R v West

[2014] NSWCCA 250

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	R v West [2014] NSWCCA 250
Hearing dates:	21 October 2014
Decision date:	04 November 2014
Before:	Hoeben CJ at CL at [1] RA Hulme J at [2] Adamson J at [3]
Decision:	Appeal dismissed
Catchwords:	CRIMINAL LAW - Crown appeal against sentence - sentencing judge's approach both contrived and unauthorised - importance of backdating a sentence - revocation of bail is not an available sentencing option - no power to revoke bail for a collateral purpose - sentencing ought not be conducted in a two-stage process - the importance of addressing all relevant purposes of sentencing - failure to take into account general deterrence- failure to assess objective seriousness - remarks on sentence insufficient - sentence manifestly inadequate - residual discretion exercised in particular circumstances
Legislation Cited:	Bail Act 1978 (NSW), ss 6, 14, 16, 32, 67 Crimes (Administration of Sentences) Act 1999 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7, 11, 33, 47 Criminal Appeal Act 1912 (NSW), s 5D Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 29
Cases Cited:	Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 Attorney-General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited [2006] NSWSC 343; 67 NSWLR 402 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Griffiths v The Queen [1977] HCA 44; 137 CLR 293 Hili v The Queen [2010] HCA 45; 242 CLR 520 Ibbs v The Queen [1987] HCA 46; 163 CLR 447 Khoury v R [2011] NSWCCA 118 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Campbell [2014] NSWCCA 102 R v Clarke (Court of Criminal Appeal (NSW), 15 March 1990, unrep) R v Dinsdale [2000] HCA 54; 202 CLR 321 at 325 R v Dodd (1991) 57 A Crim R 349 R v Geddes (1936) 36 SR (NSW) 554 RCW v R (No. 2) [2014] NSWCCA 190 Reeves v The Queen [2013] HCA 57 Wiggins v R [2010] NSWCCA 30 Wong v The Queen [2001] HCA 64; 207 CLR 584 Veen v The Queen (No. 2) [1988] HCA 14; 164 CLR 465
Category:	Principal judgment
Parties:	Regina Benjamin John West (Respondent)
Representation:	Counsel: P Ingram SC (Crown) D Barrow (Respondent) Solicitors: J Pheils, Solicitor for Public Prosecutions (Crown) SE O'Connor, Legal Aid NSW (Respondent)
File Number(s):	2013/22190
Publication restriction:	Nil
Decision under appeal	Date of Decision: 2014-06-06 00:00:00 Before: Ellis DCJ

Judgment

1. HOEBEN CJ at CL: I agree with Adamson J. I particularly endorse her Honour's remarks concerning the obligation of judicial officers to properly apply relevant legislation and sentencing principles. The sentencing principles referred to by her Honour have been developed over time so as to not only fulfil the requirements of sentencing in s 3A Crimes (Sentencing Procedure) Act1999 (NSW) but to ensure consistency in sentencing. There is no place in the sentencing process for idiosyncratic manipulation.

1. R A HULME J: I agree with the order proposed by Adamson J and with her Honour's reasons. I also agree with the additional remarks of Hoeben CJ at CL.

1. ADAMSON J: This is an appeal brought by the Director of Public Prosecutions (the DPP) pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed on the respondent on 6 June 2014 by Ellis DCJ on grounds set out in more detail below, the principal of which was that the sentence was manifestly inadequate.

1. The respondent pleaded guilty on 13 November 2013 at the Wyong Local Court and was committed to the District Court for sentencing on a change of supplying a prohibited drug, 245.22g of methylamphetamine, contrary to ss 25(1) and 29 of the Drug Misuse and Trafficking Act 1985 (NSW) (DMTA). On 6 June 2014 the sentencing judge imposed a sentence of two years imprisonment to be served in the community by way of an Intensive Correction Order (ICO).

1. The offence and the relevant maximum penalty and the matters on a Form 1 are set out in the table below.

Section	Circumstances	Maximum penalty
Count 1	S 25(1) and 29 of DMTA	Supplying 245.22g of methylamphetamine	15 years imprisonment and/ or fine of 2000 penalty units.
Form 1	S 189 of Crimes Act 1900 (NSW)	Receiving stolen property (laptop computer and digital camera)	3 years
S 10(1) DMTA	Possess prohibited drug (Cannabis)	2 years or 20 penalty units
S 7(1) of the Weapons Prohibition Act 1998 (NSW)	Possess prohibited weapon (knuckledusters)	14 years
S 93FA(2) of the Crimes Act	Possess explosive for unlawful purpose (railway detonators)	3 years and/ or 50 penalty units

The facts

1. The Police executed a search warrant at the respondent's premises on 23 January 2013. The respondent pointed out a laptop computer on the kitchen bench and retrieved a Canon SLR camera from the top of a fish tank near the kitchen bench. He told police that he bought the computer from his mates and admitted knowing that it was stolen [Form 1]. In the course of their search of the premises, the police found the following:

(1)   17 plastic resealable bags containing while crystalline substance [4g methylamphetamine];

(2)   Two glass smoking pipes;

(3)   Three digital scales;

(4)   One cupboard box containing empty plastic resealable bags;

(5)   One glass water pipe;

(6)   Six plastic bags containing moist crystalline substance [20.62g methylamphetamine];

(7)   One silver smoking pipe.

1. Police told the respondent that he would be charged with deemed supply, to which he responded: "I fucked up. I know I fucked up you know. I've never done this shit in my life." The respondent was taken to Wyong Police Station while the police continued searching the garage of the premises, in which the following items were located:

(1)   A cylindrical plastic container containing a piece of paper with "$8000" written on it and 32 plastic resealable bags containing a moist crystalline substance [109g methylamphetamine];

(2)   A rectangular plastic container that contained a piece of paper with "$8000" written on it and four plastic containers each containing a crystalline substance [all were found to contain methylamphetamine with the following weights: 28g, 27.9g, 27.7g and 28g.]

1. Upon analysis, all of the above mentioned substances were found to contain methylamphetamine. The substance weighed, in total, 245.22g. The purity of the prohibited drug in one of the four containers found in the garage (weighing 28g) was analysed and found to contain 10.0% methylamphetamine.

1. During the search of the premises, police also located the following items:

(1)   One gold coloured knuckleduster [Form 1];

(2)   A small amount of cannabis weighing less than 1g [Form 1];

(3)   One canister containing 12 railway track signals, commonly known as railway detonators. In relation to this item the Respondent stated that the detonators were "dead" and "useless" and that he had them since he was a kid living in Parramatta [Form 1].

1. The Respondent declined to participate in an interview with police.

The sentence hearing

1. The sentence hearing commenced on 7 March 2014. The Crown tendered the agreed facts which are summarised above and the respondent's criminal and custodial history, which established the following.

1. The respondent was 28 years old at the time of the offending and 29 years at the time of sentence. He had a criminal history mostly for driving offences but he had been convicted of assault occasioning actual bodily harm in 2003 for which he received a community service order (CSO). He breached the order and was called up and received a suspended sentence of imprisonment. In 2004 he received suspended sentences for break, enter and steal and larceny offences and good behaviour bonds for larceny and goods in custody offences. In 2008 he received a CSO for driving whilst unlicensed. He was called up in respect of the CSO and sentenced to periodic detention for 6 months. He has served terms of full-time custody of 8 months for driving whilst disqualified and police pursuit offences in 2011 and 6 months for a driving whilst disqualified in 2012. He had been at liberty for only 3 months at the time of the current offences.

1. The documents tendered on behalf of the respondent included three references and a report of Mr Borenstein, psychologist. The respondent reported to him that his parents separated when he was about 2 years old. He was sufficiently disciplined during childhood. He left school during year 10 and has been primarily dependent on Centrelink for income since leaving school. He has a partner and a 7 year old daughter. He became depressed upon his release from prison and gravitated back to his old drug network. He became a heavy user of ice. He has previously consulted a psychologist regarding ADD/ADHD and epilepsy during adolescence, for which he was treated with medication. Mr Borenstein assessed the respondent as being of low average intelligence and extremely low emotional intelligence. In his view, the respondent needed more direct and constant supervision than has been available to him in the past. He considered that, although there had been no diagnosis by a psychiatrist, the respondent probably had bipolar disorder type 2. Mr Borenstein considered that the respondent needed to be placed on appropriate medication for treatment of ADD/ADHD and possible bipolar disorder.

1. Mr Vasic, who appeared on behalf of the respondent at the sentence hearing, sought an adjournment pursuant to s 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act).

1. In the course of the sentence hearing, his Honour indicated that his preferred option was to impose an ICO. The Crown submitted, in effect, that any sentence of imprisonment of two years or less might be erroneous and appellable. The following exchange ensued:

"HIS HONOUR: One of the other options I was thinking of, given that I have this lateral thinking mind, is that either way the matter has to be adjourned. He could be adjourned and he could be remanded in custody while I get certain reports. For instance an ICO report. Then at that point in time I could impose a sentence of imprisonment and then give him the ICO. That effectively sort of creates what I am suggesting I ought to be able to do by say giving him a short term of imprisonment, then giving the ICO, couldn't actually give the bond at the end of that but we could do the first two. I mean at the end of the day - he's only done a couple of weeks has he?

PAGE: Two weeks your Honour.

HIS HONOUR: Well the only other option would be that I could adjourn it. I am going to go to morning tea in a second but the other proposal that you can each think about is this. That I could stand the matter over to Friday 6 June, just the last Friday before I go to Coffs Harbour for the last three weeks of term and remand him in custody. That would give him, with the two weeks he's done, give him about four months all up in fulltime custody and then at that point in time if he was suitable for an ICO he could be given an ICO. If he wasn't suitable for an ICO the next thing would be a short non parole period with perhaps him going into a fulltime rehab."

[Emphasis added.]

1. There was a short adjournment. When the hearing resumed the Crown handed up some sentencing statistics following which his Honour said:

"Well the reality is there's a few options. If he is remanded in custody, as what I have done with a few other people who had been in custody for a bit longer, by the time you then get to the sentencing date you are able to say "I won't give a sentence of any length greater than two years." Albeit that at the end of the day the totality of what they're getting might be in some cases nine months in full time custody followed then by a two year ICO but it all complies with it. Did you want to say against doing it the way I proposed? "

[Emphasis added.]

1. The Crown, after clarifying with the sentencing judge that the proposal was that the respondent be remanded in custody until the adjourned date of 6 June 2014, indicated that he did not oppose that course.

Remarks on sentence: 7 March 2014

1. At the conclusion of the hearing on that day the sentencing judge delivered brief remarks on sentence, referred the respondent for assessment for an ICO, unilaterally revoked his bail and remanded him in custody to 6 June 2014 for sentence. His Honour referred to the agreed statement of facts and summarised them as follows:

"The facts are set out in the agreed statement of facts, but essentially, police arrive at his residence with a search warrant. They searched the premises and located the items which are the subject of the counts on the Form 1 and the drugs which are the subject of the count in the indictment. The officers also located scales, resealable bags and noted that at least two of the bags were broken down into smaller bags of approximately 2 grams each. I think at least two of those bags had "$8,000" written on the outside."

1. His Honour allowed 25% for the utilitarian discount for the plea of guilty. His Honour then said:

"The court has considered s 3A, s 5 and s 21 of the Crimes (Sentencing Procedure) Act."

1. The sentencing judge proceeded to list the items of evidence that had been tendered and said that he had taken them into account. His Honour referred to R v Clarke (Court of Criminal Appeal (NSW), 15 March 1990, unrep) in support of the proposition that those involved in commercial supply of drugs would be required to serve a term of full-time custody, "other than in exceptional circumstances".

1. His Honour then said:

"I note in the written submission the various cases dealing with the fact that this sentencing process is a discretionary process and it is an intuitive process. In this case Mr West has served time in custody on prior occasions and it seems that it is not something, which for him, is particularly difficult. In fact he seems to struggle more when he is released than while he is in custody having things done for him. In other words it is a form of institutionalisation but it is also reflective perhaps of the accuracy of the content of the report of Mr Borenstein in terms of his personality.

It is necessary, in my view, for there to be some full time custodial component of this sentence. I propose though to adjourn the matter to the Friday 6 June and in the meantime to ask that he be assessed as to his suitability to serve a sentence by way of an intensive corrections order.

I can indicate that on 6 June he will be sentenced and the sentence which will be imposed will not exceed two years. In my view this man would greatly benefit from an intensive corrections order in that it would be strict supervision while he is out in the community. That is when he struggles, that is when he needs the supervision and it will also have a component of rehabilitation in terms of treatment counselling and a component of punishment in terms of community service, curfews, etcetera.

It is also the case that if there is some breach during the course of an ICO it simply reverts to a full time custodial sentence. So there will be a constant incentive for Mr West to comply with such an order.

At this stage the matter is stood over to Friday 6 June 2014 and he is remanded in custody. I request a copy of these remarks be prepared and provided and made available to me on the adjourned date."

[Emphasis added.]

The sentence hearing on 6 June 2014

1. The matter came back before the sentencing judge on the adjourned date, 6 June 2014. The ICO report dated 5 June 2014 recorded, and his Honour noted, that the respondent had been assessed as suitable for an ICO. His Honour clarified with counsel that the respondent had spent a total of three months and fourteen days in custody, in two separate periods: first, a period of 14 days from 24 January 2013 before the grant of bail on 6 February 2013 and secondly, the further period on remand ordered by the sentencing judge on 7 March 2014 from that date to 6 June 2014.

1. The sentencing judge then called on the representative of the Crown who submitted that, notwithstanding that the respondent had served a total of three and a half months in custody and had been assessed as suitable for an ICO, a full-time custodial sentence should still be imposed having regard to the seriousness of the offence.

The remarks on sentence: 6 June 2014

1. His Honour then proceeded to give remarks on sentence. His Honour said after identifying the index offence and the matters on the Form 1:

"Mr West will turn 30 years of age tomorrow. Although it is fairly clear over the last ten years or so he's been in his twenties going on about 15 in terms of his level of maturity. The consequences of that immature conduct is reflected in his criminal history and numerous incarcerations.

It seems that his prior periods in custody have not deterred him and as I noted on 7 March, the observations of Mr Borenstein, clinical psychologist seem to suggest that that is reflective of his personality issues. I accept that he was a person who was a user who was supplying.

In my view the appropriate starting point for this sentence is the sentence of three years imprisonment. A discount of twenty five percent to which he is entitled, reduces the sentence to one of two years and three months. I note that he has now served three months and two weeks in custody, meaning that he has an outstanding balance of just under two years.

My view at the moment is that I will take into account the time spent in custody. I will sentence him to a term of two years imprisonment but having regard to the fact that he has been assessed as suitable for an intensive corrections order I will direct that the sentence be served by way of an intensive corrections order, with the additional conditions which are set out on the last page of the ICO assessment report."

1. His Honour then passed the sentence of two years imprisonment to be served in the community by way of an ICO. His Honour ordered that the sentence commence on that day, 6 June 2014.

The appeal

1. The Crown appealed on the following grounds:

(1)Failure to assess the objective seriousness of the offence and/or the moral culpability of the respondent.

(2)Failure to impose a sentence that reflected the objective seriousness of the offence and/or the moral culpability of the respondent.

(3)Ordering that the sentence be served by way of an intensive correction order.

(4)Failure to impose a sentence that properly reflected that the offences before the Court on the Form 1 document had been appropriately taken into account.

(5)Failure to have regard to general deterrence in imposing the sentence.

(6)The sentence imposed was manifestly inadequate.

Reasons

Ground 1: alleged failure to assess objective seriousness and moral culpability

1. The assessment of objective seriousness is an important part of sentencing: see R v Campbell [2014] NSWCCA 102 at [27] per Simpson J, Hall J agreeing and the authorities referred to, including: R v Geddes (1936) 36 SR (NSW) 554; R v Dodd (1991) 57 A Crim R 349; Markarian v R [2005] HCA 25; 228 CLR 357; Khoury v R [2011] NSWCCA 118 at [71]-[72]. Indeed, it is also difficult to know how the maximum penalty for an offence, which has been described as a "legislative guidepost" (see Muldrock at [27]) could be used, if not as an indication that it is the sentence that Parliament considers ought be reserved for the worse type of case: Ibbs v The Queen [1987] HCA 46; 163 CLR 447 at 451-452, referred to in Veen v The Queen (No. 2) [1988] HCA 14; 164 CLR 465 at 478. Accordingly, the objective seriousness of an offence needs to be assessed for the purposes of taking into account the maximum penalty.

1. In the present case, the remarks on sentence contain no assessment of the objective seriousness of the offending conduct. Nor is there any assessment of the offender's moral culpability. I do not discern in his Honour's remarks on sentence anything that might permit the conclusion that these matters were taken into account. It is not satisfactory that an appeal court is left to undertake an analysis of exchanges between the bench and counsel during submissions in an attempt to ascertain a judicial officer's reasons for determination: Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited [2006] NSWSC 343; 67 NSWLR 402 at [19]. The latitude that is afforded to remarks on sentence given ex tempore by busy judges does not, in my view, entitle this Court to infer that a matter as fundamental to the sentencing process as the assessment of objective seriousness was taken into account when it was not addressed in the remarks.

1. Ground 1 has been made out. His Honour's failure to assess objective seriousness has, in my view, led to the sentencing discretion miscarrying.

Ground 2: Failure to impose a sentence that reflected the objective seriousness of the offence and/or the moral culpability of the respondent

1. The objective seriousness of the offence was relatively high. The facts disclosed that the respondent was trafficking in drugs to a substantial degree. The quantity of the drugs found, together with the location of the packaged drugs, scales and plastic bags, showed that he was in the business of trafficking to a substantial degree. The maximum penalty for an offence of supplying the indictable quantity of the drug is 15 years. The quantity of drug involved of 245.22g was significant, being 5g short of the commercial quantity, which carries a maximum penalty of 20 years and a standard non-parole period of 10 years.

1. Although the quantity of drugs is not determinative of the objective seriousness of an offence of supply, it is an important material factor, although not necessarily the "chief factor": Wong v The Queen [2001] HCA 64; 207 CLR 584 at 609, [67]-[70]. Indeed the fact that different maximum penalties are provided for by Parliament by reference to quantities (indictable quantity, commercial quantity, large commercial quantity etc) for particular drugs is an indication of its importance: Wong v The Queen at [67].

1. I do not consider that the sentence imposed was commensurate with the objective seriousness of the offence. To this extent ground 2 has been made out. However, the process of sentencing requires many factors, both objective and subjective, to be taken into account in a process of "instinctive synthesis" (Wong v The Queen at [75] per Gaudron, Gummow and Hayne JJ and Markarian v The Queen at [37]-[39] per Gleeson CJ, Gummow, Hayne and Callinan JJ). Accordingly, I propose to consider the effect of his Honour's failure to take into account the objective seriousness in the context of ground 6, which concerns manifest inadequacy.

Ground 3: alleged error in ordering that the sentence be served by way of an ICO

1. This ground has two aspects: first, the way in which the sentencing judge conducted the sentence hearings and structured the sentence; and secondly, the result. The second aspect will be considered below in the context of the manifest inadequacy ground.

1. Section 5 of the Act provides that a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. Section 7 of the Act provides that, subject to Part 5, a court that has sentenced an offender to imprisonment of not more than two years may make an ICO directing that the sentence be served by way of intensive correction in the community. The expression "intensive correction" in the Act has the same meaning as it does in the Crimes (Administration of Sentences) Act 1999 (NSW), namely intensive correction in the community pursuant to an order.

1. Section 47 of the Act provides that, relevantly, a sentence is to commence on the day it is imposed unless the Court directs that it is taken to have commenced on a previous day. In deciding whether such a direction is to be made, the Court must take into account any time for which the offender has been held in custody in relation to the offence.

1. The way in which the sentence hearing was conducted is set out above. In my view, the process was affected by a number of errors by reason of his Honour's failure to have regard to the purposes of bail and the requirement that a sentencing discretion be ultimately exercised immediately before a sentence is passed rather than, as here, conditionally in advance.

1. The respondent had been on bail since 6 February 2013. The long title of the Bail Act 1978 (NSW) (which applied on 7 March 2014) (the Bail Act) was: "An Act relating to bail for accused persons in or in connection with criminal proceedings." Section 14 of the Bail Act provided that:

"A power conferred by this Act to grant bail shall, subject to this Act, be deemed to include a power to refuse bail, but the power to refuse bail may only be exercised in conformity with this Act."

1. Section 6 of the Bail Act provided that bail may be granted in respect of the period of any adjournment. The word "adjournment" in s 6 included the period between the conviction of a person and the sentencing of the person: s 16(e1). Section 32 of the Bail Act obliged the court to take into account certain nominated matters and only those matters: s 32(1). There was nothing identified by the judge in any of the criteria there mentioned to justify a refusal of bail. However his Honour was aware that he was not entitled to order that the term be served in the community by way of an ICO if the term was greater than two years.

1. In my view, the remarks on sentence given on 7 March 2014 reveal that the purpose for which his Honour ordered that the respondent be taken into custody was to punish the respondent by sentencing him to a period of imprisonment, rather than to fulfill any of the purposes of the Bail Act (see the italicised portions of the extracts above in [15] from the proceedings on sentence). His Honour appears to have embarked on the sentencing process on 7 March 2014 and, in part, imposed the sentence, or at least the custodial portion of it, with a view to ordering an ICO at a later date.

1. It is within the power of a sentencing judge either to backdate a sentence or to commence a sentence from the date of its imposition. What the Act requires is that any time for which the offender has been held in custody be taken into account in sentencing: s 24(a). However, this Court has said on a number of occasions that a sentence should take account of prior periods in custody by backdating the sentence, unless there is a good reason, which is articulated by the sentencing judge, for not adopting that approach: see the summary of authorities in Wiggins v R [2010] NSWCCA 30 at [3]-[8] and [14] per Howie J, Harrison J agreeing.

1. In my view, on 7 March 2014, his Honour decided that, provided the respondent received an appropriate assessment result, an ICO would be imposed. His Honour revoked the respondent's bail on that date for the express purposes of providing "some full time custodial component to this sentence" and to ensure that the "sentence would not exceed two years". It was not, in my view, a valid exercise of the power to revoke bail to order the accused into custody for the evident purpose of having this period "count" in terms of a sentence by reason of s 24(a). In substance, his Honour contrived a further period of custody with a view to making an ICO at the later date, when that was not an available sentencing option having regard to s 7 of the Act. His Honour sentenced the respondent on 7 March 2014 to three months' imprisonment, with a view to further sentencing him, at a second stage, on 6 June 2014, by making an ICO.

1. My conclusion is fortified by the circumstance that the hearing on 6 June 2014 was very brief, since his Honour appears to have regarded it as a foregone conclusion that he would make an ICO. Although the Crown objected, his Honour had already determined the matter. The reason the sentencing judge did not back-date the sentence was that it would have made patent the unavailability of an ICO and his Honour's non-compliance with the constraint in s 7 of the Act. This was not a valid exercise of his Honour's discretion not to make a direction pursuant to s 47(2) of the Act to backdate the sentence.

1. His Honour's approach did not comply with s 7 of the Act. Nor was it in accordance with appropriate sentencing practice, which is to impose a sentence once, rather than, as his Honour appears to have done, in two stages.

1. Effectively, his Honour imposed a sentence of two years and three months and directed that the latter two years of the sentence be served by an ICO. This sentencing option was not open to his Honour since s 7 of the Act authorises an ICO only for sentences of no more than two years. One of the fundamental duties of judicial officers is to comply with legislation. The process the sentencing judge engaged in in the present case tended to subvert it. Ground 3 has been made out.

Ground 4: Failure to impose a sentence that properly reflected that the offences before the Court on the Form 1 document had been appropriately taken into account

1. Section 33 of the Act makes provision for outstanding charges to be taken into account where an offender admits guilt to the outstanding charges and indicates that he or she wants the court to take the outstanding charges into account in dealing with the offender for the principal offence. If the Court takes additional charges into account in the sentence for the principal offence, the sentence must not exceed the maximum penalty for the principal offence. Because of my view that the sentence was not commensurate with the objective seriousness of the principal offence, I consider that ground 4, too, has been made out. His Honour appears to have disregarded the Form 1 and failed to increase the sentence on the principal count, in derogation of the purpose of the Form 1 procedure: Attorney-General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146 at [42]. The taking into account of the Form 1 offences pursuant to s 33 of the Act ought increase the sentence beyond that which would be required for the principal offence alone: see the summary of relevant principles in Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115. However, for the same reasons as set out in respect of ground 2 above, I propose to consider this factor in the context of ground 6.

Ground 5: Failure to have regard to general deterrence in imposing the sentence

1. Section 3A of the Act lists the purposes for which a court may impose a sentence, which include punishment, deterrence, protection of the public, rehabilitation of the offender, denunciation and recognition of the harm to victims. The purpose of general deterrence is identified in s 3A(b) of the Act in the following terms:

"(b) to prevent crime by deterring . . . other persons from committing similar offences,"

1. Although the Act does not express the purposes of sentencing in s 3A in terms of mandatory relevant considerations, it is difficult to conceive of a sentencing exercise which would not at least require the sentencing judge to consider general deterrence and what weight ought be given to it in the circumstances of the case. General deterrence is of particular importance with respect to drug offences, particularly those which, as in the present case, are, at least in part, conducted for financial gain. Indeed, in R v Clarke, the very authority to which the sentencing judge referred in the remarks on sentence on 7 March 2013, Hunt J nominated general deterrence as the reason why custodial sentences ought be imposed on drug traffickers, in the following passage:

"This Court has, on occasions too numerous to mention, emphasised that sentences involving a substantial general deterrence are to be imposed on drug traffickers, and it has indicated that only in exceptional circumstances will a non-custodial order be appropriate."

1. His Honour was principally, if not solely, concerned with the rehabilitation of the offender and the protection of the public, in so far as that purpose could be advanced by the rehabilitation of the offender. There is no indication that the sentencing judge adverted to general deterrence at all. Although his Honour said, in the remarks on sentence, "the court has considered s 3A", a statement of that nature is manifestly insufficient to show that the factors referred to have in fact been taken into account and weighed by a sentencing judge.

1. This Court has recently had occasion to deprecate the practice adopted by this sentencing judge on a prior occasion of paying what can be no more than lip service to the requirement to take into account the purposes of sentencing or the factors germane to the task by merely referring to the applicable statute: RCW v R (No. 2) [2014] NSWCCA 190 at [57]-[58] per R A Hulme J, Bathurst CJ and Adams J agreeing. Such shorthand statements do not comply with the obligation to give reasons. On no account can they be excused, much less justified, on the grounds of the demands of a busy list.

1. I consider the sentencing discretion to have miscarried by reason of his Honour's failure to take into account general deterrence.

Ground 6: manifest inadequacy

The relevant principles

1. A claim of manifest inadequacy requires the Crown to establish that the sentences imposed were unreasonable or plainly unjust, having regard to the principles that there is no single "correct" sentence and that judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach: R v Dinsdale [2000] HCA 54; 202 CLR 321 at 325; Markarian v The Queen at [25]; Hili v The Queen [2010] HCA 45; 242 CLR 520 at 538 [58].

1. Whether a sentence is manifestly inadequate is a conclusion. It is not necessary to identify any particular error in the process; it is the examination of the result that leads to the conclusion. Nonetheless it can be helpful to ascertain why and how the sentence was arrived at since this inquiry may explain the conclusion and expose the reason for any manifest inadequacy.

Analysis of the approach of the sentencing judge

1. For the reasons set out above, the sentencing judge undertook the process of sentencing in two stages. His Honour imposed a short-term custodial sentence under the guise of revocation of bail in order to make an ICO at the adjourned date. There was no more than colourable compliance with s 7 of the Act. His Honour had regard only to the respondent's rehabilitation and the protection of the public, only in so far as it was advanced by the former. His Honour failed to have regard either to the objective seriousness of the offending conduct, the Form 1 offences or general deterrence. It was not open to his Honour to impose an ICO since his Honour had determined that a sentence greater than two years was warranted.

Whether the sentence was manifestly inadequate

1. I consider the sentence imposed to be manifestly inadequate. In my view a custodial sentence of significantly more than minimal length was required. A custodial sentence of minimal length was, in substance, imposed by his Honour when he revoked bail and required the respondent to serve three months in custody pending the adjourned date. In my view, the starting point for the sentence that should have been imposed by the sentencing judge was of the order of four years imprisonment. A discount of 25% ought be applied to this for the plea of guilty, giving a sentence of three years. A finding of special circumstances was warranted, and the statutory ratio adjusted from 75% to 66.67% so as to give rise to a non-parole period of two years. This sentence ought to have been backdated to 22 February 2014 to take into account the two weeks the respondent spent in custody before bail was granted and the further three months he spent in custody between 7 March 2014 and 6 June 2014. A sentence of this length takes account, in my view of the objective seriousness of the offending conduct, the need for general deterrence and the Form 1 offences, as well as the subjective circumstances, including his criminal history and the matters referred to above that are recorded in Mr Borenstein's report. The rehabilitation of the respondent would be furthered by the finding of special circumstances and give him a year with parole supervision on his release from custody.

Residual discretion

1. This Court retains a residual discretion in the exercise of its jurisdiction under s 5D of the Criminal Appeal Act to refuse to interfere in a sentence, even if error has been demonstrated and manifest inadequacy established: Griffiths v The Queen [1977] HCA 44; 137 CLR 293; Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462.

1. This Court is obliged to consider the exercise of the residual discretion: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [24]; Reeves v The Queen [2013] HCA 57 at [10], [12], [60]-[61].

1. The principal purpose of the determination of a Crown appeal is to give guidance to sentencing judges. This is not to say that the sentence actually imposed on the respondent is not of importance. However, it is significant, in my view in the circumstances of the present case, that the process to which the respondent was subjected by the sentencing judge was neither of his own, nor his legal representatives' making. The process, which did not comply with the Act, was devised and executed solely by his Honour. The respondent was erroneously deprived of his liberty when bail was revoked for a collateral and extraneous purpose. It was restored to him erroneously on 6 June 2014, when his Honour made an ICO in contravention of the constraints of s 7 of the Act. Further, by reason of an administrative error based on a misapprehension, the filing of the Crown appeal had the effect that the implementation of the ICO did not in fact commence for some months.

1. I am persuaded that, in these circumstances, the residual discretion ought be exercised. Accordingly, it is not necessary to re-sentence the respondent or to recite or address the material in evidence before this Court that would be germane on re-sentence.

Proposed order

1. I propose the following order:

(1)   Appeal dismissed.

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Decision last updated: 04 November 2014