Redfern v R

[2012] NSWCCA 178

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Brent REDFERN v R [2012] NSWCCA 178

Decision date:

23 August 2012

Before:

McClellan CJ at CL at [1]
Adams J at [2]
Hoeben J at [37]

Decision:

1. Leave to appeal is granted, the appeal allowed.

2. The sentences are quashed and are substituted for the following sentences:

(i)As to the first charge (supply prohibited drug, namely cocaine on 10 June 2010 contrary to s 25(1) Drug Misuse and Trafficking Act 1985) a fixed term of imprisonment of 1 year and 6 months, commencing 10 June 2010.

(ii)As to the second charge (supplying prohibited drugs on an ongoing basis, namely cocaine, between 7 May 2010 and 26 May 2010 contrary to s 25A(1) Drug Misuse and Trafficking Act 1985) taking into account the matter on the Form 1, imprisonment with a non-parole period of 2 years and 6 months, commencing 10 December 2010 and expiring 9 June 2013, with a balance of term of 2 ½ years expiring 9 December 2015.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985

Cases Cited:

Gore and Hunter v R [2010] NSWCCA 330
Hinchcliffe v R [2010] NSWCCA 306
Maglis v R [2010] NSWCCA 247
Nahlous v R [2010] NSWCCA 58; (2010) 77 NSWLR 463
R v Cheikh [2004] NSWCCA 448
R v Collins [2004] NSWCCA 30
R v Esquilant [2007] NSWCCA 248
R v Hanson (District Court of NSW, Berman SC DCJ, 23 March 2007, unreported)
R v Henry [1999] NSWCCA 111
R v Hide [2003] NSWCCA 371
R v Hoon and Pouoa [2000] NSWCCA 137; R v Khaled [2001] NSWCCA 169
R v Kairouz [2005] NSWCCA 247
R v Leroy (1984) 13 A Crim R 469
R v Luong [2002] NSWCCA 238
R v Malavetas (District Court of NSW, Nicholson SC DCJ, 22 January 2009, unreported)
R v Mirza [2007] NSWCCA 248
R v Nemes (Court of Criminal Appeal, 28 August 1997, unreported).
R v Sakkar [2003] NSWCCA 26
R v Smiroldo [2000] NSWCCA 120; 112 A Crim R 47;
R v Vu [2005] NSWCCA 266
R v Zarei [2002] NSWCCA 350
R v Kostecoglou [2002] NSWCCA 514
Re Attorney General's Application under s 37 of the Crimes (Sentencing Procedure Act) 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
Schembri v R [2010] NSWCCA 149
SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249
Thorn v R [2009] NSWCCA 294; (2008) 198 A Crim R 135

Category:

Principal judgment

Parties:

Brent Redfern (Applicant)
The Crown (Respondent)

Representation:

C Smith (Applicant)
T Smith (Respondent)
Legal Aid (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s):

2010/146384

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2010-12-07 00:00:00

Before:

English DCJ

File Number(s):

2010/146384

Judgment

1. McCLELLAN CJ at CL: I have read the judgments of both Hoeben JA and Adams J in draft. As both their Honours indicate these were serious offences reflecting a significant involvement in the provision of drugs to others. I agree for the reasons identified by AdamsJ and the further reasons of Hoeben J that the sentence should be reduced. I agree with the orders proposed by Adams J.

1. ADAMS J:

Introduction

1. On 7 December 2010 the applicant, having pleaded guilty before the Penrith Local Court, was sentenced in the District Court on 6 August 2010 on two counts: supplying cocaine on three or more separate occasions within a thirty day period between 7 and 26 May 2010 for financial or material reward (an offence under s 25A(1) Drug Misuse and Trafficking Act 1985 carrying a maximum penalty of 20 years imprisonment and or a fine of up to $385 000); and supplying 54.8 grams of cocaine on 10 June 2010 (contrary to s 25(1) of the same Act which carries a maximum penalty of fifteen years imprisonment and or a fine of up to $220 000). At the same time he asked the Court to take into account one offence on a Form 1 of dealing with the suspected proceeds of crime, namely $7,700, an offence under s 193C(1) of the Crimes Act 1900 which carries a maximum penalty of 12 months imprisonment and or a fine of $5 500. In light of his early pleas, it was accepted (and not now controversial) that he was entitled to a 25% discount on the sentences that otherwise would be imposed. In respect of the supplying of cocaine (count 2) the applicant was sentenced to a fixed term of imprisonment for 3 years commencing 10 June 2010 and expiring on 9 June 2013, whilst in respect of the continuing supply charge (count 1), taking into account the matter on the Form 1, he was sentenced to a non-parole period of 3 years commencing 10 December 2010 with a total term of 6 years expiring on 9 December 2016. The implied starting point for the head sentence on the latter offence was, therefore, eight years. On the assumption that, consistent with principle, the discount should be effective to reduce the overall sentence (lest its effect be lessened by the arithmetic), this implied a starting point for the total term of eight years and eight months.

1. The applicant seeks leave to appeal on the following grounds -

1. The sentencing Judge erred in increasing the sentence for the continuing supply offence because of the offence on the Form 1;

2. The sentencing Judge erred in finding that there was "little mitigation" in the applicant's subjective circumstances; and

3. The sentences both individually, and in combination, are manifestly excessive.

Facts

1. Tendered at the hearing was what was described by the learned sentencing Judge as "agreed facts and circumstances giving rise to the offences". Because one of the grounds, in substance, alleges a departure by the sentencing Judge from those agreed facts in respect of the Form 1 charge, it is necessary to consider that matter in a little detail.

1. The following account is taken from the Judge's summary of the agreed statement of facts. A police investigation undertaken in early 2010 disclosed that one Aaron Edward Hutchinson was actively involved in the supply of prohibited drugs in the Penrith local area command and surveillance was used to ascertain the extent of his involvement. An undercover officer was supplied with prohibited drugs on 8, 14 and 22 April by Hutchinson. On the first of these occasions the cocaine supplied was 0.42 grams and the operative indicated that, if the quality were good, he would seek a larger quantity. On 7 May 2010 the officer contacted the applicant on the applicant's mobile phone. In the result, two other undercover officers attended at a shopping centre in Penrith and, ultimately, the applicant contacted one of them and arranged to meet at the centre. Following conversations with the officers, the applicant supplied an arranged 3.5 grams of cocaine for a total of $1,050 paid for by pre-recorded cash. On testing, the drugs weighed 3.3 grams with a purity of 36.5%. Conversations were subsequently monitored between the applicant and Hutchinson during which the latter asked, "Are you all cashed up?" to which the offender responded, "Yeah" and Hutchinson replied, "Don't forget me", the applicant again responding, "Yeah". In his record of interview the applicant informed police that, as it happened, he did not give Hutchinson a cut from the cash he received from the undercover officers.

1. On 19 May 2010 an undercover officer contacted Hutchinson and they met at a shopping centre in Penrith. Hutchinson entered the officer's vehicle and began negotiations with him, whilst the applicant waited in Hutchinson's vehicle which he had driven to the shopping centre. Hutchinson then supplied the officer with 300 tablets and an arranged 16.6 grams of cocaine for a total sum of $8,350 which was paid for with cash, again which had been pre-recorded. Shortly after, Hutchinson invited the applicant to enter the vehicle and the applicant and the officer discussed cutting the cocaine and its quality. The applicant and Hutchinson then left the officer's vehicle and drove away in Hutchinson's car. On analysis, the pills were found to be 87.8 grams of methylamphetamine with a purity of less than 1% and the cocaine weighed 14 grams with a purity of 27%.

1. On 26 May 2010 the officer again contacted Hutchinson who attended at the shopping centre a short time later in his vehicle whilst the applicant arrived soon after in another vehicle. The applicant entered Hutchinson's vehicle and the two men waited for the officer to arrive. When he did so, the applicant and Hutchinson entered the officer's vehicle and, following conversations, Hutchinson supplied the officer with 302 tablets and an arranged 14.6 grams of cocaine for a total amount $8,350 paid for with pre-recorded cash. Of this sum, $4,350 was handed to Hutchinson and $4,000 to the applicant. Both the applicant and Hutchinson then went to the latter's vehicle and drove away. 291 tablets were found to be methylamphetamine weighing 86.6 grams with purity of less than 1% and the cocaine weighed 13.9 grams with a purity of 30.5%.

1. On 10 June 2010 the officer contacted Hutchinson and they met again at the shopping centre, Hutchinson entered the officer's vehicle and negotiated the supply of 300 tablets for $4,350 which was handed over to him in pre-recorded cash. Shortly after, the applicant entered the vehicle and negotiated with the officer to supply 60 grams of cocaine for a further $15,000. The officer took possession of the cocaine after weighing it and showed the applicant $15,000 in cash. Police then arrested Hutchinson and the applicant fled the scene, but was arrested a short distance away. A search of the officer's vehicle found several bags containing in all 300 tablets and 2 ounces of cocaine. 250 tablets were found to contain methamphetamine weighing 70.6 grams with a purity of 1.5% and the cocaine weighed 54.8 grams with a purity of 21.5%. The applicant was taken to Penrith Police station in custody. A search warrant was then executed at Hutchinson's premises, at which the applicant had come recently to reside. A safe was located for which the applicant provided a PIN. When the safe was opened, $7,700 was located inside. The applicant was spoken to in relation to that money and stated it was from his earlier sales of cocaine to the undercover operative.

Findings as to the Form 1 offence

1. In dealing with this offence the sentencing Judge said -

"I am asked to take into account the matter contained on the Form 1. It is, of itself, a serious matter and I have increased the penalty to be imposed for the sentence of ongoing supply to reflect that matter."

1. There was no discussion by her Honour as to the significance of the circumstance that this was the money which had been used to purchase the drugs to which the other charges referred. It was accepted on the appeal that the Judge had acted on the basis that the money was the proceeds of other drug transactions than those charged. The Judge concluded that "the evidence would appear to be that he made, in fact, much, much more" [emphasis added] than the $400 to $500 stated by the applicant to Dr Nielssen (whose report was tendered) to have been his profit from earlier transactions. However, this claim had not been put in issue by the Crown. Furthermore, to act on the basis of such an adverse finding requires a finding beyond reasonable doubt.

1. I have already mentioned that the agreed facts set out the applicant's explanation for the source of the funds in the safe without any suggestion that this was not the case. Since all the cash handed to the applicant was pre-recorded, the police were in a position to know whether or not the applicant's claim was correct. It is inescapable that the money recovered was checked against the recorded numbers. To Dr Nielssen, the applicant stated that the money found in the applicant's possession had been that which had been given to him by the police to obtain the drugs. Furthermore, the applicant gave evidence during the proceedings, amongst other things verifying the history given to Dr Nielssen. He also stated that he had not previously made money from drugs before and only obtained the drugs for Hutchinson because Hutchinson was a friend who had asked the applicant "to help him out". In cross-examination he said that he made $300 an ounce and that the $15,600 for the two ounces he was in the process of selling when arrested would have returned a net to him of $600. He explained that for lesser quantities the margins were similar but in absolute terms small. He was not cross-examined by the Crown to suggest that this evidence was untrue or that the money found in the safe was other than the cash supplied to him by police. The written submissions tendered on sentence by the Crown prosecutor stated that the "search revealed $7,700 cash which the offender acknowledged was his from his earlier sales of cocaine to the UCO". Those submissions also set out, without suggesting that it was in issue, the applicant's description of his activities as contained in Dr Nielssen's report, his police interview and the Pre-Sentence Report prepared by the Probation and Parole Service, in particular that his pattern of drug use prior to the commission of these offences comprised purchasing for himself and his friends an "eight ball" (one-eighth of an ounce) from a known associate and using it in the context of socialising over a weekend; he did not have a drug supply business and had responded to the request to supply drugs from a friend whom he knew to be a drug user and supplier who had been unable to meet the request from the undercover officer and asked him if he could supply the drug; he did not have any links with or knowledge of organized drug supply and his contacts were people he knew from his various social networks in Penrith where he grew up; stimulant drug use was common in his social circle and age group and he had not considered the legal consequences of his behaviour until after his arrest; he on-sold the drugs with which he was supplied and, after taking his portion (about $400 or $500) he would return the remainder to his supplier; as to the present transactions, he saw the opportunity to make some quick money and this was the first time he acted in this way.

1. Plainly enough, the lack of cross-examination of the applicant on these statements was not an oversight, but occurred because the Crown accepted their essential truth which as to the money in the safe, was easily and almost certainly was, verified. Furthermore, it is not surprising these matters was not raised by the counsel for the applicant as they were not controversial.

1. In this Court, however, the Crown sought to argue, from general statements made by the applicant to police as to his modus operandi that the amount in the safe indicated that there was criminality involved beyond the supplies to the undercover operative. Indeed, the applicant had admitted to police that he had, prior to the charged transactions, supplied cocaine to friends and that he had a few months earlier obtained a second mobile phone to take drug related calls. It was submitted that it should be inferred that a significant part of the money in the safe represented profits from other drug supplies. In my view this inference was not open to the sentencing Judge, in light of the way the matter was dealt with before her.

1. The submission of the Crown prosecutor in this Court that it should be inferred that the significant part of the money in the safe represented profits from other drug supplies since "[such] a finding was clearly open on the evidence tendered despite what the Crown had outlined in their written submissions" ignores the highly significant consideration that the weight of the evidence tendered was to the contrary and, even more importantly, that the evidence took the form it did because the applicant was not asked to testify about the matter as it was plainly not regarded as controversial. Accordingly, the sentencing Judge should have proceeded, and this Court must proceed, upon the basis that the money in the safe was indeed that which had been obtained from the police in respect of the supplies with which the applicant was charged.

1. The Crown further submitted that, even if the cash "was directly linked to the particular transactions with the undercover operative this would have warranted a more serious charge of dealing with proceeds of crime knowing that it is the proceeds of crime, contrary to s 193B(2) of the Crimes Act 1900". This might be so, but it would leave the question as to whether, in light of the primary charges, it would be appropriate to further punish for receiving the money which was part and parcel of the sales for which the applicant was being punished. At all events, this offence was not charged. In my view, moreover, it was unnecessary and, indeed, inappropriate to have identified this particular aspect of the applicant's supply of the drugs and put it into a Form 1, quite apart from imposing an additional sentence in respect of it.

1. It is self evident, as it seems to me, that the totality of the applicant's criminality in the charged offences is not increased by the fact that he had in his possession the money paid to him for the supply of the drugs. It would be as sensible to have charged and punished him additionally with possession of the drugs for the purpose of supplying the undercover police officer because he had the drugs in his possession. Both the possession of the drug itself and the proceeds of sale are part and parcel of the primary offence. It needs hardly to be said that it is immaterial that he had the cash in his possession at the point of sale as distinct from in the safe in his home. To punish him additionally for either one of those aspects of his conduct is to double count: see Re Attorney General's Application under s 37 of the Crimes (Sentencing Procedure Act) 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 at [42] ff; Thorn v R [2009] NSWCCA 294; (2008) 198 A Crim R 135 at [27]; Nahlous v R [2010] NSWCCA 58; (2010) 77 NSWLR 463 at [13]-[15]; Schembri v R [2010] NSWCCA 149 at [11]-[16]; Maglis v R [2010] NSWCCA 247 at [9]; cf Hinchcliffe v R [2010] NSWCCA 306.

1. It follows that this ground of appeal is made out.

The applicant's subjective circumstances

1. These were not in controversy in either Court and the following summary is taken from the learned sentencing Judge's reasons for sentence. The applicant was 22 years of age when he committed the offences and 23 years when sentenced. Relevant evidence called on sentence comprised not only his own but that of his parents' and a family friend and Dr Nielssen. This material showed that the applicant was raised in a caring and supportive environment and that this support continues, although his family were clearly disappointed in his criminal behaviour. He completed his Higher School Certificate and went on to qualify as an electrician, at the time of his arrest employed by Energy Australia. He hoped to be able to return to work with that organisation upon his release from custody.

1. The applicant said he commenced using ecstasy sporadically at the age of 18 and by the time he was 20 or 21 he had started to use cocaine. Although he was not willing to admit he had a drug problem he conceded that the continued use of drugs led him to his criminal behaviour. His role was to source the drugs, collect the money, collect the drugs and give them to his peers who had requested them as well as keeping some for his own use. The Judge, expressing her view about the evidence of the amount the applicant received by contrast with what he had told Dr Nielssen, concluded (this not being in issue) that, whatever the amount might have been, he saw it as an opportunity to make some quick money. Her Honour accepted, however, that this was the first time he engaged in dealing at this level.

1. The Judge concluded that the applicant now had insight into the impact of his offending behaviour on his family, himself and the wider community and that he did not consider the legal consequences of it until he was arrested. He had attempted to keep himself occupied whilst in custody, being a sweeper in his wing and applied to participate in various programs available to him. He has also requested textbooks to enable him to keep studying whilst he is in custody. When his family became aware that the applicant was using prohibited drugs, his parents arranged for him to attend drug and alcohol counselling but he did not benefit from that program. Shortly before his arrest they became aware that he had resumed his habit and required him to leave the family home. This was shortly before his arrest. Dr Nielssen found no evidence of any psychological or psychiatric illness and formed the opinion that the applicant had good prospects for rehabilitation. Her Honour referred to a previous offence of possession (an ecstasy tablet taken to a dance party) which was dismissed pursuant to s 10 Crimes (Sentencing Procedure) Act 1999. He has one offence of driving with alcohol in his system whilst he was a provisional licence holder.

1. The Judge noted that the applicant pleaded guilty at the earliest opportunity and therefore was entitled to a 25% discount for his pleas. She concluded also that he demonstrated contrition and found that the applicant was truly remorseful and contrite with excellent prospects for rehabilitation. She found that he was highly unlikely to re-offend. Her Honour concluded "that the offender has a strong subjective case arising from his good character". Complaint is made about her Honour's following concluding comment -

"But taking into account his level of involvement in these offences, his knowledge of the amount of drugs being supplied on each occasion, and the fact he was participating purely for profit, there is little mitigation in his subjective circumstances."

1. It is submitted on behalf of the applicant that the Judge erred in finding that the applicant's subjective circumstances provided "little mitigation". Rather, they were such as should have been regarded as having a significant effect on the appropriate sentence. In R v Cheikh [2004] NSWCCA 448 Giles JA (with whom Levine and Hulme JJ agreed) set out a number of propositions relied on by the Crown as material to sentencing at [50] in a case of this kind in particular that "prior good character and lack of criminal record are of reduced significance in drug offences" citing R v Leroy (1984) 13 A Crim R 469 and R v Nemes (Court of Criminal Appeal, 28 August 1997, unreported). The passage in Leroy which was cited with approval in Nemes makes it clear that the reduced significance was (as indeed stated by Giles JA) limited to the lack of what Street CJ described as "a clear earlier record" since this factor might lead to the selection of an offender to play some part in the chain of drug trafficking "because their records, their past and their lifestyles are not such as to attract suspicion...[and therefore] the courts...take in the case of drug trafficking a view which does not involve the same degree of leniency being extended to first offenders [in other fields of crime]".

1. Apart from there being no evidence that this consideration was relevant in Hutchinson's selection of the applicant as an accomplice (the evidence, such at it was, being that a school friend asked the applicant to help Hutchinson), the limitation does not affect the other very significant subjective circumstances. In my view, the learned sentencing Judge erred in applying the notion of limited mitigation generally to the applicant's subjective circumstances. Even if it were intended to limit the effect of his lack of prior criminal offences and otherwise good character, this was not a case in which such a consideration was relevant to his involvement. There is no special class of offence, including drug dealing, which requires a different rule to be applied to the significance of the particular subjective circumstances in an individual case. Each will necessarily depend upon the circumstances, both subjective and objective, to derive the ultimate sentence.

1. With respect, it seems to me that this ground of appeal is made out.

Manifest excess

1. In light of the fact that a specific error has been identified, this Court's jurisdiction to resentence is enlivened and it is therefore unnecessary to consider whether the sentence imposed was otherwise such as to reveal a latent error in the exercise of the sentencing discretion. The question therefore is whether a less severe sentence is warranted in law and should have been passed: s 6(3) Criminal Appeal Act 1912.

1. It was not submitted that the characterisation of the objective circumstances by the sentencing Judge was in error (except as to the extent of profits made from other drug dealing) and, if I may respectfully say so, it seems to me that this Court should proceed upon the basis of her Honour's other findings. Firstly, her Honour noted that this was a case in which a custodial sentence was appropriate and that offences of ongoing supply are considered to be more serious than a single transaction. Her Honour concluded that the applicant was not a user selling to support his habit and was not onselling small quantities from his own supply but was providing significant quantities at the request of a customer for significant sums of money. The high purity of the drugs supplied enabled this quantity to be easily cut and therefore widening the market of users. On the other hand, her Honour found that there was no evidence suggesting that the applicant was making significant financial gains from his drug dealing activities. He did not appear to have any of the trappings of wealth; he had no assets other than his motor vehicle and was living at home with his parents until they asked him to leave. Her Honour found that the offences fell within the "mid range of objective seriousness", noting that it was unusual to find an offence under s 25A involving such a large quantity of drugs in each individual supply and that the applicant must have known he was suppling a significant quantity on each occasion having regard to the sums of money being paid. Her Honour qualified this finding by noting that the applicant was not the person who was instrumental to the supply of these drugs rather it was Mr Hutchinson although, it was always open to him to refuse to do so. Her Honour said that -

"This offender may not have been at the top of the organisational tree in this business of supplying prohibited drugs but he was certainly not in the position of a mere courier or drug runner or street level dealer. He was clearly supplying on behalf of a wholesaler. From the amount sold and the frequency of the sales it must have dawned on this offender that he was moving into the big league over and above simply supplying to his friends on an occasional basis."

1. Although, in a case which does not involve a standard non-parole period, little is to be gained in my respectful view by determining whether the objective facts place a case in the mid range, I would with respect otherwise adopt the sentencing Judge's characterisation of the objective facts.

1. Since this Court must resentence, it is necessary to take into account the evidence tendered on the appeal as to the applicant's subjective situation since sentencing. That evidence, in substance, confirms his remorse, his contrition, his intention to rehabilitate himself and that he has taken appropriate steps within the prison system to better his employment prospects upon release. There appears to have been changes for the better in respect of his attitude both to his offences and to the future. In short, this evidence confirms the favourable findings of the sentencing Judge.

1. Of considerable significance, as it seems to me, is that this was the applicant's first, though far from reluctant, foray into serious crime, which was fortunately nipped in the bud as the result of an investigation instigated because of the criminal activities of his accomplice, who first approached him. I think it is appropriate to deal with the applicant on the basis that this has been for him a decisive turning point and that one of the major purposes of sentencing, certainly in respect of a relatively young offender, namely that of rehabilitation, is well on the way in the applicant's case. Indeed, the Crown prosecutor on sentence fairly submitted that the subjective evidence could support a view that he is at the 'crossroads' with respect to his rehabilitation (vide R v Henry [1999] NSWCCA 111 at [273]). This is of course not to say that the other purposes of sentencing, in particular retribution and general deterrence, do not have a significant role to play. However, the applicant is still young and it is important in the public interest, aside from his own personal interest, to acknowledge in the sentence to be imposed both his ability to reform and his evident decision to do so.

1. The sentencing Judge, as is evident from the sentence, gave significant weight to special circumstances, identified by her Honour as the need for a lengthier than normal period of supervised parole to ensure that the applicant attends drug and alcohol relapse prevention programs to minimise his risk of relapse and therefore reoffending, that he no longer mixes with negative peers and that he makes the most of the assistance to him of the Probation Service in securing employment upon his release.

1. For reasons already given, although the matter contained on the Form 1 must be taken into account, I do not consider that it adds to the totality of his criminality and therefore have not increased the sentence which is otherwise appropriate on the first charge.

1. Tendered on behalf of the applicant was a summary of a number of cases of multiple supply of cocaine in which offenders were sentenced under s 25A. These cases were: R v Luong [2002] NSWCCA 238; R v Zarei [2002] NSWCCA 350; R v Kostecoglou [2002] NSWCCA 514; R v Sakkar [2003] NSWCCA 26; R v Hide [2003] NSWCCA 371; R v Collins [2004] NSWCCA 30; R v Vu [2005] NSWCCA 266; R v Esquilant [2007] NSWCCA 248; R v Mirza [2007] NSWCCA 248; R v Hanson (District Court of NSW, Berman SC DCJ, 23 March 2007, unreported); R v Malavetas (District Court of NSW, Nicholson SC DCJ, 22 January 2009, unreported). To which should be added R v Smiroldo [2000] NSWCCA 120; 112 A Crim R 47; R v Hoon and Pouoa [2000] NSWCCA 137; R v Khaled [2001] NSWCCA 169; R v Kairouz [2005] NSWCCA 247; SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249; and Gore and Hunter v R [2010] NSWCCA 330.

1. With the exception of the District Court cases, I have looked at all these judgments. For present purposes it is not necessary to detail each one of them. It is sufficient to say that, bearing in mind different facts and subjective circumstances, I have found them to be helpful in deriving the sentence which I propose in respect of this applicant. I have also considered (with a degree of caution) the Judicial Commission statistics for non-consecutive terms and non-parole periods for the s 25A offence (some thirty cases) and the s 25 offence (some fifty cases). Although not a very large sample, nevertheless the number is not without some significance, and the range of sentencing imposed is somewhat informative.

1. The applicant has been in custody since 10 June 2010 and, accordingly, his imprisonment must date from that time.

Conclusion

1. As will be seen, the proposed sentences differ significantly from those under appeal and it is therefore necessary to substitute new sentences. Accordingly, leave to appeal should be granted, the appeal allowed and the sentences appealed from quashed. I should mention, in the interests of transparency, that I had initially proposed somewhat shorter sentences than those set out below but my brethren were both of the view that, in light especially of the objective seriousness of the offences, somewhat longer sentences should be imposed. It hardly needs to be said that the determination of an appropriate sentence is a difficult task upon which reasonable minds might well reasonably differ. I have decided, in the result, that I would not press my own conclusions to the point of dissent and therefore propose that leave to appeal be granted, that the sentences be quashed and that the following sentences should be substituted -

(i)As to the first charge (supply prohibited drug, namely cocaine on 10 June 2010 contrary to s 25(1) Drug Misuse and Trafficking Act 1985) a fixed term of imprisonment of 1 year and 6 months, commencing 10 June 2010.

(ii)As to the second charge (supplying prohibited drugs on an ongoing basis, namely cocaine, between 7 May 2010 and 26 May 2010 contrary to s 25A(1) Drug Misuse and Trafficking Act 1985) taking into account the matter on the Form 1, imprisonment with a non-parole period of 2 years and 6 months, commencing 10 December 2010 and expiring 9 June 2013, with a balance of term of 2 ½ years expiring 9 December 2015.

1. HOEBEN J (appointed a Judge of Appeal after this hearing): I agree with the conclusion of Adams J and with his reasons that her Honour erred in how she used the offence on the Form 1 and in the way in which she departed from the agreed facts placed before her.

1. I also agree with Adams J that the applicant's subjective case was a strong one and on the facts of this case, had an important part to play in the sentencing process. That having been said, it was still necessary to balance that consideration against the objective seriousness of the offending which in this case was substantial.

1. The applicant admitted to police that he had before the charged transactions, supplied cocaine to friends and that he had a few months earlier obtained a second mobile phone to take drug-related calls. As her Honour appreciated, the quantities of drugs involved in this transaction made it clear that the applicant was not an "innocent" dabbling in the supply of drugs for the first time. His ability to obtain the substantial quantity of drugs involved is illustrative of his familiarity with the drug scene.

1. For the reasons set out by Adams J (with the exception of his use of statistics in relation to which I prefer not to express a view) it is clear that the offence under s 25A(1) Drug Misuse and Trafficking Act 1985 was a serious example of offences of that kind and this is reflected in the sentence proposed by Adams J. Accordingly, I agree with the orders proposed by his Honour.

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Decision last updated: 23 August 2012