R v Sciberras

[2006] NSWCCA 268

Reported Decision: 165 A Crim R 532

New South Wales

Court of Criminal Appeal

CITATION:	R v SCIBERRAS [2006] NSWCCA 268
HEARING DATE(S):	31 July 2006
JUDGMENT DATE:	5 September 2006
JUDGMENT OF:	Beazley JA at 1; Hulme J at 2; Hislop J at 80
DECISION:	See paragraph 79
PARTIES:	Regina Carmel Sciberras
FILE NUMBER(S):	CCA 2006/795
COUNSEL:	Crown: C Williams Respondent: Mr Haesler SC
SOLICITORS:	Crown: S Kavanagh Respondent: S O'Connor
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/21/3193
LOWER COURT JUDICIAL OFFICER:	Sides DCJ

- 1 -

2006/795

BEAZLEY JA
HULME J
HISLOP J

Tuesday, 5 September 2006

Regina v Carmel SCIBERRAS

Judgment

1 BEAZLEY JA: I agree with Hulme J.

2 HULME J: On 16 February 2006 the Respondent to this Crown appeal pleaded guilty to 4 charges, viz:-

(i) That between 24 August and 10 September 2004 he did, on 3 or more separate occasions supply a prohibited drug for reward, namely methylamphetamine and 3-4 methylenedioxymethylamphetamine,
(ii) That between 29 July 2004 and 12 January 2005 he supplied a prohibited drug, namely methylamphetamine being in an amount greater than a commercial quantity of methylamphetamine,

(iii) That between 29 July 2004 and 12 January 2005 he supplied a prohibited drug, namely cannabis, and

(iv) That between 30 July and 12 January 2005 he supplied a prohibited drug, namely 3,4 methylenedioxymethyl-amphetamine being in an amount greater than a commercial quantity of 3,4 methylenedioxymethyl-amphetamine

3 3,4 methylenedioxymethyamphetamine is commonly known as ecstasy.

4 All offences arose pursuant to the Drugs (Misuse and Trafficking) Act. The first, arising under s25A, rendered the Respondent liable to imprisonment for 20 years. The second, arising under s25(2), also rendered the Respondent liable to imprisonment for 20 years. A “commercial quantity” of methylamphetamine included quantities in the range of 250 to just under 1,000 grams. Had the quantity been somewhat less than 250 grams the maximum period of imprisonment prescribed would have been 15 years.

5 The third offence, arising under s25(1), rendered the Respondent liable to imprisonment for 10 years. Had the quantity been somewhat less than 1000 grams and the prosecution or Respondent not elected to have the matter dealt with on indictment, the maximum period of imprisonment would have been 2 years. Had the quantity been between 25 kg and 100 kg, the maximum penalty would have been 15 years imprisonment.

6 The fourth offence, also arising under s25(2), rendered the Respondent liable to imprisonment for 20 years. A “commercial quantity” of 3,4 methylenedioxymethylamphetamine included quantities in the range of 125 to just under 500 grams. Had the quantity been somewhat less than 125 grams the maximum period of imprisonment prescribed would have been 15 years.

7 It is also to be noted that for an offence of supplying a commercial quantity of methylamphetamine or 3,4 methylenedioxymethylamphetamine and which lies in the middle of the range of objective seriousness for such an offence, a standard non-parole period of 10 years has been prescribed albeit the decision of this Court in R v Way (2004) 60 NSWLR 168 makes clear that that provision has significant limitations on its applicability where an offender has pleaded guilty.

8 The offence the subject of the first charge was constituted by the supply to undercover police officers –

(a) on 25 August 2004 of 13 tablets of methylamphetamine, weighing 4.34 grams,
(b) on 1 September 2004 of 13 tablets of methylamphetamine weighing 4.2 grams and 20 tablets of 3,4 methylenedioxymethyl-amphetamine weighing 6.5 grams, for a total price of $650, and
(c) on 9 September 2004 of 50 tablets of 3,4 methylenedioxy-methylamphetamine weighing 15.9 grams for a total price of $1,200.

9 The total weight of methylamphetamine was thus 8.54 grams and the total weight of 3,4 methylenedioxymethylamphetamine was 22.4 grams. These had a street values of $769 and $4,980 respectively. On the first occasion, 451 grams of cannabis had also been supplied. The price paid for both drugs was $5,780.

10 The offence the subject of the second charge was constituted by the supply of 296.05 grams of methylamphetamine, shown by means of telephone intercepts of some 79 conversations to have occurred between 29 July 2004 and 12 January 2005 and the finding of 178.2 grams of that drug during the execution of a search warrant on 11 January 2005. The street value of that found was $23,436. The total of the quantities mentioned is 474.25 grams.

11 The offence the subject of the third charge was constituted by the supply of 1,118.70 grams of cannabis, shown by means of telephone intercepts of some 39 conversations to have occurred between 29 July 2004 and 12 January 2005. The street value of the drug was $47,411.

12 The offence the subject of the fourth charge was constituted by the supply of 71.7 grams of methylenedioxymethylamphetamine, shown by means of telephone intercepts of some 71 conversations to have occurred between 29 July 2004 and 12 January 2005 and the finding of 103.79 grams of that drug during the execution of the search warrant on 11 January 2005. The street value of that found was $13,680. The total of the quantities mentioned is 175.49 grams.

13 There were taken into account a number of other offences, details of which are:-

(i)	25/8/04	Supply 451 gr. Cannabis	This was supplied at the same time as the supply the subject of the first charge.
(ii)	29/9/04	Supply 2.61 gr methylamphetamine	This took the form of the supply to an undercover officer of 10 tablets
(iii)	29/9/04	Supply 4.33 gr ecstasy	This took the form of the supply to an undercover officer of 14 tablets
(iv)	11/1/05	Possess 471 gr cannabis	This was found during the police search of the Respondent’s property.
(v)	11/1/05	Supply 25.7 gr ketamine	This was found during the police search of the Respondent’s property.
(vi)	11/1/05	Possess ammunition without holding a licence or permit or authority	This was found during the police search of the Respondent’s property.

14 (In the Form 1 contained in the appeal papers, the date of the third of these offences is said to be 11 January 2005. However, 29 September 2004 is the date in the Statement of Agreed Facts and that which his Honour used when asking the Respondent whether he acknowledged his guilt in connection with the charge.)

15 Although the Form 1 which listed these matters provided that they be taken into account in connection with the third count, there was some re-ordering of charges before his Honour and the offences on the Form 1 were, properly, taken into account in connection with the fourth count.

16 On 22 February 2006, Judge Sides sentenced the Respondent to imprisonment –

On count 1, for a non-parole period of 2 years and a total term of 3 years,

On count 2, for a non-parole period of 4 years and a total term of 6½ years,

On count 3, for a non-parole period of 6 months and a total term of 9 months, and

On count 4, for a non-parole period of 4 years and a total term of 6½ years.

17 All sentences were ordered to commence on 11 January 2005. His Honour found special circumstances in the fact that that the Respondent had not previously served a full-time custodial sentence, his age – he was born on 19 February 1959 – “and the need for an extended period of supervision on parole”.

18 The purchases by the police officers were part of an undercover operation mounted in response to information received about the Respondent. The operation had included the monitoring of 2 phone numbers used by the Respondent during the 5½ months period covered by the charges. The property at which the Respondent and his partner and family lived and from which a large proportion of the drugs were supplied was surrounded by a 6-8 feet Cyclone fence topped with barbed wire and had cameras monitoring the gate and driveway.

19 His Honour’s view of the Respondent’s offending may be summarised as follows. The Respondent was trafficking to a substantial degree in more than one drug. Although for profit, this was to fund his and his partner’s drug habits, there being no evidence that he acquired assets beyond his legitimate means. Most transactions involved sale to ultimate users although some involved wholesale quantities. The offences the subject of counts 1 and 3 fell towards the bottom, but not at the bottom of the range. Those the subject of counts 2 and 4 fell just below the middle of the range. The offences the subject of count one were part of the overall offences of supplying ecstasy and amphetamine and should be viewed as part of the offences covered by counts 2 and 4.

20 I may add to these matters some information from some of the telephone intercepts. In one in which the Respondent was speaking to another offender about a number of topics including the quality of his product and his customers he observed, in what was clearly remarks of self congratulation or commendation, “I got people telling me they can’t sleep for days” and “I’ve got at least 50 truckies”. In others the offender talked of the strength of the methylamphetamine he had for sale, making it apparent that it had been cut, and in at least one case would be cut, by the offender by mixing it with another substance.

21 The Respondent had committed offences prior to those the subject of appeal. In 1982 he had been placed on a 3 years bond for supplying Indian hemp and fined for having goods in custody, smoking Indian Hemp and possession of it. In 1996 he was placed on 2 year bonds for cultivating and possessing a prohibited drug, fined for not keeping a firearm safely and ordered to serve one hundred hours community service for possession of a shortened firearm.

22 In 1997 he was fined for larceny and in 1999 he was fined for cultivation of a prohibited plant, fined for possession of a prohibited drug and sentenced to 6 months periodic detention on another possession of a prohibited drug offence.

23 Turning to other subjective matters, his Honour found that as a result of an accident when aged 2 the Respondent had been deaf in his right ear, he had had learning difficulties as a result and left school shortly before age 15 with poor literacy skills. He had however worked until 1993, when he would have been 34, and was diagnosed with a mental illness. He described himself as then psychotic and suffering from manic depression. Since about then he has suffered depression and panic attacks and has been on a disability pension.

24 Judge Sides found that both the Respondent’s parents died when he was between about 20 and 22 and the impact of these events on him caused his own marriage to founder although he has maintained a relationship with a son of that marriage.

25 The Respondent has had a cannabis dependency since he was about 20 and a dependency on methylamphetamine since the age of about 35. His Honour found that the Respondent’s reaction to medication has improved since his incarceration, probably due to abstinence from these drugs. His Honour accepted that the Respondent genuinely intends to remain abstinent, had undertaken a course and counselling in that regard and is willing to pursue a residential rehabilitation program in that regard when released. The Respondent has also undertaken other courses while in gaol.

26 His Honour found that there was no evidence that the Respondent’s depression impaired his judgment or that he lacked an appreciation of the nature and quality of his crimes. He now has family support, and for the first time in many years the Respondent has a positive outlook. His Honour found that the prospects of rehabilitation of the Respondent are good, and it is unlikely he will re-offend. In this connection it should be mentioned that the Respondent, his brother and sister gave evidence during the sentence proceedings, the Respondent’s brother saying that he can provide the Respondent with a job when the latter is released. There was minimal cross-examination and no significant challenge to their evidence.

27 Although due to some difficulties with the Crown papers the Respondent was arraigned on 16 February 2006, His Honour took into account, as was accepted by the Crown, that the Respondent had indicated at a very early stage an intention to plead guilty and, although not quantifying what allowance he made in this regard, said that he was affording the Respondent the maximum leniency based on the utility of his plea. Although the Respondent had been less than forthcoming when interviewed on 11 January 2005, his Honour concluded that the Respondent was contrite and took into account that he had provided some assistance to the police by way of admissions both in his recorded interview and in his agreement to the Statement of Facts which was tendered.

28 Having regard to the fact that the Respondent and members of his family gave evidence, to the limited challenge there was to that evidence and to the fact that the evidence was not inherently improbable, it is not possible for this Court to interfere with Judge Sides’ conclusions as to the Respondent’s intentions and prospects at the time of sentence. Indeed the Crown did not suggest that the Court should do so.

29 The Crown submitted that Judge Sides had erred in a number of respects, viz. (and I summarise):-

(i) In treating limited admissions made by the Respondent in his ERISP as assistance to the authorities within s23 of the Crimes (Sentencing Procedure) Act and the Respondent thus entitled to leniency;
(ii) There was no evidence entitling his Honour to find that the Respondent committed the offences solely to fund his drug habit;

(iii) The sentence imposed on the fourth count failed to reflect the giving of greater weight to the need for personal deterrence and retribution, the need for such being demonstrated by the sentences taken into account;

(iv) Having insufficient regard to the standard non-parole period prescribed for the offences the subject of the second and fourth counts;

(v) Because of the weight given to the Respondent’s subjective circumstances, the sentences failed to reflect the objective gravity of the offences and were manifestly inadequate; and

(vi) His Honour failed to make the sentences he imposed partly cumulative.

Ground 1

30 His Honour’s remarks that were the inspiration for the first of these grounds were to the effect that leniency for assistance was justified by admissions in the Respondent’s ERISP as to:-

His use of telephone numbers;
His identification of his voice on telephone intercept tapes;
His occupation, or use, of some addresses;
Some code words used to refer to illegal drugs; and
Cannabis usage and supply;

31 There were admissions along these lines but they formed a very minor part of an ERISP that extended to some 755 questions and the transcript of which extended to some 96 pages. They were of matters most of which could be easily proved and compared with the matters that the Respondent declined to comment on or admit, were so insignificant as hardly to merit mention and, when regard is had to all of the considerations in s23, not worthy of more than minimal leniency.

Ground 2

32 In oral submissions, counsel for the Crown virtually conceded that, there having been no challenge to evidence given by the Respondent to the effect that the reason he sold drugs was to support his and his partner’s drug habit, the second of these grounds could not succeed. In this assessment counsel was correct.

Grounds 3, 4 and 5

33 The third, fourth and fifth grounds may conveniently be considered together. What his Honour said that inspired the fourth ground was that the standard non-parole period for each of the offences the subject of counts 2 and 4 was 10 years but that the Respondent’s pleas of guilty meant that the period did not apply but that in accordance with R v Way (2004) 60 NSWLR 168 his Honour had considered it. Otherwise, the issue raised by these 3 grounds is in substance that, in the circumstances, the sentences were lenient to a degree that demonstrated error.

34 To deal with the issue requires further attention to the Respondent’s conduct, the relevant statutory provisions the Judicial Commission statistics and at least some prior decisions, and, although this can be deferred for the moment, the strength of the subjective circumstances. So far as the first of these matters is concerned, it must be recognised that ultimately one must look at the offences separately. However, there is sufficient commonality between the conduct that constituted one offence and that which constituted another that, in what I say, I can to some extent deal with the topic globally.

35 The Respondent’s activities were part of a business operation conducted, in the case of each of the offences the subject of counts 2 to 4 over a period of approximately 5½ months. Each count involved, on at least the number of occasions mentioned in relation to that count, supply and therefore deliberate criminality. There must also have been criminality in the acquisition of the drugs, and the holding of them until sold.

36 An incident of the offending is that it was done for profit. It may be acknowledged that that profit was, as his Honour found, to feed the Respondent’s and his partner’s addiction, something not as heinous as naked commercial gain. That said, the remarks of this Court in R v Henry (1999) 46 NSWLR 346 indicate that the motivation of feeding these addictions is entitled to, at most, limited weight – see the discussion at [171 – 202, 212] per Spigelman CJ, [215 – 259] per Wood CJ at CL, [278] per Newman J, [331] per Hulme J, and at [335 – 349] per Simpson J.

37 Some of the drugs the subject of counts 2 and 4 did not find their way into the community to do damage. Most of the drugs sold were sold in quantities that could fairly be regarded as retail although a minor proportion was sold in quantities that could properly be regarded as wholesale. The Respondent knew the quantities in which he was dealing and he also knew or had a fair idea of the purity. Not all the drugs were analysed but the methylamphetamine that was revealed a purity of between about 1 and 6.5% and the 3,4 methylenedioxyamphetamine, 17 and 20.5%

38 The quantity the subject of the second count, 474.25 grams, was about double the 250 grams limit of an indictable quantity and 50% of the maximum commercial quantity.

39 The quantity the subject of the third count, 1,118.70 grams, was close to the 1000 grams bottom of the indictable quantity range and well below the 25kg top of that range.

40 The quantity the subject of the fourth count, 175.49 grams, was 40% greater than the 125 grams that was the upper limit of an indictable quantity and about 35% of the maximum commercial quantity.

41 In referring to quantities I do not forget the strictures of 3 judges of the High Court that “The selection of weight of narcotic as the chief factor to be taken into account in fixing a sentence represents a departure from fundamental principle” – Wong v R [2001] 207 CLR 584 at [70] and that due weight must be afforded to other factors including such things as the offender’s knowledge of the type of drug, quantity and purity of the drugs involved. Wong v R was a case under the Customs Act where the penalties depend on the quantity of pure drug. The Drug (Misuse and Trafficking) Act does not have this limitation but because purity may have a bearing on the extent to which drugs may be cut and thus of the profitability of an offender’s activities it also may have some relevance under the state legislation. It is however also appropriate to note that their Honours in Wong v R also remarked, at [64], albeit without attempting to make an exhaustive statement of relevant factors, “In general, however, the larger the importation, the higher the offender’s level of participation, the greater the offender’s knowledge, the greater the reward the offender hoped to receive, the heavier the punishment that would ordinarily be exacted”.

42 Importation is not of relevance here. Nor do I see as significant the issue of the quantum of reward. There is insufficient evidence to form any concluded view as the Respondent’s buying prices, other costs (if any) and profit and the matter may be approached on the basis that he was conducting a trading operation and the inferences flowing therefrom. One is that he conducted his business in the manner than he thought best maximised his profit. He was recorded as discussing at a little length prices and profitability with another offender.

43 Looked at from the point of view of the Respondent’s actions, I find it impossible to regard his offending as below the mid-point of objective seriousness. He did not do what some offenders have done by employing others in the business – see e.g. R v Cheik [2004] NSWCCA 448 – but presumably, unless it also had the effect of increasing the quantity supplied, doing so would have reduced his profit. He did not supply to an infant to create an addiction – an activity which in Markarian v R [2005] HCA 1048 the High Court has given as an example of very great seriousness – but which might perhaps be regarded as one of those cases of greater heinousness ingenuity can always conjure up - see Veen v R (No 2) (1987-1988) 164 CLR 465 at 478.2. (I may perhaps add that supplying to an infant in most cases attracts an additional penalty – see Drug (Misuse and Trafficking) Act, s33A.) However, putting aside examples which might be regarded as both unusual and extreme, the Respondent’s conduct in effecting the supply of the drugs actually supplied seems to me almost as bad as it could have been. The Respondent’s knowledge of the type of drug he was supplying was also complete.

44 So far as quantity is concerned, that the subject of the second charge was, as has been indicated, somewhat under to half of the maximum covered by the relevant statutory provision. However, once one accepts, as is clearly the law, that penalties are not proportional to quantity, the concept of the middle of the range of objective seriousness is not so precise that one can regard 25 grams or 5% less than the mid-point of 500 grams as itself taking the offence the subject of the second charge outside the mid-range. I accept that there is an element of judgment in deciding where, in relation to the middle of the range of objective seriousness, a particular offence will lie. However, making all due allowance for this, the totality of circumstances of the offence the subject of the second charge is such that the conclusion is inevitable that Judge Sides erred in his assessment that that offence fell outside the mid-range of objective seriousness.

45 Whether his Honour’s conclusion that the offence the subject of the fourth count fell just below the middle of the range for that offence is more difficult. The quantity involved is sufficiently far from the mid-point of the range of commercial quantity of 3,4 methylenedioxymethyamphetamine as to argue in that direction although regard must also be had to the other factors to which I have referred and which argue against that conclusion. With some hesitation, the conclusion at which I have arrived is that I am not persuaded that his Honour was wrong in that finding concerning the offence the subject of the fourth count.

46 There was no challenge to his Honour’s characterisation of the offences the subject of counts 1 and 3 as falling towards the bottom but not at the bottom of the range of such offences.

47 I turn then to the overall assessment of each offence that is required by the grounds of complaint with which I am presently dealing. That assessment must necessarily take account of the very favourable view Judge Sides took of the Respondent’s subjective situation and prospects. I have summarised this and need not repeat what I have said.

48 Of course there are other matters. This Court has on occasions too numerous to count adverted to the evils drugs do. I shall content myself with one prior reference. In R v Collin [2000] NSWCCA 236 at [15], it was said:-

“In my view, his Honour erred in failing to give sufficient weight to the considerations of general deterrence which apply to this crime. Although the respondent's involvement was almost at the lowest level, a very substantial superstructure of extremely dangerous criminal behaviour rests upon the willingness of people like him to sell in small quantities but over lengthy periods of time, to a wide range of people the prohibited drug. The amounts of money collected go to finance criminals who are ruthless and dangerous. No society can long survive if it permits persons to make profits out of breaking the law. The social consequences of the criminal trade in prohibited drugs are very substantial indeed, including corruption, the undermining of legitimate businesses and a serious level of violence, including murder, these coming in the train of the trade in which the respondent played a minor but necessary role.”

49 The Respondent’s reference to having “50 truckies” is also not without significance. The danger presented to the driving public generally of truck drivers trying to stay awake on amphetamines is well known. The Respondent regarded his contribution to that danger as a matter of pride.

50 It is also relevant to bear in mind the point I made in R v Spiteri [1999] NSWCCA 3 at [39] and, with the concurrence of the other members of the Court in R v Amurao [2005] NSWCCA 32 at [65]:-

“… actual imprisonment for, say 10 years is more than twice as severe as one of imprisonment for 5 years. Having regard to the sorts of terms under consideration for drug dealing a sentence of one of the longer periods is likely to have an impact on an offender's life in terms of wife, children, job prospects and the like from which he may well never recover and these sorts of considerations also have to be borne in mind.”

51 Although he did not quantify it, his Honour’s remark that the was allowing maximum leniency for the Respondent’s plea leads to the view that discount was, or was of the order of, 25%. Making this assumption, for an offence in the mid-range of objective seriousness, the sentence of 6½ years including a non-parole period of 4 years is low when compared against the statutory maximum of 20 years (for a “worst case”). The sentence is even lower when compared against the standard non-parole period of 10 years – a comparison which, notwithstanding the Respondent pleaded guilty, is still appropriate – R v Way [2004] 60 NSWLR 168 at [122]. See also R v Mendez [2005] NSWCCA 246 at [24]. R v Davies [2004] NSWCCA 39 at [5-6].

52 I do not suggest that sentencing is to be approached simply mathematically but 10 years less a 25% discount for a plea of guilty results in 7½ years. 4 years is marginally above half of this and not explicable on the basis that the offence was just below the mid range of objective seriousness and a strong subjective case unless undue weight was given to these factors.

53 On the other hand, the sentence of 6½ years including a non-parole period of 4 years, is not low when compared against the Judicial Commission statistics which show, in the case of 52 sentences of imprisonment imposed prior to the introduction of the standard non-parole provisions of the Crimes (Sentencing Procedure) Act for the supply of a commercial quantity of amphetamines, full terms ranging from 18 months to 9 years with a median of 4 years and non-parole, fixed or minimum terms varying between 6 months and 7 years with a median of 2½ years.

54 Nor is it low when compared with the statistics relating to sentences imposed after the introduction of the standard non-parole provisions of the Crimes (Sentencing Procedure) Act for the supply of a commercial quantity of amphetamines. These show, in the case of 10 sentences of imprisonment, full terms ranging from 3 years to 10 years with a median of 6 years and non-parole, fixed or minimum terms varying between 18 months and 7 years with a median between 3½ and 4 years.

55 Of course, the statistics do not reveal the individual circumstances of any of the cases reflected in them and thus provide only a broad guide and perhaps inspiration for reflection before a decision not in accordance with them is made – see R v Bloomfield (1998) 44 NSWLR 734 at 739; R v Le (2002) 54 NSWLR 474 at [121]; R v AEM Snr, KEM, MM [2002] NSWCCA 58 at [116]. Furthermore, as I said in R v Derbas [2003] NSWCCA 44 at [33-34]:-

33. On the other hand the place of such statistics must be recognised. In the first place they tend to be self-perpetuating in that as soon as the first few cases suggest a particular figure or range, other judges are urged and there is a tendency to follow that figure or range. If that early figure or range is wrong, the fact that it is later often followed does not make it right. Secondly, the statistics in the main reflect the decisions of first instance judges and while there is authority that their decisions must be regarded with respect – Ferrer-Esis (1991) 55 A Crim R 231 at 237; Griffiths v R (1976-1977) 137 CLR 293 at 310 (although it seems to me that Barwick CJ was directing attention to the circumstances of individual cases rather than to patterns or general standards) - for this Court to simply follow patterns of sentencing in the District Court is, as has been submitted in the past, "to allow the tail to wag the dog". The number of cases which come before this Court, the extent of argument and consideration of principle which occurs, places it in a better position to determine proper standards of sentencing than the judges of the District Court, whose decisions are often made quickly and in the course of a busy case schedule.
34. Thirdly, the statistics but represent the application by other judges, rightly or wrongly, to particular offenders and fact situations which come before them. It seems to me far preferable in this Court to consider the proper sentence in a particular case in the light of the statutory provision and the established principles of sentencing. The statistics provide a check, but they should not be allowed to govern the process.”

56 It is also appropriate for me to observe that I have previously remarked, with the concurrence of some but not all of the members of this Court on what seems to me to be systemic leniency of sentencing in this area. – see R v Amurao [2005] NSWCCA 32 at [52] and compare R v Georgiou [2005] NSWCCA 237; see also R v Soo [2005] NSWCCA 161 at [17]. Although 10 cases are hardly sufficient to provide a reliable guide, the pattern reflected in the post standard non-parole era does nothing to alter my view.

57 In any event the pre-standard non-parole period statistics must be treated with great caution. The introduction of a standard non-parole period of 10 years, when compared with the fact that in 52 prior cases the highest non-parole period was 7 years and the highest full term 9 years provides a strong argument that the legislature intended that the severity of sentences should increase.

58 No attempt was made in these proceedings to provide the Court with a comprehensive review of prior decisions. However it might be noted that in R v Blair [2005] NSWCCA 78 this Court imposed a sentence including a non-parole period of 5 years and 3 months and a total term of 7 years on a person who on one occasion fulfilled the role of courier of 371.3 grams of methylamphetamine and who had been convicted after a trial. In R v Georgiou [2005] NSWCCA 237 this Court by majority, although allowing an appeal against some sentences, dismissed an appeal against a sentence of 8 years including a non-parole period of 6 years for someone who, as part of a business operation, supplied 105 grams of methylamphetamine. In R v Mendez [2005] NSWCCA 246, the Court, allowing a Crown appeal, imposed a sentence of a non-parole period of 5 years and 6 months, with a total term of 8 years on an offender who had a strong subjective case, who was not a principal but who was involved in a number of aspects of a business of supplying drugs and who was found in possession of 478.8 grams of 84% pure methylamphetamine.

59 On the other hand, it is appropriate to recognise that in R v M [2005] NSWCCA 224, this Court imposed two sentences of 4 years including non-parole periods of 2 years on an offender who had pleaded guilty to offences of supplying a commercial quantity of amphetamines and ecstasy in the course of a business operation. One sentence was directed to commence one year after the other. The judge from whose sentence M appealed had imposed sentences of 5 years including non-parole periods of 3 years after allowing a discount of 40% for assistance and plea. It was held he should have allowed 50% although how the Court progressed from this conclusion to the sentence finally imposed is not apparent. Nor does the report indicate that there was any review of sentences imposed for comparable offending or why there was such a departure from the standard non-parole period.

60 Despite R v M, the statistics, the Respondent’s plea and Judge Sides’ favourable view of the Respondent’s subjective circumstances, and even if the offence the subject of the second count was regarded as just below the middle of the range of objective seriousness, I find it is impossible to satisfactorily reconcile the sentence his Honour imposed and particularly the 4 year non-parole period with standard non-parole period of 10 years. A fortiori is this so once one accepts that the offence was not below the middle of the range in objective seriousness. The sentence on the second count was manifestly inadequate. Some appreciable increase in the sentence otherwise appropriate for the offence, the subject of the fourth count was required by the matters on the Form 1.

61 With the exception of the penultimate sentence, the remarks in the immediately preceding paragraph apply to the sentence imposed on the fourth count also. However in the case of that count his Honour had to take account also of the matters on the Form 1 and while individually some of these might have been regarded as minor, in totality they could not be. For example the cannabis offences, combined, involved the supply of almost a commercial quantity of that drug.`

62 I have said that there was no challenge to his Honour’s characterisation of the offences the subject of counts 1 and 3 as falling towards the bottom but not at the bottom of the range of such offences. However that is not enough to nullify the fifth of the Crown’s complaints.

63 So far as the first count is concerned, a consideration of a number of cases in this court indicates that the sentence imposed, of 3 years including a non-parole period of 2 years, is within the appropriate range. These cases include R v Smiroldo (2000) 112 A Crim R 47; R v CBK [2002] NSWCCA 457; and R v Schodde [2003] NSWCCA 164.

64 I turn to the third count, that of supplying cannabis and in respect of which a sentence of imprisonment for a non-parole period of 6 months and a total term of 9 months was imposed. The statistics reflecting sentences imposed in the higher courts for the supply of less than a commercial quantity of cannabis leaf show that of 205 offenders, some 105 were sentenced to full time custody and, apart from one offender whose sentence was for a term of 9 years, the sentences ranged from 6 months to 6 years with a median of 2 years. The non-parole periods or fixed terms, again with one exception of 7 years, varied between 6 months and 3½ years, the median being 1 year. Again, of course, the statistics reveal nothing of the circumstances or quantity involved in any case.

65 The Crown did not attempt a comprehensive review of this range of sentences nor any principled attack on the sentence imposed for the offence the subject of the third count. In these circumstances it is not appropriate for this Court to embark on either of these matters and without doing so, it is impossible to conclude that the sentence imposed on the third count is manifestly inadequate. Accordingly, I would not interfere with the length of the sentence imposed on the third count.

Ground 6

66 The sixth of the Crown’s complaints is that his Honour failed to make the sentences he imposed partly cumulative.

67 The offences the subject of counts 2 to 4 demonstrate that, not content with dealing in, and profiting from, only one drug, the Respondent dealt in three. Furthermore, not content with the quantity of drugs the subject on one charge, he chose to deal in a greater quantity. The drugs the subject of these 3 charges were different one from another, and his Honour was not entitled, in determining upon the sentence appropriate to any one of these charges, to have regard to a different type of drug or the quantity of that other type of drug.

68 If the sentence imposed on count 2 was appropriate for the offence charged in that count, then, some further punishment was called for in consequence of the further offending involved in counts 3 and 4. Starting at the other end, if the sentence for count 4 was appropriate for the supply of 175 grams of ecstasy (and after taking the offences on the Form 1 into account), something more was required for the supply of the further 474 grams of methylamphetamine the subject of the second count. Given the quantities – in the case of count 2 almost double, and in the case of count 4, 40% greater than the top of the indictable quantity range – that criminal activity could not be regarded as de minimis. Similar considerations apply when account is taken of the third count also.

69 Nor is it appropriate to simply treat the Respondent’s activities the subject of counts 2 to 4 as “drug dealing”. That is not an offence, nor did any of the charges take that form. What were charged in counts 2 to 4 were 3 separate offences of the supply of specified drugs and it was necessary that the sentence(s) ultimately imposed reflect that fact.

70 It was submitted on behalf of the Respondent that Judge Sides did so approach the matter and was entitled, when he came to considerations of totality, to take the view that making the sentences concurrent satisfied the need for punishment. I do not agree. The Respondent’s criminality was greater by reason of committing the 3 offences the subject of counts 2 to 4 than it would have been had he committed only one. Each of the second, third and fourth offences was sufficiently serious as to require, in the circumstances prevailing, some increase in the period of imprisonment otherwise appropriate. In R v M to which I have already referred, at [31] Buddin J, with whom the other members of the Court agreed, took a similar view. For another example see Hammoud (2000) 118 A Crim R 66 at [11] and [69].

71 On the other hand, that concurrency demonstrates how little increase in the effective non-parole period resulted from the sentences imposed on counts 2 to 4. Combined, these effectively increased the non-parole period by only 2 years.

72 I do not take the same view in relation to the first count. Putting aside the involvement of the police as recipients of the drugs supplied, the instances of supply that went to make up that count were of the same nature as those which helped to constitute the offences the subjects of counts 2 and 4. The quantities involved were but about 2% and 9% respectively of the quantities the subject of those other charges. In these circumstances I am not persuaded that Judge Sides erred in exercising his discretion so as to make the sentence of count 1 concurrent with one or more of the sentences imposed on counts 2 and 4 or, if structuring of the sentences so required so as to lead to a proper end result, count 3.

73 Nothing I have said is intended to suggest that the sentences on counts 2 to 4 should simply have been accumulated. Considerations of totality had to be borne in mind. In this Court of course, there are also considerations of double jeopardy which will tend to limit any fresh sentences which are imposed.

74 In a Crown appeal this Court of course has a discretion not to interfere at all. However, both the extent of the Respondent’s offending, the degree of inadequacy in the overall sentence and the need for the Courts to send a clear message that commercial dealing in illegal drugs will not be lightly punished leads me to the view that that course should not be followed. That said, in the circumstances of this case, particularly the Respondent’s age and history, the favourable view Judge Sides took of his prospects of rehabilitation, and the extent of the increase in the sentence I propose, I take the view that this Court should impose a sentence less than should have been imposed at first instance.

75 In arriving at these decisions I have taken into account an affidavit of the Respondent which was read to the Court on the usual basis in appeals such as this. That affidavit indicates that the Respondent continues on the way of reform which led Judge Sides to impose the sentence he did. However, and perhaps unfortunately for the Respondent, rehabilitation is not the only purpose to be served by sentencing.

76 Because I propose in the case of counts 2 and 4 that the Court impose a fresh sentence but one incorporating a non-parole period less than the relevant standard non-parole period, s54B(4) of the Crimes (Sentencing Procedure) Act requires that the Court “make a record of its reasons for … reducing the standard non-parole period (and) … identify in the record of its reasons each factor that it takes into account”. It was said in R v Mills [2005] NSWCCA 175 at [49]:-

“I do not consider that this was a sufficient compliance with the requirements of s 54B(4). A mere statement of the conclusion, accompanied by a confirmation that the submissions of counsel, and the circumstances of the case, have been taken into account, does not constitute an identification of the reasons which are expected in a case which falls within the umbrella of the Division. As is also the case in relation to s 21A of the Act, more is expected than mere lip service to the legislation. What is required is a clear identification of the relevant factors, the weight given to them, and their role in the structuring of the sentencing order: see R v Walker [2005] NSWCCA 109.”

77 The passage was endorsed in R v Zegura [2006] NSWCCA 230 but, with respect to the judges who took that view, the last sentence quoted seems to me to go appreciably further than s54B(4) requires. Section 21A and S54B have already increased markedly the burden on sentencing judges and I see no reason to add to this workload unnecessarily. As it is, I have identified in these reasons the factors I have taken into account.

78 As I have said, Judge Sides made, and gave effect to, a finding of special circumstances. The Crown did not challenge this finding and in these circumstances this Court should accept it and reflect the finding in the sentence(s) it imposes.

79 The orders I propose are as follows:-

(i) Grant leave to appeal;
(ii) Allow the appeal;
(iii) Confirm the sentence imposed by Judge Sides on count 1, viz that the Respondent be sentenced to imprisonment for a non-parole period of 2 years and a total term of 3 years, both such periods to commence on 11 January 2005;
(iv) Confirm the sentence imposed by Judge Sides on count 3, viz that the Respondent be sentenced to imprisonment for a non-parole period of 6 months and a total term of 9 months, both such periods to commence on 11 January 2005;
(v) Quash the sentences imposed by his Honour on counts 2 and 4;
(vi) On count 2, sentence the Respondent to imprisonment for a non-parole period of 6 years commencing on 11 July 2005 and a balance of term of 2 years commencing on 11 July 2011;
(vii) On count 4, sentence the Respondent to imprisonment for a non-parole period of 5 years commencing on 11 July 2007 and a balance of term of 3 years, commencing on 11 July 2012.
(viii) Record as the date upon which it appears to the Court that the Respondent shall be first eligible for parole, 11 July 2012.

80 HISLOP J: I agree with Hulme J.

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