 178C for which there is a maximum penalty prescribed of imprisonment for 12 months.

5 On 16 October 2006 the Judge sentenced the applicant as follows: on the supply offence a non-parole period of 18 months with a balance of term of 6 months; in respect of the offence of receiving and taking into account the Form 1 matters, a non-parole period of 18 months with a balance of term of 6 months; on the fraud offence a sentence of a fixed term of 12 months. Each of the sentences was suspended under s 12 of the Crimes (Sentencing Procedure) Act upon the respondent entering into a bond.

The facts

6 The facts of each offence can be briefly stated. The police were lawfully intercepting telephone calls made by, or to, the applicant. On 17 June 2004 a co-offender, Erlambang, informed the respondent that he wanted “one thousand lollies” and that he would bring “the paper”. “Lollies” was code for the drug ecstasy. The respondent then called another person, Anderson, and arranged to meet in a hotel car park at about 5 pm. About an hour after this meeting the respondent contacted Erlambang and arranged for him to attend the respondent’s premises. There were further phone calls concerned with arrangements for the supply of the drug. At about 9.30pm the respondent called Erlambang and said, “I’ve got it”. Shortly thereafter Erlambang arrived at the respondent’s premises and was given the drugs. A listening device captured the two of them later counting $14,500. Further conversations between the two indicated that the drug supplied was short by 100 tablets. The next morning the respondent spoke to his supplier and informed him that Erlambang was not happy but added, “I said we’re going to fix them up next time”. The respondent obtained a commission of $500 for his efforts. The amount of drug supplied was 250 grams. The commercial quantity for MDMA is 125 grams.

7 The charge of receiving related to the respondent’s attempts to dispose of some crates of vodka that had been stolen by other offenders, one being Anderson, the person who had supplied the drugs the subject of the first charge. Seven pallets of alcohol worth $90,000 had been stolen from a warehouse on 6 or 7 May 2004. During intercepted telephone calls on 18 May the respondent was heard asking the recipient of the call whether he drunk vodka and indicating that there were 235 boxes at a cost of “a hundred a box”. Later the respondent contacted Anderson and told him that he thought he had arranged the sale for “a hundred a time”. The respondent indicated that he had to lower his commission and Anderson said that he would reduce his own profit to assist. There were further conversations between the persons who had stolen the vodka and the respondent about his ability to sell it. The respondent at one stage told his de facto that he would get $900 from this venture. The planned sale did not proceed and the respondent made calls endeavouring unsuccessfully to secure a purchaser.

8 The two matters taken into account related to the respondent’s involvement with other stolen goods. On 5 March 2004 the respondent asked an associate whether he was interested in purchasing a scissor lift. At one stage police saw the applicant driving a stolen truck with the lift on its tray. The truck was driven to a caravan park in Mt White where the lift was unloaded from the truck to another vehicle and taken to the home of the purchaser. The lift was valued at $18,000. The second offence alleged that the respondent was an accessory after the fact to the receiving of electrical appliances stolen on 31 May 2004. Shortly after the theft the respondent spoke to an associate asking him to hire a van and to leave it at a designated location. This was done and the van was used to transport the stolen goods. Police later stopped the van and property worth over $66,000 was recovered. After the arrest of the driver the respondent rang his associate and advised him of a false story to tell the police.

9 The fraud matter concerned a false document used by the respondent to obtain a loan to purchase a motor vehicle. On 6 March 2004 he telephoned an associate and asked to be supplied with a letter “like last time please”. The respondent later came into possession of a document indicating that he had been employed with a specified company since 1999 and was in receipt of a salary of $725 per week. In fact the respondent was unemployed and in receipt of a disability pension. As a result of the use of this document the respondent obtained credit to the value of $24,815.39 that otherwise would not have been made available to him.

The subjective case

10 The respondent was born on 8 June 1951. He had an extensive criminal record from 1965 to 1981 for offences of dishonesty. He had during that time been sentenced to periods of imprisonment. He was last sentenced to prison in 1985 for the possession of an unlicensed pistol. In 2001 he was fined for hindering the investigation of a serious indictable offence, goods in custody and possessing a radio transmitter.

11 A pre-sentence report revealed that the respondent had explained his earlier criminal lifestyle by the fact that he was rebellious and associated with a poor peer group after 1967 when his stepfather, to whom he was very close, died. He said that his attitude changed after he met his de facto, Ms McLoughlin. They have three children aged 22, 15 and 9 years. The respondent suffered a motor vehicle accident in 1990 that rendered him unfit for work. He and his de facto each received a disability benefit and the family also received an allowance. They lived in a rented house provided by the Department of Housing.

12 In explanation for the offences the respondent told the officer preparing the report that he had been “set up to get me in trouble” and that he had been pressured into offending. He stated that there was a “conspiracy” against him. He said that he did not know that the scissor lift had been stolen. He also explained that he had been led into selling items and would not have done so had he been able to rely upon the judgment of his wife. The officer opined that the respondent was “someone who is easily influenced or manipulated without being able to give due thought to the severity of the consequences”. Because of his attitude to the offences he was assessed as unlikely to require or benefit from supervision.

13 There was a report in evidence from a psychologist. She stated that when she interviewed the respondent he presented as “dazed, confused, and highly agitated and stressed”. She stated that he appeared to be of “dull intelligence”. The respondent said that he could not have found her rooms had it not been for his wife. He told her that since his accident, his memory had been affected, he could not make decisions and he “relies upon others to tell him what to do”. The psychologist concluded:

“[The respondent’s] presentation at our interview and objective cognitive assessment indicate that he has significant and measurable cognitive deficits, over a range of tasks involving verbal learning and memory, perceptual organisation, and motor speed and attention. His level of intelligence also shows a relative inferiority in verbal areas of ability compared to nonverbal problem solving. His verb intelligence lies in the lowest 2 percentile of population norms whereas his nonverbal intelligence sits around the low average range………..”

14 The respondent had medical problems. He suffered poorly controlled type 2 diabetes, hypertension and ischaemic heart disease. He had a laminectomy in 2000, a left shoulder reconstruction in 1990, suffers from Crohn’s disease of the intestine, and was taking anti-depressants to relieve his depression and chronic anxiety. He had chronic pain arising from his back injury suffered in the motor vehicle accident.

15 There was evidence of the respondent’s assistance to the Crime Commission and the Police integrity Commission in relation to an investigation of a former police officer. He had signed an undertaking to give evidence against the officer, although no prosecution had been commenced at the time of sentencing.

16 The applicant’s de facto wife gave evidence before the Judge. She herself was charged with supplying a commercial quantity of MDMA arising from the respondent’s supply of the 1,000 tablets on the basis that she had aided and abetted him in that crime. She was also sentenced to a term of imprisonment that was suspended. She gave evidence as to the effects upon her and her family of the assistance the applicant had given to authorities and the fears that she held for their safety as a result. She indicated that her husband expected to receive a custodial sentence and that he believed he would not survive it.

The Crown submissions

17 The Crown submitted “in the circumstances of this case the suspended sentences were not appropriate or available”. The Crown argued that the Judge erred in deciding in each case to impose a suspended sentence before determining on the appropriate sentence to be imposed for the offence. In that regard the Crown relied upon decisions of this Court as to the manner in which a court should approach sentencing under the Crimes (Sentencing Procedure) Act such as R v BCC [2006] NSWCCA 130 in the judgment of Hall J at [51] and following.

18 Next the Crown submitted that the Judge failed properly to apply the principles in Pearce in relation to sentencing for multiple offences in that the Judge gave no consideration to the question of totality before determining to suspend the sentences. The Crown argued that, had he considered the totality of the criminality before him, the Judge would have determined that an overall sentence of more than two years was called for and, therefore, could not have suspended any of the individual sentences.

19 The Crown also submitted that the Judge had erred in giving a discount for the plea and assistance that was “overly generous”. The Judge said in relation to the supply offence

“…….It seems to me that the level of discount which this matter warrants is 25 per cent for the plea and I think it is not unreasonable to consider that the assistance warrants a further discount of 60 to 70 per cent………..”

In sentencing for the receiving offence the Judge referred to the “factors I have set out in the supply matter” and, when sentencing for the fraud offence, referred to “the reasons I have set out above” when determining not to impose a period of full-time custody for either offence. It is clear that the Judge must have taken into account a discount of the same proportion when sentencing for each of the offences.

20 The Crown focussed its attack principally upon the sentence for the supply offence submitting that, in light of the standard non-parole period of 10 years, the sentence imposed, as to its term, was manifestly inadequate to reflect the objective seriousness of the offence before any consideration was given to the fact that the sentence was suspended.

The respondent’s submissions

21 Mr Dhanji for the respondent accepted that the sentences were lenient but submitted that they were within the sentencing judge’s discretion. He reminded the Court of the principles governing Crown appeals and set out in his written submissions the often-quoted passage from R v Wall [2002] NSWCCA 42 where Wood CJ at CL summarised those principles.

22 It was submitted that each of the sentences was appropriate. In respect of the supply offence Mr Dhanji relied on the principle of parity. He noted that the co-offender Erlambang was sentenced by the Judge to imprisonment for 4 years with a non-parole period of 2 years. He argued that, after a discount for a plea, the starting point for that sentence must have been 5 years. It was submitted that in the respondent’s case a discount of 60 per cent for the plea and assistance should be applied to that starting point so that 2 years was an appropriate sentence to be imposed upon him. It was pointed out that the respondent’s de facto received the same sentence as the respondent even though she could not rely upon his assistance to the authorities. No Crown appeal has been lodged against either of those sentences.

23 It was argued that, even putting aside the issue of parity, the sentence for the drug offence was not inadequate and that the Judge had not erred in his approach to determining that sentence. It was submitted that, in light of the respondent’s strong subjective case, the sentence of 2 years was within range and the decision to suspend the sentence could not be said to be “unreasonable or plainly unjust”: Dinsdale v The Queen (2000) 202 CLR 321 at 324.

24 It was submitted that there was no breach of the Pearce principle in the approach taken by the Judge. It was argued that it was appropriate for the Judge to consider each sentence individually and determine what the appropriate sentence for each should be and how it should be served. It was submitted that the only relevance of the further offences before the Judge was that they were part of his criminal antecedents: see R v MAK and MSK [2006] NSWCCA 381.

25 In respect of the discretion of the Court not to interfere even if it considers the sentences to be manifestly inadequate, the respondent relies upon an affidavit in which he expresses his fear of reprisals and his belief that he will not be safe while in custody by reason of the assistance he has given. The respondent also complains of the increase in his anxiety caused by the Crown appeal.

Did the judge err?

26 The Judge took, what must be said to be, an unusual course in sentencing the respondent. He approached the matter by dealing with each of the offences separately, as if each represented a completely independent sentencing exercise. For example, his Honour commenced with the supply offence and considered the facts of that offence, the subjective features of the respondent, and then imposed the sentence for that offence before moving on to consider the receiving offence. At one point in his sentencing remarks for the supply offence the Judge said:

“I am aware that he has other offences charged before me and I will come to them later. Nevertheless, I have to deal with this matter at the present and consider what is the appropriate penalty.”

27 In my opinion this was an erroneous way of carrying out the task of sentencing the respondent. I do not believe that, in a case where the one offender is being sentenced for a number of offences, it can ever be appropriate to determine the sentence for each offence as if it were the only matter before the court. True it is that the court must decide the appropriate sentence for each offence independently and that the sentence for one offence cannot be increased simply because there happens to be other offences committed by the offender for which he or she is to be sentenced. But it does not follow that it is irrelevant to the determination of the sentence for one offence that the offender is before the court for sentence on other offences.

28 The principle of proportionality prevents a court from increasing a sentence by reason of past offending: McNaughton v R [2006] NSWCCA 242. It also prevents a court from increasing the sentence for one offence simply because the offender has committed other offences for which sentence is to be passed, whether the other offences were committed before or after the offence under consideration. But it is uncontroversial that the fact that an offender has committed offences in the past is relevant to a determination of the sentence to be imposed for the offence before the court: see s 21A(2)(d) of the Crimes (Sentencing Procedure) Act and McNaughton. So too it may be relevant that an offender has committed offences for which he or she has been sentenced at a time after the offence for which sentence is being imposed: R v MAK and MSK [2006] NSWCCA 381. Therefore, it would be illogical that the court could not take into account other offences for which the offender is before the court for sentence.

29 But it is obviously relevant that the offender is before the court for sentence for more than one offence when the penalty for any individual offence is being determined. Clearly it may be a fact or circumstances relevant to the commission of a particular offence that, at or about the time when that offence was committed, the offender committed other offences. It would be relevant, for example, to a finding whether the particular offence was an isolated “fall from grace” or whether it was merely an instance of a course of criminal conduct in which the offender was involved at the relevant time.

30 So in sentencing the respondent for any one offence it was highly relevant that all of the offences and the matters on the Form 1 were committed in a period of about four months and that each offence represented a different aspect of the respondent’s overall criminality in that period. Not only was he engaged in a drug trafficking organisation, but he was also acting as a receiver for certain thieves and further he was also acting dishonestly on his own behalf. The fraud offence was clearly relevant to his claim in respect of all of the offences that he was easily led and imposed upon by others because of his low intellect.

31 The fact that an offender is to be sentenced for more than one offence must also have implications for the sentence for any one offence simply because there are statutory and other limitations upon sentencing orders that can be made. For example, there is a limit upon the amount of periodic detention that can be served by way of accumulation of sentences; see s 67 of the Crimes (Sentencing Procedure) Act. The court must before imposing sentence for any one offence have some understanding of what the final sentence will be for all offences simply so that individual sentences can be imposed within available sentencing options. For example, a suspended sentence cannot be imposed where an offender is serving a sentence of imprisonment that has not been suspended: see s 12(2) of the Crimes (Sentencing Procedure) Act. Some limitations will be imposed upon available options simply by reason of the utility of making orders which are on their face contradictory, for example by imposing a sentence of periodic detention on one offence and a sentence of full-time imprisonment on another.

32 It is obvious that, before a court commences to pass sentence for a particular offence, it must have determined the ultimate sentencing outcome for that offence. Neither statute nor case law requires a judge to determine, or pass, a sentence in discrete stages without a decision having been reached as to the final sentencing order. For example R v Zamagias [2002] NSWCCA 17, which requires a judge to consider the appropriate sentence before determining how the sentence is to be served, obviously does not require a judge to commence the sentencing remarks without knowing what the final outcome of the sentence will be. It simply requires that, when a court is determining the sentence to be imposed for any offence, it must follow a process of reasoning that is structured consistently with the objects and provisions of the Crimes (Sentencing Procedure) Act. Similarly s 44 of that Act does not require a court to determine the length of the non-parole period without having decided what the balance of the term will be: R v Perez [2004] NSWCCA 218.

33 So when a court is sentencing for multiple offences and before it imposes the sentence for any one offence, it will have considered the outcome for all offences. It will have done so for at least two reasons: firstly, in order to ensure that the court imposes sentences that fall within statutory limitations, that are consistent with sentencing principles and that do not conflict with one another. Secondly it will ensure that the overall sentence imposed reflects the overall criminality of the offences before the court.

34 It is unnecessary in the present case to consider the applicability of the principle set out in Pearce to a situation where a court is imposing suspended sentences. There are obvious cases where the principle cannot literally apply, for example in relation to the imposition of fines because they cannot be accumulated. Nor can suspended sentences be accumulated, at least when they are pronounced, although it might be different if the bonds were revoked: see s 99(c)(ii) of the Crimes (Sentencing Procedure) Act that applies the whole of Part 4 of the Act as if the sentence was being then imposed.

35 Therefore, I have reached the conclusion that the sentencing discretion miscarried by reason of the approach adopted by the Judge in considering the appropriate sentence for each offence in isolation. There can be no argument that at least the supply and the receiving offences each warranted the imposition of a custodial sentence notwithstanding the respondent’s subjective case. The respondent was not so discomforted by his physical condition or so inhibited by his mental disabilities that he could not be an active participant in a number of criminal offences of significant seriousness. Claims that he made to the psychologist and the probation officer about the extent of his physical and intellectual disabilities are simply not borne out by the objective facts of the offences. With respect, the Judge’s finding that the respondent fell within s 21A(3)(j) of the Crimes (Sentencing Procedure) Act, in that he was not fully aware of the consequences of his actions, was not open given the offences committed by him and the recorded conversations of his participation in those crimes.

36 Despite his claim of reform since he had met his wife, the simple fact is that the respondent was participating in the business of a receiver and a drug supplier at the time he was being investigated by police. It is clear from the facts that neither the supply offence nor the fraud offence was an isolated aberration. This is not to suggest that the respondent was to be sentenced other than for the offences to which he had pleaded guilty, but the particular offences have to be seen in the context of each other and of what inferences can be drawn from what the respondent said and did. By considering each offence separately and sentencing as if each stood in isolation one from the other, the Judge failed to consider the offences as a course of criminal conduct in which the respondent was involved for a not insignificant period of time.

37 I have no doubt of the correctness of the Crown’s submission that in each case the Judge erred by deciding to impose a suspended sentence before determining what sentence was appropriate for the particular offence. The sentencing remarks for each offence suggest that is so. In each case the Judge merely recited the facts of each offence verbatim from the statement of facts tendered and there was little, or no, attempt to analyse the criminality of the respondent for any of the offences either considered individually or in combination. Yet the Judge could not determine the appropriate sentence without undertaking such a task. However, in my view, it is obvious from the sentence imposed for the fraud offence that the Judge could not have decided the appropriate sentence for that offence before deciding to suspend the sentence: R v Zamagias [2002] NSWCCA 17 at [26]. The Judge imposed the maximum penalty prescribed for an offence under s 178C yet he could not have concluded that the conduct fell within the worst category of offending even before taking into account the subjective features of the respondent and the appropriate discounts for the plea and assistance.

38 Further the Judge determined that the same sentence was appropriate for the receiving offence as for the supply offence. This was notwithstanding the substantial difference in the maximum penalties for the two offences, the existence of a standard non-parole period for the supply offence, and the very great seriousness with which courts regard offences of supplying drugs. Without any explanation as to how the Judge derived each of the sentences appearing in the sentencing remarks, I can only conclude that he chose to impose in each case the longest sentence that would permit him to suspend the sentence and that was consistent with the maximum penalty prescribed for the offence.

39 It is clear also from what the Judge said about the discount for assistance that he could not have been approaching his task in the appropriate way. The Judge stated that a discount of “60 to 70 per cent” could be granted for assistance without actually deciding what the discount would be. The only explanation is that it did not matter what the precise discount was because the sentences had been predetermined by the decision to suspend them.

40 So far as the specific sentence for the supply offence was concerned it was inadequate even without the order suspending the sentence. As has already been noted, from what was said in the recorded conversations proving the offence it is clear that this was not an isolated incident and the only available inference is that the respondent was in the business of supplying drugs for profit as the middleman between the supplier and the purchaser. I would reject the submission made on his behalf that his criminality was at the “low end of the scale”. In any event there is ample authority that persons at any position in the hierarchy of the supply of drugs should receive significant sentences in recognition of their criminality in performing any role in such a serious criminal enterprise.

41 A non-parole period of 18 months as against a standard non-parole period of 10 years was on its face manifestly inadequate. The Judge did not attempt to apply the authorities of this Court as to how to approach the task of sentencing after a plea of guilty in respect of a standard non-parole period case. This Court has stated on numerous occasions that a judge is not to ignore the standard non-parole provisions just because the offender pleaded guilty, but is to give reasons in accordance with s 54B(3) for departing from the standard non-parole period. This is not to suggest that the standard non-parole period or anything like it was appropriate in the respondent’s case, but there was no attempt to assess the respondent’s criminality with that benchmark in mind.

42 The only reference made to any aspect of the objective circumstances of the supply offence that would have been relevant in determining where in the range of offending the respondent’s conduct lay was a passing reference to the amount of drug involved. The Judge said that one of the factors he could consider in determining not to impose a full-time custodial sentence was the amount of the drug, remarking that it was not at, or close to, the maximum commercial quantity. With respect, if the amount of the drug had been at the level, it would be a case of imposing a sentence of, or above, the standard non-parole period of 10 years. The simple fact is that the amount of drug supplied by the respondent was twice the commercial quantity, which should have indicated that a suspended sentence was inappropriate rather than the converse.

43 With respect, the Judge seems to have accepted assessments of the respondent’s personality without having any regard to the facts of the offences before him. For example, it is impossible to conclude that the respondent was easily led into the commission of the offences. How was this finding consistent with him having arranged to obtain the drug from Anderson and the conversations that followed the finding that the amount supplied was short? How was it consistent with the respondent organising the truck for the receiving of the stolen electrical goods? Where in the fraud offence is there the slightest suggestion that others led the respondent into committing the crime that he initiated for his own benefit? Although this Court generally should give paramountcy to decisions of facts made by sentencing judges, it should not accept them where they are not borne out by the objective facts of the offences committed. As has already been noted, whatever might have been the intellectual and physical disabilities of the respondent, they did not impede him conducting himself as a drug supplier, as a receiver of stolen goods or as a fraudster.

44 I have already commented on the fact that it is impossible to know what discount the respondent received for his plea of guilty and the assistance given because the Judge did not determine what it was. It was apparently somewhere between 85 per cent and 95 per cent, depending upon what discount was given for assistance in addition to the 25 per cent for the pleas. It is obvious that such a combined discount must result in a sentence that is in breach of s 23(3) of the Crimes (Sentencing Procedure) Act, because it must result in a sentence that is “unreasonably disproportionate to the nature and circumstances of the offence”. In any event this Court has recently confirmed that a combined discount for the plea and assistance in excess of 50 per cent will be unusual: SZ v R [2007] NSWCCA 19. In this case a combined discount in excess of 55 per cent is unjustified.

45 There is nothing in the subjective circumstances of the respondent, including his assistance to the authorities, that could justify anything but a full-time custodial sentence, and that includes his fears and any risk of reprisals as a result of the assistance he has given or that he is prepared to give in the future. It must be understood that the discount for assistance acknowledges that the offender may be put at risk by the assistance given. In the present case there appears to have been no consideration by the Judge as to why the safety of the respondent required other than a full-time custodial sentence in order to provide him with adequate protection. There was no evidence that the respondent’s life would be any more endangered in prison than outside of it or that reasonable safeguards for the respondent were not, or could not be, put in place within the correctional institutions: cf York v The Queen (2005) 79 ALJR 1919.

46 There is nothing in the affidavit of the respondent or otherwise that in my view justifies this Court in exercising its discretion to refrain from intervening so inadequate were the sentences imposed upon the respondent.

47 The sentencing discretion having miscarried this Court must re-sentence the respondent afresh. In determining the orders I propose I have taken into account that the respondent has been subject to the sentences for a period of about 4 months and the double jeopardy involved in the fact that the respondent now faces full-time custody after being given the benefit of suspended sentences. For that reason I propose that the sentences be backdated by 2 months. There are in my view no special circumstances as the respondent cannot be assisted by the parole service and there is no other reason to reduce the non-parole period except by reason of the accumulation of sentences.

48 I have indicated my view that the sentence for the supply offence was manifestly inadequate even disregarding the order suspending the sentence. I have also noted that the co-offender was given a sentence that was also at least arguably inadequate having regard to the standard non-parole period. The issue of parity arises and is relied upon by the respondent. As this is a Crown appeal and because the co-offender’s sentence was not the subject of a Crown appeal, it seems to me as a matter of discretion that the Court is constrained not to increase the sentence if the order of suspension is quashed. Although this Court is not bound by an inadequate sentence imposed upon a co-offender, I believe that the Court should moderate its response in the present case, in light of the fact that the respondent initially received a sentence that allowed him at liberty in the community.

49 I have departed from the standard non-parole period for the supply offence by reason of the plea of guilty, the role of the respondent in the offence, the assistance given to the authorities in the past and in the future, and to achieve parity with the co-offender. Because this is a Crown appeal the length of the sentences are limited by considerations of double jeopardy. It should be taken however that the respondent has received the benefit of discount for his plea and assistance of about 55 per cent and 15 per cent of that is for future assistance. I have proposed a fixed term for the receiving offence because of the lack of utility in specifying a non-parole period in light of the sentence for the supply offence. The fixed term is the equivalent of the non-parole period and has been reduced by reasons of totality: see Johnson v The Queen (2004) 78 ALJR 616.

50 I propose that the following orders be made:

1. The sentences imposed by Judge Donovan are quashed;
2. In respect of the offence under s 178C the respondent is sentenced to a fixed term of 2½ months to commence from 5 January 2007 and to expire on 19 March 2007;
3. In respect of the offence of receiving and taking into account the matters on the Form 1 the respondent is sentenced to imprisonment for a fixed term of 10 months to commence on 20 March 2007 and to expire on 19 January 2008;
4. In respect of the offence of supply the respondent is sentenced to a non-parole period of 16 months to date from 20 January 2008 and to expire on 19 May 2009 with a balance of term of 8 months to expire on 19 January 2010.
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