R v Williams

[2005] NSWCCA 355

Reported Decision: 156 A Crim R 225

New South Wales

Court of Criminal Appeal

CITATION:	R v Stephen Barry Williams [2005] NSWCCA 355
HEARING DATE(S):	16 September 2005
JUDGMENT DATE:	16 September 2005
JUDGMENT OF:	Basten JA at 1, 50, 52; Simpson J at 2; Buddin J at 51
DECISION:	(1) grant leave to the applicant to appeal against the severity of the sentence imposed on the applicant by the District Court on 16 September 2004, and; (2) re-sentence the applicant: (i) on each of the manufacture and supply prohibited drug charges, a non-parole period of three years and three months commencing 23 July 2003 and expiring 22 October 2006 with a balance of term of two years and nine months, the balance of term to expire on 22 July 2009; (ii) on the possess precursor charge, a fixed term of imprisonment for two years also to commence on 23 July 2003 and expire on 22 July 2005; (iii) on the possess prohibited weapon charge, a fixed term of imprisonment for eighteen months commencing 23 July 2003 and expiring on 22 January 2005; (iv) the earliest date eligible for release on parole is 22 October 2006.

CATCHWORDS:	appeal against sentence - manufacture prohibited drug - possession of precursor intended for the manufacture of a prohibited drug - supply prohibited drug - possess prohibited weapon - psychiatric disability - global sentence imposed for all offences - no attempt to identify appropriate sentence for each offence - breach of Pearce doctrine - additional offences taken into account - discount for plea of guilty - sentence manifestly excessive - applicant resentenced
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999, Part 3 Division 3, s44 Criminal Appeal Act 1912, s6(3) Weapons Prohibition Act 1998, Schedule 1, s7(1)
CASES CITED:	Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Edwards (1996) 90 A Crim R 510 R v Fahda [1999] NSWCCA 267) R v Johnson [2005] NSWCCA 186 R v Scognamiglio (1991) 56 A Crim R 81 R v Simpson [2001] NSWCCA 534
PARTIES:	Crown - Respondent Stephen Barry Williams - Applicant
FILE NUMBER(S):	CCA 2005/975
COUNSEL:	W Dawe QC - Crown J Stratton SC - Applicant
SOLICITORS:	S Kavanagh - Crown SE O'Connor - Applicant

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/21/0031
LOWER COURT JUDICIAL OFFICER:	Twigg DCJ

2005/975

BASTEN JA
SIMPSON J
BUDDIN J

Friday 16 September 2005

REGINA v Stephen Barry WILLIAMS

Judgment

1 BASTEN JA: I invite Simpson J to give the first judgment.

2 SIMPSON J: On 2 September 2000 the applicant pleaded guilty to four counts on an indictment containing five charges, the second of which was an alternative to the first. The Crown accepted his pleas of guilty in full satisfaction of the indictment. The offences, the dates on which they were committed and the statutory provisions under which the charges were brought, and the maximum penalty provided thereby, are set out in the table below.

Offences	Date of commission	Statutory provision	Maximum penalty
(i) manufacture prohibited drug (methylamphetamine)	Between 20 June 2003 and 24 July 2003	DMTA* s24(1)	15 years
(ii) possess a precursor (pseudoephedrine) intended to be used in the manufacture of a prohibited drug (methylamphetamine)	23 July 2003	DMTA* s24A(1)	10 years
(iii) supply prohibited drug (methylamphetamine)	Between 20 June 2003 and 24 July 2004	DMTA* s25(1)	15 years
(iv) possess prohibited weapon (pistol)	23 July 2003	Weapons Prohibition Act 1998, s7(1)	14 years

*Drug Misuse and Trafficking Act 1985

3 The applicant asked that, pursuant to Part 3 Division 3 of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”) a further offence of supplying a prohibited drug (methylamphetamine) on a Form 1 be taken into account.

4 The sentencing judge, Twigg DCJ, sentenced the applicant in what has been described as a "global fashion". That is, in respect of each offence, he imposed an identical sentence, which he expressed as imprisonment for eight years with a non-parole period of four years. He did not express himself to be taking the Form 1 offence into account in relation to any particular count, but appears to have done so on all counts. In sentencing in this way the sentencing judge failed to comply with s44 of the Sentencing Procedure Act as amended with effect from 1 February 2003. The amended s44 applies in relation to offences committed after that date as were those committed by the applicant. Subs44(1) and (2) within present form are as follows:

“ 44 Court to set non-parole period

(1) When sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence).

(2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).”

5 The applicant seeks leave to appeal against the severity of the sentences imposed.

the facts

6 An agreed statement of facts was put before the judge. It may be recapitulated briefly. In June and July 2003 the applicant was involved in the manufacture and supply of methylamphetamine, a commercial enterprise he conducted from his home in Granville, of which he was the sole occupant. An active drug laboratory was located in the premises. The applicant was in possession of a large number of small resealable bags; of 84.9 grams (impure) of methylamphetamine (on the hearing of the application we were told that the purity was in fact 3.4 percent); of 300 loose Sudafed tablets and 83 empty blister packs that had contained Sudafed; and of a replica pistol. The Sudafed tablets contained pseudoephedrine, which is itself a prohibited drug, and is a precursor in the manufacture of amphetamines. No evidence of the quantity of pseudoephedrine yield from the Sudafed tablets was presented. In 14 telephone conversations between 24 June and 21 July (which were intercepted and recorded), the applicant agreed to supply a total of 75.3 grams of the drug to various callers. The existence of the drug laboratory, together with the possession of the 84.9 grams of the drug, gave rise to the first count to which the applicant pleaded guilty, the charge of manufacture. The possession of the Sudafed tablets and the empty blister packs gave rise to the second count, of possession of a precursor intended for use in methylamphetamine manufacture. The Crown relied upon the applicant's conversations, in which he agreed to supply 75.3 grams of the drugs to callers, to support the charge of supply. The offence of supply identified on the Form 1 was constituted by the applicant's possession (for the purposes of supply) of the 84.9 grams of the drug located in the premises, (the same 84.9 grams as made up the offence of manufacture). The possession of the replica pistol constituted the final offence on the indictment. On 23 July a search warrant was executed and the items mentioned were located.

subjective circumstances

7 The applicant gave evidence in the sentencing proceedings. His Honour also had the benefit of extensive psychiatric and psychological reports. From these a disturbing picture of the applicant's background emerges.

8 He was born on 2 April 1964 and was 39 years of age at the time of the offences. He is the second youngest of five children born to his parents. At the early age of 9 years he was diagnosed as suffering from a psychiatric disorder and admitted to a psychiatric hospital. The conditions then diagnosed were school phobia, separation anxiety, hyperactivity and a number of behavioural disorders. During the period of his hospitalisation he was regularly sexually abused by older male patients. It may be that the origin of his psychiatric disorder lies in an extremely traumatic event that occurred when he was 8 or 9 years old. He accompanied a friend to his (the friend's) home after school. On entering the house, they found the friend's mother dead on a lounge. This caused the applicant to refuse to attend school, for fear of finding his own mother dead. He truanted regularly and began to go to his mother's work place. He suffered other post-traumatic symptoms, including nightmares and avoidance of discussing the incident. He began to have psychological symptoms, such as vomiting and bowel problems.

9 He was eventually placed in a Catholic residential home, and later a psychiatric facility, but these placements exacerbated his symptoms, causing him to think that he was unwanted. It was during the hospitalisation that he was exposed to the repeated sexual abuse already mentioned. He was allowed weekend visits home but felt that he no longer was able to fit in with the family. After his discharge from the hospital he continued to feel out of place in his home. He did not disclose the sexual abuse to his parents. He was sent to a Catholic boys’ school, but truanted, this time from fear that older students would also sexually abuse him; he was eventually expelled from that school, and enrolled in a public high school, but left at the earliest possible time, when he was in year 8. His education attainment is, accordingly, low, although he is literate. He functions in the low-average range. He left home at 14, at about the same time as he left school. At this time the home was un-harmonious. His parents argued frequently and he witnessed increasing domestic violence. His father drank heavily. The applicant felt responsible for the problems between his parents. He began using alcohol and cannabis at 14. From the time he left home the applicant lived in a series of relationships. As a result he is the father of six children by five different mothers. Four of the children have been left in his care when the relationships with their mothers terminated and the applicant has been responsible for the upbringing of the children. One suffers a significant psychiatric disorder himself, about which it will be necessary to say more later.

10 The applicant's parents separated when he was about 17, some time after he had left home. His employment history is extremely limited; although he has had a variety of forms of employment, he has found difficulty in applying himself. He last worked at the age of 21 or 22. He has had a number of admissions to psychiatric hospitals.

11 The applicant's criminal history began in March 1981, when he was not quite 17, and he was found guilty of attempting to steal from the person, for which a suspended term of committal to an institution was imposed. Thereafter, he committed a number of driving offences and drug offences. In 1990, at the age of 26, he was convicted of possession of and administration of amphetamines, and cultivating prohibited plants; in 1992 he was convicted of possession of a prohibited (unidentified) drug; in 1995 of supply and possess a prohibited drug; later in 1995 for supplying not less than the traffickable quantity of a prohibited drug, together with fraudulently giving a false certificate and five counts of fraudulently certifying a birth extract; in 1997 with deemed supply of prohibited drug and four counts of goods in custody. In 1998 he was convicted of offences of dishonesty. His first term of imprisonment was imposed in September 1995, in respect of the offence of supply and possess prohibited drug, and other charges including driving whilst disqualified and being in possession of goods in custody; thereafter, he was sentenced to terms of imprisonment later in 1995, in 1997 that being two months and 25 days in respect of a breach of parole conditions; in December 1997, in May 1998, and again (for 21 days) in October 1998, in respect of an offence of escaping from lawful custody. In October 1998 he was sentenced to a minimum term of eight months of imprisonment with an additional term of four months in respect of offences of dishonesty. He could be expected to have been released in respect of that sentence in April 1999.

12 That appears to be the lengthiest term of imprisonment he has previously served.

13 At about the age of 27 or 28 the applicant began using amphetamines, and did so on a daily basis. He continued to use amphetamines until arrested on the present charges. He experienced what appears to have been increasing psychiatric symptoms.

14 In October 2004 he was assessed by a psychiatrist, Dr Allnutt, and (according to what the applicant told Doctor Allnutt) he had previously been diagnosed as suffering from attention deficit hyperactivity disorder, post-traumatic stress disorder and generalised anxiety disorder. At this time, he was taking prescribed dexamphetamine. He had been trialled on a number of other medications.

15 Dr Allnutt diagnosed a number of anxiety disorders, including generalised anxiety disorder, agoraphobia, and post-traumatic stress symptoms. He thought it likely that the applicant had suffered attention deficit hyperactivity disorder as a child.

16 The psychologist who reported, Ms Emma Collins, took a similar history and was of a similar view. She observed distress in the applicant on recounting his personal history, restricted affect, with low and anxious moods. She recorded that he became agitated when discussing his history, and behavioural symptoms of anxiety such as hand wringing and hair plucking. She did not, however, note any symptoms of psychosis, or language or thought disturbance.

17 The applicant confirmed these histories in his oral evidence. Encouragingly, he said that he had been receiving treatment whilst in custody. When asked about his current mental state (at the time of the giving evidence, 16 December 2004, by which time he had been in continuous custody since his arrest on 23 July 2003, a period of 17 months) he replied:

“I feel a lot more confident and a lot more together, since I been at Parklea. I've been put on dexamphetamine, I've been counselled by the psychiatric nurse there, and I feel a lot better, I feel focused and confident."

18 He had regular access to counselling whilst in gaol. He confirmed that he was willing, on his ultimate release, to participate in a residential rehabilitation programme if required. He believed that he would be able to hold down a full-time job, as he had been working in the prison system for almost 12 months.

19 Tendered before the sentencing judge were two important letters. Each related to the applicant's son, then aged about 13. The first, dated 29 May 2003, was written by a head teacher in the school that the son attended. It said that he had a severe specific learning difficulty, with a reading age of the standard expected of a 6 and a half year old, compounded by a severe behaviour difficulty. Of him, the teacher wrote:

“[The son's] behaviour has been so disruptive and aggressive in the past that he was the first child chosen by the school for its new behaviour support programme. His father (the applicant) was very supportive of the school in its efforts to work with [the son]. We often relied on the applicant to be on call to respond to incidents as they arose during the day and, on occasion, collect [the son] from the school...this is a very critical time in [the son's] development and in the development of his behaviour programme. Over the past few months, he had engaged in a process of serious behaviour change. If this was interrupted by his father's incarceration now, it is almost certain that [the son's] recent improvements would be replaced by sudden deterioration, which we would be powerless to stop. This would probably result in complete disengagement from his school and education.
As his sole carer and a vital and active member of the 'support team' the presence of [the applicant] is absolutely vital to his son's progress during a critical stage in [his son's] development." (emphasis in original)

20 By the time that letter was written, the son had been transferred to a more intensive behaviour programme at another school. The principal of this school wrote, on 21 August 2003:

“...while [the son's] behaviour can, at times, be challenging, since his father's incarceration his behaviour and emotional state have been in severe decline. ... I have become concerned for [the son's] mental state and have become fearful that he may consider self harm.
There is little doubt that the main cause of [the son's] predicament is that he misses his father and is in tremendous need of his presence. In the short time I have known [the applicant] he has been very supportive of the....school programme and has struck me as a very loving father."

the remarks on sentence

21 For reasons which will become apparent, it is necessary that this court embark upon its own re-sentencing exercise. Accordingly, although no issue is taken with the judge's findings of fact, or the matters taken into account on his sentencing exercise, it is necessary to record some of the relevant findings.

22 Twigg DCJ considered that the evidence concerning the applicant's son was of sufficient moment to qualify it's being available to be taken into account, presumably, on the principles stated by this court in R v Edwards (1996) 90 A Crim R 510.

23 No challenge has been made by the Crown to this conclusion. His Honour found that the applicant had shown remorse and gave him credit of 20% for the plea of guilty. He recounted, in some detail, the psychiatric and psychological evidence. His Honour found that special circumstances existed, within the meaning of s44 of the Sentencing Procedure Act, justifying a variation in the ratio between the head sentence and the non-parole period. Again, the Crown has not taken issue with this conclusion.

the grounds of the application

24 Three grounds of appeal are proposed. They are:

“1. His Honour breached the principles in Pearce v The Queen [[1998] HCA 57; 194 CLR 610] in that his Honour determined a global sentence and then imposed an identical sentence on each count.
2. His Honour erred by taking the matter on the Form 1 into account globally, rather than simply in relation to count 2.
3. The sentences were manifestly excessive.”

25 Counsel for the Crown has very fairly conceded that error has been demonstrated in relation to the first two grounds. He, however, contested the third ground.

26 The decision in Pearce, to which reference is made in the first ground, is well-known, particularly well known is the passage in the joint judgment of McHugh, Hayne and Callinan JJ as follows:

“[45] To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of curse, as questions of totality.”

27 The approach taken by his Honour was contrary to the requirements of this passage. The sentencing judge made no attempt to identify the correct, or an appropriate, sentence applicable to each individual offence. As can be seen from the table above, one of the offences carried a maximum term of imprisonment for 10 years, two of 15 years, and one of 14 years. This, alone, called for some consideration of the gravity of the offences relative to the statutory maximum.

28 It is unnecessary to say more about this ground. It has been established.

29 The Crown has also conceded that the second ground is made out. It is fundamental that an offence taken into account pursuant to Part 3 Division 3 of the Sentencing Procedure Act be taken into account in respect of one of the offences in respect of which that sentence is being passed. It is now recognised that taking into account a Form 1 offence (or offences) may have the effect of justifying an increase in the sentence for the principal offence for which sentence is being imposed. It would be quite wrong to increase more than one sentence by reason of the existence of a Form 1 offence or offences.

30 It is impossible to say in the present case whether his Honour has consciously increased any or all of the sentences by reason of the Form 1 offence. Error has also been demonstrated in this respect.

31 It does not necessarily follow that, because error of this kind has been demonstrated, the sentences (or any of them) imposed must be set aside and the applicant re-sentenced. Section 6(3) of the Criminal Appeal Act 1912 provides:

“(3) On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefore, and in any other case shall dismiss the appeal.”

32 This court is, therefore, required, before proceeding to re-sentence the applicant, to determine whether:

“...some other sentence, whether more or less severe is warranted in law and should have been passed...”

See R v Simpson [2001] NSWCCA 534; R v Johnson [2005] NSWCCA 186.

33 That calls for consideration of the third ground of appeal, that is, whether any or all of the sentences has or have been shown to be manifestly excessive. I have already mentioned that Twigg DCJ stated that he intended to discount the sentences by 20% in recognition of the pleas of guilty. He confirmed this at the point of sentencing when he said:

“I would have imposed a sentence of ten years for this matter, but allow a discount of 20% thus reducing it to eight years.”

34 He then proceeded to impose the identical sentences in respect of each offence to which I have already referred.

35 Counsel who appeared for the applicant on the application sought comfort from statistics provided by the Judicial Commission. The caution to be exercised in relying on such statistics is well known and does not need repeating. However, in this case, the statistics do present a fairly stark picture. Before coming to them, it is convenient to refer to the sentence imposed in relation to the possession of the precursor charge. In respect of that offence, the maximum penalty is imprisonment for ten years. It is also well established that the maximum penalty is reserved for cases in the worst category of their kind. The applicant was certainly in possession of a large quantity of Sudafed tablets, although the evidence does not disclose the precise quantity of pseudoephedrine. However, it is not possible to conclude, either from the quantity or from other circumstances, that this offence was in the worst class of case. Senior counsel who appeared for the Crown conceded that he could not contend that the pseudoephedrine offence was in that category. Notwithstanding that, and the strong subjective circumstances of which his Honour was fully conscious, the starting point (prior to the discount for the plea of guilty) for that offence was the maximum provided by the statute. I accept the submission of senior counsel for the applicant that this, alone, demonstrates error in relation to the sentence imposed in respect of this offence. Another sentence should have been imposed and it will be necessary for this Court to determine what that sentence was and to impose it.

36 A similar, if less powerful, case can be made in relation to the offence of possession of a prohibited weapon. As to that, the applicant’s evidence was that he had come into possession of it because it had been left in his premises by somebody else and that he had retained it because, during periods of psychosis, when he feared that someone would seek to do harm to him, he would use it to frighten them away.

37 Obviously, as a replica, it would not have been possible for the applicant to use it as a firearm. It could only be used, as he envisaged, to frighten a person who believed it to be a genuine firearm. Once again, reference to the maximum penalty provided, set against the ten year starting point for this offence, suggests error. Recourse to Schedule 1 of the Weapons Prohibition Act, which defines prohibited weapons, shows that a wide variety of items much more dangerous than a replica pistol are encompassed in the prohibition contained in s7(1). These include flick-knives, ballistic knives, and a variety of other kinds of obviously dangerous knives, bombs, grenades, rockets, missiles and mines in the nature of explosives or incendiaries, flame throwers, darts, dart projectors, devices capable of administering electric shocks. The starting point for this offence was ten years out of a possible maximum of fourteen years. I would think that the replica pistol would be among the least dangerous of the weapons prohibited by s7, which would put the applicant’s offence at a lower point on the scale than his Honour appears to have treated it.

38 Senior counsel for the Crown also conceded that this sentence “may well be excessive”. I am satisfied that this sentence also has been shown to have been manifestly excessive.

39 That brings me back to the statistics, which are particularly relevant to the charges of manufacturing and supplying methylamphetamine. In each of these cases the starting point was again ten years, this time two-thirds of the maximum penalty available. The sample provided in relation to the manufacture charge is very small, barely sufficient to provide relevant information. Only six cases of manufacturing amphetamines in less than the commercial quantity are included. Of these, four offenders received custodial sentences and two non-custodial sentences. The sentences were two, three, four and six years. The non-parole periods were one year, eighteen months, and three years (presumably one of the four mentioned was a fixed term without a non-parole period).

40 The caution that must be exercised in relation to the use of statistics is, among other reasons, because of the sparsity of the information available in relation to the individual cases. It is not known, from the data supplied, whether any of the offenders the subject of the statistical material pleaded guilty - in which case the statistics would be of even greater assistance to the applicant. Nor are the offenders’ criminal histories known. This is of particular relevance in a case where the offender, as here, has a long history, with many instances of drug offences. If they had not, then obviously that factor would not assist the applicant.

41 In respect of the supply offence, the available material is far more extensive, including 356 individual cases. Of these, no offender was subject to a longer head sentence than that imposed upon the applicant. Indeed, only one out of the 143 who were sentenced to full time custody, was sentenced to a full term of eight years. The next longest term, imposed on three offenders, was six years. The vast majority were between eighteen months and thirty-six months. The non-parole periods spell a similar, if not quite so favourable, story. One offender was sentenced to a non-parole period of six years, and two to four and a half years. The majority hovered between six months and two years.

42 It is necessary, however, to stress that the applicant’s very poor history would tend to suggest that his case called for greater, rather than lesser, severity. It may safely be assumed, also, that some of the cases involved supplies of relatively small quantities of amphetamines, considerably less than the quantity the applicant agreed to supply and was deemed to have supplied.

43 While it is important not to lose sight of the applicant’s criminal history, and the fact that he was engaged in a commercial enterprise, those factors have to be balanced against the subjective circumstances to which I have referred. The applicant’s psychiatric condition meant that less attention could be given to questions of general deterrence, although, particularly in drug cases, they remain of fundamental importance (R v Scognamiglio (1991) 56 A Crim R 81; R v Fahda [1999] NSWCCA 267). Further, the needs of the applicant’s disturbed son warranted some consideration under the principles stated in Edwards. His Honour purported to make some allowance in respect of that circumstance, but it does not appear that he, in fact, did so in the sentences imposed.

44 I have come to the view that the applicant has succeeded in showing that each sentence was manifestly excessive. In coming to this view I have not overlooked the submission made by senior counsel for the Crown, who argued that it is not helpful to assess criminality of a drug manufacturing offence only by reference to the quantity of the drug involved. As I have already mentioned, and as senior counsel pointed out, the applicant was plainly involved in a commercial enterprise of both manufacturing and distributing methylamphetamine. Senior counsel is correct to characterise this as a serious offence, not a minor one. Even so, I adhere to the view expressed that the sentences were manifestly excessive. The consequence is the sentences must be set aside and the applicant re-sentenced. Against that possibility the court received additional evidence in the form of affidavits affirmed by the applicant and by his solicitor. Each of these confirms that the applicant’s rehabilitation is continuing. In particular, in his affidavit, the applicant said:

“6. The first six months I spent in gaol I was all over the place. As soon as I started the Dexamphetamine treatment there was a sudden change. I feel normal for the first time in 40 years. I was diagnosed with ADHD (Attention Deficit and Hyperactivity Disorder) when I was put in a psychiatric ward when I was 9 years old because I was hyperactive. When I came here and went to the Clinic I saw a male psychiatric nurse called David Caine who remembered me from the psychiatric hospital when I was a child. He told me back then they called me “speedy”. He said I should have been medicated from that time.
7. I am now focused. I can sit still and have a proper conversation. I couldn’t work or concentrate before. Now I can just do it. I’m relaxed, calm and slow. All my urines have been clean since I’ve been in custody. Only prescribed medication was detected.”

45 The evidence given by the applicant at the sentencing proceeding, and the evidence subsequently provided to this court, satisfies me that he has made quite remarkable progress towards rehabilitation. That is to be encouraged and rewarded.

46 It is now necessary to consider whether the sentences to be imposed ought to be fixed, to be served concurrently, cumulatively, or partly concurrently and partly cumulatively. Senior counsel for the Crown argued that, having regard to the nature of the offences, it would be appropriate for them to be served entirely concurrently. Accordingly, his concession in respect of the replica pistol offence and the concession later made in respect of the precursor offence would not affect the overall sentences. Otherwise, senior counsel argued that the sentences had not been shown to be manifestly excessive. I have already rejected this contention.

47 This is a case in which, in my view, it would not be erroneous to impose sentences to be served partly concurrently and partly cumulatively. But it also would not be erroneous to impose sentences to be served entirely concurrently. As the High Court pointed out in Pearce, totality is a significant issue in sentencing. In my opinion the imposition of an appropriate sentence in relation to each of the manufacture and supply charges will serve to recognise and encompass the totality of the applicant’s criminality. The possess precursor offence was really an integral part of the manufacture charge and I would not propose to make the sentence in relation to the replica pistol cumulative.

48 I would adopt the sentencing judge’s discount of twenty per cent in recognition of the pleas of guilty and I would adopt his finding of special circumstances, justifying departure from the statutory ratio between the head sentence and the non-parole period.

49 I propose that the applicant be re-sentenced as follows:

(i) On each of the manufacture and supply prohibited drug charges, a non-parole period of three years and three months commencing 23 July 2003 and expiring 22 October 2006 with a balance of term of two years and nine months, the balance of term to expire on 22 July 2009;

(ii) On the possess precursor charge, a fixed term of imprisonment for two years also to commence on 23 July 2003 and expire on 22 July 2005;

(iii) On the possess prohibited weapon charge, a fixed term of imprisonment for eighteen months commencing 23 July 2003 and expiring on 22 January 2005.

The earliest date on which the applicant would be eligible for release on parole is 22 October 2006.

50 BASTEN JA: I agree with the sentences proposed by her Honour and her reasons.

51 BUDDIN J: I also agree.

52 BASTEN JA: Accordingly, the order of the Court will be:

(1) grant leave to the applicant to appeal against the severity of the sentence imposed on the applicant by the District Court on 16 September 2004; and
(2) re-sentence the applicant according to those sentences indicated by her Honour.

**********