R v Knight; R v Biuvanua

[2007] NSWCCA 283

Reported Decision: 176 A Crim R 338

New South Wales

Court of Criminal Appeal

CITATION:	R v KNIGHT R v BIUVANUA [2007] NSWCCA 283
HEARING DATE(S):	14 August 2007
JUDGMENT DATE:	24 September 2007
JUDGMENT OF:	McClellan CJ at CL at 1; Hidden J at 7; Howie J at 9
DECISION:	Knight appeal 1. Crown appeal allowed; 2. The sentence imposed in District Court is quashed; 3. In lieu the respondent is sentenced to a term of imprisonment made up of a non-parole period of 10 years and a balance of term of 4 years and 4 months. The sentence is to date from 29 September 2005 and the non-parole period is to expire on 28 September 2015 the date upon which the respondent is eligible to be released on parole Biuvanua appeal; Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – Crown appeal against sentence – supply ecstasy – husband and wife co-offenders – complaint about departure from the standard non parole period – parity between co-offenders – strong subjective case for wife – objective criminality assessed as “at least mid range” – whether the non-parole period imposed reflected the objective criminality – whether sentence was manifestly inadequate
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Daniel Robert Vos v R [2006] NSWCCA 234 Dominey v R [2006] NSWCCA 222 Le Huynh v R [2006] NSWCCA 77 Lovell v R MLP v R [2006] NSWCCA 271 R v AJP (2004) 150 A Crim R 575 R v BSW [2007] NSWCCA 59 R v MD, BM, NA & JT (2005) 156 A Crim R 372 R v Mills (2005) 154 A Crim R 230 R v Moore and Weibe (NSWCCA 11 August 1992, unreported) R v Pearce (1998) 194 CLR 610 R v Saba [2006] NSWCCA 214 R v Way (2004) 60 NSWLR 168 R v Witchard [2007] NSWCCA 167 R v Zegura [2006] NSWCCA 230 Reaburn v R [2007] NSWCCA 60
PARTIES:	The Crown (Appl) Joy Lorraine Knight (Resp) Viliame Biuvanua (Resp)
FILE NUMBER(S):	CCA 2007/3242; 2007/3243
COUNSEL:	T Thorpe (Crown/Appl) A Cook (Resp - Knight) P Strickland SC (Resp - Biuvanua)
SOLICITORS:	Director of Public Prosecutions (Crown) Nyman Gibson Stewart (Knight) Legal Aid Commission of NSW (Biuvanua)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/11/0854 (Knight) 06/11/0854 (Biuvanua
LOWER COURT JUDICIAL OFFICER:	Murrell DCJ
LOWER COURT DATE OF DECISION:	24 May 2007

2007/3242
2007/3243

McCLELLAN CJ AT CL
HIDDEN J
HOWIE J

MONDAY 24 SEPTEMBER 2007

R v Joy Lorraine KNIGHT

R v Viliame BIUVANUA

Judgment

1 McCLELLAN CJ AT CL: The principles by which the Court will review a sentence at the request of the Crown are well known. They were considered in R v MD, BM, NA & JT (2005) 156 A Crim R 372 [18]-[21].

2 Notwithstanding the impact that these principles should have on the number and likely success of Crown appeals in recent years the number of Crown appeals has increased. The proportion of those appeals which have been upheld by this Court has also increased. There are two issues which seem to be causing particular difficulty. There are continuing problems with the application of the High Court’s decision in R v Pearce (1998) 194 CLR 610. (see eg R v BSW [2007] NSWCCA 59; Le Huynh v R [2006] NSWCCA 77; R v Saba [2006] NSWCCA 214; Daniel Robert Vos v R [2006] NSWCCA 234) particularly with respect to questions of totality. The application of the standard non-parole period to the sentence to be imposed is also causing problems. (see eg Reaburn v R [2007] NSWCCA 60; MLP v R [2006] NSWCCA 271; Lovell v R; Dominey v R [2006] NSWCCA 222). The present case is an illustration of the latter problem.

3 The principles relevant to consideration of the standard non-parole period were provided by this Court in R v Way (2004) 60 NSWLR 168. In that case the court said:

“In this approach the standard non-parole period can properly take its place as a reference point, or benchmark, or sounding board, or guidepost, along with the other extrinsic aids such as authorities, statistics, guideline judgments and the specified maximum penalty, as are applicable and relevant. In particular, it can have a direct relevance as a reference point to be compared with the sentence which is provisionally reached after an assessment has been made of the relative seriousness of the subject offence, and of the various aggravating and mitigating factors, as well as any other subjective factor that may be present, including in particular the fact, if it be the case, that the offender entered a plea of guilty. In that regard the sentencing judge will need to keep in mind that the standard non-parole periods were framed upon the assumption that the case was determined at trial and that s 22 of the Act contemplates that the fact of a plea will attract a discount.
The reference point has, in this sense, an important role to play in ensuring consistency in sentencing. Because the standard non-parole period will be imposed, subject to s 21A, for matters within the mid range, it will act as a guide for cases that are outside the mid range.
The desirability of a judge adopting the practice of standing back after reaching a provisional sentence, and of reviewing it so as to be sure that it is appropriate for the offence at hand (see the observations made in R v McGourty [2002] NSWCCA 335 at para 45), cannot be understated, and the existence of a standard non-parole period is likely to be of assistance in this respect.
Sight should also not be lost of the fundamental principle noted in Hoare v The Queen (1989) 167 CLR 348 at 354: “Secondly, a basic principle of sentencing law is that a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances.”
It is true that the Division does not specify either a minimum or a maximum non-parole period for the relevant offence, nor is there anything to suggest that it had in contemplation either a linear, or an exponential progression within a range between those points, in which the mean was to be understood as the standard non-parole period. Had there been an intention to convert sentencing to a precise arithmetic exercise of that kind then those reference points would need to have been identified and consideration given to the weight to be attached to the adjusting factors. The absence of any provision of that kind is a further pointer towards the continuation of a wide area of discretion, without resort to some rigid mechanistic or arithmetic approach, of the kind which would be totally unsuited to the difficult task of sentencing.
The approach which we have outlined does not seem to require a departure from the intuitive or instinctive synthesis approach to sentencing which received judicial support in R v Thomson and Houlton (2000) 49 NSWLR 383 at paras 57-60 and which was favoured in the joint judgment in Wong v The Queen (2001) 207 CLR 584, but which has also attracted some criticism ( R v Markarian [2003] NSWCCA 8 – special leave to appeal to the High Court granted). Nor do we see it as requiring resort to a rigid two-tiered approach which involves determining an objective sentence and then adjusting it to take account of subjective factors of the kind which was criticised in AB v The Queen (1999) 198 CLR 111, per McHugh and Hayne JJ.
In R v Whyte (2002) 55 NSWLR 252 Spigelman CJ did not regard the use of guideline judgments as being inconsistent with the ultimate application of an “instinctive synthesis approach” (at paras 160 – 167) and we do not see that any material difference arises where the benchmark or reference point is given by legislation.
Moreover, if the exercise is confined to a single stage, the risk of double counting which might otherwise be involved can be avoided. That arises from the circumstance that some of the aggravating and mitigating factors referred to in s 21A (eg the use of violence on the one hand, or the presence of provocation or duress on the other hand) are of direct application to the circumstances in which the offence occurred, and need to be taken into account in assessing where the offence ranks in the range of seriousness. If they were to place it for example in the mid range, then to bring them to account again for the purposes of s 54B(2) would involve double counting.
The approach which we favour is consistent with the disclosed legislative intention that Division 1A of Part 4 was to operate, not by way of any mandate or removal of sentencing discretion, but rather as providing a guidepost, or benchmark, against which the case at hand could be compared. That is not say that it should be merely acknowledged in the passing. It takes its place alongside guideline judgments, and the prescribed maximum sentence for the relevant offence, which are to be taken into account in the same way that sentencing judges are required to take into account the provisions of s 21A, 22, 22A and 23, when exercising their sentencing discretion.”

4 Where a sentencing judge contemplates imposing a sentence which is significantly less than the standard non-parole period it is prudent for the judge to closely examine the relevant findings before finally determining whether the proposed sentence is appropriate. Of particular significance will be the finding in relation to the objective seriousness of the offending. That finding must be carefully considered and appropriately described. A finding of “at least mid range” suggests that the sentencing judge is of the view that the offence is above the mid range. If that is the case the finding should make this apparent and define the extent to which it falls above the mid range. The sentence should appropriately reflect this finding.

5 In many of the cases where this Court finds problems with the consideration of the standard non-parole period the sentence imposed by the primary judge differs markedly from the sentence which the relevant legislation contemplates as being appropriate, making intervention necessary notwithstanding the principles considered in MD & Ors. As this Court has previously acknowledged a successful Crown appeal imposes a greater burden on the offender: see R v Witchard [2007] NSWCCA 167 at [33]-[34]. Both this consideration, but more importantly considerations of the integrity of the sentencing process, require that sentencing judges continuously remind themselves of the principles provided by the relevant legislation and developed by this Court.

6 I agree with Howie J.

7 HIDDEN J: I joined in the order of the Court that the appeal in respect of Mr Biuvanua should be dismissed for the reasons expressed by Howie J.

8 I also agree with the orders proposed by Howie J in the appeal in respect of Ms Knight for the reasons his Honour has given. One can understand that the sentencing judge was moved by the evidence about that respondent’s background. There is no need to go to the detail of it, some of which is sketched in the judgment of Howie J. That background was seriously disturbed and, in particular, devoid of moral guidance. Her Honour described the respondent as having been raised “in an emotionally deprived and anti-social environment.” That evidence was relevant to sentence, as evidence of an offender’s background generally is, but it was not a proper foundation for the marked leniency extended to the respondent.

9 HOWIE J: These are Crown appeals against what is asserted to be the inadequacy of sentences imposed upon the respondents in the District Court by Murrell DCJ (the Judge). On 15 August after hearing oral argument the Court reserved on the appeal in respect of the respondent Knight but dismissed the appeal against the sentence imposed upon the respondent Biuvanua.

10 Ms Knight pleaded guilty to an offence that between 8 September and 30 September 2005 she supplied not less than a large commercial quantity of ecstasy. Mr Biuvanua pleaded guilty to an offence that on 29 September 2005 he knowingly took part in the supply of a large commercial quantity of ecstasy. Each of the offences for which the respondents were to be sentenced carried relevantly a maximum penalty of life imprisonment and a standard non-parole period of 15 years imprisonment.

11 Ms Knight also asked that the Judge take into account four further offences of supplying prohibited drugs between 8 September and 29 September 2005 on a Form 1. The drugs were ketamine, methylamphetamine, cocaine, and cannabis leaf in quantities well above the indictable quantity prescribed for each drug.

12 As a result of the pleas of guilty the Judge sentenced Ms Knight to a term of imprisonment made up of a non-parole period of 6 years and a balance of term of 4 years. The sentences dated from 29 September 2005 and Ms Knight is eligible for release to parole on 28 September 2011. Mr Biuvanua was sentenced to a term of imprisonment made up of a non-parole period of 2 years with a balance of term of 18 months. He is eligible to be released to parole on 28 September next.

The facts

13 The facts can be briefly stated. Police became aware that Ms Knight was supplying drugs. They lawfully intercepted telephone calls made from premises used by Ms Knight. As a result they learned that Ms Knight was indeed in the business of supplying drugs assisted by her husband, Mr Biuvanua.

14 The dates specified on the charge brought against Ms Knight represented the period over which police were monitoring her telephone calls. The date of 29 September 2005 was the date upon which police raided premises used by Ms Knight and referred to by her and others as the “office” from where she carried out her drug business. The amount of drugs referred to in the charges of both respondents represented the amount of ecstasy found in those premises at the time of the raid. It was 961 grams, about twice the large commercial quantity specified for that drug. The charges referred to in the Form 1 related to other drugs found in the “office” at the time of the raid and of a kind that Ms Knight was supplying over the period of surveillance.

15 The agreed facts described Ms Knight as “the head of a drug syndicate which involved a number of men who acted as runners” and who sold drugs on her behalf returning the profits to her. She supplied quantities of various drugs and was even prepared to arrange special mixtures depending on a particular customer’s needs. She used persons, including Mr Biuvanua, to help sort, weigh and package the drugs. It is clear from the phone calls that she was prepared to supply very significant amounts of drugs that were obviously going to be on-supplied. Some of her customers were buying for personal use. The “office” was open at night to allow the distribution of drugs by runners although persons also attended the premises to purchase drugs for themselves. Ms Knight maintained a ledger in which she recorded her transactions and this indicates that at times she supplied significant amounts of drugs to particular customers.

16 The transcripts of the telephone calls are illuminating as to the nature of Ms Knight’s enterprise. They contain references to the hours when the “office” was open for business: it was not open on Mondays. Ms Knight told her partner in one of the calls that she was “going to work now” at the “office”. It appears that she employed a cousin to work for her who, according to Ms Knight, loved being back at work. Employees enquire when she would be requiring them to work and others report to her on the amounts of drugs they packaged on particular shifts and she comments on their performances. She chats to many of her customers as personal friends and offers discounts and assurances as to the quality of the drugs. She indicates to one customer that she is prepared to make up a particular combination of drugs, a “party pack”, for use and supply by him on a particular occasion. She is so self-assured that she indicates to one customer that she does not like talking in code.

17 The statement of facts tendered before the judge stated, accurately:

“Knight was in complete control of this syndicate and (demonstrated) a flagrant disregard for the law. It is clear from the telephone intercepts that Knight (considered) herself beyond the reach of the police.”

18 There are telephone calls between Ms Knight and Mr Biuvanua that reveal that the latter was assisting in the business in a menial way such as by receiving drugs on her behalf or obtaining drugs from her store when she required them. The agreed facts stated:

“The accused Biuvanua did not play as large a role in the syndicate as Knight. He was aware of his wife’s drug business and regularly assisted her with it. This assistance would consist of occasional packaging of the prohibited drug, as he was doing when he was arrested, and occasionally acting as security by escorting Knight from the office to her car when she was moving larger quantities of drugs or money.”

The respondents’ subjective matters

19 Ms Knight was aged 34 at the time of sentence. She has one minor conviction for shoplifting which the Judge ignored for the purpose of sentencing her. She had been married to Mr Biuvanua for fifteen years and they had two daughters of the marriage, aged 12 and 14 years.

20 There was in evidence a report from a clinical psychologist who examined both respondents for the purpose of the sentencing proceedings. As to Ms Knight the report reveal that she had been “involved with drugs” since aged 11 having been introduced to supplying drugs by her mother. She consumed alcohol since the age of 12 and amphetamine since the age of 17. Since the age of 26 she had used ecstasy and cocaine “recreationally”.

21 The report sets out the background of Ms Knight in great detail and it is clear that it significantly affected the Judge who described it as “peculiar”. However, its relevance to the sentence to be imposed upon the respondent for operating a substantial business in the supply of illicit drugs is, in my opinion, very limited and much of it irrelevant. I will refer to only same salient matters.

22 Ms Knight told the psychologist that at the age of 8 years she was sexually assaulted. The psychologist believed this represented a turning point in her life. It is claimed that as a result she became “school avoidant”. She was a depressed child. She witnessed an uncle dealing in drugs and her mother’s girlfriend was also supplying. From the age of 11 to 15 she was helping in the supply of illicit substances.

23 At the age of 15 years she travelled to Fiji to live with an “aunt”. She was there until the age of 17 and not involved with drugs. When she returned to Sydney she worked as a receptionist in a brothel. She met her husband at the age of 18 and married at 19. He suffered a back injury about 9 years ago and she became the main breadwinner for the family. She described herself as a workaholic. She ceased work in brothels at age 23 and worked in a call centre for 18 months becoming a sales manager. She worked with a telemarketing company until three years ago. At one stage she was earning $100,000 per annum.

24 She developed an eating disorder after breaking up with her husband after ten years of marriage. She tried to run a café but it had financial difficulties and she used drug supplying to support it. Eventually she was hospitalised because of her anorexia and as a result lost her job as a sales manager. She was placed on anti-depressant medication.

25 When she was asked by the psychologist whether she had considered the consequences of her actions in offending, she stated, “I realised I would get caught, I feel disappointed, I feel stupid”. The psychologist opined that the pattern of her offending behaviour was “laid down early in [her] life”. He estimated her intelligence to be at least average. He asked the court to “appreciate the template that was offered to Ms Knight from a very young age, which was repeated at times of increased stress and need”.

26 There were reports from the gaol indicating that Ms Knight was a trusted and productive worker within the gaol industries in which she was involved.

27 Because the Court has dismissed the Crown appeal in the case of Mr Biuvanua and for reasons that I will give shortly, it is unnecessary to say much about his subjective case. He was aged 34 and had little criminal record of relevance. He came to Australia from Fiji at age 19. The psychologist described him as being emotional, unassertive and inclined to dependency.

28 One of the daughters of the respondents had made a suicide attempt shortly after their arrest but appeared to be coping with the incarceration of her parents at the time of sentencing. However there was a risk of further self-harm.

The Crown submissions

29 In relation to Ms Knight the Crown submissions accepted that her Honour’s assessment of the objective criminality of being “at least mid-range” was correct. However it was submitted that the non-parole period imposed failed to reflect that finding.

30 It was submitted that her Honour “made only cursory reference” to the matters on the Form 1 and failed to reflect those matters in the sentence imposed.

31 The Crown criticised the sentencing remarks by reason of the failure of the Judge to give reasons for reducing the standard non-parole period in accordance with s 54B(4) of the Crimes (Sentencing Procedure) Act.

32 The Crown submitted that her Honour erred in allowing “the subjective case for the respondent to overwhelm her assessment of the objective seriousness of the offence”.

33 In relation to the sentence of Mr Biuvanua, the Crown’s written submissions contain only the following paragraph:

“The Crown does not complain about her Honour’s findings about the level of the respondent Biuvanua’s level of participation nor her Honour’s finding that his role was significantly less than that of the respondent Knight. Nor does the Crown complain about the relative relationship between their sentences. However, the Crown submits that if the Court is of the view that the sentence imposed on the respondent Knight is manifestly inadequate and determines to re sentence (sic) her then this respondent should also be re sentenced so that his sentence retains its relativity with the sentence imposed on the respondent Knight.”

The respondent’s submissions

34 In respect of Ms Knight it was argued that none of the specific errors alleged by the Crown had been made out. The Court was reminded of the principles upon which it determines Crown appeals and the discretions exercised by the Court in resolving such an appeal. The Court was also reminded of the discretionary nature of the sentencing process and that there is no one correct sentence. It was submitted that her Honour’s approach to the standard non-parole period was in accordance with the relevant authorities of this Court as stated in R v Way (2004) 60 NSWCCA 168 and R v AJP (2004) 150 A Crim R 575.

35 The Court was asked to note the terms of the charge laid against Ms Knight and the restriction it imposes upon considering all of her criminal activity. It was submitted that her role was “one removed from being a ‘runner’ or street supplier”. It was acknowledged that the sentence may appear to be lenient but it was not inadequate when regard was had to the “compelling subjective circumstances”. In the alternative it was argued that the increase in the sentence to bring it within range would be so minor that this Court would not intervene.

36 In respect of Mr Biuvanua it was argued that the Crown had misconceived the nature of a Crown appeal in that it was merely asking the Court to increase his sentence in order to achieve parity with Ms Knight, if it intervened to increase the sentence in her case: see R v Moore and Weibe (NSWCCA 11 August 1992, unreported). It was also noted that this respondent had served almost the whole of the non-parole period and was to be released within weeks of the hearing of the appeal.

Sentencing remarks

37 After referring to the history of the proceedings the Judge noted that, as the guilty pleas were entered at a late stage, the respondents were entitled to a discount for the utilitarian value of the plea at the bottom of the range “something in the vicinity of 10 to 15 per cent”.

38 Although the Crown made no complaint about this part of the sentencing remarks, it must be observed that it is inappropriate for a judge to identify a discount as falling within some vague undefined range. A judge is not required to indicate the discount being given, although this Court has frequently urged judges to do so. But if a judge is minded to indicate the discount in percentage terms, there must be certainty as to what it is. If a judge does not indicate the exact quantum of the discount, then neither the offender nor this Court can have confidence that it was applied so as to result in some appreciable difference to the sentence that would otherwise have been imposed. It is impossible to understand how a vague, undetermined discount can be applied to a notional starting sentence in order to derive the ultimate sentence to be passed. In this case it is not obvious from the sentences imposed on either respondent that a discount of “something in the vicinity of 10 to 15 per cent” has been applied. In any event there was no justification in this case for a discount over 10 per cent for a plea made after the date set down for trial.

39 The Judge described the objective seriousness of the offence committed by Ms Knight as “at least in the mid-range of objective seriousness”. The Crown on this appeal conceded that “her Honour correctly assessed the objective seriousness of the offending”. With respect to both the Judge and the Crown Prosecutor, it is impossible to understand how such an assessment fulfils the obligation on a trial judge in applying the standard non-parole provisions to assess the objective seriousness of the offence committed. Presumably the Judge thought that the offence was somewhere above midrange but believed that she did not have to assess the exact level of seriousness because it was sufficient that she found it was “at least mid-range”. But with respect, if that is how her Honour approached the matter, she was clearly in error. Although such an assessment cannot be made with absolute precision, it must at least indicate whether the offence is assessed as below, of, or above midrange of seriousness with some indication as to the degree to which it departs from the midrange if that is the finding.

40 The Judge after indicating her assessment of the criminality went on:

“A large quantity of drugs was located. The telephone discussions referred to large numbers of drugs. There were telephone calls regarding drugs, generally three or four times a day during the period charged. A substantial sum of money was located. Substantial sums of money were referred to in the ledger and the ledger also referred to a large quantity of drugs being transacted. It would appear Ms Knight embarked upon the business for purely financial motives and the business was very profitable. It involved substantial planning. For example there was a dedicated office from which the operation was conducted. A storage facility was utilised. The operation involved runners. Ms Knight was involved in supervising all aspects of the operation. The operation involved not only ecstasy but also substantial quantities of other prohibited drugs, as referred to in the Form 1.”

41 On this summary of the criminal activity in which Ms Knight was involved, it is difficult to see how it could be assessed as other than above midrange. When also is added the following facts: that the conduct occurred over a month and was not an isolated episode of offending; that Ms Knight employed other persons to pack and prepare the drugs for supply; and that the amount of ecstasy found in the office on her arrest was almost twice the commercial quantity, it was in my opinion an offence that was objectively well over the midrange of seriousness although not at the upper range. A determination that it was “at least in the mid-range of seriousness” was in my opinion not a sufficient assessment of the objective seriousness of the offence and was an error in the exercise of the sentencing discretion.

42 However, as the Crown did not take issue with the Judge’s assessment but to the contrary accepted its correctness, this Court should give the benefit of the finding made by the Judge to Ms Knight and accordingly act on the basis that it was within the midrange of seriousness.

43 The Judge found that Ms Knight had good prospects of rehabilitation, although her Honour was not prepared to find that she was unlikely to re-offend. She also found special circumstances in the fact that it was her first time in custody and she had good prospects of rehabilitation.

44 Just before imposing sentence on the respondents the Judge stated:

“I have considered the standard non-parole period. It provides guidance in terms of the non-parole period which I impose. In the case of Ms Knight, I consider that her conduct is at least within the midrange of objective seriousness. Under s 54B and under s 21A, the standard non-parole period provides guidance but in no way dictates the outcome, having regard to the peculiar circumstances of Ms Knight.

As far as the offence committed by Mr Biuvanua is concerned, it is nowhere near the midrange of objective seriousness. It is very much at the lower end of the range of objective seriousness in my view.”

Determination

45 In my opinion the sentence imposed upon Ms Knight is manifestly inadequate to a very significant degree. This is so even if the Court accepts in the respondent’s favour that the objective seriousness of the offence was in the midrange of seriousness. There were a number of aggravating factors, as her Honour noted, and little but the discount for the plea of guilty of about 10 per cent and some prospect of rehabilitation in mitigation. Yet as against the guidepost of a standard non-parole period of 15 years, the respondent is required to serve only 6 years before being eligible for release to parole.

46 The Judge failed to give adequate reasons for departing from the standard non-parole period notwithstanding the requirements of s 54B(4). It is necessary to remind sentencing judges once again that the section requires the court to “identify in the record of its reasons each factor that it took into account” (my underlining). This Court has repeatedly noted that it is insufficient compliance with the section merely to state that the offender has pleaded guilty: R v Mills (2005) 154 A Crim R 230; R v Zegura [2006] NSWCCA 230. Had the Judge attempted to fulfil the task required of her, she might have found it difficult to indicate those factors that permitted her to reduce the standard non-parole period to the degree she did for an offence that was “at least within the midrange of seriousness”.

47 In my opinion it is clear that the Judge failed to give sufficient weight to the standard non-parole period even though it provided only a guidepost or indicator of the appropriate sentence. Even after a plea of guilty there must be an appropriate relationship between the standard non-parole period and the objective criminality of the offence regardless of the other matters that may be taken into account by way of mitigation. When the objective criminality is above midrange then, of course, the maximum penalty prescribed for the offence becomes of more significance.

48 It also seems clear in my view that the Judge allowed Ms Knight’s subjective factors to distract her from imposing an appropriate punishment for her offending, given its very grave seriousness. Even if her circumstances might be described as “peculiar”, little of it mitigated her blatant offending at the age of 35. Ms Knight was in every sense living a life of crime and in doing so distributing harmful drugs into the community to a very substantial degree. There is nothing in the psychological report that indicates that her culpability was reduced by her background or subjective circumstances. To the contrary, it is clear that she had the capacity to earn an honest and lucrative living in the community but chose at first to supplement her earnings by drug distribution when the café was failing and later to use all her skill and industry in ensuring her business as a wholesale drug supplier was successful.

49 It should be noted that, although Ms Knight was only to be sentenced for her activity between the dates in the charge, a period of about a month, it is obvious her criminality extended beyond that having regard to the conversations, the ledger and other material. Therefore, she was to be sentenced on the basis that the charged conduct was not an aberration or an isolated failing by an otherwise honest and worthwhile citizen in the community. Little weight in those circumstances could be given to her previous good character, the deprivations of her childhood, or her industry in prison.

50 In my opinion, had there been a proper evaluation of her criminality as being well above midrange in seriousness, an appropriate discount for her plea of guilty of 10 per cent and even with a finding of special circumstances, the appropriate non-parole period should have been at least twice that imposed by her Honour. The courts must treat the standard non-parole provisions seriously, as Parliament intended, and bring them to bear in a meaningful way upon the sentence to be imposed even after a plea of guilty. If the Judge had approached the sentencing of Ms Knight in that way she could not have imposed a sentence anywhere near that which she did.

51 Of course this is a Crown appeal and this Court should be restrained by reasons of double jeopardy. Further, there is the difficulty of the fact that the Court is not increasing the sentence imposed upon Mr Biuvanua, even though that sentence was also, in my opinion, manifestly inadequate to a significant degree, despite the submissions by the Crown before this Court to the contrary. I accept that, notwithstanding the very different circumstances between Ms Knight and her husband, there should be some relativity between the sentence to be imposed upon Ms Knight and that imposed upon Mr Biuvanua. But the difference in the criminality was such that there is no reason that the sentence imposed upon Ms Knight should not be increased significantly.

52 I have just expressed my opinion that the sentence imposed upon Mr Biuvanua was manifestly inadequate. The sentence with a non-parole period of 2 years resulted from a failure by the Judge to give sufficient weight to the standard non-parole period. Even if it is accepted that his criminality was at “very much the lower end of the range of objective seriousness”, a conclusion with which I would not agree despite the absence of complaint by the Crown, that assessment did not justify so lenient a sentence. Mr Biuvanua was caught in the act of assisting in the packaging of drugs with his wife. This was clearly not an isolated incident notwithstanding the charge referring to a single day. The transcript of calls shows that he had an on-going involvement in the business operated by his wife even if it were of a menial nature.

53 The issue of whether the Crown was alleging that Mr Biuvana’s sentence was manifestly inadequate was raised directly with the Crown Prosecutor on the hearing of the appeal. He eschewed any suggestion of either patent or latent error on the part of the Judge. In that case it was not appropriate for an appeal to be brought to this Court simply to preserve a proportional relationship between his sentence and that to be imposed upon Ms Knight. A Crown appeal is premised on an assertion by the Crown that the sentence imposed was manifestly inadequate whether or not there is alleged to be patent error in the exercise of the sentencing discretion. As the submissions of the respondent pointed out, it is settled law that this Court will not intervene simply to achieve parity between co-offenders.

54 Although in my opinion the sentence imposed upon Mr Biuvanua was manifestly inadequate to a very significant degree, in light of the basis upon which the Crown argued the appeal in his case I was of the opinion that the appeal should be dismissed and so joined in the order of the Court to that effect.

55 In considering the relativity between any sentence now to be imposed upon Ms Knight in light of Mr Biuvanua’s sentence, it is important to note the contents of a letter written by Ms Knight to the sentencing court. In it Ms Knight made a plea in mitigation for her husband stating, “My husband is a good man and his only mistake is doing what I asked of him”. She asked the court to allow her husband to return to the children.

56 The sentence I propose that should be imposed upon Ms Knight takes into account the principle of double jeopardy in so far as she is to be sentenced at the lower end of the range that would have been appropriately imposed by the sentencing Judge. It takes into account in her favour the erroneous finding that the offence was midrange and a finding of special circumstances made by the Judge and to which the Crown made no objection. As I have indicated, it is not the sentence that should have been imposed upon the respondent at first instance upon proper findings as to the objective seriousness of the offence and the lack of mitigating circumstances of any significance. The sentence before the discount for the plea of guilty would have been 18 years imprisonment.

57 I propose the following order in relation to Ms Knight. The appeal is allowed. The sentence imposed in the District Court is quashed. In lieu the respondent is sentenced to a term of imprisonment made up of a non-parole period of 10 years and a balance of term of 4 years and 4 months. The sentence is to date from 29 September 2005 and the non-parole period is to expire on 28 September 2015 the date upon which the respondent is eligible to be released to parole.

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