R v MRN

[2006] NSWCCA 155

CITATION:	MRN v R [2006] NSWCCA 155
HEARING DATE(S):	14 March 2006
JUDGMENT DATE:	18 May 2006
JUDGMENT OF:	McClellan CJ at CL at 1; James J at 2; Simpson J at 3
DECISION:	leave to appeal granted; appeal allowed; applicant re-sentenced: Count 1: imprisonment for four years, commencing on 10 October 2003, and expiring on 9 October 2007, with a non-parole period of three years expiring on 9 October 2006; Count 4: imprisonment for three years, commencing on 10 October 2003, and expiring on 9 October 2006, with a non-parole period of two years expiring on 9 October 2005; Count 6: (taking into account the Form 1 offences) imprisonment for seven years commencing on 10 October 2004, and expiring on 9 October 2011, with a non-parole period of four years expiring on 9 October 2008; Counts 8, 9 and 10: imprisonment for five years commencing on 10 October 2003, and expiring on 9 October 2008, with a non-parole period of three and a half years expiring on 9 April 2007; The aggregate sentence is of a head sentence of eight years with a non-parole period of five years. The earliest date on which the applicant would be eligible for release on parole is 9 October 2008.
CATCHWORDS:	application for leave to appeal against severity of sentences - pleas of guilty to six drug charges - further Form 1 offences taken into account - posession of pre-cursor intended for use by another person in manufacture of prohibited drug - supply cannabis - ongoing supply methylamphetamine, MDMA, lysergic acid, cocaine - very serious course of criminal conduct - offence called for substantial period of full-time custody - subjective circumstances - assistance to authorities - assistance of limited value - bail granted for rehabilitation purposes - protracted proceedings - treatment of delay in sentencing - assumption that delays were entirely attributable to applicant - evidence of rehabilitation - extent of rehabilitation - finding of no special circumstances - 5,200 intercepted telephone calls and SMS messages recorded - error of fact in respect of telephone calls - not evident that all telephone calls and text messages related to drug dealing - error in approach to assistance to authorities - not significant - sentences imposed within the range available for drug dealing on the scale engaged in - treatment of delay unfair to applicant
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999, Part 3 Division 3, s11, s21A, s23, s44(2) Criminal Appeal Act 1912, s5D Drug Misuse and Trafficking Act 1985, s3, s24A, s25A, s29
CASES CITED:	R v Blanco [1999] NSWCCA 121; 106 A Crim R 303 R v Douar [2005] NSWCCA 455 R v Fahda [1999] NSWCCA 267 R v Gay [2002] NSWCCA 6 R v Hoon; R v Pouoa [2000] NSWCCA 137 R v Johnson [2005] NSWCCA 186 R v Palu [2002] NSWCCA 381; 134 A Crim R 174 R v Schwabegger [1998] 4 VR 649 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Smiroldo [2000] NSWCCA 120; 112 A Crim R 47 R v Todd (1982) 2 NSWLR 517
PARTIES:	MRN - Applicant Crown - Respondent
FILE NUMBER(S):	CCA 2005/2065
COUNSEL:	H Dhanji - Applicant P Power SC - Respondent
SOLICITORS:	Giddy and Crittenden - Applicant S Kavanagh - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/21/3134
LOWER COURT JUDICIAL OFFICER:	Maguire DCJ
LOWER COURT DATE OF DECISION:	27/04/2005

2005/2065

McCLELLAN CJ at CL
JAMES J
SIMPSON J

Thursday 18 May 2006

MRN v REGINA

Judgment

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

2 JAMES J: I agree with Simpson J.

3 SIMPSON J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court on 27 April 2005 following his pleas of guilty to a series of drug charges, six in all. In addition he asked that a further 11 counts (five of goods in custody, three of possession of prohibited weapons, and three of possession of various prohibited drugs) on a Form 1 be taken into account pursuant to the provisions of Part 3 Division 3 of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”).

4 The counts on the indictment were:

Count 1 – possession of a pre-cursor intended for use in the manufacture by another person of a prohibited drug (methylamphetamine);

Count 4 – supply prohibited drug (cannabis);

Count 6 – ongoing supply of prohibited drugs (methylamphetamine, MDMA/ ecstasy, lysergic acid/ LSD, cocaine);

Count 8 – supply prohibited drug (lysergide acid);

Count 9 – supply prohibited drug (MDMA/ ecstasy);

Count 10 – supply prohibited drug (methylamphetamine).

5 All charges were brought under the Drug Misuse and Trafficking Act 1985. Count 1 was an offence under s24A of that Act and attracts a maximum penalty of imprisonment for 10 years; Counts 4, 8, 9 and 10 were brought under s25(1); each attracts a maximum penalty of imprisonment for 15 years; Count 6 was brought under s25A(1), and attracts a maximum term of imprisonment of 20 years.

6 Maguire DCJ sentenced the applicant as follows:

Count 1: imprisonment for ten years and four months, to commence on 10 October 2003 and expire on 9 August 2008, with a non-parole period of three years and eight months to expire on 9 June 2007;

Count 4: imprisonment for four years, to commence on 10 October 2003 and expire on 9 October 2007, with a non-parole period of three years expiring on 9 October 2006;

Count 6: imprisonment for nine years and seven months, to commence on 10 October 2004 and expire on 9 May 2014, with a non-parole period of seven years and two months expiring on 9 December 2011;

Counts 8 - 10: imprisonment for six years and five months, to commence on 10 October 2003 and expire on 9 March 2010, with a non-parole period of four years and ten months expiring on 9 August 2008.

7 It will be seen that Count 6 was made cumulative, by one year, upon all of the other sentences, each of which was specified to commence on the same date, 10 October 2003. The result, in aggregate, was a sentence of ten years and seven months, commencing 10 October 2003 and expiring on 9 May 2014, with a non-parole period of eight years and two months, expiring on 9 December 2011.

8 The non-consecutive numbering of the counts arises from the circumstance that the applicant was charged jointly on an indictment with his sister, Katrina Rawlings. Counts 2, 3, 5 and 7 were charges against her. All of the offences with which the applicant was charged were committed over a one month period, between November and December 2002. Most were committed jointly with his sister, who went to trial and was convicted.

9 The charges, the quantity of drug involved, the maximum applicable sentence and the sentences imposed may conveniently be set out in tabular form.

Table: Charges, type and quantity of drug, maximum applicable sentence and sentences imposed

A – Count number B – Offence C – Drug D – Quantity				E – Statutory maximum penalty F – Head sentence imposed G – Sentence commencement date H – Non-parole period J – Non-parole period expiry date K - Head sentence expiry date
A	B	C	D	E	F	G	H	J	K
1	possession of precursor with intent s24A	Methylamph etamine precursor	45 L	10 y	4 y 10m	10.10.2003	3 y 8 m	9.6.2007	9.8.2008
4	Supply s25(1)	Cannabis	4,976.5 g	10 y	4 y	10.10.2003	3 y	9.10.2006	9.10.2007
6	ongoing supply s25A	Methylamph -etamine MDMA LSD Cocaine	250 g 107.2 g .372 g 120 g	20 y	9 y 7 m	10.10.2004	7 y 2 m	9.12.2011	9.5.2014
8	Supply s25(1)	LSD	52 discrete dosage units	15 y	6 y 5 m	10.10.2003	4 y 10m	9.8.2008	9.3.2010
9	Supply s25(1)	MDMA	5.5 g	15 y	6 y 5 m	10.10.2003	4 y 10m	9.8.2008	9.3.2010
10	Supply s25(1)	Methylamph -etamine	28.7 g	15 y	6 y 5 m	10.10.2003	4 y 10m	9.8.2008	9.3.2010

10 There is nothing in the remarks on sentence to indicate on which offence the sentencing judge took into account the Form 1 offences.

facts

11 The applicant conducted a legitimate business in the Campbelltown area, retailing accessories for high performance motor vehicles. By 2002 he had moved this business from commercial premises and operated from his home. The business was not doing well. The appellant, who was a significant drug user himself, had incurred a large debt. He began to use his business operation, including the telephone, to supply drugs of a variety of kinds.

12 The salient facts relating to each of the individual charges may be stated briefly:

Count 1: possess precursor with intent for use for manufacture by another person

13 In February and again in June in 2002 the applicant ordered and received (on each occasion) 10 x 2.5 litre bottles of hypo-phosphorous acid. This is a substance used in the manufacture of methylamphetamine. A search warrant was executed on the applicant’s home on 20 December 2002. Located during that search were 18 x 2.5 litre bottles of hypo-phosphorous acid. 45 litres of hypo-phosphorous acid would yield 25 kilograms of methylamphetamine, conservatively estimated at 70% purity. Pure methylamphetamine is valued at $80,000 to $100,000 per kilogram wholesale. Leaving aside questions of reduction by reason of purity, the amount of the drug that could be manufactured from the quantity of the precursor held in the applicant’s possession would be valued at between $2.8 million and $3.5 million. It was never alleged against the applicant that he was engaged in any way in the actual manufacture of methylamphetamine. Indeed, it was specified in the indictment that his intent was that it be used by another person for manufacture. The applicant had possession of the precursor for the purpose of passing it on to those who would be engaged in the manufacturing process. For this he expected to receive about $45,000.

14 Following the execution of the search warrant, the applicant was arrested. He was found to be in possession of just under $9,000 in cash, made up of one sum of $6,400 and another of $2,575. In evidence he acknowledged that the smaller sum was the product of drug dealing, but claimed that the larger sum was the product of the motor vehicle parts business, reserved for the payment of GST.

Count 4: supply not less than the indictable quantity of cannabis leaf

15 Between 21 November 2002 and 20 December 2002 the applicant engaged in 21 separate transactions to supply a total of 4,976.5 grams of cannabis leaf. These transactions or agreements were entered into by telephone or SMS message.

16 By reason of the extended definition of “supply” contained in s3 of the Drug Misuse and Trafficking Act, the applicant’s agreement to supply, in each case, is sufficient to constitute the offence charged. By his pleas of guilty the applicant accepted that this was so.

Count 6: ongoing supply

17 By s25A of the Drug Misuse and Trafficking Act a person who, on three or more occasions during any consecutive 30 day period, supplies a prohibited drug (other than cannabis) for financial and material reward is guilty of an offence. By subs(2) it is not necessary that the drug be the same on each occasion. The extended definition of “supply” referred to above, applies also to the offence created by s25A.

18 The charge brought against the applicant under this section involves supply, on many more than three occasions, of four separate drugs – methylamphetamine, MDMA (ecstasy), lysergic acid (LSD), and cocaine.

19 Between 21 November 2002 and 20 December 2002 the applicant participated in 37 telephone calls or SMS communications in which he agreed to supply methylamphetamine. The quantity of the drug that he agreed to supply was at least 250 grams (a commercial quantity), valued at $25,000 if cut to street level purity.

20 During the same period he entered into 27 separate transactions to supply MDMA, totalling 536 tablets or discrete dosage units, an estimated weight of 107.2 grams. The total estimated value is approximately $21,440.

21 During the same period he entered into six separate transactions to supply LSD, totalling 186 tablets or discrete dosage units, equivalent to 0.0372 grams (seven times the indictable quantity), and valued at $2,790.

22 Also during the same period the applicant entered into six separate transactions for the supply of cocaine, totalling at least 122 grams (22 times the indictable quantity) and valued at $24,500.

Count 8: supply LSD

Count 9: supply MDMA

Count 10: supply methylamphetamine

23 On 20 December 2002, during the execution of a search warrant, the applicant was found to be in possession of 52 discrete dosage units of LSD, 5.5 grams of MDMA, and 28.7 grams of methylamphetamine. By s29 of the Drug Misuse and Trafficking Act, together with the quantity of each of the drugs in his possession, the applicant was deemed to be in possession thereof for the purposes of supply, unless he established otherwise. He made no attempt to do so. By his pleas of guilty he accepted that his possession was for the purpose of supply.

* * *

24 The applicant’s mobile telephone services were intercepted over the period identified in the charges. This disclosed a quite remarkable amount of activity. In excess of 5,000 telephone calls or SMS communications were intercepted. The evidence in relation to these, and the way in which the sentencing judge treated them, give rise to one of the specific grounds of appeal, with which I will deal below.

25 Following the execution of the search warrant on 20 December 2002, the applicant was arrested and charged with offences of manufacturing and supplying prohibited drugs, and of goods in custody. He was granted conditional bail the following day. However, on 31 December additional charges were preferred and he was refused bail. He remained in custody until 4 February 2004.

26 He entered pleas of guilty to all charges on 7 November 2003. It is a matter of concern, and relevant to the grounds of appeal argued, that he was not, in the end, sentenced until 27 April 2005.

subjective circumstances

27 The subjective case advanced on behalf of the applicant is a complex one. He himself gave extensive evidence, over two days, 9 and 10 August 2004. The sentencing judge also had available a comprehensive report of a psychologist, Dr Christopher Lennings, who also gave oral evidence; and of another psychologist, Mr Raymond Hudd, from whom the applicant has been (and was, even before his arrest) receiving treatment. From this the following emerged. The applicant was born on 16 October 1975. He was 27 years of age at the time of the offences. He is Aboriginal. He has a quite serious criminal record, which includes a 1996 offence of armed robbery and possession of a prohibited weapon; nine counts of obtaining benefit by deception, and a 2000 offence of assault occasioning actual bodily harm. Perhaps the most remarkable aspect of his record is his traffic offences. His traffic record contains no less than five offences of driving whilst disqualified, one of negligent driving and another of driving in a manner dangerous.

28 His childhood and adolescence were unsatisfactory. His father had a severe alcohol problem, and although this did not result in violence, it did result in severe financial distress, and emotional deprivation for the applicant.

29 As a child, over a five-year period, the applicant was sexually abused by a relative (by marriage) and another person. His adjustment was difficult and he became a behavioural problem at high school. He began using drugs at 13 or 14, beginning with smoking marihuana. This developed into an extremely heavy habit. He began to use both alcohol and amphetamines at about 16 years of age. He used amphetamines heavily and daily until the age of 19. At about the age of 24 he began to use cocaine and this resulted in cocaine-related psychoses. He also developed a gambling habit, particularly while using cocaine.

30 He claimed that his drug use, particularly cocaine, resulted in his incurring a large debt, and said that it was this which provided the impetus for him to become involved in the large scale supply of drugs of various kinds which has been detailed above.

31 Dr Lennings assessed the applicant as suffering from anxiety and considered that this reflected a traumatic response to the effects of his childhood. He thought that the applicant was still somewhat immature. He placed him at the low average range of cognitive ability.

32 Mr Hudd diagnosed Chronic Complex Post-Traumatic Stress Disorder. He considered this to be long standing, possibly dating back to childhood, and to the original onset of the sexual abuse. He related the applicant’s drug use directly to this condition. Mr Hudd began counselling the applicant in October 1996 but this was discontinuous. Mr Hudd described avoidance behaviour in the applicant. He noted that the applicant’s attendances were sporadic and his absences followed sessions in which something that was bothering the applicant had been touched upon. He considered it likely that this related to the sexual abuse of which the applicant had not then spoken.

33 Mr Hudd recounted an occasion in 1997, while the applicant was incarcerated at the Oberon Correctional Centre, when he (the applicant) wrote to Mr Hudd saying that he had signed himself into protection because he had been sexually abused by some other inmates. He said that after the applicant was released he recommenced his regular attendances, but this only continued until Mr Hudd mentioned the assault at Oberon. The appellant’s attendances then became infrequent. Telephone conversations continued however, and Mr Hudd formed the view that the applicant had been using increasing amounts of drugs.

34 In a telephone call from prison in early 2003 the applicant told Mr Hudd about the sexual abuse he had suffered as a child.

35 On 4 February 2004, after he had been in custody for fourteen months, Maguire DCJ granted the applicant bail for the specific purpose of his entering a rehabilitation programme at Oolong House, a facility specifically for Aboriginal people with drug problems. The applicant successfully completed that programme, “graduating” on 21 July 2004. He spent a short time in a transitional facility, and thereafter remained on bail until 18 April 2005 during the course of the sentencing hearings. He has had some employment, delivering white goods, and has enrolled in a real estate course at the Nowra TAFE. Very favourable reports were provided to the sentencing judge.

36 Dr Lennings gave detailed evidence about, inter alia, the applicant’s prospects of rehabilitation. Put briefly, he regarded his successful completion of the rehabilitation programme as a favourable indicator for the future. The applicant, after being taken into custody, established a relationship with a woman who is not (or at least is not currently – the evidence is not entirely clear) a drug user. She has a young child from a previous marriage with whom the applicant has a close and paternal relationship.

37 While in prison, the applicant provided some information concerning the identity of individuals involved in drug distribution in the Campbelltown area to police. This will be mentioned in more detail below.

procedural chronology

38 There has been a lengthy and complex procedural history. It does little credit to the criminal justice system. The history was put before this Court in detail in an affidavit sworn by Ms Virginia Boulous, a solicitor employed in the Office of the Director of Public Prosecutions (“DPP”). I do not propose to set out the whole of the history; I will attempt to extract that which appears to me to be of most significance. There will, inevitably, be some repetition of matters already stated.

39 The applicant was arrested on 20 December 2002 and charged with three offences, two of which involved the possession of the precursor and the alleged manufacture of a prohibited drug. He was refused bail on that day, but released on bail the following day.

40 On 31 December 2002 he was arrested again and charged with an additional 12 offences. On this occasion he was refused bail and, as it turned out, remained in custody until 4 February 2004, when he was released in the circumstances outlined above, and which it will be necessary further to discuss.

41 Between 13 January 2003 and 27 June 2003 the matter was in the Local Court, and was mentioned from time to time, but appears to have made very little progress during that time. It was repeatedly stood over. So far as I can gather, the majority of adjournments occurred because the prosecution brief had not been finalised. (There is no doubt that, by reason of the extent and magnitude of the applicant’s drug dealing, the case was a complex one to prepare.) Eventually, on 23 April 2003, the court was advised that the majority of the brief had been served, but fingerprint evidence was still to be obtained. An order was made that the balance of the brief, and the reply, be served by 23 May 2003.

42 On 27 June 2003 the applicant was committed for trial.

43 On 25 July 2003 the matter was mentioned in the District Court. Between that date and 17 October it was mentioned, and adjourned, on at least seven occasions. It appears that during this time the parties were in negotiations over the final form of the indictment, and, presumably, the number and identity of the counts.

44 On 30 October 2003, by letter to the DPP, the applicant’s solicitors admitted the applicant’s guilt, and made certain admissions as to some of the quantities of the drugs involved. It was twice further adjourned, and there was some uncertainty as to the basis on which this occurred. On 7 November 2003 the applicant was arraigned on the finally agreed indictment and entered pleas of guilty to all charges. Notwithstanding the pleas of guilty, the parties had not finally resolved the factual matters to be put before the court. There remained a very significant dispute as to the quantum of cannabis involved in the fourth count; initially, the Crown maintained that it could prove that the applicant had supplied (or agreed to supply) 16.407 kilograms; the applicant denied that the quantity was of that magnitude. The Crown therefore proposed to, and eventually did, call evidence as to quantity.

45 On 3 February 2004 the sentence proceedings commenced before Maguire DCJ. Detective Senior Constable Bigwood gave evidence, this predominantly going to the assistance to authorities given by the applicant. Detective Bigwood discounted significantly the value of that information. She gave some limited evidence concerning the manner in which she assessed the quantity of drugs involved in various transactions captured on intercepted and recorded telephone calls. She was more extensively cross-examined on this. The following day there was further argument over the proof of quantity. The Crown was then unable to proceed because Detective Bigwood was unavailable for the following seven days.

46 It was on this day (4 February 2004) that the appellant was granted bail on condition that he reside at and undertake the programme at Oolong House.

47 On 15 June 2004 the matter was again listed before the court but was unable to proceed because Detective Bigwood was again unavailable, and remained unavailable for a month. Defence counsel asked for a longer adjournment than a month in order to enable the applicant to complete the Oolong House programme, which he was due to do by 14 July 2004.

48 On that date the parties informed the judge that they had reached agreement on the amount of cannabis involved in the fourth count. This involved the Crown reducing its estimate from almost 16 ½ kilograms to just under five kilograms. The Crown also reduced the quantity of MDMA on which it relied, although not by such a substantial margin.

49 On 9 August 2004 the matter returned to court when Dr Lennings and Detective Bigwood both gave evidence. The applicant also gave evidence on that and the following day, 10 August.

50 At this stage an issue arose concerning the assistance the applicant was said to have offered to police. In evidence in chief, the applicant assented to a question whether he would be prepared to give “assistance in relation to the prosecution of any of the people” with whom he had been dealing. During submissions on penalty made by counsel for the applicant, Maguire DCJ himself raised the question of whether police had followed up this offer. Counsel for the applicant said that, although in the second half of 2003 the applicant had indicated an interest in talking to police, and had in fact done so, there had been no further approach from police. His Honour then said:

“I am prepared to adjourn for as many minutes or tens of minutes as it needs for you [the Crown Prosecutor] to be able to get some instructions and then if the police are interested and if the Crown is interested I am prepared to adjourn for as many weeks or more as it takes to have this man interviewed and appropriate arrangements made.”

51 As a result the proceedings were further adjourned to 20 August. On that date his Honour was told that approval had been given for the applicant to be interviewed, but that the interview had not yet taken place.

52 On 24 August the applicant was interviewed by Detective McGarry. A transcript of the interview is in evidence. The matter returned to court on 3 September 2004, but inquiries by police of the applicant had not been completed and proceedings were stood over yet again, until 17 September 2004. On that day it was stood over again because of the unavailability of police. On 5 October it was again stood over for further interview by police. That interview took place on 22 November 2004.

53 On 26 November 2004 Detective Senior Constable Willis gave evidence. This concerned the level of assistance provided to police by the applicant. The proceedings were then stood over for further hearing on 4 February 2005, but that listing was subsequently vacated due to the unavailability of Maguire DCJ. The earliest date the proceedings could be re-listed was 18 April, when the sentencing hearing resumed.

54 It was thus not until 27 April 2005 that the applicant finally was sentenced.

the sentencing proceedings

55 On 3 February 2004 Detective Bigwood gave evidence. Her evidence was predominantly directed to two issues. One was whether, and if so, to what extent and when, the applicant had furnished any assistance to police. Her evidence was to the following effect. On the date of his arrest the applicant had been invited to give information to police, particularly about five named individuals who, the police already believed, were involved in drug trafficking in the area. Detective Bigwood said that, at that time, the applicant was not prepared to give any such information. He was therefore given the names of police, and their direct telephone numbers, and invited to contact them if he had second thoughts about this matter. He made no contact with those named police.

56 However, on 31 October 2003, he did contact another police officer. This had come about because of an approach made by his sister. Arrangements were then made for the applicant to speak to a Detective Sergeant Kevin Barr, on an occasion that the applicant was appearing in court. (This course was taken to avoid the suspicions that would have been aroused in the prison had the applicant been visited there by police.)

57 The applicant gave Detective Sergeant Barr a handwritten list of names. He also gave a small amount of information about those individuals.

58 The effect of Detective Bigwood’s evidence was, however, that the information provided by the applicant added little to what police already knew or believed. When asked if his information provided any assistance to police, she answered that it did not.

59 I infer from Detective Bigwood’s evidence that what she sought was a commitment on the part of the applicant to give evidence against those suspects.

60 On the same day Detective Bigwood gave quite lengthy evidence going to the still disputed issue of the quantity of cannabis involved and the transactions giving rise to Count 4.

61 On the morning of 4 February the Crown Prosecutor told Maguire DCJ that the Crown still intended to seek to prove that the applicant had been involved in the supply of cannabis amounting to more than 16 kilograms.

62 It then became apparent that, for medical reasons, Detective Bigwood would be unavailable for some time, probably until May.

63 As a consequence, counsel for the applicant floated the proposition that the applicant be released on bail in order to undertake the drug rehabilitation programme at Oolong House.

64 The Crown Prosecutor opposed grant of bail, citing “the nature of the offences and the likelihood of a custodial sentence”. After some discussion, she said:

“... the Crown’s case is also that perhaps on a practical level it may not be appropriate in that the offender would then enter into a programme by which the Crown would say by the time he has completed it the Crown’s position would be that he would have to go into custody again to serve any sentence that your Honour –”

His Honour’s response to this was:

“Having been effectively in custody for a year and a half?”

To this the Crown Prosecutor replied:

“Yes, the Crown’s position would be that the custodial sentence should be substantially longer than that period and the Crown’s position would be that even if he was to serve a particular amount of time in rehabilitation that when he came out he could practically be facing a further period of incarceration.”

65 She then suggested that the Crown could be ready to proceed at a stage earlier than the May date that had previously been envisaged to enable Detective Bigwood to continue her evidence. Maguire DCJ said:

“Well this is a situation that has been brought about by reason of the shortcomings in the presentation of the Crown case ... that is abundantly clear. I propose to adjourn the matter until Monday June 14.”

66 Bearing in mind that the issue of the quantity of cannabis at that time remained at large, he determined to allow the whole week for the continued hearing.

67 The matter does not appear to have been listed on 14 June. It was listed on 15 June, when, again, but for different (also medical) reasons, Detective Bigwood was again unavailable. Although, by that time the issue of the quantity of the cannabis had been resolved, counsel for the applicant had not completed his cross-examination of Detective Bigwood. The proceedings were stood over until 9 August.

68 On that date Detective Bigwood gave some further, relatively brief, evidence.

69 Three reports from Oolong House were provided, confirming that the applicant had successfully completed the programme and had undertaken employment. Dr Lennings gave evidence.

70 Dr Lennings had not seen the applicant since his entry into the rehabilitation programme, but was aware that the applicant had completed the programme. In evidence he said:

“Currently he appears to have had a pretty good response to rehabilitation ... so the fact that a person completes the programme and gets into the transition phase is normally a very good indicator of their ongoing motivation for treatment, because it’s pretty confronting, these programmes.”

He said that, generally speaking, fewer than one in five participants would complete a programme, and then added:

“So to that extent, you know, he’s in the sort of the credit to distinction category, if you want to use the terms of marks, of a group of people who would enter into rehabilitation.”

71 The applicant’s evidence was quite lengthy and ranged over a variety of topics. I will deal only with those parts of this evidence that are relevant to the grounds of the application.

72 He confirmed the history of drug taking that had been given in the various reports. When asked how he went from using drugs to dealing in drugs, he said that his own drug consumption had escalated to such an extent that he could not maintain the necessary payments, and had accumulated “a massive bill” with one of his suppliers, and that he then had to find a way to get money to support it.

73 He gave some evidence about his involvement in a motor sporting event which takes place annually in the Australian Capital Territory. He said that he had sponsored a section of school students from Western Australia to attend that event.

74 He gave evidence that, of the two separate amounts of money found on the date of his arrest, the larger ($6,400) was obtained through sales from the legitimate business and the smaller amount ($2,575) was “drug money”.

75 The issue of assistance to police was then raised. He said that, at the time of his arrest, he probably could have given assistance, but he was too afraid, he knew that he would be in custody and he did not want repercussions for his family, who he considered would be in danger.

76 He said that he had not been approached by police since February, but that he would now be prepared to give assistance (in the terms I have already mentioned). There is an unfortunate ambiguity in the applicant’s assent, resulting from the form of the question that was asked. It is not clear whether “assistance in relation to the prosecution” of such people was limited to giving background information, or was intended to extend to an agreement to give evidence in open court.

77 At the end of the applicant’s evidence the following day, Maguire DCJ came back to this issue of assistance. He asked if there had been any follow up by police in relation to those matters. He asked why inquiries could not be made, even at that late stage. Counsel for the applicant responded:

“Well your Honour I don’t know. I mean Mr [N] told the police through his lawyers in the second half of last year that he wanted to talk to them. He spoke to Mr Barr ...”

Maguire DCJ then asked the Crown Prosecutor again if it were contemplated that:

“... the offer made by this offender to give evidence against other people will be taken up?” (italics added)

78 He said:

“Bear in mind that it is evidence he gave six months ago.”

79 I may here interpolate that the applicant had not given evidence six months earlier. His Honour may have been referring to the information given by the applicant of which Detective Bigwood gave evidence.

He then left the bench to enable inquiries, and, if necessary, arrangements, to be made. As a result, the proceedings were yet further adjourned.

80 On 26 November Detective Senior Constable Willis gave evidence to the effect that the applicant had given some information, which Detective Willis characterised as being of “intelligence value” only. He said that the applicant had declined to give evidence. This puts the applicant’s position a little baldly, and a little unfairly. Detective Willis also explained that the applicant had asked about the level of protection that would be provided to himself and his family in the event that he gave evidence, which, inevitably, would have become known. Detective Willis had been unable to give the applicant any assurances about any protection that would be made available to him or to his family. It was for that reason that the applicant declined to commit himself to give evidence.

81 That completed the evidence. On 18 April the judge heard submissions on sentences. A supplementary report of Mr Hudd was tendered. This confirmed the applicant’s successful completion of the Oolong House programme (as did correspondence from the organisation itself).

82 Mr Hudd had continued to have regular contact with the applicant, including during the time the applicant was at Oolong House. Oolong House authorities permitted him to travel by public transport from Nowra to Campbelltown to see Mr Hudd. He did this fortnightly from May 2004.

83 Mr Hudd wrote:

“He has responded well to therapy, both Oolong’s and mine. This is evident in his much more relaxed approach to situations and his ability to handle them appropriately, his constant returning of ‘clean’ urine samples and his reporting to me that he feels much more content within himself. He also told me that he feels, for the first time in his life that he can ‘handle whatever life dishes up for me (him)’.”

84 He also wrote:

“Since being bailed from prison Mr [N] has had to face many challenges that he previously would have found difficulty dealing with and previously if he had been confronted with then would have more probably have turned to drugs. For example, completing the Oolong programme, discontinue his use of drugs, establishing a relationship that is outside the drug culture, finding a job, being confronted by me with why he chose to use drugs and his abuse issues, (at times this process was frightening, intimidating and exhausting for him). And he succeeded in doing all this because of his renewed belief in himself and his belief that he could conquer his drug habit.”

Mr Hudd concluded:

“From observing his behaviour throughout the second half of 2004 I feel confident in saying that Mr [N’s] behaviour and attitude have changed and it appears that his rehabilitation continues to [have] been successful.”

the remarks on sentence

85 After setting out the facts of the offences, Maguire DCJ expressly accepted certain submissions that had been made on behalf of the Crown. These included:

- that the applicant was prepared to sell cannabis in quantities as large as one pound at about $3,800 per pound, and that a pound of cannabis is not a street level supply;

- that at times he had available five pounds of cannabis;

- that he had attempted, during the period covered by the charges, to supply five pounds of cannabis in a single night which could have yielded approximately $20,000;

- that the applicant had agreed to supply more than 250 grams of methylamphetamine at $50 per gram, involving $12,500;

- that the applicant agreed to supply as much as 40 tablets of LSD in a single transaction, at $13 per tablet; and that this would usually be perceived as “wholesaling”.

86 Maguire DCJ rejected the applicant’s evidence that the sole purpose in taking on the enterprise was to pay off his accumulated cocaine debts. He held:

“I find, notwithstanding any contrary spin that he seeks to put on his affairs, that he was using the profits from his drug dealing to support this other indulgence.”

“This other indulgence” was the applicant’s interest in motor vehicles, and particularly in the motor vehicle event held annually in Canberra.

87 His Honour said:

“It is not contested that police intercepted 5,200 telephone calls and text messages made by and to the Offender in the 30 day period. These related to his drug dealing . They amount to more than one every eight minutes around the clock. That is a truly remarkable degree of illegal business oriented activity. It speaks to me of a man driven by greed.” (italics added)

88 His Honour also rejected the applicant’s evidence that, of the cash found in his possession, the majority ($6,400) was attributable to his legitimate car parts business and held that;

“... the whole amount found was the fruits of his drug dealing.”

He rejected the contention that the applicant was “a mere user-dealer”; he held that the applicant:

“... was wholesaling to other dealers. He was not at the bottom of the distribution chain and is not to be treated as such.”

89 Maguire DCJ then dealt with the psychological material which had been put before him. He expressly accepted the supplementary report of Mr Hudd and the evidence that the applicant had secured some employment. He then said:

“I accept that the offender is contrite and that his rehabilitation is somewhat advanced but that is a long way short of saying that it is guaranteed. I regard him as having a prospect of securing his own rehabilitation. That prospect may well be set back by the sentence I think I am bound to impose.”

90 Maguire DCJ took into account the pleas of guilty and expressed his intention of discounting the sentence by 20% in recognition thereof.

91 He rejected a submission that the applicant was entitled to a further discount by reason of assistance to the authorities, saying that he accepted the evidence of police that what the applicant had told them was:

“... of use only by way of intelligence and not by way of evidence.”

He declined further to discount the sentence for that reason. He said:

“I do not regard him as being eligible for any further discount based on [assistance].”

92 He accepted that the applicant was contrite and remorseful but balanced that against the observation that his conduct had been potentially damaging “to a vast number of people”. (In this he was plainly correct.) He said the applicant had been involved in “a huge series of criminal acts”. (In this, also, he was plainly correct.) He noted that the offences demonstrated a great deal of planning and organisation.

93 He then considered a submission that the applicant should be sentenced in a way that did not involve any further full-time incarceration. He said:

“I am quite unable to accede to that proposition. This man’s crimes are very serious indeed. The range of drugs is exceptional. The quantities are very substantial. The community rightly expects that crimes such as these will attract severe punishment.”

(In this, again, he was plainly correct.)

94 Maguire DCJ then dealt with submissions that had been put to him concerning the long delay in the sentences being imposed. He referred to R v Todd (1982) 2 NSWLR 517, a well-known authority on the impact of delay on sentencing. As to this, he said:

“The question of assistance to the authorities was floated on behalf of the offender on the first day of the sentencing hearing. It was raised again six months later at which time it was clear that nothing had been done by or on behalf of the offender to advance matters so that he might be able to derive some advantage from what was said to be his assistance. It was only at that time, namely on 10 August 2004, that the offender indicated that he was prepared to make a formal approach to the authorities in this regard. He has never sought to explain the delay involved on his part. He is clearly not entitled to obtain any advantage for his own delay.
When the matter returned to court on 26 November 2004 the evidence disclosed that the offender was not prepared to give evidence against any other person. Nine months had been wasted by the offender in pursuit of what was always going to be a wild goose chase. The issue could easily have been resolved before I gave him bail to attend [Oolong] House. It could have been resolved while he was there. There have been other periods of delay. Much of it has arisen from the unavailability of the offender’s counsel. I see no justification for any leniency by reference to any of the delays.”

95 He referred to the need for general deterrence. He noted that the applicant had spent one year three months and twelve days in penal custody, and six months in Oolong House. He determined that the applicant should be treated as having spent one year, six months and twelve days in custody, thereby allowing half the time the applicant had spent in rehabilitation. It was for that reason that he commenced the first sentence from 10 October 2003.

96 His Honour expressly declined (without giving reasons) to find special circumstances for the purposes of s44(2) of the Sentencing Procedure Act and considered it proper, in the circumstances of the offences, to order a measure of accumulation of sentences.

97 He noted the sentences that had since been imposed on the co-offender, Katrina Rawlings, who was also convicted (but after trial by jury) of drug offences. Finally, his Honour said:

“As already mentioned, the offender has a substantial criminal record. I am obliged by s21A of the [ Sentencing Procedure ] Act to take that into account. I do so for the limited purpose of considering the ultimate prospect of his successful rehabilitation. I am mindful of the principles related to totality and have taken them into account.”

98 His Honour then proceeded to impose the sentences set out above.

the application for leave to appeal against sentence

99 Five specific grounds of appeal were pleaded and argued. They are:

“Ground 1 – the learned sentencing judge erred in failing to take into account the delay in the sentencing of the applicant.
Ground 2 – the learned sentencing judge erred in failing to have proper regard to the applicant’s rehabilitation in setting the non-parole period.
Ground 3 – the learned sentencing judge erred in sentencing the applicant on the basis that the 5,200 telephone calls and text messages intercepted by the police related to dealing in prohibited drugs.
Ground 4 – the learned sentencing judge erred in failing to discount the appellant’s sentence to take into account the applicant’s assistance to the authorities.
Ground 5 – the sentences are, individually, and their combined effect, manifestly excessive.”

ground 1: delay

100 The authority to which Maguire DCJ expressly referred (R v Todd) is well-known and of long standing. There, this Court was concerned with the effect on sentencing decisions of sentences imposed in respect of offences committed in another state, resulting in sentences being imposed in different courts and necessarily involving the deferral of commencement of the second sentence or set of sentences. Street CJ said:

“Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise , fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach — passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.” (italics added)

101 Both parties sought to blame the other for the lengthy delays which occurred in this case. That is one of the reasons why I have set out, at some length, the procedural chronology.

102 These were offences with which the applicant was charged in December 2002; in respect of which he was committed for trial on 27 June 2003; in respect of which he admitted his guilt on 30 October 2003; to which he entered pleas of guilty on 7 November 2003; and in respect of which he was not sentenced until 27 April 2005. The chronology shows that there were delays on both sides. Examination of the chronology suggests to me that the delay lies more at the door of the Crown than of the applicant. While it may be acknowledged that it was a complex case, having regard, inter alia, to the telephone intercept materials, and to the extent of illicit activity in which the applicant engaged, it was six months before the Crown had the brief ready for presentation in the Local Court for committal. There were then lengthy negotiations between the parties over the indictment. It is apparent that the Crown substantially reduced the number of charges it proposed to pursue. There was also delay caused by the dispute over the quantity of cannabis the Crown alleged and proposed to prove against the applicant. It was the Crown who essentially capitulated on this issue. Similarly, although to a less spectacular degree, the Crown capitulated in respect of the quantity of MDMA it alleged. There were, so it appears, delays in the conduct of interviews of the applicant by police in relation to the assistance he was prepared to give.

103 I have set out above in full the passage in the remarks on sentence concerning the effect of delay. Those passages suggest that, by the time he sentenced the applicant, Maguire DCJ had in his mind that the only delay was that attributable to the decision by the parties, at the last minute, to explore the possibility that the applicant might give some assistance. That is incorrect. The chronology demonstrates delays for a range of reasons, most of them to do with the Crown. His Honour had, in fact, recognised that when, on 4 February 2004, he said that “the situation” had been brought about by “reason of shortcomings in the presentation of the Crown case”.

104 Further, it was the judge who, on 10 August, initiated the inquiries into the possibility that the applicant might give assistance.

105 A good part of the delay was brought about because of Detective Bigwood’s unavailability. The only reason Detective Bigwood was required to give evidence was that there remained the outstanding issue over the quantity of cannabis involved in the offence. That was ultimately resolved (by agreement) in the applicant’s favour.

106 On the basis of the material put before this Court in the affidavit of Ms Boulous, I have concluded that his Honour’s treatment of the delay was unfair to the applicant. It was unfair, in my opinion, in two respects. Firstly, he commented that the applicant had not given any indication of a willingness to assist prior to 10 August 2004, and added:

“He has never sought to explain the delay involved on his part. He is clearly not entitled to obtain any advantage from his own delays.”

107 The applicant had, in October 2003, given some (though limited and of limited value) assistance. He gave evidence in the sentencing proceedings on 9 and 10 August 2004. If any issue arose as to any delay on his part and his offering to provide assistance, it could have been, but was not, made the subject of cross-examination. The absence of explanation lies as much at the door of the Crown as at the door of the applicant. The question arose when it did on the intervention of the judge. In my opinion the manner in which his Honour treated this issue is indicative of error.

108 Secondly, it was, in my opinion, unfair and erroneous for his Honour to say, as he did, that:

“Nine months had been wasted by the offender in pursuit of what was always going to be a wild goose chase. The issue could easily have been resolved before I gave him bail to [Oolong] House. It could have been resolved while he was there.”

109 It was not right to assume that the applicant’s willingness to assist was always “going to be a wild goose chase”. Indeed, the information already provided by the applicant was of some, though limited, value. It is, in my opinion, hardly surprising that the applicant was not prepared to give evidence, in the light of the inability of police to offer him or his family any real form of protection. His reason for declining to give evidence against those individuals he had identified was, in my opinion, not unreasonable in the circumstances. Indeed, Detective Willis did not appear to consider his decision unreasonable or surprising in the circumstances.

110 Further, his Honour appears to have attributed the entirety of the delays in the finalisation of the matters to the applicant. I have detailed above significant instances of delay on the part of the Crown. If his Honour were going to take the rather harsh approach to the applicant that he did, then, in my opinion, fairness dictated that he take the same approach to delays that lay at the door of the Crown.

111 Counsel who appeared for the applicant also relied upon the delay in another way. He cited cases, following Todd, in which it has been recognised that, where an offender takes advantage of delay in proceedings to achieve and demonstrate rehabilitation or progress towards rehabilitation, then that is a factor entitled to recognition in sentencing: see, for example, R v Blanco [1999] NSWCCA 121; 106 A Crim R 303; R v Gay [2002] NSWCCA 6; R v Schwabegger [1998] 4 VR 649; R v Fahda [1999] NSWCCA 267.

112 The proposition put on behalf of the applicant was, essentially, that he was led into a false sense of security by the events that occurred. In particular, reliance was placed upon his being granted bail on 4 February 2004 for the purpose of attempting to achieve his own rehabilitation.

113 Although the section was never invoked, s11 of the Sentencing Procedure Act envisages, in appropriate circumstances, that an offender may be granted an adjournment for that very purpose. Pursuant to s5D of the Criminal Appeal Act 1912, the Crown has a right of appeal to this Court against such an order. At the time the issue was under discussion, counsel who appeared for the Crown on sentence alluded to the possibility that that was the purpose of the proposal. No dissent from anybody was forthcoming. The Crown now concedes that the order made was one of the kind for which the Crown had a right of appeal, pursuant to s5D. No such appeal was filed.

114 It is, I think, generally accepted that s11 ought only to be applied where there is a real prospect that, if rehabilitation is effected, a sentence not involving full-time custody may be imposed. At least, if that is not to be the case, it ought to be clearly explained to the offender that the use of s11 will not avoid the punishment made necessary by the objective gravity of the crimes under consideration: see, for example, R v Palu [2002] NSWCCA 381; 134 A Crim R 174.

115 I pause here to note that, notwithstanding the submissions made at sentencing on behalf of the applicant, there was never the slightest possibility that these offences could be punished other than by way of a substantial period of full-time custody. His Honour correctly characterised the offences as “very serious indeed” and correctly observed that the range of drugs was exceptional and the quantities involved very substantial.

116 Having said that, it is, in my opinion, unfortunate that it was not made plain to the applicant, at the time he was granted bail for rehabilitation purposes, that, nevertheless, he would have to expect a substantial period of full-time custody. It was not until 18 April 2005, for the first time, that his Honour made any such suggestion. In that context, his Honour was presented with the supplementary report of Mr Hudd, and a letter from a prospective employer offering the applicant full-time employment. At that time Maguire DCJ expressed the view that the notion that the applicant could be allowed at large was “just fantasy”. In the meantime the matter had been mentioned on at least eight occasions. The applicant had been on bail, initially at Oolong House, and, from about July 2004, at large in the community, since February 2004.

117 There is a difficulty in determining how the treatment of delay, which I am satisfied was erroneous, can be remedied. It is not my intention to attribute mala fides to anybody. However, in my opinion the applicant has been ill-served by what has occurred and unfairly treated.

118 Delay was a factor relevant to the determination of the sentences. It was relevant because he had achieved quite significant rehabilitation during the protracted proceedings.

119 But, as I have indicated, the delay was not such as to override the need to punish the applicant’s extensive drug trafficking with a period, and a substantial one, of full-time custody.

120 A number of errors are evident in the way delay was treated. They are -

- the assumption, against the applicant, that his failure to make any approaches by way of providing assistance earlier than 10 August was in some way a matter in which blame could be attributed to him;

- the assumption that his failure to explain any such delay was also somehow blameworthy;

- the assumption that there was never any prospect that his offer of assistance would come to anything;

- failure to treat those parts of the delays attributable to the Crown in the same way as those said to be attributable to the applicant were treated;

- allowing the applicant to develop false expectations about the consequences of his rehabilitation efforts;

- failure, in the context of delay, to take into account the evidence of the applicant’s significant and apparently successful rehabilitation.

121 As against that, the objective gravity of the applicant’s crime is such that those errors cannot be remedied by the imposition of anything but substantial terms of full-time imprisonment.

122 One difficulty for the applicant in this respect is that, notwithstanding evidence that might be perceived as very favourable in this respect, his Honour was somewhat lukewarm about the applicant’s prospects of rehabilitation. He said two things about this. The first was:

“I emphasise that Dr Lennings limits the response to rehabilitation as merely reasonable.”

123 His Honour immediately acknowledged that the report to which he referred had been written before the applicant’s attendance at Oolong House. Somewhat puzzlingly, his Honour went on to say:

“There is not in evidence any report from Dr Lennings that post-dates Oolong House.”

I say this is puzzling because, while it is true that there is no post-Oolong House report from Dr Lennings, Dr Lennings gave the evidence on 9 August 2004 (to which I have already referred), by which time the applicant had completed the Oolong House course and been discharged. In oral evidence Dr Lennings said that the applicant appeared to have:

“... had a pretty good response to rehabilitation.”

and that the applicant was:

“... in the sort of the credit to distinction category, if you want to use the terms of marks, of a group of people who would enter into rehabilitation.”

124 His Honour also had the supplementary report of Mr Hudd, dated 25 January 2005, by which time the applicant had been at large on bail for approximately six months.

125 I will deal with the remaining grounds before returning to propose a solution that is as near to just as is possible in the circumstances.

ground 2: rehabilitation vis a vis the non-parole period

126 The essential complaint under ground 2, as I understand it, lies in the finding of Maguire DCJ that no special circumstances existed justifying any variation in the s44(2) ratio between the head sentence and the non-parole period. It was argued that the evidence of established rehabilitation was, of itself; such a circumstance. Again, the applicant encounters the not altogether favourable finding of fact concerning the extent of rehabilitation.

127 On behalf of the applicant it was accepted that a failure to explain a refusal to find special circumstances does not of itself indicate error (see R v Simpson [2001] NSWCCA 534; 53 NSWLR 704). Nevertheless, it was submitted on behalf of the applicant that the circumstances of this case were so unusual as to call for an explanation. I have come to the conclusion that the applicant’s submission is correct. This was a very unusual case. Certainly it would have been open to the judge to find special circumstances. To decline to do so in the light of quite a strong case leaves a sense that adequate attention was not paid to the arguments advanced. This ground of appeal has been made good.

ground 3: 5,200 telephone calls and text messages related to dealing in prohibited drugs

128 The ground of appeal asserts error of fact on the part of the sentencing judge. What the judge said was:

“It is not contested that police intercepted 5,200 telephone calls and text messages made by and to the offender in a thirty day period. These related to his drug dealing. They amount to more than one every eight minutes around the clock. That is a truly remarkable degree of illegal business-oriented activity. It speaks to me of a man driven by greed.”

129 Counsel for the applicant pointed out that only 314 of the 5,200 calls and messages had been transcribed. Detective Bigwood gave evidence about the process. Among other things, she said:

“Some of them may be duplicate calls. It’s a fault in the recording system. Some of them might be hang-ups. Some of them might be just purely to voicemail and no-one’s left a message. Those sorts of calls. Some of them are a joke, SMS text messages. Might be a joke or something. We know every call because we process each but we don’t transcribe the totality.”

130 Maguire DCJ was correct to express alarm at the number of telephone calls and text messages, especially on the assumption that each one related to drug dealing. That assumption was not available on the evidence, which was put in perspective by the evidence of Detective Bigwood. It never became plain how many of the calls were duplicates or how many did relate to the applicant’s drug dealings.

131 I think there is some substance in the ground. Detective Bigwood’s evidence substantially casts doubt upon the initial proposition put in the Crown case concerning the number of telephone calls. It is simply not possible to use the large number of telephone calls as any real gauge of the extent of the applicant’s criminal activity. The most that could be said was that 314 calls over the 30 day period related to drug dealing. That in itself is evidence of a substantial business or enterprise, but it is not on the massive scale that would be demonstrated by 5,200 calls and messages. There is substance in this ground of appeal.

ground 4: assistance

132 By s23 of the Sentencing Procedure Act the sentencing court may reduce the penalty it would otherwise impose having regard to the degree to which the offender has assisted or undertaken to assist law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence. Subs(2) sets out a list of matters a court must consider when considering whether to reduce a sentence under subs(1). Relevantly for present purposes, these include:

“(b) the significance and usefulness of the offender’s assistance ...
(c) the truthfulness, completeness and reliability of any information or evidence provided ...
(d) the nature and extent of the offender’s assistance ...”

For completeness, by subs(3) a sentence may not be reduced under subs(1) to the extent that it is unreasonably disproportionate to the nature and circumstances of the offence for which sentence is being imposed.

133 S23 does not mandate that any discount for assistance be given. That is within the discretion of the sentencing judge.

134 The extent of any reduction in sentence depends upon a number of factors, specifically (as set out in the section), the degree to which assistance has been given and (I would add) the value of that assistance.

135 Here, it was conceded that the value of the assistance given by the applicant was limited. It was, nevertheless, put that he was entitled to some, although small, reduction in sentence.

136 In the ordinary case, an offender who gives assistance of material value can expect some reduction in sentence attributable thereto. The error in my opinion, here, was that his Honour stated that he did not regard the applicant as “being eligible” for any further discount based on his assistance. In my opinion, the applicant was “eligible”, although not “entitled”.

137 Alone, I would not regard this ground as a ground of substance. In conjunction with other errors it is a matter this Court is able to take into account.

ground 5: sentences manifestly excessive?

138 In submissions made on behalf of the applicant counsel recognised that the offences were very serious and that large quantities of prohibited drugs had in fact been supplied. He argued, however, that the enterprise was not a sophisticated one. The applicant did very little by way of taking precautions to conceal his activities. He used a mobile telephone registered in his own name. He did not appear to use codes in his conversations. He did not employ others, but undertook the supply activity himself. A good proportion of the drugs he supplied were supplied to end-users. There was, however, some evidence of “wholesaling”.

139 The applicant was himself addicted to drugs. When the 20% discount allowed in respect of the pleas of guilty is factored in, the starting point of the total sentence is 13 years. The starting point in relation to the s25A offence (Count 6) is 12 years (against a statutory maximum of 20 years).

140 The focus of the attack was on the sentence imposed in respect of Count 6, the offence of ongoing supply. This offence attracted by far the longest sentence, which was accumulated (to the extent of one year only) upon all other sentences. Indeed, no submission was directed to suggesting that any of the other sentences was individually manifestly excessive. That is as it should be; no such submission could reasonably have been sustained.

141 Counsel referred the Court to two authorities which establish that s25A is directed at drug supplying enterprises. In R v Smiroldo [2000] NSWCCA 120; 112 A Crim R 47, Hulme J said:

“The persons at whom s 25A is directed are those who appear to be indulging in a practice or business of supplying prohibited drugs.”

142 In R v Hoon; R v Pouoa [2000] NSWCCA 137, Dunford J said, in the same context:

“39 The section is directed to the concepts of repetition, system and organisation, and the objective criminality of any offence under the section should be determined by reference to those features, and not merely to the number and quantities of individual instances of supply.”

143 From these remarks counsel sought to devise an argument that the applicant’s criminality was not enlarged by reference to the quantities of drugs involved in his offences, and his criminality was not significantly greater than the criminality of other offenders charged with lower quantities but engaged in an operation capable of supplying significant quantities - that is, that the focus of sentencing under the section is on organisation.

144 In my opinion this argument should be rejected. Hulme J in Smiroldo added that the magnitude of the operation was relevant and then went on to refer to the quantity of the drugs supplied.

145 Dunford J’s comments should not be interpreted as meaning that the quantity of the drug is irrelevant, or even that repetition, system and organisation are of greater importance – they take their place beside the number and quantities of individual incidences of supply.

146 It is true that quantity is not the only relevant feature in determining sentences in relation to drug offences. But the s25A offence with which the applicant was charged was at the very high end of offences against that section that come before this Court. In my opinion the sentence imposed in respect of that offence (at almost half of the maximum, and before the discount for the plea of guilty, above half of the maximum) was a substantial sentence, and possibly at the upper end of the range available, but not outside that range. Nor do I think that the aggregate sentence was outside the range available for drug dealing on the scale engaged in by the applicant. I would reject ground 5.

147 Nevertheless, I have concluded that a number of errors affected the sentencing process. It is now generally recognised that demonstration of error alone is not sufficient to justify the intervention of this Court: see, for example, R v Simpson [2001] NSWCCA 534; 53 NSWLR 704; R v Johnson [2005] NSWCCA 186; R v Douar [2005] NSWCCA 455. By s6(3) of the Criminal Appeal Act 1912 it is necessary to show that some other sentence was warranted in law. In my opinion the magnitude of the errors here demonstrated justifies such a conclusion.

148 I would therefore grant leave to appeal, allow the appeal and re-sentence the applicant as follows: I would vary the statutory ratio. In my opinion the applicant’s evident rehabilitation is sufficient reason for doing so.

Count 1: imprisonment for four years, commencing on 10 October 2003, and expiring on 9 October 2007, with a non-parole period of three years expiring on 9 October 2006;

Count 4: imprisonment for three years, commencing on 10 October 2003, and expiring on 9 October 2006, with a non-parole period of two years expiring on 9 October 2005;

Count 6: (taking into account the Form 1 offences) imprisonment for seven years commencing on 10 October 2004, and expiring on 9 October 2011, with a non-parole period of four years expiring on 9 October 2008;

Counts 8, 9 and 10: imprisonment for five years commencing on 10 October 2003, and expiring on 9 October 2008, with a non-parole period of three and a half years expiring on 9 April 2007.

The aggregate sentence is of a head sentence of eight years with a non-parole period of five years. The earliest date on which the applicant would be eligible for release on parole is 9 October 2008.

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