Regina v Bacon

[2000] NSWCCA 549

Reported Decision: 120 A Crim R 28

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Bacon [2000] NSWCCA 549
FILE NUMBER(S):	CCA 60692/2000
HEARING DATE(S):	13 December 2000
JUDGMENT DATE:	13 December 2000
PARTIES :	Crown - Respondent Kane David BACON - Applicant
JUDGMENT OF:	Simpson J at 1; Carruthers AJ at 20; Smart AJ at 66

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/31/0363
LOWER COURT JUDICIAL OFFICER :	Howie DCJ

COUNSEL :	P Hock - Crown R Burgess - Applicant
SOLICITORS:	S E O'Connor - Crown D J Humphreys - Applicant
LEGISLATION CITED:	Drugs Misuse and Trafficking Act 1985 Sentencing Act 1989 Listening Devices Act 1984 Crimes Act 1900 Drugs Misuse and Trafficking (Ongoing Dealing) Bill
DECISION:	Leave to appeal allowed, appeal allowed and sentenced quashed. Applicant re-sentenced.

IN THE COURT OF
CRIMINAL APPEAL

60692/2000
SIMPSON J
CARRUTHERS J
SMART AJ


13 December 2000
REGINA v Kane David BACON

Judgment

SIMPSON J :

1    The Court is in a position to give judgment now.

On 15 October 1999 the applicant entered a plea of guilty to a charge of supplying a prohibited drug on an ongoing basis, a charge brought under the provisions of s 25A of the Drugs Misuse and Trafficking Act 1985 which carries a maximum penalty of twenty years' imprisonment. Having heard evidence, Howie DCJ (as his Honour then was) sentenced the applicant to imprisonment for three years made up of a minimum term of two years and an additional term of twelve months. In order to structure the sentence as he did, it was necessary that his Honour find special circumstances within the meaning of s 5(2) of the Sentencing Act 1989 under which he was sentencing the applicant which he did. His Honour took into account a period of pre-sentence custody of three months although only a part of this was referable to the drug charge. His Honour was also sentencing the applicant in relation to a conviction for assault occasioning actual bodily harm which had originally been dealt with in the Local Court against which the applicant had appealed to the District Court. Having confirmed the conviction, his Honour sentenced the applicant to a fixed term of imprisonment for six months and he accumulated the sentence for the drug offence. That sentence, that is the drug offence sentence, he specified to commence on 29 April 2000 at the expiration of the fixed term sentence for assault. The subject matter of this application for leave to appeal is asserted severity of the sentence imposed in relation to the drug charge. Except insofar as the sentence for assault impacts upon the sentence for the drug offence, it is of no further materiality. No appeal lies to this Court either from the conviction or the sentence imposed in relation to that offence.

2    The offence of supplying a prohibited drug on an ongoing basis was committed on three days over a period of one month (8 February, 24 February and 7 March) in 1999. The drug supplied was amphetamine which, on each occasion, also contained methylamphetamine and on one occasion also contained pseudoephadrine. These drugs are to be treated in the same way and not to be differentiated from one another for sentencing purposes. They are all to be treated as drugs in the middle range of seriousness or harmfulness. The amounts of the drugs supplied on the three consecutive occasions were respectively 13.53 grams, 27.6 grams and 27.4 grams, giving a total of 68.53 grams. That does not, however, reflect the purity of the drug on each occasion. As a quantity of pure drug, the amount supplied was considerably lower than those amounts would suggest. On each occasion the recipient of the drug supplied by the applicant was an undercover police officer who recorded their conversations pursuant to a warrant issued in this Court under the Listening Devices Act 1984.

3    In addition to a short summary of the facts of the offences, the sentencing judge was provided with transcript of tape recordings of certain of the applicant's conversations and statements by a number of police officers who had been involved in the investigation.

4    The applicant gave sworn evidence, as did his wife and his employer, and a pre-sentence report was provided for the information of the Court. From these the following matters emerged: the applicant was born on 2 March 1973. At the time of the last incident of supply he had just turned twenty-six years of age. He has a criminal record which began in the Children's Courts of Tasmania which was his State of origin. He was less than thirteen years of age when he first appeared in such a court and he had subsequent appearances, twice in 1987 and again in 1989. The offences included stealing, many counts of burglary, and damage to property. He has also committed offences for which he has been dealt with in adult Local Courts but he has never before been sentenced to an unsuspended term of imprisonment. In 1995 he was convicted of and fined for drug offences which the Court was told involved marijuana.

5    The applicant explained his involvement in the offence. He said that in August 1998 he had moved, two months ahead of his wife and two children, from Tasmania to Port Macquarie. He did this in order to make a new start for himself and his family. His first employment in Port Macquarie was at an escort agency as a driver and it was during the course of that employment that he was introduced to the drug amphetamine. After some time he decided to try it. He liked the sensation and became involved in the sale of the drug for the purpose of financing his own use of it.

6    When the applicant's wife and children arrived in Port Macquarie his wife immediately noticed a change in the applicant although she was unable at that stage to identify its cause. When she did so she delivered an ultimatum to the effect that the applicant was to cease his involvement or she would take the children and move out. She in fact did make arrangements for alternative accommodation and the applicant accepted the ultimatum and notified the police operative that he would no longer supply the drug. Some pressure was brought to bear on the applicant to continue supply. He resisted that pressure.

7    The applicant then changed his employment and took up panel beating for which he, although untrained and unqualified, apparently has a talent. Indeed, his employer, Mr Phoenix, gave evidence to the effect that a full-time job was available for him.

8    The applicant denied having supplied amphetamines to anybody other than the police operative and one of the women who had originally introduced him to it. In respect to this matter, the sentencing judge was satisfied beyond reasonable doubt that he should reject the applicant's account. He was satisfied that the applicant's involvement in supply had been greater than contended for by the applicant. He did, however, accept that the applicant was using amphetamines himself and that he had become involved in the way he described and, most importantly, that he had ceased his participation, at the instigation of his wife, before being apprehended. Notwithstanding his satisfaction that the applicant's involvement was greater than he claimed, the judge stated his intention of sentencing on the basis that his preparedness to supply drugs covered the period 8 February to 15 March.

9    The application for leave to appeal was based upon the contention that the sentence imposed was manifestly excessive. Four particular matters were identified as supporting such a conclusion. It was not argued that his Honour omitted to deal with or recognise any of these matters. The contention, as I understood it, was that, if those matters had been given their proper weight, then the sentence would not and could not have been as lengthy as it was. That is, it was argued that, by inference, it could be seen that notwithstanding the reference to each of these matters in the remarks on sentence, one or more of them was or were accorded inadequate weight. The four matters were:

(i) the plea of guilty;
(ii) identification of methylamphetamine as a mid-range drug, less serious than heroin or cocaine;
(iii) the amount of the drug supplied together with the fact that the motive for supply was not financial gain;
(iv) the short period over which the applicant was involved and his voluntary cessation of supply prior to apprehension.

This last matter it was argued, should be taken as significant evidence of rehabilitation. I would note that the Judge mentioned it on a number of occasions during the remarks on sentence and made it plain that he found as a fact that the applicant had apparently ceased his involvement.

10    The judge did not identify the extent of the reduction in sentence he allowed for the plea of guilty. It is to be observed that the sentence was imposed before the decision of this Court in R v Thomson; R v Houlton (2000) NSWCCA 309, in which the Court urged the specific identification of the discount allowed in respect of pleas of guilty. The applicant was entitled to recognition of the plea but the extent of recognition was limited to the well-known utilitarian value, since the verdict on a trial following a plea of not guilty would have been a foregone conclusion in the light of the evidence to which I have referred. The plea of guilty did, however, have the significant benefit of avoiding the need for an undercover police operative to give evidence in public and reveal himself.

11    His Honour recognised, correctly, that general deterrence is an important matter in sentencing for offences under s 25A. He also recognised, again correctly, that the section, which is relatively new, was designed to ensure that dealers in drugs in small quantities are sentenced proportionately to their level of involvement overall and not artificially in relation to a series of individual small matters as though they were unconnected.

12    Both parties made extensive reference to sentencing statistics provided by the Judicial Commission. These are, in any event, to be treated with some caution but in the present case there is a particular complication in reliance on the statistics because s 25A is a relatively new section and there has not developed a body of authority or sentencing on which to place any real reliance. Accordingly, this Court received competing submissions about the use of statistics in relation to other offences. The applicant urged that the Court should have regard to statistics involving the sentences passed in relation to offences under s 25(1) of the Act and made a further submission that the fact the applicant could have been charged under that subsection is a relevant matter to the consideration of sentence. The maximum penalty which can be imposed under s 25(1) is fifteen years.

13    On the other hand, the Crown urged that s 25(2) is more readily analogous because, like s 25A, it carries an equivalent maximum penalty of twenty years and because, again like s 25A, it deals with supply of drugs on a commercial basis. It was, of course acknowledged that none of the quantities of the drug supplied by the applicant fell within the description of commercial quantity prescribed for the purpose of s 25(2). Reliance was placed on s 25(2) because of the equivalent maximum penalty and the fact the section and subsection are both directed to curbing the commercial trade in drugs. I am of the view that the statistics relevant to all s 25 offences are of some assistance, with the same limitations as generally apply to the use of statistics, when considering the present offence. In relation to offenders facing multiple counts of supplying amphetamines, only thirty-three per cent were sentenced to full terms of three years or more. Only sixteen per cent were sentenced to minimum terms of two years or more. Twenty-nine per cent of all offenders (that is not limited to those charged with multiple counts) were sentenced to full terms of three years or more; in the same category eighteen per cent were sentenced to minimum terms of two years or more.

14    These statistics would suggest to me that the sentence imposed was at the top of the range legitimately available in relation to the objective circumstances of the applicant's offence. That raises a question of whether it should be inferred that inadequate recognition was given to any of the subjective features which I have already mentioned or to the subjective circumstances in combination.

15    I have not overlooked the statistics provided this morning in relation to s 25(2) offences which would suggest a very different conclusion. If the applicant's offences could properly be seen as analogous to s 25(2) offences, then it would seem to me that the sentence was not at the top of the range but indeed was towards the bottom of the range. I leave those matters aside for the moment.

16    In my opinion there was one very compelling circumstance in this case and that was the applicant's voluntary cessation of trading before he became aware that he was in fact dealing with a police officer. This was not only strong evidence of remorse and contrition and a positive sign of rehabilitation, it had the consequence that the concept of specific deterrence could be given reduced weight. There are, as I have said, in the remarks on sentence, a number of references to the applicant's voluntary cessation of trading and it is plain that his Honour accepted as a fact in the applicant's favour that that was the case. What is not so evident is that recognition of that circumstance translated into a benefit to the applicant on sentencing. There is no mention of specific deterrence in their remarks on sentence and it seems to me this must be given some significance. Had his Honour recognised that specific deterrence could either be put to one side or at least given diminished importance, he would not have sentenced as he did, at the top of the available range.

17    In dealing with the need for specific deterrence, it is worth noting in the pre-sentence report the Probation and Parole officer effectively said that there was little that the Service could offer to the applicant, the inference being that his rehabilitation is effected or at least under way. Nothing I have said should be taken to under-estimate the very important question of general deterrence which is not diminished by an individual offender's rehabilitation. I have already mentioned the question of special circumstances. His Honour did intend to make a finding of special circumstances such as to give the applicant a longer than usual period of parole. This was, as I have said, in part because he was sentencing cumulatively but also because he recognised - in distinction to the Probation and Parole officer - that a relatively young offender serving a first term in custody may need some supervision and assistance on his release.

18 Having regard to the matters I have mentioned, I have come to the view that the minimum term imposed did exceed the legitimate bounds of sentencing discretion. I would, accordingly, grant leave to appeal and quash the sentence imposed. In re-sentencing and for reasons given by Howie DCJ, I would not disturb the finding that special circumstances exist warranting departure from the ratio now contained in s 44(2) of the Crimes (Sentencing Procedure) Act 1999. In conceding what sentence should now be imposed, I have had regard to additional material that was tendered and accepted by this Court on the usual basis, that is, that it would be taken into account only in the event that the Court came to re-sentence the applicant. That material is encouraging and does warrant a reduction in the minimum term although I would not interfere with the head sentence.

19    The orders I propose are that leave to appeal be allowed, the appeal be allowed and the sentence quashed. I would re-sentence the applicant by imposing a term of imprisonment of three years with a non-parole period of eighteen months, the sentence to commence on 29 April 2000.

20    CARRUTHERS AJ: Kane Dean Bacon seeks leave to appeal against a sentence imposed upon him by his Honour Judge Howie QC at the Port Macquarie District Court on 29 October 1999.

21    On that date the applicant was sentenced (following a plea of guilty) by his Honour in relation to one count of supplying a prohibited drug on an ongoing basis pursuant to s 25A of the Drugs Misuse and Trafficking Act 1985 (which attracts a maximum penalty of twenty years imprisonment) and one count of assault occasioning actual bodily harm under s 59 of the Crimes Act 1900 (which attracts a maximum penalty of two years when dealt with summarily).

22    In relation to the assault matter, his Honour sentenced the applicant to a fixed term of six months imprisonment to date from 29 October 1999 and to expire on 28 April 2000.

23    In relation to the s 25A matter, his Honour sentenced the applicant to a minimum term of two years imprisonment, to date from 29 April 2000 and to expire on28 April 2002, with an additional term of twelve months to date from 29 April 2002 and to expire on 28 April 2003. The applicant’s application for leave to appeal is confined to the sentence imposed in the s 25A matter.

24    The applicant was born on 2 March 1973 in Tasmania and is, accordingly, twenty-seven years of age. He first came before the Launceston Children's Court on 16 January 1986 on a number of serious matters and was sentenced to supervision by the Child Welfare Department for twelve months.

25    Eighteen months later he was again before that Children's Court on a large number of serious matters and was declared a ward of the State.

26    His criminal career continued in the Launceston area but he managed to avoid a sentence of full-time custody.

27    On 16 May 1995 he was dealt with in relation to a number of drug offences, which I assume relate to marijuana, and again on 24 March 1997 at Launceston he was dealt with on a number of drug matters, which again I assume refer to marijuana.

28    The applicant moved to Port Macquarie, New South Wales, in August 1998 because, it was said, he wanted to make a fresh start. Surprisingly, it might be thought, he there obtained a position at what was euphemistically referred to as an Escort Agency driving prostitutes to their customers. I say ‘surprisingly’ because the association between prostitution and the dissemination of, and the addiction to, drugs is well-known.

29    On 11 November 1998 he was brought before the Port Macquarie Local Court on one count of driving with a low range prescribed concentration of alcohol. He was fined $600 and Court costs and disqualified from driving until 2 January 1999.

30    The applicant maintained before Judge Howie that because of his contact with prostitutes he was introduced to amphetamines which they provided them to him at no cost. This itself is a somewhat surprising proposition bearing in mind the high street value of the drugs in question. In any event, the activities of the applicant came to the notice of investigating drug police in the area and a warrant was obtained from the Supreme Court for the use of a listening device which was to be worn by an undercover police operative. Subsequently an undercover police operative, fitted with the device, made contact (through a former prostitute named Theresa) with the applicant, and three transactions were entered into between the operative and the applicant under which the applicant supplied amphetamines and one other middle range drug to the operative. The relevant dates are 8 February 1999, 24 February and 7 March 1999. I shall return to the details of those transactions which had formed the basis, of course, of the charge under s 25A.

31    It is interesting to note the following events subsequent to the last transaction on 7 March 1999. The evidence discloses that on 10 March, which is, of course, only three days after the last transaction, the applicant assaulted a male. That person complained to the police that the assault had arisen as a result of a dispute relevant to the supply by the applicant to him of drugs. The complaint was made on 12 March 1999 and the applicant was charged with assault occasioning actual bodily harm on 15 March 1999.

32    The next occasion on which the applicant was telephoned by the undercover police operative seeking drugs was 15 April 1999. The response by the applicant was that he was out of the drug business. One could perhaps be forgiven for inferring that a very valid reason for the applicant getting out of the drug business was that he had by this time become aware that the victim of the assault had informed police that the applicant was involved in the sale of drugs. However, his Honour accepted evidence given by the applicant and his partner that in fact his withdrawal from the drug trade was voluntary. That was, indeed, a generous finding of fact by his Honour, but nevertheless the applicant is entitled to the benefit of it.

33    On 4 August 1999 the assault charge was heard at the Port Macquarie Local Court. The applicant was convicted and sentenced to a minimum term of fourteen months imprisonment, to commence on 4 August 1999 and to conclude on 3 October 2000, with an additional term of four months. The applicant appealed to the District Court from this conviction.

34    On 15 October 1999 the conviction appeal in the assault matter came before Judge Howie at the Port Macquarie District Court and on the same day the applicant pleaded guilty before his Honour to the s 25A matter.

35    On that day Judge Howie found the assault matter to be proved, having dealt with the matter by consent on the depositions and exhibits before the Local Court.

36    With regard to the assault matter, I note the following passage from his Honour's judgment:

The prosecution case is based almost solely on the evidence of the complainant in this matter and his wife. They give an account in which they allege that on the night in question the appellant and a man called Mickey Dee arrived at their premises at about 9.30 at night. They say that the appellant came to the premises in order to supply drugs. That is not a matter which is here or there except to explain, on their version, why it was that the appellant and Mickey Dee arrived at their premises. They say that when the complainant offered the appellant his cigarette lighter, that the opportunity was taken by Mickey Dee and the appellant to enter in the premises and almost immediately thereafter Mickey Dee began to assault the complainant using an iron bar and other objects which were brought into the premises by the appellant and Mickey Dee.
Their account is substantially that Mickey Dee was the major aggressor in this incident, and that it was for some unexplained reason connected with the Bandidos Club in which, apparently, the appellant and Mickey Dee were members that this assault occurred upon the complainant. The complainant alleges that he was struck on numerous occasions across the back area and to the other parts of his body with various objects. At one stage a broom was used, which was broken, iron bars were employed, he was kicked repeatedly by both Mickey Dee and the appellant, and during the course of this assault he lay on the ground seeking to protect himself. It was the evidence of the complainant and his wife that, following these assaults both Mickey Dee and the appellant left the premises.”

37    It is manifestly apparent from the passage cited above that this was a very serious assault and, albeit the evidence was that it was Dee who used the iron bar on the victim, this was nevertheless a common enterprise. Further, after the victim had fallen to the ground as a result of the assault with the iron bar, both the applicant and Dee kicked him as he lay on the ground, seeking to protect himself.

38    The applicant's denials of the assault were rejected by his Honour. Having found the offence proved, his Honour adjourned the matter to 28 October 1999.

39    On that date Judge Howie also dealt with the plea of guilty on the s 25A matter. On this occasion the applicant gave evidence before him and a large number of statements were tendered.

40    On 29 October his Honour imposed the sentences which are the subject of this application for leave to appeal. It will be immediately noted, however, the sentence which his Honour imposed of six months fixed term for the assault was considerably less than that imposed in the Local Court. It was, indeed only a little more than half the minimum term imposed by the Magistrate.

41    His Honour did, during the course of his remarks on sentence, indicate he thought there was some exaggeration on the part of the victim.

42    However, it is very important, for present purposes, to note that his Honour indicated, in fixing the sentence for both matters that he attempted, (to use his Honour's words) to reflect the totality of the criminality which was before him.

43    His Honour also specifically took into account the period of three months which the applicant had already served in relation primarily to the s 25A matter.

44    I am prepared to infer that the application of the totality principle is at least a partial explanation, for the modest sentence imposed in relation to the serious assault matter.

45    The facts of the s 25A matter were summarised by his Honour in the following passages in his remarks on sentence:

"The facts of this particular matter are not significantly in dispute. They are largely contained in the statements tendered by the Crown without objection and are amplified by the transcripts of conversations between the prisoner and the undercover police officer who purchased drugs from him. The undercover officer and the prisoner first came into contact with one another on 8 February 1999. It seems that the officer had made contact with a person known to the prisoner and named Theresa. In a telephone conversation with the prisoner she arranged for a person to attend the premises in order to supply the drugs to the undercover officer.
The prisoner arrived at those premises a short time later and he and the officer were directed to a bedroom in the house. As soon as they entered into this room the prisoner produced two plastic bags of amphetamine which he handed to the police officer and the officer gave him $600. The amount of the drug supplied was just over 13 grams of about 5 per cent purity. At this meeting the police officer received the prisoner's mobile telephone number and the prisoner offered to supply him with further drugs if and when the officer contacted him. I will refer to the details of this conversation later in these remarks.
On 18 February the officer phoned the prisoner and asked if he could purchase an ounce of the drug. The prisoner agreed and indicated that the quality of the drug to be supplied on this occasion would be better than that supplied on the earlier occasion. On 24 February the officer rang the prisoner and during that telephone call the prisoner asked the officer whether the officer still wanted the 'whole one', that is a reference to an ounce of amphetamine. They agreed to meet in 10 minutes in a car park near a beach in the centre of Port Macquarie.
The prisoner arrived with a female companion in the vehicle who alighted and sat on a bench nearby while the prisoner drove his vehicle towards the officer. The officer and the prisoner met at the agreed destination a short time later and the officer was supplied with just over 27 grams of amphetamine of six per cent purity. The officer gave the prisoner $1100. After leaving the officer the prisoner picked up the female in his motor vehicle and left the area.
The conversation at this meeting was also recorded. In that conversation the prisoner can be heard to apologise for the poor quality of the earlier drug but indicated that it was all that was available at the time. The officer asked whether this could be a regular occurrence and the prisoner answered, and I quote, 'Yeah, a grand ay, if you make it regular.
When the officer indicated that he was thinking about purchasing drugs every second week, the prisoner indicated that he agreed with this proposal and confirmed that the price would be $1000. The officer said that the drug had to be good quality and the prisoner replied, 'No, that's it mate, nothing worse than buying shit. If you're not happy just ring me. I'll fuckin' change it for something else, mate. I will give you your money back.'
On 3 March the officer again rang the prisoner and they agreed to meet for the supply of an ounce for $1000. On 7 March the police officer again made contact with the prisoner and they agreed to meet at a car park of a fast food outlet. At the appointed time the prisoner's vehicle arrived with another male in the front passenger seat. The prisoner again supplied the officer with amphetamine and the police officer gave him $1000. On this occasion the amount supplied was just over 27 grams but was of poor quality, being only 0.5 per cent pure.
Again this conversation was tape recorded. The officer indicated to the prisoner that he was thinking of purchasing two or three ounces. In discussing the possibility of this transaction, the prisoner indicated that he could supply the officer with as much drug as he wanted but he would have to 'talk to this other bloke'.
On 15 March the officer attempted to make contact with the prisoner but was unsuccessful and left a message for him. Eventually the prisoner contacted the officer and said that he was sure that the officer would have rung him because of the poor quality of the drug which the prisoner had supplied on the last occasion. He told the officer that if he had brought the drug back he would have exchanged it. He indicated to the officer that he had taken his own back and it had been exchanged. He indicated to the officer that he had spoken to this person he referred to as the 'bloke' and that the next one would be better and cheaper, but as to how cheap it would be the prisoner could not say until he had talked to 'the bloke' and then he would let the officer know. The police officer and the prisoner agreed to make contact again.
On 15 April the officer rang the prisoner who said that things were not too good. The officer indicated that he had heard that the prisoner had had a problem of some sort and asked whether everything had worked itself out. The prisoner said, 'Yes, sort of mate, I am out of that fuckin' town.'
On 16 March the prisoner had been charged with an offence of assault occasioning actual bodily harm which is before me by way of an appeal from a magistrate. When the officer asked the prisoner about obtaining further drugs, the prisoner said, and I quote, 'Mate, I'm out of that town, I don't do that any more.' The prisoner indicated that he was travelling and that this explained why the telephone call kept dropping out. When the officer indicated that he had hoped to see the prisoner again, the prisoner said, 'No mate, I am gone.'
On 26 April the officer contacted the prisoner about them meeting and the prisoner said, and I quote, 'No mate, I am not in that any more.' The prisoner refused to give the officer the name of any person whom the officer could contact in order to purchase drugs and made it quite clear to the officer that he was not involved in dealing in amphetamine any more. On 24 May the prisoner was arrested and charged with supplying amphetamine."

46    The applicant contended that he was merely a courier between the suppliers of the drug and the undercover police officer. His Honour rejected that assertion which could not possibly stand with certain of the incriminating statements made by the applicant to the police operative. His Honour, with the greatest respect, was unquestionably correct in rejecting the assertion by the applicant that he was merely a courier.

47    His Honour noted that each particular supply was itself of a quantity of the drug substantially in excess of both the trafficable and indictable quantity. Each was, however, well short of the commercial quantity of 250 grams.

48    His Honour noted that the applicant's supply was, however, at a level well above that of a street dealer and the evidence indicated that the applicant was able to negotiate prices and amounts to a particular level.

49    The applicant submitted that this Court should take into consideration that the level of purity of the particular drug was not high. For myself I would not accede to that submission, particularly bearing in mind that the listening device transcript clearly records constant apologies on behalf of the applicant to the undercover police operative that he regrets the relatively low quality of the drug, albeit the applicant informed the police operative on one occasion at least that it would “keep him going all night” - whatever that precisely means.

50    His Honour was satisfied that the applicant was supplying the drugs to satisfy his own need. He was not prepared to find beyond reasonable doubt that the applicant was supplying for financial gain, although he had a well-founded suspicion such was the case.

51    His Honour noted the subjective matters raised on behalf of the applicant including, of course, the plea of guilty, albeit it was merely of utilitarian value. Specifically he noted that the applicant had a long-term relationship with his partner dating back to when they were teenagers. There were two children, then aged nine and six years, of that relationship.

52    After the applicant's arrest he left the escort agency and obtained a job with a panel beater with whom he had initially worked when he came to Port Macquarie. There was some evidence before his Honour that upon the applicant's release there was a permanent job available for him with the panel beater.

53    His Honour said: -

"It appears that he has reached the stage in his life, perhaps through the period that he spent in custody and its impact upon him that he has made a commitment to live and work as an honest law-abiding citizen and a caring father."

He was satisfied that the applicant was not addicted to drugs and that there was nothing that the Probation and Parole Service could offer him.

54    In this Court the applicant contended that the sentence was manifestly excessive, taking into account the plea of guilty, the fact that methylamphetamine is regarded as a mid-range drug, less serious than heroin and cocaine, the amount of drug supplied and the fact that the motivation for supplying was not financial gain, together with the brevity of the applicant's involvement in supplying the drug, together with the fact that he had ceased supplying prior to his arrest and the extent of his rehabilitation.

55    The Court was referred to a number of decisions of this Court by the applicant and, in turn, by the respondent but to my mind, although regard must be had to them, at the end of the day they were not of great assistance. Nor, with respect, do I think the sentencing statistics in relation to s 25 of the Drugs Misuse and Trafficking Act are of any real assistance to this Court which is solely concerned with an offence under s 25A.

56    There is no doubt that s 25A is directed by the legislature, with its maximum penalty of twenty years' imprisonment and a fine of up to almost $400,000, towards driving persistent small-scale drug dealers out of existence.

57    We have had the benefit of being supplied by Miss Hock, on behalf of the Crown, with the Second Reading Speech (on 24 June 1998) by the Honourable J W Shaw, the then Attorney General, relating to amendments to the Drugs Misuse and Trafficking Act, contained in the Drugs Misuse and Trafficking (Ongoing Dealing) Bill 1998. The following passages in the speech of the Attorney General should be specifically noted: -

"The Government is pleased to introduce the Drug Misuse and Trafficking (Ongoing Dealing) Bill 1998. The Bill aims to create a new indictable offence of supplying prohibited drugs on an ongoing basis. A specific provision is to be inserted into the Drug Misuse and Trafficking Act 1985 to make it an offence for a person to supply any prohibited drug, other than cannabis, for financial or material reward on three or more separate occasions during a period of 30 consecutive days. The Bill will provide for a maximum sentence of 20 years imprisonment and substantial fines.
The Bill is based upon an important recommendation of the Wood Royal Commission. The new offence plugs a potential loophole under the existing law. It targets dealers who have organised their affairs in such a way as to limit the full effect of the Drug Misuse and Trafficking Act 1985. Presently it could be argued dealers who carry small quantities of prohibited drugs can avoid serious penalties under the Act as the penalty structure is largely based on quantities. The amount of drugs which are supplied is immaterial to an offence under s25A, either within each individual offence or in total.
Furthermore, the offence is constituted by the supply of any prohibited drug, other than cannabis, within a 30-day period. In other words, it is immaterial whether the same drug is supplied on the three separate occasions. Once again, the provision is framed in a way which will prevent dealers from evading the ambit of the provision on technical grounds."

Finally, the Attorney General said:

"The Bill toughens the Government's response to drug dealing. It provides a new weapon in the armoury of police against those who persistently engage in the 'commercial' supply of hard drugs, without restrictive emphasis on the quantity supplied on each occasion. It steps up the campaign against dealers where it matters - on the streets - and facilitates the apprehension, arrest and incarceration of such dealers. The Bill thus forms a central plank in the Government's commitment to make the streets of New South Wales safe for the people of New South Wales."

58    It is clear from the passages that I have cited that s 25A was introduced into the Act specifically to plug what was perceived to be a potential loophole under the existing law and the heavy maximum sentence of twenty years, together with the substantial fines which are available either as an alternative or in conjunction to a prison sentence, reflect the determination of the legislature in this regard.

59    The Courts of this State must be sensitive, in my respectful view, to the intention of the amendment and respond appropriately to the concern of the legislature so clearly expressed by the Attorney General on 24 June 1998.

60    The instant case is a classic case of the utility of s 25A.

61    I am sensitive to the arguments that have been put to the Court on behalf of the applicant in relation to his Honour's reference to special circumstances, and the submission by Miss Burgess that his Honour did not, by the way in which he structured the sentences, achieve his stated aim.

62    In the overall sentencing regime with which his Honour was faced, I do not think that this argument carries any real substance. To my mind an additional term of twelve months was perfectly appropriate for the supervision of this applicant, even allowing for the amount of time which he would have spent in custody as a consequence of the sentences imposed by his Honour.

63    In my view, the sentences for the s 25A matter, which is the only matter under appeal in this Court, is well within the range available to his Honour.

64    It is not surprising, of course, that no application was made for leave to appeal against the sentence imposed (as part of the application of the principle of totality) in relation to the assault occasioning actual bodily harm.

65    In the circumstances, I would propose, by reason of the fact that there are few precedents relating to s 25A, to grant leave to appeal and I would propose that the appeal be dismissed.

66    SMART AJ: The facts have been set out in the reasons for judgment of the other members of the Court and I will not recapitulate them.

67    The judge had to deal with two matters. Firstly, an appeal to him from a Magistrate in relation to the conviction and sentence for assault. That is not a matter in respect of which any appeal lies to this Court.

68    The second matter was the charge under s 25A of the Drugs Misuse and Trafficking Act that on 8 February, 24 February and 7 March 1999 at Port Macquarie the applicant did supply a prohibited drug, methylamphetamine, for financial reward. To that charge the applicant pleaded guilty.

69    In dealing with the appeal from the Magistrate on the charge of assault, the judge took the view that the sentence imposed by the Magistrate was excessive. It was a sentence comprising a minimum term of fourteen months and an additional term of four months. That sentence departed from the usual statutory ratio.

70    In his judgment dealing with the assault case, the judge noted that there were no injuries to the complainant's face, chest area and stomach area which might have been expected on the account given by the complainant. That related particularly to the suggestion of kicking. Ultimately, the judge said:

"It may well be there is some areas in which the complainant has exaggerated, either wilfully or not, the actual injuries suffered by him or the assault that was occasioned to him but I believe basically the account given as to the assault upon him by Mickey Dee and the appellant is an honest and accurate account."

It was not in question in the judge's mind that there was a serious assault occasioning actual bodily harm, but there was a question as to the extent of the assault and the injuries inflicted.

71    During argument on 29 October 1999, the judge made it plain that the assault occasioning actual bodily harm, serious as it was, had been overshadowed by the seriousness of the drug supply offence and that the prisoner would receive a lesser sentence on the assault charge because of the principle of totality.

72    The judge approached the question of sentence thus. He determined what was the correct sentence in respect of each offence and then made a discount so as not to offend the principle of totality. There could be no cavilling with that approach.

73    The judge correctly found special circumstances and it is in that area, that the question on this appeal primarily turns. I do not think that the head sentence imposed on the supply charge can be successfully attacked. However, it is a question of what was the appropriate minimum term, having regard to the special circumstances which were found.

74    The judge imposed a fixed term of six months on the assault charge but to this has to be added the period of pre-sentence custody that related to that charge, namely, two months and seven days. In effect, the applicant received a sentence on the assault charge of eight months and seven days.

75    As to the supply charge, when the pre-sentence custody is taken into account, the applicant received an effective sentence of two years and twenty-three days minimum term a head sentence of three years.

76    If one approaches the matter by way of totality and takes into account the three months in custody prior to sentence, the situation is that the applicant received, by way of periods to be spent in custody, a sentence of two years nine months and a head sentence of three years nine months. If one takes the usual proportion of 3:1, then three-quarters of three years and nine months is two years nine and three-quarter months. In other words, the effective allowances for a special circumstance is three-quarters of a month. That is inadequate in the circumstances of this case. My reasons for so thinking are as follows: although the applicant did not have a good record, this was to be the first time he had to spend a period in full-time custody and, I might add, quite an extended one. Secondly, there was evidence before the judge that the period of pre-sentence custody had had a notable effect upon the applicant. Thirdly, the materials point to the applicant having reached a turning point in his life. Fourthly, the judge found special circumstances in the fact, amongst others, that after a period in gaol, despite the rehabilitation which had taken place as at the date of sentencing, the applicant would need to pursue further rehabilitation and to be further supervised after his release. I do not disagree. Further, he has the support of his wife and children.

77    It should not be overlooked that the drug content of the substances supplied was very low, the percentages ranging from 0.5% to 6.17%. The total drug content based on the details in the Remarks on Sentence is 2.405 grams and on the Analyst’s Certificate, 2.6202 grams.

78    The orders proposed by Justice Simpson should be made.

79    SIMPSON J: The orders of the Court will be, accordingly, as I have proposed. To those orders I would add a direction that the applicant be released on parole at the expiration of the non-parole period.

**********