R v Young

[2016] SASCFC 102

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Criminal)

R v YOUNG

[2016] SASCFC 102

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone, The Honourable Justice Blue, The Honourable Justice Stanley and The Honourable Justice Doyle)

8 September 2016

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE - PERVERTING THE COURSE OF JUSTICE

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES

Application by Crown for permission to appeal against sentence.

The respondent was sentenced by a Judge of the District Court to imprisonment for two years and two months (reduced from three years due to his guilty pleas) for three counts of trafficking in 7.5 grams of cocaine, 2.8 grams of methylamphetamine and 36.3 grams of MDMA committed on 9 December 2014. The respondent was sentenced concurrently to imprisonment for six months (reduced from nine months) for trafficking in six tablets containing MDMA committed on 8 November 2014. The defendant was sentenced against the backgound that they were not isolated offences but part of an uncharged course of conduct over three months.

The respondent was sentenced to imprisonment for six months (reduced from eight months) for blackmail and four months (reduced from five months) for attempting to obstruct the course of justice.

In respect of the total of the head sentences of three years, the Judge fixed a non parole period of 18 months.

The Director seeks permission to appeal against the sentences on the grounds that they are manifestly inadequate. The application for permission to appeal in respect of the trafficking offences raises the question of the continuing relevance following amendments to the Controlled Substances Act made in 2007 and 2009 of the sentencing standards adopted in R v Mangelsdorf (1995) 66 SASR 60.

Held by Blue J (Kourakis CJ, Vanstone, Stanley and Doyle JJ agreeing):

1.       Permission to appeal against the trafficking sentences ought to be granted to maintain adequate standards of punishment for the crime of trafficking (at [264]).

2.       Permission to appeal in respect of the sentences for blackmail and attempting to obstruct the course of justice should be granted to correct sentences which are so disproportionate to the seriousness of the crimes as to require intervention to maintain standards of penalty (at [265]).

3.       On resentencing for blackmail and attempting to obstruct the course of justice, the defendant is sentenced to imprisonment for 12 months and three weeks (reduced from 18 months) for the blackmail offence and eight months and two weeks (reduced from 12 months) for the attempt to obstruct the course of justice offence (at [281]-[282]).

4. Given the timing of the respondent’s guilty plea, the respondent was only entitled to a maximum discount of 10 per cent for the 9 December 2014 offending under section 10C(2)(f) of the Criminal Law Sentencing Act 1988 (at [272]-[278]).

Held by Kourakis CJ (Vanstone and Stanley JJ agreeing):

1.       The sentencing standards adopted in Mangelsdorf need to be reviewed following the 2007 and 2009 amendments (at [7], [49]-[61]).

2.       A sentencing range of imprisonment for four to seven years continues to be appropriate for trafficking by a street dealer motivated to a greater or lesser extent by profit (at [8], [66]).

3.       For the December 2014 trafficking offences, on resentencing an appropriate starting point is six years resulting in a sentence of five years and five months (at [74]).

4.       For the November 2014 trafficking offence, an appropriate starting point is imprisonment for 12 months resulting in a term of imprisonment of seven months and one week after a discount of 40 per cent for the respondent’s guilty plea, to be served concurrently with the sentence in respect of the December offending (at [75]).

5.       In respect of the total period of imprisonment of seven years and approximately two months, a non-parole period of four years should be fixed (at [79]).

Held by Blue J (Doyle J agreeing):

1.       The sentencing standards adopted in Mangelsdorf are no longer applicable following the 2007 and 2009 amendments and a new approach to sentencing should be developed (at [216]).

2.       An appropriate sentencing range for trafficking falling into a mid-level category of a sole trader selling to end users dealing in a quantity of drugs in the order of 10 per cent of a commercial quantity by a person motivated partly by profit and partly by a need to finance his or her drug addiction is imprisonment for three to six years (at [233]).

3.       For the December 2014, trafficking offences on resentencing, an appropriate starting point is five years resulting in a sentence of four years and six months (at [271], [278]).

4.       For the November 2014 trafficking offence, an appropriate starting point is imprisonment for 12 months resulting in a term of imprisonment of seven months and one week after a discount of 40 per cent for the respondent’s guilty plea, to be served concurrently with the sentence in respect of the December offending (at [279]-[280]).

5.       In respect of the total period of imprisonment of six years and approximately three months, a non parole period of three years and six months should be fixed (at [283]).

Controlled Substances Act 1984 (SA) s 32, s 33O, s 33OA, s 43, s 44; Controlled Substances (Controlled Drugs, Precursors and Cannabis) Amendment Act 2008 (SA); Controlled Substances (Serious Drug Offences) Amendment Act 2005 (SA) s 32, s 33, s 33B, s 33C, s 44; Criminal Law Consolidation Act 1935 (SA) s 172, s 256; Criminal Law (Sentencing) Act 1988 (SA) s 6, s 10C, s 18A, s 29A; Customs Act 1901 (Cth) s 233B; Drugs, Poisons and Controlled Substances Act 1981 (Vic); Drugs Misuse Act 1986 (Qld) s 3, s 4, s 5; Narcotic and Psychotropic Drugs Act 1934 (SA); Misuse of Drugs Act 1971 (UK); Misuse of Drugs Act 1975 (NZ); Misuse of Drugs Act 1990 (NT); Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA), referred to.
Adams v R (2008) 234 CLR 143; Barbaro v R (2014) 253 CLR 58; Hili v R (2010) 242 CLR 520; House v R (1936) 55 CLR 499; Kovacevic v Mills (2000) 76 SASR 404; Markarian v R (2005) 228 CLR 357; Police v Cadd (1997) 69 SASR 150; R v Beresford (1972) 2 SASR 446; R v Cronn and Bladon (1983) 34 SASR 555; R v D (1997) 69 SASR 413; R v Faehrmann (2014) 118 SASR 549; R v Hollitt [2006] SASC 280; R v Hooper (1995) 64 SASR 480; R v Horstmann (2010) 269 LSJS 42; R v King (1988) 48 SASR 555; R v Kreutzer (2013) 118 SASR 211; R v Mangelsdorf, R v Perry, R v Richards (1995) 66 SASR 60; R v Muldoon (2015) 123 SASR 1; R v Nemer (2003) 87 SASR 168; R v Osenkowski (1982) 30 SASR 212; R v Place (2002) 81 SASR 395; R v Payne (2004) 89 SASR 49; R v Pearce (1980) 91 LSJS 443; R v Perzefi, R v Garubi, R v Tracey (2014) 118 SASR 431; R v Poon (2003) 56 NSWLR 284; R v Vivian (1979) 23 SASR 45; Wong v R (2001) 207 CLR 584, discussed.
R v Avdulai [2015] SASCFC 39; R v Becker (2005) 91 SASR 498; R v Belcher (1981) 28 SASR 46; R v Cetojevic (2005) 92 SASR 451; R v Ford (2008) 100 SASR 94; R v Harris (1992) 59 SASR 300; R v Koch [2015] SASCFC 31; R v Kong (2013) 115 SASR 425; R v Levy (2015) 122 SASR 445; R v Marien [2011] SASCFC 116; R v Modra [2006] SASC 106; R v Perdikoyannis [2011] SASCFC 82; R v Pham (2015) 90 ALJR 13; R v Phuong, R v Lewan [2015] SASCFC 70; R v Pidoto and O’Dea (2006) 14 VR 269; R v Rocco (1985) 37 SASR 515; R v Wilson (1990) 158 LSJS 134; R v Sladic (2005) 92 SASR 36; R v T (2013) 242 A Crim R 476; R v Wilson (1990) 158 LSJS 134; R v Wong (1999) 48 NSWLR 340, considered.

R v YOUNG
[2016] SASCFC 102

Court of Criminal Appeal:  Kourakis CJ, Vanstone, Blue, Stanley and Doyle JJ

1. KOURAKIS CJ:    This is an application for permission to appeal by the Director of Public Prosecutions (the Director) against a sentence imposed in the District Court.

2. The respondent was sentenced for four counts of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1986 (SA), one count of blackmail, contrary to s 172(1) of the Criminal Law Consolidation Act 1935 (SA), and one count of attempting to pervert or obstruct the course of justice, contrary to s 256(1) Criminal Law Consolidation Act 1935 (SA).

3. On 25 November 2015 a head sentence of 3 years imprisonment was imposed, which was reduced from 4 years and 1 month because of the respondent’s pleas of guilty.  A non-parole period of 18 months was fixed.  Both the head sentence and the non-parole period were backdated to commence on 10 December 2014, being the day upon which the respondent was first taken into custody.

4. The counts the subject of appeal against sentence are:

   ·Count 2 of the Information DCCRM-15-1069, trafficking in ecstasy committed on 8 November 2014:

   -    6 months imprisonment (reduced from 9 months) – made concurrent with the penalty imposed for the other three trafficking counts;

   ·Counts 4, 5 and 6 of the Information DCCRM-15-1069, trafficking in cocaine, methylamphetamine and MDMA committed on 9 December 2014:

   -    2 years and 2 months imprisonment (reduced from 3 years) – made cumulative on the penalty imposed for the blackmail offence;

   ·Blackmail:

   -    6 months imprisonment (reduced from 8 months);

   ·Attempt to obstruct or pervert the course of justice: 

   -    4 months imprisonment (reduced from 5 months) – made cumulative on the penalties imposed for the blackmail offence and the trafficking offences.

5. I have concluded that it is necessary to refine the guidance provided by this Court for the sentencing of drug traffickers to take into account the penalty regime implemented by the Controlled Substances (Serious Drug Offences) Amendment Act 2005 (SA) (the Amendment Act).

6. The Amendment Act came into operation on 3 December 2007. The effect of the amendments it made to the Controlled Substances Act 1984 (SA) by reference to Schedule 1 of the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) (the Regulations) is summarised in the table below. 

Trafficking (s 32)	Commercial Qty (s 32)	Lge Commercial Qty (s 32)
(Max Pen:  Basic Offence - $50,000 or 10 years imprisonment or both;  Aggravated offence - $75,000 or imprisonment for 15 years, or both)	(Max Pen:  Basic Offence - $200,000 or 25 years imprisonment or both; Aggravated offence - $500,000 or imprisonment for life, or both)	(Max Pen:  $500,000 or imprisonment for life, or both)
Drug	Any quantity	Pure Qty      Mixed Qty	Pure Qty       Mixed Qty
MDMA	100 gms       500 gms	750 gms       1000 gms
Methylamphetamine	100 gms       500 gms	750 gms       1000 gms
Cocaine	100 gms       200 gms	750 gms       1000 gms
Heroin	100 gms       200 gms	750 gms       1000 gms

1. The Amendment Act requires differentiation between the sentences imposed on drug traffickers according to the degree of commerciality of their involvement defined by reference to the prescribed minimum amounts. The base trafficking category primarily applies to offenders directly supplying or dealing very proximately with the end user. Sentencing guidance has in the past, been anchored to the concept of a ‘user-dealer’ or a person who deals at ‘street level’ but those terms have not been closely defined. The emphasis on the degree of commerciality introduced by the Amendment Act calls for some distinction between drug addicted offenders who make little or no profit above that needed to support their own habit and offenders who may take drugs but who traffic largely to support an indulgent lifestyle.

2. Moreover mid-level dealers may also commonly possess below the amount prescribed for a commercial quantity.  Subject to refinements to take into account those considerations the standard established in R v Mangelsdorf[1] remains broadly applicable. 

   [1] (1995) 66 SASR 60.

3. I would allow the appeal.  I would set aside the sentence imposed by the Judge on counts 4, 5 and 6.

   The ‘Mangelsdorf standard’

4. For over two decades, both before and after the Amendment Act came into operation, the decision of this Court in R v Mangelsdorf[2] has provided authoritative guidance for the sentencing of drug traffickers. 

   [2] (1995) 66 SASR 60.

5. Mangelsdorf pleaded guilty to possession of 15 ‘tastes’ of heroin for sale at a time when the maximum penalty for trafficking in any amount of heroin (and methylamphetamine and cocaine) was $200,000 or 25 years imprisonment or both.[3]  The maximum penalty at the time for the possession for sale of cannabis was 10 years imprisonment and a fine of $50,000.[4] Mangelsdorf was an addict who had exhausted his savings on his addictions.  He sold heroin to fund his own habit.  He had good prospects of rehabilitation.  The Judge imposed a suspended sentence of 18 months imprisonment with a 12 month non-parole period.  On appeal Doyle CJ, treating Mangelsdorf as a typical street trader, held that the sentence was manifestly inadequate.  Mangelsdorf’s sentence was set aside and a sentence of 4 years with a non-parole period of 18 months (not suspended) was imposed. 

   [3]    The penalty where the quantity of the substance involved equalled or exceeded the prescribed amount, being 0.3 kgs for heroin, was $500,000 and imprisonment for life.

   [4]    The penalty where the quantity of the substance involved equalled or exceeded the prescribed amount, being 10 kgs for cannabis, was $500,000 and 24 years imprisonment.

6. In reaching his conclusion, Doyle CJ surveyed a long line of appellate decisions of this Court:  R v Belcher,[5] R v Rocco,[6] R v Wilson,[7] and R v Harris.[8]  Doyle CJ held that those cases had established ‘standards for the punishment of crimes of the type’[9] committed by Mangelsdorf.  Doyle CJ also referred to Parliament’s expectation, evident in the severe penalties imposed for commercial drug trading, that the courts would impose penalties which are effective deterrents.  Doyle CJ acknowledged that increased penalties would not necessarily result in a proportionate decrease in the frequency of offending but observed that ‘our system of criminal justice proceeds on the premise that sentences do have a deterrent effect, and Parliament enacts punishment for crimes on that basis’.[10]  

   [5] (1981) 27 SASR 46.

   [6] (1985) 37 SASR 515.

   [7] (1990) 158 LSJS 134.

   [8] (1992) 59 SASR 300.

   [9] (1995) 66 SASR 60 at 63.

   [10] (1995) 66 SASR 60 at 67.

7. The authorities surveyed by Doyle CJ confirmed or imposed sentences of between four and seven years for street traders of heroin.  The authorities in turn relied on a multiplicity of sentencing decisions manifesting that penalty range.  Sentences within that range had been imposed even on persons of previous good character.  Doyle CJ concluded that the authorities ‘adequately indicate the standard which has been set by this Court for offences involving heroin which can be described as street trading’.[11]  Doyle CJ acknowledged that ‘a lesser sentence than the standards of punishment established by the cases’ might be justified, but only by circumstances which are ‘out of the ordinary’.[12]  However, Doyle CJ warned that circumstances like previous good character, addiction and detection with relatively small quantities of the drugs were not out of the ordinary.

   [11] (1995) 66 SASR 60 at 66.

   [12] (1995) 66 SASR 60 at 66.

   The nature of sentencing standards

8. The references of Doyle CJ to the standard set by the Court should be understood in the sense in which ‘sentencing standards’ have long been explained by this Court.  A sentencing standard is ‘authoritative guidance’ to judges sentencing offenders for offences of the kind it covers.  A standard identifies a penalty range which, for the ‘ordinary case’ is supported by sentencing principles, but acknowledges that the particular circumstances of the offender and the offending may support a more lenient disposition.[13] In Police v Cadd, Doyle CJ explained the important function served by sentencing standards as follows:[14]

   The function of establishing appropriate standards is an important aspect of ensuring, as best one can, that adequate standards of punishment are observed. Establishing appropriate standards also tends to ensure that there is such consistency of approach as is achievable in a system in which the appropriate sentence depends upon, in part, the circumstances of the individual case and of the individual offender, and a system in which sentencing is as individualised as it is in our system.

   [13]   Police v Cadd (1997) 69 SASR 150.

   [14] (1997) 69 SASR 150 at 166.

9. The approach of Doyle CJ in Police v Cadd was approved by the High Court in Wong v The Queen,[15] at least insofar as it established a standard on the issue of suspension of imprisonment for offences of driving under disqualification.  However, sentencing standards maintained by this Court have not been limited to the question of suspension or not.  Sentencing standards have identified the range of the terms of imprisonment which can be expected in the ordinary case.  The sentencing standard set by the decision in Mangelsdorf is an example of precisely that. 

   [15] (2001) 207 CLR 584 at [61]-[62].

10. The identification of a sentencing range by a Court of Criminal Appeal serves an important purpose in the administration of the criminal law.  In Wong v The Queen Gleeson CJ said:[16]

    One of the legitimate objectives of such guidance is to reduce the incidence of unnecessary and inappropriate inconsistency. All discretionary decision-making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency.

    [16] (2001) 207 CLR 584 at [6].

11. In R v The King, Cox J explained the nature of the South Australian practice as follows:[17]

    … In a word, this case is about sentencing standards, but it is important, I think, to bear in mind that when a standard is created, either by the cumulative force of individual sentences or by a deliberate act of policy on the part of the Full Court, there is nothing rigid about it. Such standards are general guides to those who have to sentence in the future, with certain tolerances built into or implied by the range to cater for particular cases. The terms of approximation in which such standards are usually expressed — “about” and “of the order of” and “suggest” and so on — are not merely conventional. ... It follows that a particular sentence will not necessarily represent a departure from the standard because it is outside the usual or nominal range; before one could make that judgment it would be necessary to look at all of the circumstances of the case. Those circumstances will include, but of course not be confined to, the questions whether or not the offences charged are multiple or single and whether the defendant is a first offender with respect to the particular crime charged. That is not to undermine the established standard but simply to acknowledge that no two cases, not even two “standard” cases, are the same. …

    [17]   R v The King (1988) 48 SASR 555 at 557-558.

1. Returning to the question in R v Hooper, Cox J said:[18]

   It is necessary to say again that a penalty range or tariff for a particular crime, established by the practice of sentencing judges or by decisions made on appeal, is not something rigid and immutable from which no departure, certainly no upward departure, may ever be made. Any standard range is intended to accommodate the ordinary run of cases, but there will be exceptional cases from time to time that fall outside the range: see R v King (1988) 145 LSJS 278 at 280; R v Prendergast (1988) 147 LSJS 486 at 487-488; R v Nixon (1993) 66 A Crim R 83 at 88-89.

   [18]   R v Hooper (1995) 64 SASR 480 at 491.

2. In Kovacevic v Mills,[19] Doyle CJ, Mullighan, Bleby and Martin JJ acknowledged that deterrence could not displace all considerations and that all relevant considerations must be taken into account and given due weight.  They emphasised that the establishment of a sentencing standard did not require a judge or magistrate, when imposing sentence, to take into account only one of the relevant sentencing considerations, be it deterrence or some other consideration.  

   [19] (2000) 76 SASR 404.

3. Nonetheless their Honours confirmed that it is sometimes appropriate for the Court of Criminal Appeal to indicate that a certain type of offending is likely to attract a certain type of punishment, and in particular imprisonment, and to indicate an appropriate sentence range for particular types of offending.[20]

   [20]   Kovacevic v Mills (2000) 76 SASR 404 at 410-411.

4. The plurality reaffirmed that sentencing standards are not rigid:[21]

   However, we agree that a sentencing standard cannot dictate a result in every case, or remove the need for consideration of the facts of each case and the application of the relevant considerations to those facts.

   [21]   Kovacevic v Mills (2000) 76 SASR 404 at 410.

5. In R v Place,[22] five Judges of this Court sat to consider the extent to which the decision of the High Court in Wong v The Queen[23] was inconsistent with the South Australian practice.  Doyle CJ, Prior, Lander and Martin JJ (Gray J agreeing) held that it was not.  Their Honours reaffirmed that identification of sentencing standards for the guidance of sentencing courts is a proper function of the Court of Criminal Appeal.

   [22]   R v Place (2002) 81 SASR 395.

   [23] (2001) 207 CLR 584.

6. Consistency in sentencing does not of course require numerical equivalence.  In Hili v The Queen, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:[24]

   Consistency is not demonstrated by, and does not require, numerical equivalence. Presentation of the sentences that have been passed on federal offenders in numerical tables, bar charts or graphs is not useful to a sentencing judge. It is not useful because referring only to the lengths of sentences passed says nothing about why sentences were fixed as they were. Presentation in any of these forms suggests, wrongly, that the task of a sentencing judge is to interpolate the result of the instant case on a graph that depicts the available outcomes. But not only is the number of federal offenders sentenced each year very small, the offences for which they are sentenced, the circumstances attending their offending, and their personal circumstances are so varied that it is not possible to make any useful statistical analysis or graphical depiction of the results.

   The consistency that is sought is consistency in the application of the relevant legal principles. And that requires consistency in the application of Pt IB of the Crimes Act. When it is said that the search is for “reasonable consistency”, what is sought is the treatment of like cases alike, and different cases differently. Consistency of that kind is not capable of mathematical expression. It is not capable of expression in tabular form. That is why this Court held in Wong that guidelines that the New South Wales Court of Criminal Appeal had determined should be used in sentencing those knowingly concerned in the importation of narcotics were inconsistent with s 16A of the Crimes Act. Those guidelines had made the weight of the narcotic the chief factor determining the sentence to be imposed, thus distracting attention from the several considerations set out in the non-exhaustive list of matters prescribed by s 16A(2) as matters “the court must take into account” in fixing a sentence, if those matters are relevant and known to the Court.

   [citations omitted]

   [24] (2010) 242 CLR 520 at [48]-[49].

7. The above passages are not inconsistent with the South Australian practice.  They demonstrate the impossibility of proceeding to sentence mathematically from other sentences and from an isolated circumstance in particular.  However, the South Australian authorities show that consistency in the application of sentencing principle will necessarily result in a penalty range, albeit often a wide one, ‘in the ordinary case’.  That is so because ‘the ordinary case’ is one in which the factors which are the primary determinants of objective seriousness of the offence, and the commonly encountered primary subjective factors, are both present.  Variations between cases in the weight and balance of those cases will usually be accommodated by the breadth of the range but, in some cases, will warrant a sentence outside the range.

8. In Hili v The Queen,[25] the plurality explained the permissible use that may be made of historical sentences imposed for the same or similar offending in comparable circumstances.  They said:[26]

   [25] (2010) 242 CLR 520.

   [26] (2010) 242 CLR 520 at [50]-[55].

   [50]The first and paramount means of achieving consistency in federal sentencing is to apply the relevant statutory provisions.  And that requires the application of those provisions without being distracted or influenced by other and different provisions that would be engaged if the offender concerned were not a federal offender.

   [51]As was explained in Putland v The Queen, Pt IB of the Crimes Act is not “an exhaustive statement of the will of the Parliament with respect to sentencing for federal offences”. As noted earlier, there are some powers given by State or Territory law in relation to the sentencing of offenders that are picked up and applied by s 68(1) of the Judiciary Act when a court, exercising federal jurisdiction, sentences a federal offender.  So, for example, in Putland, the Court held that s 68(1) picked up a provision of Northern Territory legislation relating to the imposition of an aggregate term of imprisonment.

   [52]In addition, there are respects in which Pt IB of the Crimes Act itself refers to and picks up State and Territory legislation affecting service of a sentence of imprisonment.  Those provisions of the Crimes Act include:  s 16E concerning the commencement of sentences; s 18(2) concerning imprisonment in a particular kind or class of prison; s 19A concerning detention of federal offenders in State or Territory prisons; s 19AA concerning remissions and reductions of sentences; and s 19AZD concerning leave of absence for and pre‑release of prisoners.  But Div 4 of Pt IB (which deals with the fixing of non‑parole periods and the making of recognisance release orders) does not expressly engage any State or Territory law which prescribes how non‑parole periods are to be fixed in sentencing under State or Territory law.  And, as was pointed out in Putland, the provisions of Div 4 of Pt IB are cast in terms that not only provide “a separate regime for fixing federal non‑parole periods rather than relying on applied State or Territory legislation”, those provisions deal exhaustively with that subject.  State and Territory legislation concerning the fixing of non‑parole periods has no application to the sentencing of federal offenders.

   [53]Next, in seeking consistency, sentencing judges must have regard to what has been done in other cases.  In the present matter, the prosecution produced detailed information, for the sentencing judge and for the Court of Criminal Appeal, about sentences that had been passed in other cases arising out of tax evasion as well as cases of customs and excise fraud and social security fraud.  Care must be taken, however, in using what has been done in other cases.

   [54]In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: “Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.” But the range of sentences that have been imposed in the past does not fix “the boundaries within which future judges must, or even ought, to sentence”. Past sentences “are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence”  (emphasis added). When considering past sentences, “it is only by examination of the whole of the circumstances that have given rise to the sentence that ‘unifying principles’ may be discerned”.

   [55]As the plurality said in Wong:

   [R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were.

   [citations omitted – emphasis in original]

9. As their Honours observe in paragraph [54], historical sentencing patterns cannot fix the boundaries within which future judges must, or even ought, to sentence.  Nonetheless, judges of busy sentencing course accumulate institutional experience in maintaining accepted relativities in sentencing ranges both between offences of different kinds and between different offences of the same kind by reference to the objective seriousness of the offence and the personal circumstances of the offender.  Moreover, when those sentencing ranges are considered by a Court of Criminal Appeal, and approved or revised in the course of determining whether the particular sentence under appeal is manifestly excessive, or manifestly inadequate, the resulting judgment will often identify a range of sentences which provides useful guidance to sentencing courts.  If a later sentence is informed by that guidance, even if having regard to all of the circumstances it falls, for good reason, outside of the identified range, it is less likely to be set aside for error on appeal.  Consistency and certainty in the administration of the criminal law is thereby enhanced.

10. In Barbaro v The Queen, French CJ, Hayne, Kiefel and Bell JJ recognised the importance of historical sentencing standards as a yardstick for the sentencing judge against which to examine a proposed sentence::[27]

    The setting of bounds to the available range of sentences in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases. Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence..

    As the plurality pointed out in Hili v The Queen, in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect. And as each of Buchanan JA and Kellam JA rightly observed in MacNeil-Brown, the synthesis of the “raw material” which must be considered on sentencing, including material like sentencing statistics and information about the sentences imposed in comparable cases, is the task of the sentencing judge, not counsel.

    [citations omitted]

    [27]   Barbaro v The Queen (2014) 253 CLR 58 at [40]-[41].

11. The plurality judgment in Hili went on to state the duty of the intermediate courts of appeal of the States to maintain consistency in sentencing for federal offences as follows:[28]

    In dealing with appeals against sentences passed on federal offenders, whether the appeal is brought by the offender or by the prosecution, the need for consistency of decision throughout Australia is self-evident. It is plain, of course, that intermediate courts of appeal should not depart from an interpretation placed on Commonwealth legislation by another Australian intermediate appellate court, unless convinced that that interpretation is plainly wrong. So, too, in considering the sufficiency of sentences passed on federal offenders at first instance, intermediate appellate courts should not depart from what is decided by other Australian intermediate appellate courts, unless convinced that the decision is plainly wrong.

    [citations omitted]

    [28]   Hili v The Queen (2010) 242 CLR 520 at [57].

12. In practical terms, that consistency cannot be maintained without the identification of a range for an ordinary case.

13. The plurality in Hill v The Queen considered the concept of manifest excess or inadequacy:[29]

    The Court of Criminal Appeal also said that “manifest error is fundamentally intuitive”.  That is not right.  No doubt, as the Court went on to say, manifest error “arises because the sentence imposed is out of the range of sentences that could have been imposed and therefore there must have been error, even though it is impossible to identify it”.  But what reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence.  The references made by the Court of Criminal Appeal to the circumstances of the offending and the personal circumstances of each offender were, therefore, important elements in the reasons of the Court of Criminal Appeal.

    [citations omitted]

    [29] (2010) 242 CLR 520 at [60].

14. When a sentence is set aside on the ground only of manifest excess or inadequacy, it is because no express error of principle has been made.  In R v Horstmann[30] and R v Kreutzer, I referred to that as an outcome error.[31]

    If the only error identified by the Full Court is manifest excess or inadequacy (an outcome error[32]), it necessarily follows that it will also think that a different sentence should have been passed.  In such a case there will generally be no reason for the Full Court to remit the matter to the court of first instance.  If the only error is one of failing to take into account all relevant matters or taking into account extraneous ones (a process error[33]), the Full Court may fix a different sentence in accordance with what it thinks ought to have been imposed, pursuant to s 353(4)(a)(i) of the CLCA, even if the sentence imposed at first instance was not, in itself, manifestly unreasonable.  On the other hand, the Full Court may, after finding a process error, nonetheless take the view that the same sentence should have been passed.  In such a case, it will dismiss the appeal in accordance with s 353(4)(b) of the CLCA.

    [30] (2010) 269 LSJS 42.

    [31]   R v Kreutzer (2013) 118 SASR 211 at 214.

    [32] (2010) 269 LSJS 42 at [37].

    [33] (2010) 269 LSJS 42 at [37].

15. The existence of an undisclosed process error is implied by the finding that there is an outcome error.  However there can only be a finding that the outcome is erroneous if, on a consideration of all of the circumstances, the sentence cannot be supported by any reasonable weight of those circumstances in accordance with sentencing principle.  A sentence is manifestly excessive or inadequate simply because it is too long or short, as Gageler J explained in Barbaro v The Queen:[34]

    The character of a submission that a sentence within a given range would or would not be available to be imposed by a sentencing court in the circumstances of a particular case as one of law similarly cannot depend on whether the submission is made to a sentencing court or to a court of criminal appeal. The principles of appellate intervention enunciated in House v The King and Cranssen v The King are not free-standing but reflect limitations on the lawful exercise of the judicial discretion under appeal. It has sometimes been stated that a sentence which is “unreasonable or plainly unjust” within the meaning of that expression as used in House v The King is a sentence necessarily affected by some undisclosed but definite and specific error. But such a statement can be recognised as universally true only if it is also recognised that a definite and specific error, whether disclosed or undisclosed, may be found in nothing more or less than effect having been given in the exercise of the discretion to “views or opinions which are extreme or misguided”. A sentence may be “unreasonable or plainly unjust” simply “because the sentence imposed is manifestly too long or too short” and a sentence which is manifestly too long or too short is, without more, erroneous “in point of principle”. Linking the relevant principle of appellate intervention to the underlying limitation on the lawful exercise of the judicial discretion, it can be seen that a sentence which is “unreasonable or plainly unjust” for no reason other than that it is manifestly too long or too short is a sentence which has not been imposed “according to rules of reason and justice”.

    [citations omitted]

    [34] (2014) 253 CLR 58 at [61].

16. On occasion, that analysis must be essayed from first principles but often it is possible to do so relying on the authority of intermediate courts of appeal which have identified a range of sentences for the ordinary case.  Intermediate courts of appeal perform their work day in and day out in that way.

17. In Barbaro v The Queen, French CJ, Hayne, Kiefel and Bell JJ considered the question of an ‘available range’ for particular kinds of offending:[35]

    [26]Reference to an “available range” of sentences derives from the well-known principles in House v The King. The residuary category of error in discretionary judgment identified in House is where the result embodied in the court's order “is unreasonable or plainly unjust” and the appellate court infers “that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance”. In the field of sentencing appeals, this kind of error is usually referred to as “manifest excess” or “manifest inadequacy”. But this kind of error can also be (and often is) described as the sentence imposed falling outside the range of sentences which could have been imposed if proper principles had been applied. It is, then, common to speak of a sentence as falling outside the available range of sentences.

    [27]The conclusion that a sentence passed at first instance should be set aside as manifestly excessive or manifestly inadequate says no more or less than that some “substantial wrong has in fact occurred” in fixing that sentence. For the reasons which follow, the essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principle in fixing it cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed.

    [28]Despite the frequency with which reference is made in reasons for judgment disposing of sentencing appeals to an “available range” of sentences, stating the bounds of an “available range” of sentences is apt to mislead. The conclusion that an error has (or has not) been made neither permits nor requires setting the bounds of the range of sentences within which the sentence should (or could) have fallen. If a sentence passed at first instance is set aside as manifestly excessive or manifestly inadequate, the sentencing discretion must be re-exercised and a different sentence fixed. Fixing that different sentence neither permits nor requires the re-sentencing court to determine the bounds of the range within which the sentence should fall.

    [citations omitted]

    [35]   Barbaro v The Queen (2014) 253 CLR 58 at [26]-[28].

1. It is important to observe that paragraph [26] of the plurality judgment recognises that the ‘manifest excess’ and ‘manifest inadequacy’ grounds for vitiating an exercise of the sentencing discretion are premised on the identification of a range of sentences which can properly be imposed for the particular offence and offender.  The ground is made out when there is an egregious departure from that range which vitiates the sentencing discretion even though the particular error of principle, which must have caused that departure, cannot be identified. 

2. With respect, I understand paragraph [27] of the plurality’s judgment to make the point that even when it is possible to say that a sentence in manifestly outside the range which could have been imposed for a particular offence and offender, it may still not be possible to make a positive statement about the upper and lower limits of the range of sentences which could have been imposed for that offence.  That is because there is necessarily a penumbra between the core of sentences which can properly be imposed, and those outlying sentences which cannot properly be imposed consistently with sentencing principle.  Within that penumbra it is not possible to delineate precisely the metes and bounds of the proper range.  It is for that reason that it is only manifest excess or inadequacy, and not mere excess or inadequacy, which will vitiate the sentence. 

3. Necessarily then, a delineation of the proper range for offences of a kind rather than a particular offence is all the more difficult.  It is for that reason that the guidance given by the Court of Criminal Appeal of this State in Cadd,[36] Kovacevic,[37] Place,[38] and Mangelsdorf[39] provide a necessarily wide sentencing range, and qualifies that range by reference to the ‘ordinary case’.  However, it remains quite consistent with sentencing principle and indeed practically necessary for the purposes of the administration of the criminal law to identify a range, albeit wide.

   [36] (1997) 69 SASR 150.

   [37] (2000) 76 SASR 404.

   [38] (2002) 81 SASR 395.

   [39] (1995) 66 SASR 60.

4. In defining a class of offending, an intermediate court of appeal will focus on the primary characteristics of that offending.  In the case of commercial trafficking of drugs, the particular drug, its quantity, the motive for the offending, and the level in the drug distribution hierarchy of the offender may serve to define the ‘objective factors of the ordinary case’.

5. In R v Pham, French CJ, Keane and Nettle JJ summarised the position as follows: [40]

   [40]   R v Pham (2015) 90 ALJR 13 at [26], [28], [49]-[50].

   … As was explained in Hili, the point of sentencing judges and intermediate appellate courts having regard to what has been done in other comparable cases throughout the Commonwealth is twofold: first, it can and should provide guidance as to the identification and application of relevant sentencing principles; and, second, the analysis of comparable cases may yield discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence.

   ...

   Previous decisions of this Court have laid down in detail the way in which the assessment of sentences in other cases is to be approached. It is neither necessary, therefore, nor of assistance to repeat all of what has previously been said. But, in view of the way in which the Court of Appeal approached the task in this case, it is appropriate to re-emphasise the following:

   (1)Consistency in sentencing means that like cases are to be treated alike and different cases are to be treated differently.

   (2)The consistency that is sought is consistency in the application of the relevant legal principles.

   (3)Consistency in sentencing for federal offenders is to be achieved through the work of intermediate appellate courts.

   (4)Such consistency is not synonymous with numerical equivalence and it is incapable of mathematical expression or expression in tabular form.

   (5)For that and other reasons, presentation in the form of numerical tables, bar charts and graphs of sentences passed on federal offenders in other cases is unhelpful and should be avoided.

   (6)When considering the sufficiency of a sentence imposed on a federal offender at first instance, an intermediate appellate court should follow the decisions of other intermediate appellate courts unless convinced that there is a compelling reason not to do so.

   (7)Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.

   …

   It will be recalled that in Wong v The Queen Gleeson CJ commented on the challenge to consistent sentencing that is presented by the increasing size of the judiciary and the legal profession. Specialisation in legal practice is now the norm and, as a consequence, sentencing and appellate judges may not have the knowledge that judges a generation ago possessed of the range of likely penalties for common offences. The Commonwealth Director of Public Prosecutions supplies the Judicial Commission of New South Wales with the details of sentences imposed on federal offenders in all the Australian jurisdictions. The National Judicial College makes this material available to all Australian judicial officers. This is a source of potentially relevant information about the pattern of sentencing for federal offences. Statistics have a role to play in fostering consistency in sentencing, and in appellate review, provided care is taken to understand the basis upon which they have been compiled and provided the limitations explained in the extract from Barbaro above are observed. The value of sentencing statistics will vary between offences. It is not meaningful to speak of a pattern of past sentences in the case of offences which are not frequently prosecuted and where a relatively small number of sentences make up the set.

   The appellant correctly submits that comparable cases decided by the intermediate courts of appeal provide the most useful guidance to a sentencing judge. An appellate court’s reasons reveal the mix of factors that were taken into account and will usually involve consideration of the appropriateness of the sentence imposed at first instance.

   [citations omitted]

   The Mangelsdorf standard after the Amendment Act

6. The starting point in any review of the sentencing approach to drug trafficking offences must be to call to mind the great social harm it causes.  It was described by the Court in R v Kong as follows:[41]

   There continues to be concern about the prevalence of drug abuse in our community. Since Mangelsdorf, the variety of illicit drugs available has increased. Twenty years ago, heroin was a primary concern and was considered to be the most harmful of illicit drugs. The position has changed with the promotion of methylamphetamine and the availability of a variety of illicit drugs, all of which are addictive and have very harmful effects. Research and knowledge about the effects of drugs known as “speed” and “ice” has developed. The so-called party drugs are readily available. The manufacture and importation of drugs is prevalent. The abuse of illicit drugs causes great social harm. The treatment and the management of drug addiction places a substantial financial burden on the health budgets of this State and the Commonwealth. The crimes committed by addicts to support their habits cause much loss and suffering to the community. Those who organise and participate in the distribution of illicit drugs create a serious risk of collateral injury to innocent members of the public. It is, therefore, nor surprising that in an effort to tackle the social harm caused by the abuse of illicit drugs, Parliament has imposed substantial penalties for dealing in commercial drugs to both punish and deter those who are attracted by the large profits that dealing can generate. For those reasons, general deterrence must be given great weight in the balancing of the competing sentencing objectives in the case of commercial drug dealers.

   There is a recognition that, in addition to penal penalties, it is necessary to assist addicts and to provide rehabilitation programs. Rehabilitation is an important part of the sentencing process.

   The range of penalties for drug offences must recognise that there is a concern in the community about the effect of illicit drug consumption, particularly upon the younger generation. Further, many of those who are involved at the higher end of drug trafficking are also involved in other criminal conduct. Many crimes of violence are committed in a background of drug offending. It follows that this Court should give guidance as to the range of penalties that might apply to drug offending.

   [41]   R v Kong (2013) 115 SASR 425 at [90]-[92].

7. In R v Kong[42] and R v Levy[43] this Court confirmed the continuing applicability of the general standard of four to seven years for street dealers which were set in Mangelsdorf. However, there have been occasional observations in some of the decisions of this Court doubting its continuing applicability. Thus a court of five justices has been constituted to review the standard against the provision of the Amendment Act.

   [42] (2013) 111 SASR 425.

   [43] (2015) 122 SASR 445.

8. The Mangelsdorf standard of four to seven years is an indicative one for street dealing established in the ordinary course of appellate review of sentences imposed by the District Court. A standard or tariff has not been set by the Court pursuant to s 29A of the Criminal Law (Sentencing) Act 1988 (SA) which empowers the Court to fix sentencing guidelines.

9. The maximum penalty provided for an offence is, as has often been said, a benchmark. It therefore has a substantial bearing on the indicative range in which sentences for particular offences will generally fall. However many other factors, including the contemporary social consensus about the relative seriousness of the offence are important. That consensus may vary over time by reason of changing social norms. Changed social conditions and prevalence over time may increase the importance of general deterrence. Section 44 of the Controlled Substances Act 1984 (SA) does not preclude courts differentiation between drugs on these grounds. It is limited to the physiological effects of drugs.

10. The pre-existing, already very high, maximum penalties of the Controlled Substances Act 1984 (SA) for trafficking in ‘large commercial’ quantities of drugs were increased by the Amendment Act. At the same time the hierarchical scale of the Amendment Act maintains the previous maxima for ‘commercial quantities’ but applies a lower maximum penalty to the base trafficking offence. The reduction in the maximum penalty for the base trafficking offence cannot be viewed in isolation because relativity must be maintained between offences of trafficking across all of the quantitative ranges. It is wrong to take the simplistic position that the reduction of the maximum penalty for trafficking in base quantities of the drug means that sentences for offences of that kind must fall.

11. In the second reading speech on the Bill for the Amendment Act the Attorney-General, the Honourable M J Atkinson, explained that the amendments were based on a report published in 1998 by the Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General (MCCOC) on serious drug offences. The MCCOC comprises the senior advisers on criminal law reform in the offices of the Australian Attorneys-General. The report argued for a consistent approach to serious drug offences between all Australian jurisdictions. After explaining the ‘tiered’ system of offences and penalties, the Attorney-General concluded that:[44]

    The Bill proposes the enactment of a logical, common-sense, refined structure for the tough and effective prosecution of serious drug offences.

    [44] South Australia, Parliamentary Debates, House of Assembly, 21 September 2005, 3506 (Michael Atkinson, Attorney-General).

12. It is appropriate to set out some passages from the MCCOC report which informed the making of the Amendment Act. The MCCOC identified, relevantly, three principles on which the model offences were founded: [45]

    Principle 3: The central objective of trafficking legislation is to strike at conduct undertaken for profit

    Principle 4: Since commercial trafficking is undertaken for profit, offences and penalties should be geared to the anticipated profit from the illicit transaction

    Principle 5: Trafficking legislation, which is directed against commercial exploitation of the black market, should not discriminate between different drugs in the formulation of prohibitions and penalties. The grade of the offence should be determined by the magnitude of the anticipated return from the illicit transaction.

    [45]   Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, MCCOC Report Chapter 6, Serious Drug Offences, (October, 1998) at 11-16.

13. With respect to principle 4, the MCCOC report stipulated that the ‘central measure of comparative liability is the quantity of the controlled drug involved in the offence’.[46]  It added: [47]

    The Code distinguishes three grades of trafficking offences. They correspond, with rough equivalence, to the hierarchical structure of the illicit drug supply system. Grade I trafficking (section 6.2.2 Trafficking in large commercial quantity of a controlled drug) will be used for major dealers and their immediate associates and accomplices, who are close to the source of supply. Grade II trafficking (section 6.2.3 Trafficking in commercial quantity of controlled drug) catches “ounce dealers” and others who occupy the middle ranks of the hierarchy, while user-dealers, who deal in relatively small quantities to support their own habitual use, fall within the Grade III category (section 6.2.4 Trafficking in controlled drug).

    [citations omitted]

    [46]   MCCOC Report at 12.

    [47]   MCCOC Report at 12.

14. With respect to principle 5, the MCCOC report explained: [48]

    The illicit traffic in cannabis is associated with the same evils of corruption, violence and the financial derelictions of the black market economy as the illicit traffic in heroin or amphetamine. Chapter 6 defines trafficking in terms of sale or other prohibited activities involving a “controlled drug”, a category which runs the gamut of prohibition, from heroin to cannabis to anabolic steroids. The Code does draw distinctions between the quantities of cannabis and other drugs when different grades of the trafficking offence and the presumption of intent to traffic are in issue. That is a simple consequence, however, of the fact that cannabis represents, for the illicit trafficker, a far less concentrated form of wealth than heroin, cocaine or amphetamines.

    [48]   MCCOC Report at 14.

15. An important aspect of the MCCOC report is its quantitative approach to sentencing. The object of the approach is to link the seriousness of the offence to its potential financial rewards.[49] The MCCOC report proposed ‘indicative’ quantities. It made recommendations as to the policy that should be applied uniformly by all Australian governments in setting quantity levels for their respective jurisdictions.[50]  That policy approach was as follows: [51]

    [49]   MCCOC Report at 273.

    [50]   MCCOC Report at 275.

    [51]   MCCOC Report at 275.

    The Committee has identified the following three factors as central to the grade of criminality of the offence:

    •      the profit expected from illegal activity,

    •    the damage to the community, including:

    -financial impact through the functioning of a black market and the diversion of funds from legitimate to illegal business enterprises,

    -flow on crime such as property crime to finance use, and crimes of violence resulting from market competition and disputes;

    •    the damage done to the individual user,

    it is possible to take these factors into account in setting the quantities which will draw heavier penalties for trafficking in commercial and large commercial quantities. Anticipated profits from trafficking can be calculated from the street price of the drugs. Calculating the number of doses of a drug contained in a “deal” gives some approximation of the number of people at street level likely to use the drug contained in that lot. Consideration of the volume of trade at street level, coupled with profit derived from sales to consumers, allows comparisons to be made of the harm done to the community by sales of particular quantities of different drugs.

16. It appears from the MCCOC report that the least serious category of offending it proposes, trafficking in the base quantity, was intended to apply to a user-dealer who traffics in relatively small quantities to support his or her own habitual use.  The MCCOC report did not specify the quantities which should delineate the three classes of trafficking.  Views may reasonably differ as to the quantity which should delineate the user‑dealer from the middle range trafficker, or ‘ounce dealer’, and which should differentiate the latter from the ‘large commercial’ trafficker.

17. There was evidential material before the Judge which explained the quantities in which amphetamine is commonly sold.  The purity of the amphetamine varies depending on the manufacture process and whether the manufactured product is mixed or ‘cut’ with glucose or other substances in the course of its distribution.  From the statement of witness Detective Brevet Sergeant David Pedder, it appears that amphetamine is commonly traded in the following quantities and price ranges, as at December 2014, depending on its purity or quality:

    ·a ‘point’ meaning .1 of a gram: $50 - $100;

    ·a ‘g’ or Full meaning 1 gram: $700 - $800;

    ·an ‘8 ball’ meaning 3.5 grams: $1,800 - $2,000;

    ·an ‘oz’ meaning 1 ounce (28.3 grams): $9,000 - $12,000;

    ·an ‘elbow’ meaning 1 pound (453.5 grams).

18. Ecstasy (MDMA) is sold in tablet form for the following prices as at December 2014:

    ·1 tablet - $20 - $30 each;

    ·up to 10 tablets - $14 - $16 each;

    ·10 - 100 tablets - $11 - $14 each;

    ·100 - 1,000 tablets - $9.50 - $11 each.

19. However the Regulations delineate between base amount trafficking and commercial trafficking at a quantity of 100 grams (almost 4 ounces) pure, and 500 grams (almost 18 ounces) mixed.  It can be expected therefore that many ounce dealers may be found in possession of no more than the base quantities depending on the point in the distribution cycle at which they are apprehended. 

20. A street dealer in possession of an ‘8 ball’ would be in a position to sell 35 points to other addicts at a maximum profit of $3,500.  An addicted street dealer trafficking in those amounts is likely to be able to support his or her own addiction with little profit remaining.  An addicted street dealer is unlikely to have in his or her possession more than the 100 grams of pure drug or 500 grams mixed substance which delineates base level trafficking from trafficking in a commercial quantity.

21. It may be that the Regulations were so framed to deal with the occasional street dealer who may momentarily, or in exceptional circumstances, be in possession of much more than the ounce dealer which the MCCOC report described.  However the consequence of fixing the commercial quantity of the drug at that weight is that some differentiation must be allowed with the 10 year maximum for both the street dealer contemplated by the Mangelsdorf standard and the ounce dealer described in the MCCOC report.

22. The tables provided by the Director of Public Prosecutions on the legislative regimes for the prohibition of illicit drugs in the other States and Territories of Australia show that the recommendations of the MCCOC report have not been realised.  Disparate regimes exist throughout Australia.  Moreover, the sentencing levels within and between jurisdictions vary greatly and are impossible to reconcile.

1. Notwithstanding section 10C(2)(b) and (c), section 10C(2)(d) provides that a discount of up to 30 per cent is nevertheless available if the defendant pleads guilty before the commencement of trial and satisfies the sentencing court that he or she could not reasonably have pleaded guilty at an earlier stage of the proceedings because of circumstances outside of his or her control. In the present case, for the reasons given above, it was open to the respondent to plead guilty to the information on the basis of trafficking on 9 December 2014 and there were no circumstances outside of his control which prevented his doing so. Section 10C(2)(d) therefore has no application.

2. Notwithstanding subsection 10C(2), subsection 10C(3) provides that, if the maximum reduction under subsection 10C(2) does not apply because the defendant did not plead guilty within the relevant period and the Court is satisfied that the only reason that this occurred was because, inter alia, the Court was for a reason outside the defendant’s control unable to hear the defendant’s matter during that period, the Court may nevertheless reduce the sentence that it would otherwise have imposed as if the defendant had pleaded guilty during the relevant period. The District Court listed the respondent’s matter on 13 July 2015, at which he could if he had chosen have pleaded guilty and further, if he offered to plead guilty thereafter, there is no reason why the matter could not have been listed to take his plea. Subsection 10C(3) therefore has no application.

3. The maximum discount available under section 10C(2)(f) of the Sentencing Act for the respondent’s guilty plea is therefore ten per cent. There is no reason not to allow the maximum available discount, which results in a sentence of four years and six months.

4. For the offence of trafficking on 8 November 2014, different considerations arise. This offence involved six tablets of MDMA, likely to have had a gross (mixed) weight of about 1.8 grams. In the circumstances, a starting point of imprisonment for 12 months is appropriate. There is no reason not to allow the maximum available discount of 40 per cent under section 10C(2)(a) of the Sentencing Act on the basis that the respondent pleaded guilty on his first appearance in court on that charge. Subject to a small rounding, this results in a sentence of imprisonment of seven months and one week.

5. The respondent’s ongoing trafficking activities between August and December 2014 that I have taken into account as background for the 9 December 2014 offending included the transaction involving the six MDMA tablets on 8 November 2014. In other words, I have sentenced the respondent on the basis that he had been conducting multiple transactions between August and December 2014 of the type exemplified by this specific transaction. In practical terms, whether the Director chose to extract this specific transaction out of multiple undifferentiated transactions over that period and make it the subject of a separate count should not affect the total sentence to be served by the respondent. In the circumstances, it is appropriate to make the sentence for the 8 November 2014 offending concurrent with the sentence for the 9 December 2014 offending.

6. In relation to the blackmail offence, an appropriate starting point is imprisonment for 18 months. I would reduce this by just under 30 per cent on account of the respondent’s guilty plea, resulting in a sentence of imprisonment for 12 months and three weeks to be served cumulatively on the trafficking sentences.

7. In relation to the attempt to obstruct the course of justice offence, an appropriate starting point is imprisonment for 12 months. I would reduce this by just under 30 per cent on account of the respondent’s guilty plea, resulting in a sentence of imprisonment for eight months and two weeks to be served cumulatively on the blackmail sentence.

8. The total of the head sentences I would impose is imprisonment for six years and approximately three months. Given the respondent’s personal circumstances and prospects of rehabilitation, I would fix a non-parole period of three years and six months.

9. Given the seriousness of the offending, there is not good reason to suspend the sentence of imprisonment.

10. I would backdate the commencement of both the first head sentence and the non-parole period to 10 December 2014, when the respondent was taken into custody.

    Conclusion

11. I would grant permission to appeal, allow the appeal and set aside the sentences imposed by the Judge.

12. I would sentence the respondent to imprisonment for:

    1four years and six months for the three trafficking offences committed on 9 December 2014;

    2seven months and one week for the trafficking offence committed on 8 November 2014 to be served concurrently with the first sentence;

    312 months and three weeks for the blackmail offence to be served cumulatively on the first and second sentences; and

    4eight months and two weeks for the attempt to obstruct the course of justice offence to be served cumulatively on the third sentence.

13. I would fix a non-parole period of three years and six months, both the first and second head sentences and the non-parole period to be treated as having commenced on 10 December 2014.

14. STANLEY J:  I would allow the appeal.  I agree with the reasons of the Chief Justice and the orders he proposes. 

15. DOYLE J:             I would allow the appeal.  I agree with the reasons of Blue J, and the orders he has proposed.