R v Kalache - [2000] NSWCCA 2

Crown appeals allowed
Sentences passed upon respondent on 6 May 1999 in the District Court quashed
Respondent re-sentenced as per judgment.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60238/99

SULLY J
HULME J
HIDDEN J

4 February 2000

REGINA v Leslie KALACHE

JUDGMENT

SULLY J:
Introduction

The Director of Public Prosecutions appeals, pursuant to Section 5D of the Criminal Appeal Act 1912 (NSW), against a number of sentences imposed upon Mr. Leslie Kalache, (“the respondent”). The sentences were imposed in the District Court at Sydney on 6 May 1999, and by his Honour Judge G. D. Woods QC. The Director’s challenge to the sentences is that they are inadequate.
On 6 May 1999 the respondent entered pleas of guilty to six counts spread over two indictments. On a separate and earlier occasion the respondent had pleaded guilty to a seventh charge. The seven charges are set out hereunder. Noted in connection with each individual charge are the statutory maximum penalty applicable to that charge, and the sentence in fact imposed in respect of that charge.
(1)That between 23 May 1997 and 11 August 1997 he did knowingly take part in the manufacture of a prohibited drug, namely methylamphetamine, in an amount not less than the large commercial quantity applicable to that drug.
Statutory maximum penalty:         Life imprisonment and/or a fine of $550,000.
Sentence imposed: 6 years’ imprisonment as a fixed term to commence on 30.9.97 and to expire on 29.9.2003.
(2)That between 11 January 1997 and 30 September 1997 he did knowingly take part in the supply of a prohibited drug, namely methylamphetamine, in an amount not less than the large commercial quantity applicable to that drug.
Statutory maximum penalty:         Life imprisonment and/or a fine of $550,000.
Sentence imposed: 6 years’ imprisonment as a fixed term to commence on 30.9.97 and to expire on 29.9.2003
(3)That between 1 January 1997 and 30 September 1997 he did knowingly take part in the supply of a prohibited drug, namely cocaine, in an amount not less than the commercial quantity applicable to that drug.
Maximum statutory penalty:          20 years’ imprisonment and/or a fine of $385,000
Sentence imposed: 3 years’ imprisonment as a fixed term to commence on 30.9.97 and to expire on 29.9.2000.
(4)That between 1 January 1997 and 30 September 1997 he did knowingly take part in the supply of a prohibited drug, namely 3,4- methylenedioxymethylamphetamine, also known as ecstasy, in an amount not less than the commercial quantity applicable to that drug.
Statutory maximum penalty:         20 years’ imprisonment and/or a fine of $385,000.
Sentence imposed: 3 years’ imprisonment as a fixed term to commence on 30.9.97 and to expire on 29.9.2000.
(5)That between 1 January 1997 and 30 September 1997 he did knowingly take part in the supply of a prohibited drug, namely cannabis leaf.
Statutory maximum penalty:         10 years’ imprisonment and/or a fine of $220,000
Sentence imposed: 3 years’ imprisonment as a fixed term to commence on 30.9.97 and to expire on 29.9.2000.
(6)That between 1 December 1995 and 31 January 1997 he did knowingly take part in the manufacture of a prohibited drug, namely methyl amphetamine, being an amount not less than the large commercial quantity for such drug.
Statutory maximum penalty:         Life imprisonment and/or a fine of $550,000
Sentence imposed: 5 years’ imprisonment as a fixed term to commence on 30.9.97 and to expire on 29.9.2002.
(7)That between 2 July 1997 and 6 December 1997 he did an act with intent to pervert the course of justice.
Statutory maximum penalty:         14 years’ penal servitude
Sentence imposed: 4 years’ penal servitude divided between a minimum term of 1-1/2 years to commence on 30.9.2003 and to expire on 29.3.2005; and an additional term of 2-1/2 years to commence on 30 3.2005 and to expire on 29.9.2007.
In addition to the foregoing matters, the respondent asked the sentencing Judge to take into account, according to the relevant provisions in that behalf of the Criminal Procedure Act 1986 (NSW), two additional offences. Both of these offences were charged in the wake of a police search on 30 September 1997 of the respondent’s home at Clovelly. The first of the two matters involved a charge of goods in custody contrary to section 527C of the Crimes Act 1900 (NSW). The goods in question were described as “a quantity of clothing, a watch, 4 pens and $57,652”. The second of the two additional matters charged the respondent with possession of a prohibited drug contrary to section 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The charge particularises as follows the relevant material:
“……………….a plastic bag contained 2 small white tablets. These were later analysed and found to be 0.7 grams of methyldioxymetamphetamine, commonly known as ecstasy.”
The effect of the sentences thus imposed is that the total relevant criminality is punished by imprisonment for 10 years, divided between a minimum term of 7-1/2 years, and an additional term of 2-1/2 years.
The Relevant Facts
I take these, as follows, from the written submissions of the Director. The quoted material says all that needs to be said as to the structure and substance of the Director’s case against the respondent. It was not submitted at the hearing of the appeal that the facts as so stated in the Director’s submissions were erroneous in any particular.
“6.       In essence the respondent was identified by investigating police as being the leader of an organised network involved in the manufacture and distribution of prohibited drugs.
7.        The respondent dealt primarily with methylamphetamine. Surveillance revealed that from December 1995 the respondent was involved with others in financing an operation to manufacture this drug through the purchase of equipment and chemicals (on the blackmarket). A drug laboratory was established at Wollombi. Subsequent forensic evidence established that commercial quantities of the drug had been manufactured on this property.
8.        Surveillance also established that the respondent later became involved in a similar operation on a site in Booral which was purchased in June 1997. This involved the mass purchase of Sudafed tablets (around $70,000 worth) by a number of people. Around 3.5 kilograms of methylamphetamine was manufactured by the respondent’s associates. The respondent discussed selling the drug at $70,000 per kilogram and splitting the profits. He also mentioned that an upcoming production of the drug would result in a $350,000 profit. The manufacture of a further 3.5 kilograms of the drug was begun, but the respondent’s associates were arrested in mid-August 1997.
9.        Between 20 May 1997 and 30 September 1997 surveillance on the respondent (through physical and video surveillance, telephone intercepts and the installation of listening devices) revealed that between 5 and 20 persons were involved in trafficking the prohibited drug which was supplied by them to the respondent.
10.      From his premises, the respondent regularly supplied 454 grams (1 pound) of methylamphetamine, occasionally supplying as much as 1362 grams (3 pounds), but rarely supplying less than 28.3 grams (1 ounce). He charged between $7,500 and $10,000 per ‘street-level’ pound, and between $35,000 and $45,000 per ‘high-purity’ pound. In excess of 20 kilograms of methylamphetamine was supplied during the above period of surveillance. The value of drugs supplied by the respondent during this period was estimated to be $800,000 (for bulk deals) and $1,500,000 (at street level): ……….
11.      The respondent also supplied cocaine in quantities of up to 10 ounces at a time. He charged between $3,800 and $4,500 per ounce. On one occasion he complained to his associates that 30 ounces of cocaine had been stolen from his premises. In excess of 5 kilograms of cocaine, with an estimated street value of $1,000,000, was supplied by the respondent during the above period of surveillance ……….
12.      The respondent also supplied ecstasy tablets. He charged between $20 and $30 per tablet, and most commonly supplied between 50 and 200 tablets at a time; on one occasion he supplied 650 tablets. The respondent complained one day to his associates that 600 ecstasy tablets had been stolen from a storage area in his premises. Investigating police estimated that the respondent had supplied, or had in his possession for the purpose of supply, at least 4,000 ecstasy tablets (800 grams). This averaged out to around $160,000: …………….
13.      Cannabis leaf was also supplied on a regular basis by the respondent in varying amounts between one ounce and several pounds at a time. ‘Hydro’ quality cannabis leaf was sold for between $3,500 and $4,800 per pound or between $200 and $250 per ounce. A lower-quality leaf was sold for $3,000 per pound. Cannabis bricks were also offered by the respondent for $3,700. One kilogram bricks with ‘good head’ were offered for $4,500 per brick. It was estimated that cannabis leaf to a total street value of $200,000 was supplied by the respondent during the above period of surveillance: ……………
14.      The respondent advised his associates on ways in which they could on-sell the various drugs, and advised them on suitable prices and potential profits from the sales.
15.      Investigating police, through the benefit of the surveillance, arrested around 50 other persons who were connected with the respondent’s activity.
16.      In early July 1997 investigating police received information that the respondent had stored amphetamine at a house in Kingsford. Police seized a number of items from this house. The respondent was subsequently heard (via a listening device) to give Detective Sergeant Irwin $500 and to express concern about his fingerprints being on the items seized by the police. Another police officer, Detective Sergeant Craig McDonald, became involved on the respondent’s behalf. He arranged for a police officer to wipe the respondent’s fingerprints and promised to pay him $5,000. A total of $3,300 was actually given to him. The respondent was subsequently heard to have a conversation with Irwin in which he indicated that he would pay $20,000. Irwin and McDonald were subsequently arrested: …………….
17.      The respondent was arrested on 30 September 1997 after the execution of a search warrant on his premises. Police located 360 grams of cocaine, two ecstasy tablets and equipment used for the preparation of the drugs into a suitable form for distribution.
18.      The respondent generated large sums of money, and acquired a significant amount of property (both real and personal), from gambling activities and drug activities. He and his former de-facto subsequently agreed to forfeit all their property interests to the Crown. The value of this property exceeded $1.1 million.”
The Objective Criminality of the Respondent
The evidence before the learned sentencing Judge established beyond any reasonable doubt that the respondent was the lynch-pin of a well organised, high-volume and high-profit drug trafficking network. In that connection, three particular matters, each of which has great significance in the context of objective criminality, stand out.
First, is the precise nature of the respondent’s involvement in that drug trafficking. The learned sentencing Judge made a number of specific findings in that respect. They are set out hereunder. Each such finding was, in my opinion, clearly correct on the evidence before the sentencing Court.

“There is no doubt that Mr. Kalache was the principal of this operation. He was the leader of an extensive and well organised network of persons involved in the manufacture of methylamphetamine and the distribution of large commercial quantities of prohibited drugs including methylamphetamine, cocaine, ecstasy and cannabis.” [remarks on sentence, (R/S):3]
“Large sums of money were generated by this illegal exercise”. [R/S 4]
“………… ………. his saga of criminality’ [R/S 4]
“…………… ……….this was a million dollar operation in the sense that in terms of the values of products sold at street level, millions of dollars worth of illicit drugs were supplied or created.” [R/S 5]
“Investigators have estimated that during the five month period of the investigation during which the listening device was operative at his premises, the prisoner supplied in excess of twenty kilograms of methylamphetamine. The street value of this would have been well over a million dollars.
He was also active in relation to cocaine, ecstasy and cannabis leaf. ………. ………….. …………….depending on the quantity of cocaine supplied the prisoner charged the customer between $3,800 and $4,500 per ounce.” [R/S 6]
“In addition to supplying methylamphetamine and cocaine, between May and June 1997 the primary focus of his activities was the supply of large quantities of Ecstasy. The Ecstasy was supplied in individual tablet form for between twenty and thirty dollars, depending on quantity sold. He would often supply between fifty and 200 tablets.” [R/S 7]
“The prisoner frequently supplied cannabis leaf to a number of associates but it was not as frequent an exercise as the activities of the prisoner in relation to the other drugs to which I have referred. ……….. …………….. ……………….. ………. During the period of the investigation it is estimated that the prisoner supplied cannabis leaf with a street value of approximately $200,000” [R/S 7]
“As with the other prohibited drugs in which Kalache traded, he advised the recipients of cannabis about the price at which they should re-sell the drug in order to maximise their profit. Throughout the course of the transcripts one sees frequently that Mr. Kalache is a fairly confident and authoritative person, giving directions and information to people about how they should ‘on-sell’ the drug.” [R/S 8]
“The second drug indictment relates to an attempt to establish an amateur factory at Wollombi. Once again, without detailing the matter, this was an exercise in which the prisoner set out, with associates, to create a supply of methylamphetamine on a very large scale for maximum distribution and profit.” [R/S 11]
“I have said that Mr. Kalache had the role of coordinator and principle (sic). There is no doubt that he was the boss.” (R/S 13)

Secondly, it was, and is, undisputed that the respondent was not at any relevant time, and is not now, himself a user at all of prohibited drugs of addiction.
This is, in my opinion, a very serious aspect of the respondent’s objective criminality. There are many persons who are addicted to such prohibited drugs, and for whom it is proper to feel compassion. No such consideration can apply in the case of a person who trafficks in prohibited drugs of addiction, but who is not himself a user at all of such substances. The impact that the illicit activities of such a person has on the community of which he is a part is, with respect, well and comprehensively described as follows by the learned sentencing Judge in the present case:
“The activities of Mr. Kalache, as indicated in the charges, have undoubtedly created a trail of destruction. Many people have been brought undone legally because of their involvement with Mr. Kalache, that is to say they have been charged or otherwise brought within the toils of the law by virtue of this large scale operation. More importantly, the number of people who have been physically and emotionally mentally damaged by these drugs is incalculable.”[R/S 5]
Unlawful conduct of that kind is, in my opinion, simply beyond objective extenuation.
Thirdly, the offences committed by the respondent, and in respect of which he stood for sentence on the occasion now relevant, were committed by him against a truly appalling background of antecedent drug-related crime. The relevant particulars are as follows:

On 28 September 1987 the respondent stood for sentence in the Sydney District Court in connection with a charge of supplying indian hemp; a charge of possessing an unlicensed pistol; and a charge of supplying heroin. On the first charge he was sentenced to 4 years’ imprisonment; on the second charge he was sentenced to 12 months’ imprisonment to be served concurrently with the first sentence; and on the third charge he was sentenced to 5 years’ imprisonment cumulative upon the first sentence. To this effective head sentence of 9 years there was appended a non-parole period of 4-1/2 years, expiring on 4 September 1991.
On 8 December 1987 the respondent stood for sentence in the District Court at Sydney for an offence of supplying a prohibited drug. He was sentenced to imprisonment for 3 years. In a way which is not entirely clear from the available material, this sentence was aggregated with the sentences earlier imposed on 28 September 1987. The practical effect was to impose upon the respondent head sentences totalling 12 years and a non-parole period totalling 4-1/2 years to expire on 7 June 1992.
On 16 November 1993 the respondent stood for sentence in the District Court at Sydney and in respect of two offences each involving the supply of a prohibited drug. He was granted, apparently in respect of each of the two matters, a recognisance himself in the sum of $1,000 to be of good behaviour for 4 years; that is to say, up to and including 15 November 1997.
On 22 November 1993 the respondent stood for sentence in the District Court at Sydney and in connection with another offence of supplying a prohibited drug. Once again, he was granted a recognisance, himself in the sum of $1,000, to be of good behaviour for 3 years, that is to say to and including 21 November 1996.
On 2 September 1994 the respondent stood for sentence in the Local Court at the Downing Centre in Sydney. Once again, the offence in respect of which he was then punished was an offence of possessing a prohibited drug. He was fined $400. An appeal was dismissed by the District Court on 26 June 1995.

In addition to the foregoing matters, it is relevant to note that on 30 September 1997 the respondent was dealt with by the New South Wales Parole Board in respect of breaches of his parole granted in connection with the sentences that had been imposed in September and December 1987. He was ordered to serve the balance of the additional term of 2 years 1 month and 24 days, a period spanning from 30 September 1997 until 22 November 1999.
Of the seven offences with which the present appeal is concerned, the six offences of direct drug trafficking were committed variously between 1 December 1995 and 30 September 1997. In other words, those six offences were committed by the respondent in breach of his parole pursuant to the sentences imposed in September and December 1987; and also of his obligations under the recognisance granted to him on 16 November 1993. Some, at least, of the conduct relevant to the sixth of the offences itemised in paragraph 2 of this judgment, occurred not only in breach of that parole and of that particular recognisance, but in breach, also, of the terms of the recognisance extended to the respondent on 22 November 1993.

The principles which govern the use that may properly be made of an offender’s antecedent criminal history are stated as follows in the joint judgment of Mason CJ and Brennan, Dawson and Toohey JJ in Veen v The Queen [No. 2], [1998] 164 CLR 465 at 477:
“…………. …………… (T)he antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: …………… ……………. …………….. . The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.”
Applying those principles to the facts of the present particular case, it is in my opinion indisputable that the offences which are the subject of the present appeal could not be regarded by any reasonable mind as having been uncharacteristic aberrations. They manifest, if ever offences did, “a continuing attitude of disobedience to the law”. Indeed, they demonstrate a cold-blooded and callous amorality such as to place the “moral culpability of the offender in the instant case” at the highest relevant level of culpability; and such as to demonstrate in the plainest possible way both “dangerous propensity” and “a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind”.
From time to time appellate Courts are called upon to grapple with the question whether a particular offence falls within what is conventionally described as the “worst case” category. The relevant principles in that regard are established by various decisions of which it is convenient and sufficient to refer only to the decision of this Court, (constituted by Carruthers, Finlay and Badgery-Parker JJ), in Reg v Twala: unreported; CCA (NSW); 4 November 1994. The relevant principles are there stated as follows:
“However, in order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from subjective features mitigating the penalty to be imposed).” [per Badgery-Parker J at p.7]
In my opinion, each of the three factors which I have previously discussed is a factor “of very great heinousness” in all six of the directly drug-related offences. In addition, it is in my opinion possible in all of those cases “to postulate the absence of facts mitigating the seriousness of the crime”.
I take exactly the same view of the corruption offence. Anybody who corrupts a police officer in connection with the proper performance of that officer’s public duty, commits, without more, a most serious offence against the rule of law. When, as in the present particular case, the act of corruption is designed to have, and has in fact, the effect of preventing the detection of, and the proper prosecution and punishment of, drug trafficking offences which fit within the “worst case” category, then the corruption offence itself has about it those special qualities of unmitigated heinousness apt to bring it, also, within the “worst case” category.
Speaking in terms of general principle, and leaving to one side for the moment a particular analysis and assessment of the sentences under appeal, I am of the opinion that each of the seven offences in respect of which the respondent stood for sentence in May last was in the “worst class” category of that particular offence; and that, purely subjective considerations to one side, each such offence called, in terms of objective criminal culpability, for the imposition of a penalty of exemplary severity.
The Subjective Matters Personal to the Respondent
Only two such matters were put forward by the respondent: first, the respondent’s pleas of guilty; and, secondly, the cooperation of the respondent with the New South Wales Crime Commission in connection with action taken by the Commission with respect to the property of the respondent, and pursuant to the relevant provisions of the Criminal Assets Recovery Act 1990 (NSW).
As to the respondent’s pleas of guilty: It is convenient to begin by noting the relevant provisions of section 439 of the Crimes Act 1900 (NSW), which are:
“439(1)  In passing sentence for an offence on a person who pleaded guilty to the offence, a Court must take into account:
(a)      The fact that the person pleaded guilty; and
(b)      When the person pleaded guilty or indicated an intention to plead guilty,
and may accordingly reduce the sentence that it would otherwise have passed.
(2)                  A Court which does not, as a result of this section, reduce the sentence that it passes on a person who pleaded guilty to an offence must state that fact and its reasons for not reducing the sentence when passing sentence.
………………………………..”
These provisions of section 439 were inserted into the Crimes Act by the Crimes Legislation (Amendment) Act 1990 (NSW). The Attorney-General, moving the Second Reading of the Bill for that Act, made the following statements:
“At present the common law in this State provides that a court when sentencing a person is entitled to, and often will, take into account a plea of guilty as evidence of contrition in imposing a lesser sentence than would otherwise be the case, and other matters, such as recompense, damage suffered, and so on. As former Chief Justice Street said in Regina v Ellis, reported in (1986) 5 New South Wales Law Reports, 603 at page 604:
This Court has said on a number of occasions that a plea of guilty will entitle a convicted person to an element of leniency in the sentence. The degree of leniency may vary according to the degree of inevitability of conviction as it may appear to the sentencing judge, but it is always a factor to which a greater or lesser degree of weight must be given.
Because of the importance of encouraging appropriate guilty pleas, this common law rule will be given statutory force. Therefore, the bill provides that, for all offences and for all courts, the court in sentencing a person who pleaded guilty to an offence must take into account the fact that the person pleaded guilty and when the person either pleaded guilty or indicated an intention to do so, and may reduce the sentence accordingly. It is not mandatory to reduce the sentence. It is a discretion, but a discretion that ought to be exercised on proper sentencing principles.
……………………………………………………………………………………….
There are some cases in which it would be inappropriate to reduce a sentence because of a plea of guilty. It is impossible to predict what sort of cases these will be but one example is where the offence is so serious that it is appropriate for the maximum sentence to be imposed despite a plea of guilty. The amendments therefore give the sentencing court the power to refuse to reduce a sentence. I take it one point further: if the sentence is between, in effect, nothing and the maximum sentence, it is proper for the court to say, where there is clearly no basis for reducing the sentence following a plea of guilty, that a sentence should be imposed which otherwise would have been imposed if the person had been convicted after a plea of not guilty. Thus the court will have a complete discretion with proper discretionary principles applied.
If the court refuses to reduce a sentence it must give reasons for doing so. This reflects the intention of the amendments that a reduction will usually be given. The new provision is not intended to intimidate the bench. The bench has to make such decisions all the time. Reductions will be made in some circumstances and not in others. Even where the Crown case is strong and a guilty plea may be thought to be inevitable, it will usually be appropriate to reduce the sentence to take account of the plea of guilty because the State has been saved the expense of a trial, witnesses have been spared the necessity of attending court and giving evidence, and police have been able to better carry out their duty of protecting the community.” [Hansard: NSW Legislative Assembly: 4 April 1990, at 1689, 1690]
The way in which, and the limits within which, a sentencing Court should take into account in a prisoner’s favour the fact that the prisoner has pleaded guilty, has been the subject of a great deal of curial exposition. In the present respondent’s case, that particular factor, being one of only two subjective matters put forward by the respondent in mitigation of penalty, requires a more extended consideration than is often necessary in other, and different types of, cases.
It is convenient to begin with the decision of this Court, (constituted by Street CJ, Priestley JA and O’Brien CJ of Cr D), in Reg v Holder; Reg v Johnston [1983] 3 NSWLR 245, a case ante-dating the decision of the Court in Ellis, the case mentioned by the Attorney-General in the Second Reading speech earlier cited. In Holder and Johnston the trial Judge furnished a report for the information and assistance of the Court of Criminal Appeal. The report took note of a submission that had been put to the trial Judge to the effect: “that it was not sufficient for a court in handing down sentence after a plea of guilty to merely refer to the plea having been taken into account, that the sentence itself should necessarily reflect that factor, and that any term of imprisonment imposed should be patently shorter than that which would have been appropriate following a trial”.
The trial Judge said, in connection with those submissions:
“It seemed to me that there was merit in this submission, particularly in the absence of any suggestion that the pleas of guilty by the offenders had been induced by the laying of charges of a less serious nature. The submission flows from the principle referred to in the well-known passage in Thomas, Sentencing, 2nd ed, at 52. It was my understanding that this principle of substantial reduction for a plea of guilty based on contrition was generally accepted in New South Wales as well as in the other States, at least in relation to head sentences, although the one quarter to one third mathematical calculation made by Thomas would be of little assistance in any particular case.
What I had in mind in assessing the period to be served for the total criminality was that each offender should be given a real and not merely nominal ‘discount’ for the plea and contrition shown, and that had the convictions followed a trial each offender would have received a head sentence some two to three years longer than that in fact imposed.”
Priestley JA, with whom O’Brien CJ of Cr D agreed, thought that such approach of the trial Judge had been wrong in law. Priestley JA said:
“The foregoing paragraphs seem to indicate clearly that he accepted the view that he was bound as a matter of sentencing principle to impose a patently shorter term of imprisonment than that which would have been appropriate following a trial. He also appears to have accepted that it would be wrong merely to take that particular factor into account. With due respect, in my opinion the law is otherwise. A sentencing judge is entitled to, and often will, take into account a plea of guilty and evidence of contrition in imposing a lesser sentence than he would otherwise do. There is no statutory provision or relevant authority binding him to do so. The passage in Thomas , Principles of Sentencing, 2nd ed (1979), at 52, referred to by his Honour, although it speaks in terms of “principle”, is generalizing from the practice of the English Court of Criminal Appeal. The correct status of the “principle” in England is, in my opinion, set out in Thomas (at 50) where the following citation from a 1974 Court of Criminal Appeal decision appears:
“…… it is a well recognized practice of the courts wherever possible to give some degree of credit in the case of somebody who pleads guilty.”
The practice in New South Wales is similar.
In many cases some leniency has been explicitly accorded to a person because of a plea of guilty. However in very many cases appeals against severity of sentence upon a plea of guilty have been dismissed notwithstanding that there has been no reference by the sentencing court to any allowance being made for the plea of guilty (or contrition)……………………………………………
My conclusion therefore is that …..(the trial Judge) ….. felt himself obliged to impose a patently less overall sentence upon Johnston than he otherwise would have done because of what he thought was a rule binding on him, when in law that “rule” was a practice guide which he might or might not act upon according to his sense of its fitness in the circumstances.” [3 NSWLR, 268D, 269C]
Street CJ, with whom O’Brien CJ of Cr.D agreed, approached the particular point in a somewhat different way. His Honour said:
“It is well established that contrition is in itself a factor weighed in the matter of sentence in favour of accused persons. This is particularly so where the contrition is manifested in a plea of guilty. It is impossible, however, to lay down arbitrary rules regarding the weight to be attributed in any given case to the factor of contrition manifested by a plea of guilty. In examining the extent to which a plea of guilty can take on the colour of contrition, much may depend upon the time and circumstances in which the plea was advanced. To make a commonplace example, a man accused of a sexual offence may make a full and frank admission, coupled with expressions of contrition, to the arresting police at the very outset and, by maintaining that attitude throughout, spare the victim the ordeal both of appearing at committal proceedings and of keeping alive her recollection so that she may be able to give evidence at the trial. Such a man’s contrition will weigh more favourably than another, similarly placed so far as concerns the offence, who proffers a plea of guilty for the first time when the indictment is presented against him. Shades of genuineness, too, can affect the extent of the favourable weight attracted by protestations of contrition coupled with a plea of guilty.
It has been said repeatedly in judgments of this Court that guilty persons are to be encouraged to plead guilty and courts will not be slow to identify elements of contrition as inhering in the proffering of a plea of guilty. All accused persons can ordinarily expect to receive the benefit of some credit in the matter of sentence (and, for that matter, in the non-parole period also) when proffering a plea of guilty. In order, however, that the criminal law may not present the appearance of dealing more harshly than would properly be the case with a person who, after pleading not guilty, is convicted by a jury, the relevance of a plea of guilty as a factor pointing towards leniency in the sentence is subsumed under the general category of contrition.
It may be thought that these generalizations provide to sentencing judges little guidance upon the manner and extent to which they should take into account contrition manifested by a plea of guilty. It would, however, in my view, be undesirable to attempt to go further either by way of indicating proportional reductions of the otherwise proper sentence or by any other precise indication. In every case the genuineness of the contrition and the time and manner in which it is manifested in association with the plea of guilty will require evaluation by the sentencing judge in the light of the overall complex of the facts before the court.” [3 NSWLR, 258C, 259A]
There are, in my opinion, three things to be drawn from the decision in Holder and Johnston.
First, the decision has to do with the proper place in the sentencing process of a plea of guilty regarded in the particular sense of a practical manifestation of genuine contrition.
Secondly, the decision recognises a sentencing policy or principle to the effect that genuine contrition given practical expression in the form of a plea of guilty is deserving of, and ought normally to be given and seen to be given, real substance as a factor mitigating what would otherwise be the proper sentence in the particular case.
Thirdly, that general policy or principle is to be applied in any particular case, either as a “practice guide which ………(the sentencing judge) …….. might or might not act upon according to his sense of its fitness in the circumstances” (Priestley JA and O’Brien CJ of Cr D); or after “evaluation by the sentencing judge in the light of the overall complex of the facts before the court”, (Street CJ and O’Brien CJ of Cr D).
In the case of the present respondent, I do not see any basis for an affirmative finding than it is more probable than not that the pleas of guilty entered by the respondent give practical expression to genuine contrition. The nature of the offences; their systematic commission over a lengthy time; their contemptuous flouting of the law both in themselves and as continuations of previous similar contemptuous breaches of the law; all point in the opposite direction. The respondent gave no evidence before the sentencing Judge. There was no evidence in the form of pre-sentence or the like reports from which a sympathetically disposed sentencing Judge might properly glean some support for an affirmative finding, reached on the probabilities, of genuine contrition expressed by the pleas of guilty. To make such an affirmative finding in the case of a major drug trafficker such as the present respondent, would be to impute to him, in effect, a Pauline conversion. Such a thing is not impossible; but it is exceptional. For my own part, I cannot see anything about the present respondent’s case that makes it exceptional in that sense.
Other judgments of differently constituted Benches of this Court have consistently recognised a quite different sentencing policy or principle in connection with the entering by an accused person of prompt pleas of guilty. This further policy or principle has nothing to do with the manifesting, by the pleas, of genuine contrition. It has a blunt, and bluntly acknowledged, utilitarian purpose.
A representative exposition of the particular approach is that of Hunt CJ at CL in Reg v Winchester [1992] 58 A Crim R 345 at 350:
“A plea of guilty is always a matter which must be taken into account when imposing sentence. The degree of leniency to be afforded will depend upon many different factors. The plea may in some cases be an indication of contrition, or of some other quality or attribute, which is regarded as relevant for sentencing purposes independently of the mere fact that the prisoner has pleaded guilty. The extent to which leniency will be afforded upon this ground will depend to a large degree upon whether or not the plea resulted from a recognition of the inevitable: Shannon (1979) 21 SASR 442 at 452; Ellis (1986) 6 NSWLR 603 at 604. The plea of guilty may also be taken into account as a factor in its own right independently of such contrition, as mitigation for the co-operation in saving the time and cost involved in a trial. Obviously enough, the extent to which leniency will be afforded upon this ground will depend to a large degree upon just when the plea of guilty was entered or indicated (and thus the savings effected): Beavan (unreported, Court of Criminal Appeal, Hunt, Badgery-Parker and Abadee JJ, 22 August 1991), at p 12.
The important point to be made is that leniency is afforded upon the second ground as a result of purely utilitarian considerations, as with the “discount” allowed for assistance given to the authorities: Cartwright (1989) 17 NSWLR 243; Gallagher (1991) 23 NSWLR 220; 53 A Crim R 248. The leniency is afforded in order to encourage early pleas of guilty so that the criminal list is more expeditiously disposed of and so that other cases, in which there is a genuine issue to be determined, will be brought on for hearing without delay.
Encouragement will be given to early pleas of guilty only if they lead (and are seen to lead) to a substantial reduction in the sentence imposed. That does not mean that the sentencing judge should show a precisely quantified or quantifiable period or percentage as having been allowed. Indeed, it is better that it not be shown; that was the point of this Court’s decision in Beavan at pp14-15. As was said in that case – discounts for assistance given to the authorities to one side – it is both unnecessary and often unwise for the judge to identify the sentence which he or she regards as appropriate to the particular case without reference to one factor and then to identify the allowance made which is thought to be appropriate to that particular factor.”

As to the principles thus stated, there are certain propositions which, in my opinion, derive from those principles and have particular relevance to the case of the respondent.
First, the utilitarian principle recognised in Winchester must now be accepted as being, at least in broad principle, well entrenched in the sentencing law of this State. Subsequent decisions of this Court have consistently so recognised and applied the stated principles.
Secondly, the practical application of the principles in any given case will be affected if, and in so far as, the relevant plea(s) result(s) “merely from a recognition of the inevitable”: Reg v Beavan: CCA (NSW), unreported, 22 August 1991 per Hunt CJ at CL.
Thirdly, it does not, in my opinion, run counter to the general principles stated in Winchester to recognise that there will inevitably be cases where the sheer enormity of the criminal conduct involved is such as to require that the proper protection of the public, and the maintenance in every other proper way of the rule of law, will entail that the utilitarian principle must, albeit exceptionally, yield to considerations of greater weight.
The present respondent’s case exemplifies, in my opinion, that exceptional type of criminal conduct.
There was put for the respondent a submission, the practical effect of which was that the respondent, had he chosen not to plead guilty to the charges preferred against him, could have tied up, perhaps for a year or more, a considerable portion of the limited resources available to the criminal justice system. It was submitted that the respondent was entitled, therefore, to a recognisably substantial discounting of what might otherwise have been thought appropriate sentences in his case.
I regard such a contention by a persistent and major criminal offender such as this respondent to show a cold and cynical effrontery to which the Courts, and in particular this Court, should give no countenance whatsoever.
In the present particular case, I am strengthened in that view by my opinion that it is a reasonable inference that the respondent’s pleas of guilty recognised the virtual inevitability of his eventual conviction on all counts. The evidence against the respondent was, in my opinion, overwhelming. In my opinion it is a reasonable inference that the respondent, recognising that he was facing charges, three of which attracted a statutory maximum penalty of imprisonment for life, was sufficiently street-wise to realise that he had, so to speak, virtually no card to play whether objective or subjective than that of pleas of guilty relied upon as entitling him, practically as of course, to a substantial discounting of what would otherwise be appropriate sentences.
As to the respondent’s cooperation with the New South Wales Crime Commission: The convenient starting point is a letter written on 6 May 1999 by Mr. Bradley, the Commissioner of the New South Wales Crime Commission. The letter became Exhibit 1 in the proceedings on sentence.
The following extract from the letter, Exhibit 1, summarises the assistance given by the respondent to the Commission:
“Kalache made full disclosure of his financial and beneficial interest in the Town & Country Hotel.
Kalache consented to forfeiture at an early stage of the confiscation proceedings. He persuaded Crawford and Burke to do likewise. As a result:
(a)interest in property of Kalche and Deborah Crawford having an estimated value of $1.1 million were forfeited to the Crown.
(b)a proceeds assessment order was made against Burke and Deborah Burke for $375,000;
(c)the Commission’s resources were not expended in costly further investigations, examinations and hearings;
(d)the resources of the NSW Police Service were not expended in the investigation or litigation of the matter;
(e)the Supreme Court was not consumed with the hearings for examination and orders for final relief.”
It should be added to what is there written that the Commissioner, in a separate part of the letter, acknowledges that the respondent contended to the Commission that he would be able to demonstrate “that his assets were lawfully acquired and that he had made, and was continuing to make money, from lawful betting activities”. As to this contention of the respondent, the Commissioner acknowledges that electronic surveillance conducted by the Commission had yielded evidence supportive of the respondent’s assertion that he had won significant amounts of money through betting.
It should be further noted that the person referred to as “Burke” in the Commissioner’s letter earlier quoted was, at material times, a business associate of the respondent in the conduct of the business of the Town & Country Hotel; and “Deborah Burke” was Mr. Burke’s wife. The person described as “Deborah Crawford” was, at all material times, the de facto wife of the respondent.
It was submitted for the respondent that he was properly entitled to a discount in any sentence otherwise appropriate, as an acknowledgment of the utilitarian purposes served by his cooperation with the Commission, and acknowledged in terms in the Commissioner’s letter previously quoted.
In order to test this submission, it is necessary to consider some features of the relevant legislation. The Criminal Assets Recovery Act 1990 was originally introduced into Parliament as a Bill for an Act to be known as the Drug Trafficking (Civil Proceedings) Act. The long title of the Act, as it now stands, is:
“An Act to provide for the confiscation of interests in property that are interests of a person engaged in serious crime-related activities; to enable proceeds of serious crime-related activities to be recovered as a debt due to the Crown; and for other purposes.”
The Second Reading Speech for the original Bill is recorded at Hansard: Legislative Assembly (NSW), 8 May 1990 at 2527 and following. The Second Reading was moved by the Premier himself, a circumstance which would seem to indicate the importance attached by the Government of the day to the legislative policy embodied in the proposed enactment. The Premier introduced the Bill with the following statement:
“This legislation is aimed squarely at those associated with major drug crime. Its purpose is to deprive those involved in the drug trade of their illicit profits – profits earned at the expense of their victims and of the community generally. Importantly, it is not only the profits of a discrete transaction but the proceeds of a life of crime that will be confiscated. Also crucial is the fact that it is not only the person directly involved in the transaction but also those who knowingly benefit from his or her activities who will be called to account for drug-derived assets and profits. Therefore, the legislation represents a comprehensive scheme designed to undermine entire organisations engaged in the drug trade.”
The Premier went on to refer to recommendations that had been made by a series of Royal Commissioners in connection with the pursuit of the profits of organised crime. The Premier referred in particular to the following comments made by one such Royal Commissioner:
“The modern view held in the U.S. and embraced by many here such as Costigan and Stewart is that the primary attack on organised crime ought to be directed at destroying syndicates and their power.
It is a view that Australian Governments must embrace and act on without delay.
A primary target for attack, if syndicates and their power are to be destroyed, is the money and assets of organised crime.
There are many reasons to support this view.
The goal of organised crime is money.
The financial rewards are very great, and they are the greater because the profits are tax-free.
Money generates power; it allows expansion into new activities; it provides the motive for people to engage in such crime.
It is used to put the leaders in positions, superior to that of others in the community, where they are able to exploit the law and its technicalities and so on.
At the same time, it is the point at which organised crime is most vulnerable.”
The Premier went on to stress that:
“The most innovative and controversial aspect of this legislation is that it will create a scheme of asset confiscation that will operate outside and completely independent of the criminal law process.……………………………………
This legislation, like the Commonwealth Customs Act, treats the question of confiscation as a separate issue from the imposition of a criminal penalty. It essentially provides that a person can be made to account for and explain assets and profits whether or not the person has been convicted, and even if the person has been acquitted in the criminal courts. The critical thing that must be proved is that it is more probable than not that the person engaged in serious drug crime. Proof on the balance of probabilities is the same standard of proof as that used in ordinary civil litigation. The more stringent standard of proof beyond reasonable doubt is a creature of the criminal law.”
The foregoing statements of policy were reinforced further and as follows:
“I mentioned at the outset that the scheme is aimed at those who knowingly benefit from the drug trade. It is fundamental that any confiscation legislation must recognise that the drug trade is not simply a series of discrete activities, but relies on sophisticated organisations and relationships. If honourable members read the Stewart report on the Mr. Asia syndicate and more recent cases involving Cornwall and Bull, it will be obvious that the notion of organised drug crime is not a myth. It is a very disturbing reality. Recent events in Latin America and the United States of America also show that the drug trade involves sophisticated international organisations that involve a lot of people. It is also clear that the people who make big profits from the drug trade are not necessarily, and indeed are not often, involved in the hands-on operational aspects of the drug trade. Complex corporate and international transactions can be used in an attempt to channel money to the Mr. Bigs, to launder illicit proceeds.
………………………………………………..There is, therefore, no doubt that effective legislation has to be able to trace drug-derived proceeds into the hands of third parties and put the onus on those companies or those people to show that they are not involved and have acquired the assets as bona fide purchasers without notice. That is precisely what this legislation will do. There is a very broad definition of drug-derived property, which includes basically any property that has been acquired directly or indirectly using drug proceeds. That property can be restrained and the owner can be put in the position of having to show that he or she did not know or should not reasonably have suspected that the property was illegally derived.”
The policy thus explained to Parliament by the Premier informs the overall structure of the Criminal Assets Recovery Act, which is a lengthy enactment comprising some 70 sections arranged in five Parts. For present purposes, it is necessary to note the detail of some only of those provisions.
The principal objects of the Act are defined in section 3, and are as follows:
“(a)to provide for the confiscation, without requiring a conviction, of property of a person if the Supreme Court finds it to be more probable than not that the person has engaged in serious crime related activities, and
(b)to enable the proceeds of serious crime related activities to be recovered as a debt due to the Crown, and
(c)to enable law enforcement authorities effectively to identify and recover property.”
The concept of “serious crime related activity” is the subject of particular, and extensive, definition in section 6. Section 6(2)(b) embraces within the concept of “serious crime related activity” what is described as “a drug trafficking offence”. That latter term is itself extensively defined in section 6(3); and is so defined in terms embracing offences in contravention of either section 24 or section 25 of the Drug Misuse and Trafficking Act 1985 (NSW). The directly drug-related offences charged against the present respondent were charged, variously, as contraventions of sections 24 or 25.
Section 5 of the Act provides as follows:
“(1)For the purposes of this Act, proceedings on an application for a restraining order or a confiscation order are not criminal proceedings.
(2)Except in relation to an offence under this Act:
(a)the rules of construction applicable only in relation to the criminal law do not apply in the interpretation of the provisions of this Act, and
(b)the rules of evidence applicable in civil proceedings apply, and those applicable only in criminal proceedings do not apply, to proceedings under this Act.”
The particular point now being considered was raised in this Court, and before a two-Judge Bench consisting of Grove and Dunford JJ, in Reg v Rhona Roby, unreported: CCA (NSW), 28 June 1995. The applicant in that matter chose, in the event, not to press the point. The point, as originally formulated by the applicant, had been “………that the applicant’s consent to various orders relating to confiscation of her assets amounted to ‘assistance to authorities within the meaning of s.442B of the Crimes Act”. Grove J notes in his Honour’s judgment that the Crown Prosecutor “conveyed his explicit instructions to contend that such activity …………….cannot amount to such assistance”. Thereafter, and counsel for the applicant having taken further explicit instructions on that point, the applicant, by her counsel, “expressly disavowed any intention to advance such a submission and was prepared to limit any submission to the more general and, if I may say so, available proposition that the conduct might be seen as some indication of the applicant’s progress towards rehabilitation”: per Grove J at p.5.
The point arose again, and once more before a two-Judge Bench consisting, on this occasion, of Newman and Barr JJ, in Reg v Kellie Marie Murray: unreported; CCA (NSW), 29 October 1997. The case was described, in the principal judgment, which was delivered by Barr J, as entailing “……….. criminality which……………..consisted of many repeated acts of supply over a period of more than three months”.
In connection with the point now being discussed, Barr J said:
“In my opinion the applicant’s co-operation with the authorities and the repayment of moneys derived from her criminal activity did not merit a reduction of the sentence for assistance to authorities. The applicant was entitled to rely on those circumstances as evidence, together with her plea of guilty, of the genuineness of her remorse and that is a finding that his Honour made in her favour."
There are four decisions of the Court of Criminal Appeal of Victoria which are relevant to the point now being discussed.
The earliest of them is the decision in Reg v Peter John Allen [1989] 41 A Crim R 51. The reasoning of the Court is contained, relevantly, in the following passages from the joint judgment of the Court:
“It is clear that a judge when sentencing a person convicted of a serious crime cannot take into account an application for a confiscation order which has not yet been determined. Indeed, the application need not be made before the offender is sentenced, but may be made within six months of conviction: s 5(2) of the Act. Clearly in such a case the sentence could not be affected by the subsequent making of a confiscation order, whether by way of forfeiture order or pecuniary penalty order. However, s 5(3)(a) of the Act reads:
“5(3) If an application is made under sub-section (1) to the court before which the person was convicted of the offence before that court has passed sentence for the offence, that court may ---
(a)make a confiscation order at the time of passing sentence and for this purpose the court may, if it thinks it necessary to do so, defer the passing of sentence until it has determined the application for the confiscation order;”
The Legislature appears to contemplate that the court may wish to postpone sentence until after it has determined the application for the confiscation order, and the section specifically empowers it to do so. It does not say why the court might wish to do this, and the words “for this purpose” would seem as a matter of construction simply to refer to the “purpose” of making the confiscation order at the same time as sentence is passed.
It is difficult to be sure what the Legislature has in mind when it states “the court may, if it thinks it necessary to do so, defer the passing of sentence until it has determined the application for the confiscation order”.[emphasis added] It may be simply an empowering provision or it may be that the Legislature contemplates that the court may think it “necessary” to know what sort of confiscation order is to be made before fixing an appropriate sentence for the offence.
It is commonplace, when sentencing, to take into consideration the value of any goods stolen or destroyed – and not recovered from the offender. Similarly, the courts invariably take into consideration the fact that an offender has returned goods or money stolen or had made some other form of recompense. Often this is seen, of course, as evidence of remorse, but apart altogether from remorse it is a relevant circumstance when determining the sentence appropriate to the crime.
This being so, although an offender may be sentenced before an application for a confiscation order is made, then if at the time of sentencing it is apparent that the profits of the crime are confiscated, it is appropriate to bear that circumstance in mind when sentencing the offender.
The weight to be attached for the purposes of sentencing to the fact that a confiscation order has been made is of course an entirely different matter. Often it may be entitled to little weight. But if, for example, the crime was one involving a fraud of some millions of dollars, it might be seen to have some real relevance when sentencing to be aware that a confiscation order had been made that was likely to be effective in the recovery of the amount of the fraud.
It may be that for some reason the court may also see that in the very making of a confiscation order, there is something in the nature of punishment wrought. For example, if an offender who has mixed the profits of his crime of fraud with lawfully gotten gains, and purchased a residential property in which his innocent wife and family live with him in apparent respectability, has a confiscation order made apropos that residence, it might been (sic) that the order, in causing the disruption of his whole family, is in itself a form of punishment to him. The circumstances can vary infinitely, and any attempt to contemplate them in advance is futile.
The scope of the Crimes (Confiscation of Profits) Act is so wide that there must be circumstances where the mere making of a confiscation order will be seen to effect some punishment for the crime in addition to the removal of ill-gotten gains from the offender.” [41 A Crim R at 56,57,58]
There are, in my opinion, two points which it is necessary to make in connection with that reasoning.
First, there is no equivalent of the Victorian section 5(3) in the New South Wales legislation. The scheme of the New South Wales legislation is much more draconian. That scheme contemplates the making, initially, of what is called a “restraining order”. Part 2 of the legislation contains extensive provisions in connection with the making of such orders. Put very simply, the N.S.W. Crime Commission is entitled to apply, ex parte, to the Supreme Court for a restraining order; and the Supreme Court “must make the order” if the application for it is supported by an affidavit made by an authorised officer as defined in the legislation. It is sufficient if that affidavit states, either that the authorised officer “suspects that the person has engaged in a serious crime-related activity or serious crime-related activities and stating the grounds on which that suspicion is based”; or that the authorised officer “suspects that the interest is serious crime-derived property because of the serious crime-related activity or serious crime-related activities of a person and stating the grounds on which that suspicion is based”. It is required that the Court itself must, in addition, consider “that having regard to the matters contained in any such affidavit there are reasonable grounds for any such suspicion”.

Whenever such a restraining order is in force, the Commission may apply at any time to the Supreme Court for what is described as an “assets forfeiture order”. Part 3 of the legislation makes extensive provision in connection with the making of, and the consequential effect of, such an order.
The relevant provisions are found in section 22 and are as follows:
“(1)If a restraining order is in force under Part 2, the Commission may apply to the Supreme Court for an order forfeiting to, and vesting in, the Crown all or any of the interests in property that are subject to the restraining order when the assets forfeiture order takes effect.
(2)The Supreme Court must make an assets forfeiture order if the court finds it more probable than not that the person whose suspected serious crime-related activity, or serious crime-related activities, formed the basis of the restraining order was, at any time not more than 6 years before the making of the application for the assets forfeiture order, engaged in: (a) a serious crime-related activity involving an indictable quantity or (b) a serious crime-related activity involving an offence punishable by imprisonment for 5 years or more.
(3)A finding of the court for the purposes of sub-section (2) need not be based on a finding as to the commission of a particular offence or a finding as to any particular quantity involved, and can be based: (a) on a finding that some offence or other constituting a serious crime-related activity and punishable by imprisonment for 5 years or more was committed, or (b) on a finding that some offence or other constituting crime-related activity was committed involving some quantity or other that was an indictable quantity.”
Secondly, it is noteworthy that the Victorian Court of Criminal Appeal, even given the legislative ambiguities to which it refers in the quoted passages, considered it to be clearly correct that the weight to be attached for the purposes of sentencing to the fact that a confiscation order had been made was, in practical terms, dependent upon particular circumstances which might well “vary infinitely”; and that in at least some cases, the making of a confiscation order “may be entitled to little weight”.
A differently constituted Bench of the Court, (Young CJ, Murphy and Nathan JJ), dealt briefly with the same point in Reg v Antonio Salvatore Sergi: unreported, CCA (Vic), 23 November 1989. It is sufficient to say that the original sentencing Judge had said, during the course of his remarks on sentence, that he had been “conscious of the impact on” the offender as a result of forfeiture orders that the sentencing Judge himself had made. It is clear that the Court of Criminal Appeal, which refused to reduce the sentence, accepted that, at least as a matter of general principle, it had been correct for the sentencing Judge to give at least some weight to the fact that confiscation orders had been made.
In Reg v Leslie Daniel Carroll: unreported; CCA (Vic), 15 October 1999, a Bench consisting of Young CJ , Crockett and O’Bryan JJ considered the extent to which the making of a restitution order in favour of the Commonwealth and against a social security fraud offender, was relevant to the sentencing of that offender. The Court dealt with the point very briefly and as follows:
“We were also urged to take into account the restitution order which was made in favour of the Commonwealth. In R v Allen (CCA, 27th April 1989, not yet reported) this court held that an order under the Crimes (Confiscation of Profits) Act 1986 (Vic) might be taken into account as a relevant factor when determining the appropriate sentence, but the weight of such a factor must vary considerably with the circumstances. The reasoning in that case seems equally applicable to the present restitution order under s. 21B but we do not think in the circumstances that it is entitled to very much weight.”
The last of the relevant Victorian decisions is that of the Victorian Court of Appeal in R v Tilev [1998] 2 VR 149. The principal judgment was that of Batt JA.
The original sentencing Judge had given a suspended sentence to a convicted trafficker in cannabis. The sentencing Judge had made, also, a forfeiture order in respect of various property of the offender. The relevant portions of the judgment of Batt JA, (the other two members of the Court concurring), are as follows:
“Were it not for the existence of the forfeiture order, I would be clearly of the view that an immediate custodial sentence was required and that a sentence which was of a different nature was clearly inappropriate and thus manifestly inadequate. …………………
But the fact is that the learned judge made a forfeiture order, and that the forfeiture order stands. Further, it has, as I have endeavoured to show, a significant effect upon the applicant. ……………………Although not strictly part of the sentence, in substance the forfeiture order has a punitive effect. It is somewhat analogous to a fine paid immediately. The question is not whether this court would have imposed a different sentence, but whether the sentence imposed is manifestly inadequate …………………
In the particular circumstances of this case,…………………….., I have concluded that the forfeiture order has such a significant effect that it cannot be said that the suspended sentence imposed is clearly inappropriate or manifestly inadequate or that, in imposing it, and in particular in suspending the sentence of imprisonment, his Honour gave too mitigatory weight to the forfeiture order.” [ (1988) 2 VR, 155(10) - (25)]
In Gee v Reg: unreported; CCA (SA), 16 December 1998, a Bench consisting of King CJ and White and Bollen JJ had to deal with an appeal, one of the grounds of which was that the sentencing Judge, before passing sentence upon the appellant, had made an order for the forfeiture of the sum of $10,000 which the appellant had received in exchange for the sale of about 2,300 grams of cannabis. The money had been in the appellant’s possession at the time of his arrest; so that the forfeiture order had real effect. The sentencing Judge had taken the view that he was required to disregard the forfeiture in determining the sentence to be imposed; and that he was so constrained by an amendment to the relevant South Australian legislation, being an amendment requiring that in the determination of a sentence, a sentencing Court was to disregard a forfeiture order. That perception of the sentencing Judge had been, in fact, erroneous by reason of the fact that the amendment had come into operation on a date subsequent to the date of the commission of the offence for which the sentence in question was to be imposed.
Against that background, King CJ, who delivered the principal judgment of the Court, said this:
“Quite apart from s. 3a, it seems to me that it would have been quite wrong for the learned Judge, in the circumstances of this case, to have mitigated the sentence which the crime otherwise merited by reason of the fact that the appellant has lost his money. It was said on his behalf that he had invested the $9,000 of his lawful savings in the purchase of the cannabis, ……………… If he did so, he invested his money in an unlawful enterprise, and had to take all the risks that are involved in the investment of money in criminal activity. If he lost that money, it is no more than he deserved for embarking upon the criminal enterprise. I think that it would be quite wrong, and indeed bordering on the farcical, for a judge to mitigate a sentence which he would otherwise impose because an offender had lost money which he had chosen to invest in criminal activity. It seems to me, therefore, that the judge’s mistake as to the applicability of s.3a of the Act has no effect upon the outcome of this appeal.”
Further authorities are collected and analysed by Slicer J in Reg v Geoffrey Ian Thorley: unreported; Supreme Court of Tasmania, 25 June 1999. I do not refer to them in detail for three reasons: first, because they do not seem to me to add anything of substance to what I have thus far written; secondly, because there are, among the various authorities, differences between the relevant legislation and the New South Wales Act; and thirdly, because some, at least, of those decisions turn upon there having been made pecuniary penalty orders, so denominated and imposed, rather than confiscation orders of the kind for which provision is made in the New South Wales Act.
I advert, finally, to the decision of the Court of Appeal of New Zealand, (Cooke P, Casey and Tompkins JJ), in R v Brough [1995] 1 NZLR 419.
In that case, the appellant offender had been convicted of drugs and arms offences. He had been sentenced to imprisonment for 7 years and a fine of $5,000. He had been ordered, also, to forfeit over $17,000 found during a police search of relevant premises; and to pay a pecuniary penalty of nearly $85,000. He contended, relevantly, that the forfeiture and penalty orders should have been taken into account on sentence, and had not been so taken into account. The appeal was dismissed. The relevant portions of the judgment read as follows:
“The policy of the Act, therefore, is two-fold.. First, a person who has engaged in criminal activity should be required to disgorge what in common parlance may be referred to as his or her ill-gotten gains. Requiring these to be paid cannot in any way be regarded as a penalty. Rather, it is simply a recognition that the law should not permit a person to retain the profits of criminal activity. Secondly, it empowers the court to forfeit property used to facilitate the commission of the offences. That too is not for reasons of penalty or punishment, but rather in recognition of the principle that persons who use property to commit crimes should be liable to have that property forfeited. …………….. ……
The court is not directed to have regard to any sentence that may be imposed in respect of offences to which the forfeiture relates. Nor is there any provision in the Criminal Justice Act 1985 requiring a sentencing court to have regard to confiscation orders made under the Act.” [ (1995) 1 NZLR at 423(25)-(50) ]
After some reference to some of the Australian authorities, and having noted in connection with those authorities that “care must be exercised since in at least some of the State jurisdictions the statutory provisions are different”, the Court proceeded:
“It is our conclusion, having regard to the scheme of the Act, that as a general proposition, confiscation orders under the Act should not be taken into account when assessing sentencing, subject to two qualifications. First, there may be exceptional or unusual circumstances where orders made, particularly orders to forfeit valuable property used in the commission of an offence, may have a disproportionate or exceptional effect on the offender, sufficient for some regard to be had to it when imposing sentence. Secondly, recognising that one of the purposes of the sentence to be imposed is to deter others who may be minded to commit like offences, if forfeiture orders of property used in the commission of offences are particularly severe, some adjustment to the sentence may be appropriate because the deterrent effect of the forfeiture orders may lessen the need for the deterrent element in the sentence. But it is difficult to conceive of circumstances where orders to forfeit the proceeds of the offence or for a pecuniary penalty order reflecting the benefit derived from the commission of an offence, should have any relevance to an appropriate sentence. These reflect the offender’s ill-gotten gains which, in accordance with the policy of the Act, and irrespective of sentencing for offences, the offender should be required to disgorge.”[ (1995) 1 NZLR 424 (25)-(40) ]
In my opinion, it would better accord with the manifest policy of the New South Wales legislation to adopt in relation to it the clear and resolute approach of the New Zealand Court of Appeal. Applying the principles thus established to the particular facts of the present case, it would be, in my opinion, and to borrow respectfully from King CJ, farcical to give the present respondent the consideration that he claims by reason of his cooperation with the Crime Commission in the matter of disgorging his ill-gotten gains from criminal activity of the enormity previously described and discussed. In such a case as the present one, the sanction of condign punishment by way of substantial imprisonment, and the sanction of disgorgement of ill-gotten gains, are intended by the legislature to be; should be seen by all concerned to be in fact; and should be enforced resolutely by the Courts as, complementary sanctions intended to strengthen each other, rather than as alternative sanctions which a resourceful offender can juggle in a way that effectively causes the one to weaken, rather than to strengthen, the other.
The Reasoning of the Sentencing Judge
It is trite that any consideration of the learned primary Judge’s remarks on sentence is not to be undertaken in the form of a narrow and pedantic analysis of what his Honour said: R v Johnson [1917] 17 SR(NSW) 481 at 482-484; and R v Sorlie [1925] 25 SR(NSW) 532 at 539
It is convenient to begin by considering a submission of the Director that there are identifiable patent errors in the remarks on sentence.
The first suggested patent error has to do with the absence from the remarks on sentence of any reference to the relevant detail of the respondent’s criminal antecedents as I have earlier summarised them.
It is true that his Honour does not speak at any length of the relevant criminal antecedents of the respondent. His Honour does take note, however, of the fact that: “he has some previous convictions, and in particular, he has served a significantly long sentence for similar misconduct in the past”.
It is true that his Honour makes no specific mention of the previous recognisances to which the respondent was subject, as previously herein described, at times when he committed further offences. I agree that it is surprising that the learned sentencing Judge makes no mention of this, not insignificant, aspect of the respondent’s antecedents; and I respectfully agree that it would have been better had his Honour made such a specific mention of those antecedent matters. I would not, however, draw the inference that his Honour simply ignored them or forgot about them. It is a question whether his Honour gave proper weight to them; but that is a different question to which I shall come in due course.
The second suggested patent error concerns the way in which the learned sentencing Judge dealt with the respondent’s pleas of guilty. The Third suggested patent error concerns the way in which his Honour dealt with the element of contrition on the part of the respondent.
In my opinion, the respondent’s case was of such a kind that he was not entitled to any significant discount in respect of his pleas of guilty; and there was no basis in the evidence for a reasonable finding, reached on the probabilities, of genuine contrition. I need not repeat what I have said earlier herein about these two particular matters.
The fourth suggested patent error concerns remarks made by his Honour about the absence of any trafficking by the respondent in heroin. At p.5 of the remarks on sentence his Honour, while canvassing the relevant objective facts and their criminality, says:
“It can be said of the charges listed in the indictment that at least there are no charges relating to heroin.”
Had that reference stood alone, I would have found it, with respect, puzzling, both as to its logic and as to its relevance. I would have hesitated, however, to make an affirmative finding that his Honour had fallen into error.
But the statement which I have quoted does not stand alone. Later, and in the very closing paragraphs of his remarks on sentence, his Honour returns to the point, saying:
“I said before that there is no heroin being sold in this exercise……………….”
It seems to me to be a fair inference from these two discrete references to the matter that his Honour did in fact think that, in some way or other, it stood to the credit of the respondent in terms of the sentencing exercise with which his Honour was concerned, that the respondent was not alleged to have trafficked in heroin.
Any such concept is entirely erroneous. The accused manufactured and trafficked in very significant quantities of methylamphetamine. He trafficked in very significant quantities of cocaine and of cannabis leaf. It needs nothing more to mark him as a major player in the trafficking of illicit drugs. It needs nothing more, in terms of objective gravity, to expose him to the full rigour of the law in connection with the undoubted criminality of his persistent, indeed contemptuous, unlawful conduct. Had the evidence shown that the respondent had trafficked in heroin as well as in the other drugs to which I have referred, then that would have been a circumstance that required to be taken into account adversely to the respondent. It does not at all follow, and it is in my respectful opinion contrary to logic and principle alike, that the absence of any demonstrated trafficking in heroin somehow cuts down the objective criminality of the proved conduct of the respondent; or somehow strengthens his subjective case in the matter of penalty.
In my opinion, this particular complaint of the Director has been made good.
The fifth suggested patent error has to do with two references made by the learned sentencing Judge to the question of violence.
The first of them occurs at p.6 of the remarks on sentence, and is as follows:
“I should add in this respect that it is to the credit of the prisoner, notwithstanding the extensive surveillance of the premises, perhaps rivalling the comprehensive nature of the surveillance in the film ‘The Truman Show’, there is no suggestion in any of the materials I have looked at of any violence threatened or used by the prisoner. Unhappily the business of illegal drugs often generates violence but I have not seen any evidence of that and he is not charged with that. At least the absence of that is a negative factor which I weigh in his favour.”
His Honour returned to the topic of violence at p.15 of the remarks on sentence, and immediately following the later of the two references, earlier herein quoted, to the absence of any suggestion of the respondent’s having trafficked in heroin. His Honour says: “…………………………and I take into account an unusual feature, that in the saga of the listening devices, there is no suggestion of threats or violence being made by or on behalf of Mr. Kalache”.
I would repeat, mutatis mutandis, in connection with his Honour’s treatment of the absence of a suggestion of violence, what I have earlier said in connection with his Honour’s use of the absence of any suggestion of trafficking in heroin.
The sixth, and final, suggested patent error concerns what is said to have been his Honour’s erroneous limiting of the use to which the respondent’s criminal antecedents could be put. His Honour says, at p.14 of the remarks on sentence:
“Good character is not put forward on his behalf because he has some previous convictions, and in particular, he has served a significantly long sentence for similar misconduct in the past. So he does not have the benefit, which otherwise might have been available to a person being sentenced in this court, of previous good character.”
In my opinion, and with respect to his Honour, the submission of the Director is correct. What his Honour actually said was, with respect, undoubtedly correct as far as it went. The present case called, however, for a much more careful and discriminating consideration of the respondent’s criminal antecedents, and of the inferences fairly available to be drawn from those antecedents as to the matters, all of which were of obvious significance in the fixing of proper sentences in the present case, of “……………….the moral culpability of the offender in the instant case, or ……………… his dangerous propensity or ………………….. a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind”. [Veen v The Queen [No. 2] (1988) 164 CLR 465 at 477 and following]. His Honour did not give the proved antecedents any such consideration.

Even though an appeal by the Crown is, in New South Wales, as of right, the exercise of the right involves the respondent to such an appeal being subjected to “double jeopardy” - once at first instance and once on appeal - of punishment, generally imprisonment. The topic has been the subject of much discussion of which it only necessary to mention Cooke v Purcell (1988) 14 NSWLR 51 per Kirby J, and, in a wider context, Pearce v R (supra). Despite statutory authorship of the double jeopardy, sensitivity to it has led to restraint on the part of the Courts in allowing such appeals.
Hence, even where the Crown in an appeal under s 5D of the Criminal Appeal Act establishes appealable error in a sentence imposed, this Court possesses a discretion as to the course it will take. Sometimes that discretion will be exercised so as to refuse the appeal and sometimes it will allow the appeal but impose a sentence lower than it thinks should have been imposed at first instance - see- R v Holder (supra) at 269 and the cases there cited. R v Irwin (supra) was a case where the latter course was followed. In R v Allpass (1993) 72 A Crim R561 at 563 this Court said that that was the course “ordinarily” adopted. That statement was quoted in R v Warfield (1994) 34 NSWLR200 at 209. In R v Bang (unreported, CCA, 1 September 1992), Hunt CJ at CL, who was a party to those last mentioned decisions, expressed himself thus:-
“It is this element of double jeopardy involved in successful Crown appeals which results in the fresh sentence imposed by this Court usually being less than that which ought to have been imposed at first instance: Regina v Holder & Johnston [1983] 3 NSWLR 245 at 256, 269-270; Regina v Stephen Michael Anthony Baxter (CCA, 7 May 1991, unreported) at 4. It was accepted in the first of those two cases, and in many others, that the distress occasioned to a respondent to a Crown appeal by twice being put in jeopardy usually requires a discount to be applied by this Court. Indeed, so important is this consideration in Crown appeals that this Court will not infrequently exercise its discretion to dismiss the appeal because of the unfairness or injustice which would otherwise be occasioned to the respondent by reason of his double jeopardy: Regina v Holder & Johnston (at 255-256).
Sometimes the Court will impose the minimum sentence which should have been imposed at first instance - see R v Rose (unreported, CCA, 23 May 1996), R v Baugh [1999] NSWCCA 131. In R v Tony Giam (No 2) [1999] NSWCCA 378 at [28] it was said that “where a Crown appeal succeeds, the appropriate sentence is one which is at the bottom of the range”. In R v Hanley (unreported, CCA, 9 October 1998), this course was described as “the practice of the Courts”. Sometimes, as in R v Holder itself, this will involve the imposition of the maximum provided for by the statute.
I am not aware of any decision which contains a reasoned discussion of why one rather than another of these approaches should be adopted in a particular case. None was brought to the Court’s attention during the hearing nor was there any debate on the topic. It may be that in practical terms the adoption of one rather than the other approach does no more than reflect what seems to individual judges to be the appropriate exercise of the discretion in the individual case.
In deciding what course to adopt following the demonstration of appealable error the Court will seek to take account of all relevant factors. From time to time these will include any delay in the institution or prosecution of a Crown appeal, the change in character from a non-custodial to a custodial sentence and the extent to which a sentence originally imposed has been served. Distress to a respondent in having a sentence increased has been inferred and recognised - see R v Tiege (unreported, CCA, 19 November 1982) and quoted by Priestley JA in R v Holder (at 269).
But in this case, given the Respondent’s antecedents, I would not be prepared to infer that he was not at all times aware, not only of the existence of laws against dealing in drugs but also that there were provisions designed to facilitate the enforcement of those laws. Given his time in prison, I would not be prepared to infer that during the time he was committing the offences with which this Court is concerned and during and since the original sentencing proceedings, he did not at all times know that the Crown could appeal against sentences thought to be too low.
In the last paragraph I have largely expressed myself in the negative. I of course do not make any positive findings that the Respondent did know of the matters to which I have referred. I do not suggest that in all cases evidence concerning the impact of Crown appeals on a respondent is necessary but given this Respondent’s antecedents and the circumstances of his offending with which the Court is concerned, before I would be prepared to conclude that there was any substantial impact on the Respondent arising in consequence of the fact of double jeopardy itself, I would require such evidence. This might well include whatever advice the Respondent received prior to being sentenced. Although I do not need to rely on the fact, I would suspect that the Respondent could not believe his luck at the sentence imposed.
Nor should it be forgotten that the jeopardy in sentencing which many offenders face is primarily of their own doing, particularly where their offending is premeditated and occurs for financial benefits seen to arise from it. Though not an immediate cause, it may fairly be said that their actions are also a not insignificant contributing factor to any double jeopardy which may arise. The prospect and risk of being sentenced for 7 very serious offences was not sufficient to deter the Respondent from committing one or more of them, almost on a daily basis for months. There is nothing to suggest that that daily jeopardy, voluntarily undertaken, unduly distressed him. Indeed, given the duration or magnitude of his offending, one might be pardoned for thinking he bore the risk with fortitude.
It is true that the occasion of being re-sentenced by this Court is due to error on the part of the justice system. Ideally, such fault should not occur but it is important to maintain some relativity between it and that of the Respondent.
One factor to which this Court pays particular regard in the exercise of its discretion is whether the error in sentence was due at all to the actions or the approach of the Crown Prosecutor. At times such conduct by the Crown has led to this Court declining to interfere notwithstanding error in the sentence imposed - see e.g. R v Jones (unreported, CCA, 9 October 1995), R v Chad (unreported, CCA, 13 May 1997) and R v Allpass (1993) 72 A Crim R 561. Nevertheless, in that latter case the Court said (at p565):-
“the Crown is not debarred, on appeal, from taking a stance different from that taken at first instance, but this Court, in the exercise of its discretion, is entitled to take account of the fact that, at first instance, the Crown acquiesced in the course that was taken by the sentencing judge: Jermyn (1985) 2 NSWLR 194; 16 A Crim R 269; Malvaso (1989) 168 CLR 227. The weight to be given to such a consideration depends upon the circumstances of the particular case, but it may be of considerable significance if the respondent was given a non-custodial sentence at first instance. Its weight may also vary with the degree to which the appellate court thinks the sentencing judge fell into error.” -
Remarks of the High Court in Malvaso v R (1989) 168 CLR 227 themselves bear repetition. That was a case on appeal from the Court of Criminal Appeal of South Australia where leave was needed before the Crown could appeal from a sentence imposed. Leave had not been expressly granted but the Court of Criminal Appeal had proceeded to allow a Crown Appeal. In their majority judgment, Mason CJ, and Brennan and Gaudron JJ said (p232-3):-
“It cannot be assumed that leave was granted by implication, for the question whether leave should be granted was, in the circumstances of this case, distinct from the question of the inadequacy of the sentence imposed at first instance. The prosecution’s bargain to stand mute when a suspended sentence was sought on behalf of the Applicant was carried into effect and the prosecution was thus compromised in its presentation of the arguments which might otherwise have led the learned sentencing judge to impose a sentence against which the Attorney General would not have sought leave to appeal. That is not to say that the agreement between the prosecuting authorities and the Applicant affected the duty either of the sentencing judge or of the Court of Criminal Appeal (if leave to appeal were given) to impose the sentence which appeared appropriate to the Court in the circumstances. The Court’s sentencing discretion is to be exercised in the public interest; it cannot be fettered by a plea-bargaining agreement. Nor can such an agreement bind the Attorney General not to exercise his statutory power to seek leave to appeal and to appeal in any case where, in his opinion, the proper administration of criminal justice requires that power to be exercised. Nevertheless, if an agreement between the prosecuting authorities and an offender has affected the course of proceeding before the sentencing judge and the course of proceedings is relevant to the order which should be made on the Attorney General’s application for leave to appeal, the Court may have regard to those circumstances in determining whether leave to appeal should be given.”
Deane and McHugh JJ said at p240 that they agreed with, inter alia, the following comments in an earlier case in the South Australian Supreme Court:-
“In my opinion, this Court should allow the prosecution to put to it, on appeal against sentence, contentions which were not put to the sentencing Judge, only in exceptional circumstances which appear to justify that course.”
In R v Jermyn (1985) 2 NSWLR 195 at 204-5 McHugh J expressed himself thus:-
“Only in the rarest of cases, if at all, would a private litigant be allowed to appeal against the exercise of a discretionary judgment in respect of a ground which he had expressly conceded was open in the court below. No doubt the public interest in having proper sentences imposed upon offenders makes the case of the private appeal an imperfect analogy. But when the Attorney General on behalf of the Crown asks the Court to set aside a sentence on a ground which was conceded in the Court below, I think that this Court in the exercise of its undoubted discretion should be slow to interfere. Nevertheless as Rowland J pointed out in R v Acerbi (1983) 11 A Crim R 90 at 92:
‘… fairness to the Accused must play a secondary role to what should appear to be fair to the community as a whole and perhaps others who have been guilty of similar offences and who have received what appears to be quite disproportionate treatment’.”
R v Duroux (unreported, CCA, 11 April 1991) provides an example of a case where the public interest resulted in a custodial sentence being imposed by this Court notwithstanding that the imposition of a community service order at first instance - an order which had in fact been served before the appeal - was in part due to the failure of the Crown to oppose a non-custodial sentence. I do not understand anything the High Court said in Everitt v R (1994) 181 CLR to require the conclusion that that decision was wrong.
In this case, error on the part of counsel appearing for the Crown was gross. She provided His Honour with but a short and wholly inadequate summary of 7 prior cases involving commercial or large commercial quantities of amphetamine or methyl amphetamine and a print-out of some Judicial Commission statistics. It is unnecessary to detail all of the inadequacies in the summary. It is sufficient to mention but 3. The first case referred to was R v Spyridis (unreported, CCA, 7 December 1998). The summary referred to the fact that the appellant in that case had been convicted of knowingly taking part in the manufacture of a large commercial quantity and of supplying methylamphetamine and that 13.5 kg of methylamphetamine had been recovered. The Reasons of this Court record, but the summary does not, that the purity of the methylamphetamine was 8%, thus yielding but 1.1 kg of pure methylamphetamine - under 5% of that with which the Respondent here was concerned. The summary does record that the sentence imposed included a minimum term of 5 years and an additional term of 2 years.
The second case mentioned in the summary was R v Oldfield (unreported, CCA, 28 April 1998). The summary of it was in these terms:-
“Plea of guilty to: conspiracy to commit offence outside NSW (to manufacture large commercial quantity of methylamphetamine near Cairns); supply commercial quantity (six incidents each involving 2.2kgs); supply by receipt of product of manufacture (3.3kgs); supply commercial quantity 3.1kgs ($70,000). Two further offences under Customs Act (importing precursor) on schedule taken into account.
Sentence: Conspiracy 11 yrs Minimum Term; 3 yrs Additional Term.
Appeal against sentence unsuccessful.”
The summary did not record that the 6 quantities of 2.2 kg referred to were part of the quantity of about 14.3 kg (with a street value of at least $4M) produced pursuant to the conspiracy nor that the 3.3 kg was produced later at the factory established pursuant to the conspiracy, nor that the 3.1 kg was part of the 3.3 kg the subject of the preceding charge. More importantly, there was no mention of the fact that Oldfield was of prior excellent character, that he had been willing to give evidence against others and would accordingly suffer special hardship in prison and that the sentencing judge had expressed the view that “the objective gravity of the offences charged in the indictment is such that an aggregate sentence, without taking account the subjective matters, the pleas of guilty, and co-operation with the authorities, in the order of eighteen years imprisonment would be totally warranted”.
The third case referred to was R v Larsson (unreported, CCA, 11 September 1997). The summary referred to the fact that Mr Larsson had pleaded guilty to knowingly taking part in the manufacture of a commercial quantity of amphetamine and that an appeal against a sentence of 7 years minimum term and 5 years additional term had been unsuccessful. The summary did not refer to the facts that the sentencing judge had approached the matter on the basis that a large commercial quantity of about 8 kg was involved, that because Mr Larsson was also serving another sentence including a minimum term of 6 years (which, to the extent of 7 months overlapped the sentence of 12 years), the principle of totality must have operated to reduce his sentence nor that this Court expressed the view that Mr Larsson was fortunate that the penalty imposed was not higher.
The Judicial Commission statistics reflected merely:-
5 cases of the supply (incl deemed supply) of a large commercial quantity of amphetamines - longest full term 10 years;
3 cases of the manufacture of a large commercial quantity of amphetamines - longest full term 8 years; long minimum term 6 years;
5 cases of the supply (incl. deemed supply) of a commercial quantity of cocaine - longest full term 6 years; and
1 case of the supply (incl deemed supply) of a large commercial quantity of cocaine - full term 6 years.
The statistics gave no details of the cases or offenders referred to.
Later, counsel appearing for the Crown drew Judge Woods’ attention to the maximum penalties prescribed and the following exchange occurred. (“Counts 1 and 2” are the charges I have numbered 2 and 3. The “other indictment”, mentioned by Ms Adey, consisted of the charge I have numbered 1.):-
“His Honour: Well it seems to me that, subject to argument, that it’s appropriate in this case to approach it on the basis that so far as counts 1 and 2 are concerned, one would start calculations in double figures and work back from there that because the whole exercise so far as Mr Kalache was concerned, pivoted on his place at Clovelly that it would be appropriate to sentence globally but concurrently for all the drug matters but that there should be cumulative sentencing for the pervert the course of justice, and what do you say about that general approach? (sic)
Adey: Yes, I would concur with that approach. Your Honour, there’s also the matter of the other indictment that’s been presented this morning.
His Honour: Yes, of course, yes, what do you say about the proper approach to that? Isn’t it part of the drug - I mean, shouldn’t one look at that concurrently but globally with the methylamphetamine charges counts 1 and 2 in the other indictment?
Adey:Probably that’s the way to go even though it was a completely separate set up.
His Honour: One can take a building block approach to this and, I mean, theoretically not a day went by when Mr Kalache wasn’t doing something that could individually possibly attract 20 years goal so that we could set a world record and have a sentence of thousands of years but it wouldn’t be appropriate, wouldn’t be lawful, wouldn’t be fair, but if I were to take an approach that has been taken in some other broadly similar cases, looking at this material globally - in one of the large cases recently, the court started at 11 and deducted some use (? years) for various factors. Some sort of approach along those lines is what I have in mind subject to argument.”
The Crown Prosecutor did not demur notwithstanding her response should have pointed out emphatically that in a worst case the starting point was life imprisonment, that there were 3 offences rendering the Respondent liable to that penalty, and a major question was whether there was any justification for a lower sentence in this case.
What impact should this conduct of counsel appearing for the Crown have? Even by the standards apparent in the inadequate summaries of Spyridis, Oldfield and Larsson the concurrent sentences of 3 or 6 years or a little more (if some of the additional term is notionally attributed to these offences) for the 6 drug offences were woefully insufficient. Even when one has regard to all of what I see as the failures of counsel appearing, it is impossible to blame the Crown entirely, or perhaps even mainly, for the errors that occurred. That fact alone argues persuasively against dismissing the Crown appeal. Of course, as I indicated earlier, so too does the extent of the inadequacy of the sentences.
But what to my mind outweighs all of the factors arguing in favour of the Respondent is the magnitude of his criminality, and his antecedents. Were the Respondent’s prior history one attracting leniency, were his offences not as serious, did they not constitute the massive assault on the community which they did, the conduct of counsel appearing for the Crown would have led me to the view that sentences somewhat more lenient than those which I favour should be imposed. However this is a case where those “exceptional circumstances” and the “public interest” referred to in Malvaso v R (supra) and R v Jermyn (supra) should be recognised and given full weight. Notwithstanding the errors by the Crown prosecutor, the Crown appeal should be allowed. Furthermore, in my view the sentence imposed on the Respondent should be the minimum which should have been imposed at first instance, even though this will be or include a sentence of life imprisonment. As Street CJ said in R v Holder (1983) 3 NSWLR 245 at p261 “the criminality involved … was such as to call for a life sentence”. Of course that decision was made under a different sentencing regime and on radically different charges: For immediate purposes, there is but a parallel in the magnitude of criminality.

In any judgment as to the “public interest” referred to in Malvaso v R (supra) and R v Jermyn (supra) it is probably unnecessary to go beyond the terms of the Drug (Misuse and Trafficking) Act. However, it may not be inappropriate to observe that illegal drugs and their consequences are one of the greatest problems facing society today. Many judgments of this Court have referred to these matters.
A large proportion of the persons with whom the criminal courts have to deal and of the jail population are in their situation because of their use of, or dependence on, such drugs. Many persons who have no such connection have to suffer violence or other crimes committed to pay for drugs of the nature of those supplied by the Respondent, in particular cocaine and methylamphetamines or in consequence of their use. Even persons not so victimised are affected by higher insurance premiums.
When persons at the top of the hierarchy of the trade are caught, particularly when they are repeat offenders or involved in repeat offences and participate for the money to be made out of the trade, it behoves the courts to ensure that penalties are imposed which reflect Parliament’s intention and which, to the maximum extent possible consistent with the legislation and sentencing principles, will operate as a discouragement to others. In this case, these matters outweigh the argument for more lenient treatment in consequence of double jeopardy.
On the basis that a life sentence is imposed in respect of the charge I have numbered 3, it would be appropriate to make the sentences on the other charges fixed terms of ¾ of the sentences I regarded as the minimum which should have been imposed at first instance, concurrent, and each with the common commencement date of the Respondent’s arrest. However as mine is a minority view, it is unnecessary that I formulate such orders.

IN THE COURT OF
CRIMINAL APPEAL

60238/99

SULLY J
HULME J
HIDDEN J

4 February 2000

REGINA v Leslie George KALACHE

JUDGMENT

HIDDEN J: I agree with the orders proposed by Sully J and, substantially, with his Honour’s reasons.
I find it unnecessary to determine whether a sentence of life imprisonment for the second charge was called for at first instance. Certainly, it should have attracted a very lengthy determinate sentence.

**********

LAST UPDATED: 22/02/2000