R v Parkinson

[2010] NSWCCA 89

New South Wales
Court of Criminal Appeal

CITATION:	R v Parkinson [2010] NSWCCA 89
HEARING DATE(S):	24 Septembeer 2009
JUDGMENT DATE:	7 May 2010
JUDGMENT OF:	McClellan CJatCL at 1; Buddin J at 58; Hall J at 59
DECISION:	1. Crown appeal allowed. 2. Sentences imposed in the District Court quashed. 3. The respondent is sentenced as follows: On count 1 to a non-parole period of 6 years commencing on 9 December 2008 expiring on 8 December 2014 with a balance of term of 2 years expiring on 8 December 2016. On count 2 to a non-parole period of 4 years and six months commencing on 9 December 2010 and expiring on 8 June 2015 with a balance of 3 years expiring on 8 June 2018. On count 3 to a non-parole period of 4 years and 6 months commencing on 9 December 2010 and expiring on 8 June 2015 with a balance of term of 3 years expiring on 8 June 2018.
CATCHWORDS:	CRIMINAL LAW - Crown appeal - whether sentence imposed in manifestly inadequate - whether the sentencing judge erred in the findings made regarding objective seriousness of the offence - adequacy of reasons for not imposing the standard non-parole period - whether sentencing judge erred in imposing wholly concurrent sentences - circumstances where failure by prosecutor to assist judge in sentence will constitute error in sentence
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1995 Firearms Act 1996 Crimes (Appeal and Review) Act 2001 Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009 Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Principal judgment
CASES CITED:	Graham v R [2008] NSWCCA 309 KC v R [2009] NSWCCA 110 Ku v R [2008] NSWCCA 258 R v Chan [1999] NSWCCA 103 R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 R v Burgess [2006] NSWCCA 319 R v Chad unreported 13 May 1997 NSWCCA R v Dang [2005] NSWCCA 430 R v JW [2010] NSWCCA 49 R v Knight; R v Biuvanua [2007] 176 A Crim R 338 R v Mills [2005] NSWCCA 175 R v Mulato [2006] NSWCCA 282 R v Truong [2006] NSWCCA 318 R v Walker [2005] NSWCCA 109 R v Wall (2002) NSWCCA 42 R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 SCJ v R [2008] NSWCCA 258
PARTIES:	The Crown (Appellant) Clinton Parkinson (Respondent)
FILE NUMBER(S):	CCA 2009/3131
COUNSEL:	L Lamprati SC (Crown/appellant) L Wells (Respondent)
SOLICITORS:	Director of Public Prosecutions (Crown) Legal Aid Commission of NSW (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2009/3131
LOWER COURT JUDICIAL OFFICER:	Murrell DCJ
LOWER COURT DATE OF DECISION:	15 September 2009

2009/3131

McCLELLAN CJ at CL
BUDDIN J
HALL J

FRIDAY, 7 MAY 2010

R v PARKINSON, Clinton

Judgment

1 McCLELLAN CJ at CL: This is a Crown appeal against the sentence imposed on Clinton Parkinson (“the respondent”). The respondent pleaded guilty to one count of supplying the prohibited drug methylamphetamine in a quantity greater than the commercial quantity (563.3 grams) in contravention of s 25(2) of the Drug Misuse and Trafficking Act 1995 and two offences of selling a pistol to a person not authorised to possess it in contravention of s 51(1A)(a) of the Firearms Act 1996. Each offence attracted a maximum penalty of imprisonment for 20 years and has a standard non-parole period of 10 years.

2 The sentencing judge was also asked to have regard to offences on two Forms 1. The offences on the first Form 1 were an offer to supply a prohibited drug (2 ounces of methylamphetamine) and possessing a prohibited drug (cannabis seed and cannabis leaf). On the second Form 1 there were two offences being selling a prohibited weapon to a person not authorised to possess it and possessing a prohibited weapon without a permit.

3 The sentencing judge sentenced the offender as follows:

a. With respect to the offence of supplying a prohibited drug, and having regard to the 3 offences on the first Form 1 a non parole period of 2 years and 9 months with an overall sentence of 6 years.

b. In relation to count 2 selling a pistol to a person unauthorised to possess it taking into account two offences on the second Form 1 imprisonment for a fixed term of 3 years.

c. In relation to count 3, selling pistol to a person unauthorised to possess it imprisonment for a fixed term of 2 years.

4 The overall effective sentence was a term of imprisonment of 7 years with a non-parole period of 3 years and 9 months.

5 The respondent was sentenced on 15 May 2009. The Director of Public Prosecutions signed a notice of appeal on 23 June 2009. The appeal was heard on 24 September 2009 but judgment has been delayed by the necessity to await the decision in R v JW which considered s 68A of the Crimes (Appeal and Review) Act 2001. The Director asserted that the sentencing judge’s discretion has miscarried and submitted that both the individual sentences and the overall sentence are manifestly inadequate.

Facts

6 The Crown has provided a useful summary of the relevant facts which I gratefully adopt.

7 The respondent was arrested pursuant to Operation Roll, a combined task force between the State Crime Command, Drug Squad and the Albury Drug Unit formed by the Albury Drug Unit to target the respondent and his involvement in the supply of amphetamines and firearms in the Albury and surrounding area.

8 From 18 June 2008 until the arrest of the respondent on 17 September 2008 a covert police operative (CPO) made ten controlled purchases from the respondent, acquiring a total of 563.3 grams of methylamphetamine (count 1).

9 On 18 June 2008 the CPO attended the respondent’s home at West Albury. They discussed the purchase of amphetamine as well as the respondent’s ability to source illegal firearms. The CPO purchased 13.9 grams of methylamphetamine (purity 6.5%) for $1750.00 cash.

10 On 25 June 2008 the respondent and the CPO met by prior arrangement. They drove to a residential address at West Albury where the respondent introduced the CPO to the occupant, Dwayne Meiers. Mr Meiers removed a quantity of amphetamine from the roof cavity. The CPO was supplied with 27.8 grams of methylamphetamine (purity 7%) in exchange for $3300.00 cash.

11 On 10 July 2008 the respondent and the CPO met by prior arrangement. The respondent supplied the CPO with 27.8 grams of methylamphetamine (purity 4%) in exchange for $3300.00 cash. The respondent and the CPO discussed the supply of firearms and the respondent’s capacity to supply a taser gun.

12 On 16 July 2008 the CPO arrived at the respondent’s home by prior arrangement. At the same time, Joshua Barns left the respondent’s home in a vehicle belonging to the respondent. Shortly afterwards, the respondent and the CPO entered the CPO’s vehicle and began to drive towards Wodonga along the Causeway. Whilst travelling, the CPO handed the respondent $3600.00 cash, $3300.00 being for one ounce of methylamphetamine and $300.00 being for a taser gun. The respondent counted the money, directed the CPO to a car park in Wodonga and made a telephone call on the CPO’s telephone, apparently to arrange for assistance to complete the supply. In the car park the respondent met with Joshua Barns. The respondent supplied the CPO with 27.6 grams of methylamphetamine (purity 5%) and a taser gun (first matter on the second Form 1) whereupon the respondent left with Mr Burns in the respondent’s vehicle.

13 On 23 July 2008 following a lengthy discussion about the logistics of the supply of firearms, the CPO accompanied the respondent home where the respondent supplied the CPO with 13.2 grams of methylamphetamine (purity 7%) for $2400.00 cash.

14 On 6 August 2008 the respondent and the CPO met by prior arrangement and drove in the CPO’s vehicle to a car park in Albury. On the way, the CPO provided the respondent with $6500.00 cash which the respondent counted. The respondent met with Dwayne Meiers in the car park. The respondent then supplied the CPO with 55.1 grams of methylamphetamine (purity 2.5%).

15 On 13 August 2008 the respondent and the CPO met by prior arrangement in West Albury. The respondent supplied the CPO with 54.6 grams of methylamphetamine (purity 3%) in exchange for $6500.00. The respondent and the CPO negotiated for the supply of a further two ounces of methylamphetamine and a firearm in the coming days.

16 On 14 August 2008 the respondent, Joshua Barns and the CPO went to lunch together in Albury. Mr Barns departed the lunch venue first. Shortly afterwards, the respondent and the CPO drove to a residential address in West Albury. Mr Barns came out of the front door and handed to the CPO a .22 calibre pistol and 96 .22 calibre rounds (count 2).

17 On 15 August 2008 the CPO attended the respondent’s home from where they travelled together to a residential address in West Albury. The respondent supplied the CPO with 55.2 grams of methylamphetamine (purity 3.5%) for $6500.00 cash.

18 On 28 August 2008 the CPO attended the respondent’s home where the respondent offered and produced 2 ounces of methylamphetamine to the CPO. On that occasion the CPO declined to purchase the drug (first matter on the first Form 1).

19 On 11 September 2008 the CPO attended the respondent’s home by prior arrangement. The respondent entered the CPO’s vehicle and handed him 45.4 grams of methylamphetamine (purity 2%). The respondent and the CPO proceeded to a café for lunch, where they further discussed the capacity of the respondent to supply firearms. After lunch they re-entered the CPO’s vehicle where the CPO handed to the respondent $6500.00 cash for the methylamphetamine and $3000.00 cash as forward payment for a firearm (count 3).

20 On 17 September 2008 the respondent and the CPO met in a car park in East Albury by prior arrangement where the respondent supplied the CPO with 242.7 grams of methylamphetamine (purity 2%). The respondent was subsequently conveyed to Albury police station and arrested.

21 Pursuant to a search warrant executed on the respondent’s premises the same day, police located a small plastic bag containing cannabis seeds (second matter on the first Form 1), a flick knife (second matter on the second Form 1) and a small piece of silver foil containing cannabis (third matter on the first Form 1).

Subjective circumstances

22 The respondent was 26 years old at the date of sentencing. He did not give evidence at the sentencing hearing. Her Honour provided a summary of his criminal record in the following terms:

“He has a significant criminal record in New South Wales and Victoria, including driving matters, minor drug matters, a minor weapons matter and stalking matters, as well as the assault occasioning actual bodily harm matter … There are also some dishonesty matters. He has spent brief periods in custody on remand. He has never served a full time sentence of imprisonment or indeed, a periodic detention order. He has been the lucky beneficiary of a series of s 12 suspended sentences. In 2006 there was a firearms matter and a possess prohibited drug matter that resulted in fines. In 2004 a stalking matter resulted in a s 9 bond. There was a call up for breach and that led to the imposition of s 12 bond. There are several driving matters that resulted in s 12 suspended sentences. In 2003, there was a matter of possessing a prohibited weapon. I am told it was an ornamental mace. There was a minor drug matter. Each conviction resulting in the imposition of a fine. In 2003 there was a stalking matter in Victoria and a threat to kill matter resulting in a total of a four month suspended sentence. There are no prior offences of supply drugs. The firearms and weapons matters must have been minor because only small fines were imposed.”

23 The respondent’s parents separated when he was seven years old. This caused him some difficulty. He also suffered great difficulty in learning and is described as being illiterate. He left school in year 9. He claims to be self-employed in a motor spare parts business and with the assistance of a mortgage purchased his own home. He was in a permanent relationship which came to an end when he was arrested and taken into custody.

Remarks on sentence

24 The sentencing judge made the following findings in relation to the offence of supplying a prohibited drug:

“25 There were ten episodes of actual supply. The supply was to an operative rather than to somebody who passed the drugs on to an end user. That is a matter of relevance, but not enormous relevance. As far as the respondent is concerned, he thought he was supplying to someone who would pass the drugs to end users.
26 The quantity of the drugs is middle range in terms of the commercial quantity of the substance. … It is to some extent relevant that the purity of the drug was low, particularly after July when the operative requested increasingly larger amounts of the drug, and the purity decreased in inverse proportion to the quantity that was supplied. Her Honour said: ‘I agree with the Crown’s submission that drug sellers may dilute the purity of drugs for the purpose of increasing profit, and that was no doubt a consideration in relation to this matter.’
27 A matter that is of relevance is that the operative requested escalating amounts of the drug, and the respondent responded to those requests … it is quite clear that the respondent was ready and willing to meet any request because the greater the quantity of the drug then the larger the profit that would flow to him.
28 … The overall financial value of the transactions was very substantial. Undoubtedly the respondent engaged in the transactions for the purpose of making a substantial financial gain.
29 … The respondent was a negotiator who was able to organise whatever was required in relation to the acquisition of the drugs. He played a very active role. The offence is somewhere in the mid-range of objective seriousness, but somewhere towards the lower end of mid-range.”

25 In relation to the firearms offences the sentencing judge made the following findings:

“30 The respondent did not have firearms in his immediate possession to supply to the operative. However, he was able to obtain items … [and] he was involved in the negotiations.
31 [A]s he knew the firearm was being supplied to a drug dealer, the offence of supplying the firearm was more serious than supplying an illegal firearm to someone who has apparently a quasi-legitimate purpose for wanting the firearm.
32 In summary the offence of supply firearm on 14 August was an offence of significant seriousness. … Because I have limited information about the pistol I do not believe that I am qualified to say where it lies in relation to mid-range of objective seriousness, but certainly it is not at the lowest end of the range of objective seriousness. It is a matter of significant seriousness.
33 The offence on 11 September is of less objective seriousness, only because the operative did not receive the firearm or firearms that were discussed. Quite likely firearms would have been supplied but for the arrest on 17 September. Nevertheless, the offence of 11 September is an offence of negotiation, not actual supply.”

26 In relation to all three matters her Honour made additional findings. Her Honour found that the fact that the respondent was on conditional liberty at the time of the offences was a matter of aggravation. Her Honour found that the respondent displayed little insight into his conduct. The only mitigating factor was his plea of guilty.

Crown submissions

27 The Crown submitted that her Honour had made seven significant errors when sentencing. They were described as follows:

“1. In determining that the offence of supply commercial quantity of prohibited drug fell towards the lower end of the mid-range of objective seriousness.
2. In failing to give proper reasons for not applying the standard non-parole period to the offence of supply commercial quantity of prohibited drug.
3. In determining a starting point of eight years for the supply commercial quantity of prohibited drug offence.
4. In failing to determine where in the range of objective seriousness the firearm offence of 14 August (selling a .22 calibre Ruger pistol to a person unauthorised to posses it), fell.
5. In determining that the second firearm offence (charge 3) was less serious than the first firearm offence (charge 2).
6. In setting fixed terms for the two firearm offences.
7. In failing to take into account matters relevant to the determination of whether the sentences should be ordered to be served concurrently or otherwise and erred in imposing wholly concurrent sentences for the two firearm offences, and only accumulating the sentence for the drug offence by twelve months.”

28 The sentencing judge found the supply prohibited drug offence to be “somewhere in the mid-range of objective seriousness, but somewhere towards the lower end of mid-range.” It was submitted that in characterising the objective criminality at the lower end of the mid-range her Honour erred. Because the total quantity of methylamphetamine was 563.5 grams which is in excess of twice the minimum commercial quantity of 250 grams and there were ten episodes of actual supply, being sales of drugs for profit, the Crown submitted that the only appropriate classification was that the offence was serious. The Crown submitted that the offence was marked by the fact that a significant sum of money, in excess of $30,000 changed hands and furthermore having regard to the multiplicity of offences it was apparent that the respondent played an active role in the drug trade. It was submitted that he was “trafficking to a substantial degree” and that the offence fell “well above” the mid-range of objective seriousness.

29 In R v Dang [2005] NSWCCA 430 Howie J said at [24]:

“Clearly there will be a range of factors that are relevant to a determination of whether an offence of supplying a prohibited drug falls within the mid-range of seriousness. The amount and purity of the drug will be significant matters but they are not decisive. Way at [159]. The number of occasions on which the drug was supplied, the motivation for the supply, the planning involved and the role of the offender in the supply are obviously relevant matters. In R v Shi [2004] NSWCCA 135 at [35], [37]-[38] Wood CJ at CL stated:
As was decided in Regina v Way the determination of the objective seriousness of the offence before the Court is not confined to a consideration of the circumstances which are specifically listed in s 21A(2) and (3). The motive of an offender or any condition which affects the offender’s state of mind which impinges upon the elements comprised within the mens rea is of relevance, although less so in the case of any condition which is self induced through abuse of alcohol or drugs.”

30 The Crown emphasised that there were no mitigating factors which impinged upon the elements comprising the mens rea of this offence. The respondent did not use either alcohol or drugs but was involved in an ongoing criminal enterprise. Although the drugs were supplied to an undercover operative and were not actually disseminated into the community this Court has previously indicated that this has no bearing on the respondent’s moral culpability for the offence: R v Truong [2006] NSWCCA 318 at [26] and [47]; R v Chan [1999] NSWCCA 103.

31 The respondent drew attention to decisions of this Court where it has been indicated that the question of whether an offence falls within the mid range of seriousness is a matter of judgment on which minds may differ. It has been described as “quintessentially for the sentencing judge”; Dang at [22] and R v Mulato [2006] NSWCCA 282 at [46]. It was also emphasised that the drugs which were supplied were of low purity and as the volume in the transaction increased the purity decreased.

Consideration

32 To my mind the volume and frequency of the transactions confirm that the respondent was engaged in a significant drug enterprise in breach of the law. His purpose was profit from the sale of drugs which he expected would be distributed in the community. If I was sentencing at first instance I would have concluded that the offence was at least mid range. However, mindful of the statements of this Court that the determination of the objective seriousness of the offence is primarily a matter for the sentencing judge I would not for this reason have intervened to resentence. However, I will consider later whether the sentence imposed was appropriate even for a finding that the objective seriousness fell towards the “lower end of the mid range of objective seriousness.”

33 The Crown complained that her Honour failed to comply with s 54B(4) of the Crimes (Sentencing Procedure) Act 1999 and adequately explain her reasons for concluding that there could be a departure from the standard non-parole period. In R v Mills [2005] NSWCCA 175 Wood CJ at CL said at [49] that a statement which gives a clear identification of the relevant factors, the weight given to them and their role in the structuring of the sentence is required. See also R v Walker [2005] NSWCCA 109.

34 In the present case her Honour was entitled to depart from the standard non-parole period by reason of the respondent’s guilty plea: R v Way (2004) 60 NSWLR 168 at [68]. However, this was the only reason which justified a departure and there were matters which pointed the other way. The respondent was on conditional liberty at the time the supply offence was being committed. He has a lengthy criminal history. There was no evidence of remorse and her Honour found that she could not conclude that there were prospects of his rehabilitation.

35 The respondent emphasised that her Honour did give careful consideration to the finding which she made of special circumstances. Although this is true, beyond stating her finding as to where the offences lay on the spectrum of objective seriousness her Honour did not provide reasons for departing from the standard non-parole period. Although by reason of the guilty pleas the standard non-parole periods were not directly relevant they remained a “benchmark or guide post” for the sentencing judge (R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131; R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434.

36 The obligation to provide reasons for departing from a standard non-parole period was no doubt intended by the Parliament to ensure that unless reasons for departure could be identified and articulated, sentencing judges would impose the standard non-parole period. Because the standard non-parole periods identified by the Parliament are in many case greater than the range of non-parole periods which the courts were commonly imposing for the relevant offences it could be expected that, unless judges were required to give careful consideration to any reasons for departing from the standard, the impact of the standard non-parole period on sentencing regimes may be less than intended. This Court has remarked on previous occasions on the apparent failure in many cases of sentencing judges to have proper regard to and impose penalties consistent with, standard non-parole periods: R v Knight; R v Biuvanua [2007] 176 A Crim R 338. It is more likely that problems will arise when a trial judge does not comply with his or her obligations under s 54B(4). The reasons need not be elaborate but must make plain the matters which justify the departure.

37 In the present case, as I have indicated, there was only one matter, being the guilty plea, which justified a departure from the standard non-parole period. When the period of 10 years is compared with the non-parole period of 2 years and 9 months provided for the drug offence it is clear that the sentencing discretion has miscarried. This may not have occurred if the sentencing judge had exposed her reasoning process.

38 When delivering her remarks on sentence the sentencing judge stated that in relation to count 1 the starting point for calculating the sentence was 8 years but that she discounted that figure by 25% because of the plea of guilty resulting in a 6 year sentence. If, as appears likely, her Honour arrived at the 8 year period because this was a figure which was justified by the offence being at the lower end of the mid-range it is plain that error has occurred. The 10 year period provided by the statute is the non-parole period not the overall term. Appropriate regard for the standard non-parole period, even with a guilty plea, would have provided an overall term well in excess of 6 years.

39 The error which the Crown identified is similar to that which occurred in R v Burgess [2006] NSWCCA 319. But for the plea of guilty the non-parole period in the present case should have been close to the standard non-parole period of 10 years which was the position in Burgess. By providing a non-parole period of 2 years and 9 months her Honour has imposed a sentence which was grossly inadequate and which requires the intervention of this Court.

40 The Crown submitted that the offence of selling a pistol to an unauthorised person was also an offence of significant seriousness. Although her Honour said that a lack of information meant that she could not determine where the offence lay in relation to the mid-range of objective seriousness she nevertheless concluded that it was a matter of significant seriousness. It was submitted that by so doing her Honour erred.

41 The prohibited pistol the subject of the charge was a .22 calibre Ruger pistol which was found with 96 rounds of ammunition. The weapon was in working order and as her Honour found could inflict a lethal wound upon any human being. The evidence before her Honour confirmed that it was a pistol as defined in s 41 of the Firearms Act and was of a self-loading type.

42 Her Honour’s conclusion that she was not able to say where the offence lay on the mid-range of objective seriousness, because she had limited information about the pistol is at odds with the evidence which was before her. Her Honour received the expert certificate confirming the nature of the weapon and there is nothing in the Firearms Act which distinguishes different sorts of pistols making the sale of one a more serious offence than the sale of another. The respondent was an active drug dealer and the evidence before the sentencing judge indicated that he had been engaged in a number of conversations about the supply of prohibited weapons. This offence was not an isolated act of criminality.

43 The sentencing judge found that the second firearm offence was less serious than the first only because the pistol was never supplied. The reason for the pistol not being supplied was that the respondent was arrested and the criminal enterprise accordingly interrupted. However, the sale had been agreed. It was only the delivery of the weapon which was not completed.

44 With respect to both firearm offences the respondent submitted that because the respondent was a principal but in the nature of an agent for the sale of the weapons his offending fell below the mid-range. It was submitted that it was apparent from the fact that there was a delay between when the undercover officer requested a firearm and its supply that the respondent played only a minor part in any illegal gun supply activity. The respondent stressed that there was no evidence of any significant profit to the respondent from these transactions.

45 I am satisfied, that the Crown’s submission, that there was sufficient known about the weapon to enable the sentencing judge to make a finding of the effective seriousness of the offence is made good. The weapon was appropriately described and its lethal nature adequately explained. However, the objective seriousness of the offence depended in part upon the respondent’s role in the gun supply activity. I am satisfied that the evidence proved that the respondent was an agent for others who were engaged in the business of illegally supplying weapons and for this reason his offending fell below the mid-range.

46 The Crown submitted that the sentencing judge erred by setting a fixed term for the 2 firearm offences and failing to impose a non-parole period. The submission derives from s 45(1) of the Crimes (Sentencing Procedure) Act 1999 which provides that other than for an offence for which there is a standard non-parole period a court may decline to set a non-parole period. This has been interpreted so as to require the sentence for an offence for which a standard non-parole period is provided to impose both a period of full time custody and a period on parole: see SCJ v R [2008] NSWCCA 258 at [76]; Ku v R [2008] NSWCCA 258; Graham v R [2008] NSWCCA 309; KC v R [2009] NSWCCA 110.

47 It was conceded in the present case, as it was in those earlier decisions, that the sentencing judge erred. In those circumstances whether that concession has been rightly made need not be determined. However, I note that s 45(1) is concerned with the circumstances where a court may decline to set a non-parole period for an offence where a standard non-parole period has not been provided. It is not concerned with offences where a standard non-parole period has been set.

48 The Crown submitted that each of the errors which I have discussed all contributed to entirely inadequate sentences being imposed. The respondent accepted that all of the sentences fell at the low end of the appropriate range. The respondent emphasised that during the course of the proceedings the sentencing judge indicated that she had looked at relevant statistics and considered that the non-parole period for the drug offence fell within a range of 2 to 4½ years and for the gun offences within the range of 1 or 2 years. The prosecutor did not take issue with these statements. For this reason it was submitted that if, as has been submitted on the appeal, sentences within the range suggested by her Honour were manifestly inadequate the Crown had a duty to assist the sentencing judge to avoid appellable error. It was submitted that as this did not occur the court’s discretion to refuse to intervene despite the error demonstrated was enlivened, See R v Chad unreported 13 May 1997 NSWCCA.

49 The principles which have traditionally applied to a Crown appeal against sentence are well known. They were summarised in R v Wall (2002) NSWCCA 42 at [70]. However, following the enactment of the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009 those principles have changed. Although considerations relating to matters of double jeopardy are no longer relevant this Court retains a discretion not to intervene: R v JW [2010] NSWCCA 49.

50 In the present matter I am in no doubt that error has occurred. Both the individual sentences and the total sentence are substantially below that which was appropriate. I acknowledge that when the sentencing judge received submissions in relation to sentence she indicated the range which she had in mind as being appropriate and the Crown prosecutor did not demur. Although in some circumstances a discussion between the prosecutor and the judge may be of such significance that this Court for that reason could determine that no error had occurred that was not this case. Passive acquiescence by the prosecutor cannot lead to a finding that no error has occurred when the sentence, as in this case, fell so significantly below that which was appropriate.

51 Although before the amending Act sentences at the lowest end of the range should be imposed by this Court this is no longer the case: R v JW [2010] NSWCCA 49. With respect to the drug offence her Honour found that offence to be at the lower end of the mid-range of objective seriousness. The respondent pleaded guilty and her Honour found that he was entitled to the full 25% discount for that plea. The amount of prohibited drug was more than twice the minimum and involved ten episodes of supply and the sentence for this count must have regard to the matters on the Form 1.

52 There is nothing of particular significance in the respondent’s subjective case. The offences were committed for profit, the respondent being a non user of either alcohol or drugs.

53 To my mind the appropriate sentence for the first count, having appropriate regard to the standard non-parole period as a guide and mindful of the matters on the Form 1, was a non-parole period of 6 years with an overall term of 8 years.

54 I have already indicated that to my mind the firearm offences fell below the mid-range of objective seriousness. However, even though the respondent was effectively acting as the middle man the offences were serious and call for a significantly greater punishment than was imposed by her Honour. Although, of course, they were separate criminal acts I would, as did her Honour, propose concurrent sentences for these offences. There were also the offences on the Form 1 which required consideration, although of less significance having regard to their relationship with the principal offences. For these offences I would impose a non-parole period of 4½ years with an overall term of 7½ years.

55 Totality is a difficult issue. Making the penalties for the firearm offences concurrent provides the respondent a significant benefit. With that in mind I would commence the sentence for those offences four years before the completion of the non-parole period of the sentence for the first count.

56 The sentencing judge found special circumstances which in my opinion was appropriate. The respondent will need a period of supervised relief if he is ever to establish himself as a responsible member of the community. In resentencing I have had regard to the affidavit material tendered by the respondent.

57 The orders I propose are:

1. Crown appeal allowed.
2. Sentences imposed in the District Court quashed.
3. The respondent is sentenced as follows:
On count 1 to a non-parole period of 6 years commencing on 9 December 2008 expiring on 8 December 2014 with a balance of term of 2 years expiring on 8 December 2016.
On count 2 to a non-parole period of 4 years and six months commencing on 9 December 2010 and expiring on 8 June 2015 with a balance of 3 years expiring on 8 June 2018.
On count 3 to a non-parole period of 4 years and 6 months commencing on 9 December 2010 and expiring on 8 June 2015 with a balance of term of 3 years expiring on 8 June 2018.

Accordingly the respondent will be eligible for release to parole on 8 June 2015.

58 BUDDIN J: I agree with McClellan CJ at CL.

I agree with McClellan CJ at CL.

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