S v R - [2008] NSWCCA 186

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
S v R [2008] NSWCCA 186

FILE NUMBER(S):
2007/00002974

HEARING DATE(S):
14 March 2008

JUDGMENT DATE:
8 August 2008

PARTIES:
S (Applicant)
Regina (Respondent)

JUDGMENT OF:
Bell JA Adams J Latham J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):

LOWER COURT JUDICIAL OFFICER:

COUNSEL:
Mr S Corish (Applicant)
Mr P Miller (Crown)

SOLICITORS:
S O'Connor (Applicant)
S Kavanagh (Crown)

CATCHWORDS:
Sentence
Crown appeal
drug dealing
significance of assistance
manner of calculating discount

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999 s 23
Drug Misuse and Trafficking Act 1985 ss 25A, 33
Firearms Act 1996 s 71

CATEGORY:
Principal judgment

CASES CITED:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002); [2002] NSWCCA 518; 56 NSWLR 146
Lewins v R [2007] NSWCCA 189
R v Ellis (1986) 6 NSWLR 603
R v Frank Waqa [No 2] (2005) 156 Crim App Rep 454
R v Gallagher (1991) 23 NSWLR 220 at 227-228
R v MP [2003] NSWCCA 195
R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383
R v Sukkar (2006) 172 A Crim R 151; [2006] NSWCCA 92
Ryan v R [2001] HCA 21; 206 CLR 267
SZ v R [2007] NSWCCA 19; 168 A Crim R 249

TEXTS CITED:

DECISION:

Leave to appeal granted.
Appeal dismissed.

PUBLICATION RESTRICTION:
Name of applicant not to be disclosed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/00002974
BELL JA
ADAMS J
LATHAM J
8 August 2008

S v R

Judgment

BELL JA: I have had the benefit of reading the judgment of Adams J in draft form. I have come to a different conclusion concerning the disposition of the appeal. I gratefully adopt his Honour’s statement of the facts and summary of the applicant’s subjective case. I will only refer to this material to the extent that it is necessary in order to explain my reasons.
The application was argued on a single ground; that the sentence is “excessive in the circumstances”. In the written submissions filed on the applicant’s behalf it was acknowledged that the challenge to the exercise of the sentencing discretion was not based upon any error in the statement of the primary judge’s reasons. The case articulated on the applicant’s behalf was that the sentence was excessive because the primary judge is to be taken to have commenced with a notional sentence of 18 ½ years before applying the discounts for the plea, assistance to the authorities and for the Ellis factor (R v Ellis (1986) 6 NSWLR 603). As Adams J points out, this contention only holds good if his Honour combined the discounts rather than applying them sequentially.
The offence charged in count 1 (the supply of not less than the commercial quantity of a prohibited drug (methylamphetamine)) has a maximum penalty of 20 years’ imprisonment. It is an offence to which Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act) applies. The standard non-parole period for this offence is 10 years.
The applicant stood for sentence as a man of mature years with a record of criminal convictions, including for drug offences. He was on conditional liberty at the time of the offence. He had been engaged in the supply of methylamphetamine on a daily basis over a period of eight months. During this time he was supplying 20 to 25 people a day with the drug, although sometimes he supplied a lesser number. His involvement was at a higher level in the hierarchy of drug supply than that of a street-level dealer. At the time of his arrest he was in possession of $6,000 in cash, stolen property which included jewellery and computers, and weapons including a replica Beretta pistol, a Taser and a .22 calibre pen gun. The latter was the subject of the second count on the indictment. It was loaded. The cash, stolen property and other weapons were the subject of charges that were taken into account in sentencing the applicant for the supply offence.
The applicant was sentenced to an aggregate term of seven years with an effective non-parole period of four and a half years. The sentence for the supply offence was accumulated by six months on the sentence of 18 months’ imprisonment imposed for possession of the prohibited weapon. The sentence for the supply offence, which was the focus of the application, was six and a half years with a non-parole period of four years.
Accepting that the applicant was entitled to a 25 per cent discount to reflect his plea of guilty and a further substantial discount to reflect his assistance to the authorities (both in relation to the investigation of the supply offence and in relation to other matters), the sentence on its face was well within the bounds of discretion.
The primary judge did not say that he proposed allowing a combined discount of 65 per cent. As the Crown Prosecutor pointed out, one approach that his Honour may have adopted was to commence with a notional sentence of 13 1/3 years and to discount this by 25 per cent for the early plea of guilty, which would reduce it to ten years. A further discount of 25 per cent for the applicant’s assistance to the authorities would reduce the sentence to seven and a half years. The Ellis discount of 15 per cent would yield a final sentence of around six and a half years.
The primary judge assessed the objective seriousness of the supply offence as being “not quite at the mid-range of seriousness for an offence such as this”. (ROS 13.5) Taking into account the facts to which I have briefly referred, this was a generous assessment. Particularly is that so given his Honour’s acknowledgment that the Crown and counsel for the applicant had both submitted that the offence objectively “fell to be determined at around the mid point of seriousness for such an offence”. (ROS 11.5) Accepting his Honour’s assessment that the offence was “not quite at the mid-range”, and taking into account the offences in the Form 1 consistently with the principles explained in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002); [2002] NSWCCA 518; 56 NSWLR 146 I am of the opinion that a notional starting point of 13 1/3 years would not demonstrate error. This conclusion is sufficient to dispose of the application. However, since there is a difference of opinion between members of the Court in this respect it is appropriate that I explain the further reasons that lead me to conclude that the appeal should be dismissed.
Section 23 of the Sentencing Procedure Act permits a court to impose a lesser penalty than it would otherwise impose having regard to the degree to which the offender has assisted (or undertaken to assist) law enforcement authorities in relation to the offence concerned or any other offence. A lesser penalty imposed under s 23(1) must not be unreasonably disproportionate to the nature and circumstances of the offence (s 23(3)). As Howie J (with whose reasons Simpson J agreed) pointed out in SZ v R [2007] NSWCCA 19; 168 A Crim R 249, there is a limit to the extent to which an otherwise appropriate sentence can be discounted and yet still produce a sentence that is not unreasonably disproportionate to the offence. Commonly, an offender who undertakes to assist the authorities (either in the investigation of the offence or other offences) will plead guilty at an early time and thus be entitled to a discount at the top of the range promulgated in the guideline judgment: R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383. In such a case there will necessarily be less room to discount the sentence in order to reflect the offender’s assistance to the authorities without infringing the command of s 23(3) of the Sentencing Procedure Act.
The primary judge quantified a discount for the applicant’s assistance to the authorities and an Ellis discount. Ellis was an exceptional case. It was a Crown appeal against an order continuing the respondent’s bail for a lengthy period. The respondent in Ellis had come forward from motives of conscience and informed the police of his commission of seven armed robberies. He had not been suspected of committing these offences. Street CJ explained the principles which admit of leniency arising from the plea of guilty, assistance to the authorities by the voluntary disclosure of guilt and the less frequently encountered phenomenon: the disclosure of an otherwise unknown guilt of an offence. Ellis was decided before the enactment of s 23 of the Sentencing Procedure Act and before the Thomson guideline judgment. Reference to Ellis remains a useful shorthand way of describing the significant element of leniency that may be extended in a case in which an offender voluntarily discloses his or her guilt of an offence which he or she was not suspected of committing. In an appropriate case this may be a powerful factor justifying leniency. The reasons for this involve a mix of considerations that are relevant to the exercise of the sentencing discretion, including that the voluntary disclosure of unknown guilt informs the assessment of remorse and the offender’s prospects of rehabilitation. Gleeson CJ in R v Gallagher (1991) 23 NSWLR 220 at 227-228 explained why, where an offender’s willingness to cooperate with the authorities is part of a complex of inter-related considerations, the attempt to separate out one or more factors will be artificial and illogical. His Honour’s observations are pertinent when considering an Ellis discount for the voluntary disclosure of otherwise unknown guilt. As was pointed out in Lewins v R [2007] NSWCCA 189 at [19] the allocation of a discrete Ellis discount is likely to result in error; see too Ryan v R [2001] HCA 21; 206 CLR 267 per McHugh J at 272-273.
The applicant was deserving of a discount for his candour in making admissions to the police, as he was for his assistance to the police in relation to other criminal activity. However, it is to be kept in mind that this was a case far removed from Ellis. The applicant was himself the target of a police operation aimed at obtaining evidence of his involvement in the supply of prohibited drugs. It was a controlled operation, making use of electronic surveillance and undercover officers. It was successful in obtaining evidence of the applicant’s involvement in the ongoing supply of prohibited drugs. Evidence independent of the applicant’s admissions was obtained of his supply of methylamphetamine on each of 2, 3 and 6 March 2006. On 14 June 2006, evidence of his supply of half an ounce of methylamphetamine was obtained. He was arrested on that day, at which time he was in possession of weapons, a substantial sum of cash and stolen goods. It was in these circumstances that he chose to make a clean breast of matters. It is true that his admissions provided the basis for preferring the charge of supply of not less than the commercial quantity of the prohibited drug. This is a circumstance to be taken into account in assessing the extent of the reduction in the sentence under s 23(1). However, it is not to be overlooked that the prosecution were in possession of evidence which, on the agreed facts, would appear to have supported his prosecution for the ongoing supply of drugs under s 25A of the Drug Misuse and Trafficking Act 1985 (NSW) which, itself, is a serious offence with a maximum penalty of 20 years’ imprisonment.
The applicant provided assistance to the authorities, which was of value in relation to the investigation of other criminal activities. As the primary judge observed, the assistance was somewhat limited because of the applicant’s incarceration. His Honour went on to say that it was clear that the applicant had done what he could in the circumstances. (ROS 10.3) The latter observation has relevance to the assessment of the applicant’s prospects of rehabilitation, but does not bear on the discount under s 23(1), which is given for utilitarian reasons.
The evidence did not establish that the applicant was being held in harsher conditions of custody as the result of his assistance. In R v Sukkar (2006) 172 A Crim R 151; [2006] NSWCCA 92, this Court emphasised the significance of the offender’s conditions of custody to the size of the discount. Howie J (at 154, [5]) observed that combined discounts for the plea and assistance of more than 40 per cent should be exceptional in cases in which there is no evidence that the offender will spend the sentence (or a substantial part of it) in more onerous conditions than the general prison population. Latham J observed that a combined discount of 50 per cent is appropriate to assistance of a very high order. In the absence of evidence of particular hardship as the result of the assistance given, her Honour considered the discount of 45 per cent in that case to have been excessive (at 167, [54]-[56]).
In my opinion, had the primary judge combined the discounts so as to give an effective 65 per cent reduction in the sentence, it would have been an error that inevitably would have produced a sentence that was unreasonably disproportionate to the offence. It is not clear that his Honour did approach the sentence in this way. In the result the applicant has received a sentence that fairly reflects his assistance to the authorities, which was of considerable value in the investigation of his own offending and in relation to other criminal activity. In my opinion, it was not assistance of an exceptional character, which would have justified reducing the sentence below that which was imposed. For these reasons the orders that I propose are:
1. Grant leave to appeal;
2. The appeal is dismissed.
ADAMS J:
Introduction
The applicant pleaded guilty in the District Court on 26 April 2007 to an indictment containing two counts. Count 1 alleged that between 31 August 2005 and 14 June 2006 he supplied not less than the commercial quantity of methylamphetamine and Count 2 alleged that on 14 June 2006 he was in possession of a prohibited firearm, namely a .22 calibre pen gun. The effect of s 25(2) and s 33(2) of the Drug Misuse and Trafficking Act 1985 is that the maximum penalty for the Count 1 offence is twenty years’ imprisonment and a substantial fine. It attracts a standard non-parole period of ten years. The maximum penalty for the offence in Count 2 is fourteen years’ imprisonment: s 71 of the Firearms Act 1996. It attracts a standard non-parole period of three years. The sentencing judge took into account on a Form 1 a further five matters. These were having in possession money that was suspected of being stolen or otherwise unlawfully obtained, comprising slightly over $8,000.00, receiving stolen property comprising a large amount of property found in his premises which he had taken in payment for drugs, the possession of a Taser, a replica Beretta pistol and a home made numchuka. So far as the first of these charges is concerned, it is so closely linked to the supply of amphetamines comprising the principal offence against the applicant that the possession of the money, in my view, should not result in any significantly heavier penalty. As to the second, it is notorious that addicts steal property to pay for their drugs. The charge of supply necessarily involves buying and selling drugs; the fact that the stolen property itself is the “currency” as distinct from having first been converted into cash is not a difference in substance. In my view the illicit character of the elements of the trade is already factored into the heavy penalties provided for drug dealing offences and it is double punishment to add significantly to the punishment for the dealing offence in respect of these matters. The same cannot be said for the other two offences, though I rather think that possession of the numchuka is relatively trivial.
The applicant was sentenced on 9 May 2007 to a fixed term of eighteen months’ imprisonment on the second count, commencing 14 June 2006 and expiring on 13 December 2007 and, in respect of the first count, to a non-parole period of four years commencing on 14 December 2006 and expiring 13 December 2010, the balance of term of two years and six months expiring 13 June 2013. It will be seen, therefore, that the sentences for these offences involved an accumulation of six months imprisonment. The overall sentence was accordingly seven years with a non-parole period of four years. On the face of it, this appears to be a lenient sentence and certainly far from excessive. However, as will be seen, it is necessary to take into account, in the public interest, a very significant discount.
The applicant seeks leave to appeal from the sentence imposed on Count 2.
The facts
The facts were not in dispute and the following summary is taken largely from the judgment of the sentencing judge. During an authorised control operation police arranged for an undercover operative to purchase amphetamine on the applicant on four occasions: 2, 3 and 6 March and 14 June 2006. The details of the quantities involved are regrettably omitted from the Statement of Facts and not the subject of evidence. All that appears is that on each of the four occasions the applicant supplied an amount of methylamphetamine, the purity of which ranged from 36% to 56.5%. In respect to the last transaction, the facts allege that the amount purchased was half an ounce (near enough to 14 grams) of amphetamine for $2,100.00. It appears to be common ground that the total quantity of the drugs supplied on these occasions was less than the commercial quantity of 250gm. Following the final transaction, police arrested the applicant at his home. The cash which comprised the first charge on the Form 1 was found in his pockets and the applicant said it was the proceeds of supplying amphetamine. There is no basis for disbelieving this admission. The weapons were also found during this search together with a number of satchels and a resealable plastic bag containing amphetamine. Again, there is no evidence as to the quantity of these drugs. Indeed, that they were amphetamines rests entirely upon the admission of the applicant; for some reason no certificates of analysis were tendered.
Following his arrest, the applicant was interviewed by police and candidly admitted that he had been supplying significant amounts of amphetamine for about eight months. These admissions, it is accepted, were the only evidence possessed by the police as to his drug dealing in addition to the four transactions which I have already mentioned. The applicant told police that he would occasionally supply twenty or twenty-five persons a day with amphetamines, sometimes much less, depending on how much money or goods the buyers were able to offer. He admitted that he might sell half an ounce a day. So far as a single transaction is concerned, he said the largest amount he had sold was the half-ounce which was sold to the police undercover operative. The applicant told police also that he used about 2 grams of amphetamines a day.
The sentencing judge (rightly, in my respectful opinion) characterised the applicant’s dealing as involving more than mere street level supplying. His Honour found that the applicant was not only able to maintain his own habit but also was able to live off the proceeds but commented that there was no suggestion that the applicant’s “lifestyle was extravagant”.
The commercial quantity prescribed in respect of amphetamines is 250 grams or more up to less than 1 kilogram at which point the quantity is a large commercial quantity. Although the amount of drugs supplied is by no means the only matter to be taken into account in determining the objective seriousness of the offence, it is perhaps the most significant feature. Furthermore, since the objective seriousness of the offence increases with the quantity, the standard of proof of the supply of a greater amount than the minimum prescribed by the offence must be beyond reasonable doubt. The admission implicit in the plea is just that the applicant supplied more than 250 grams and less than 1 kilogram. The admission by the applicant that he “might sell half an ounce per day”, obviously does not permit the conclusion that he sold half an ounce per day. The eight-month period of dealing comprises 240 days. On the assumption that the applicant dealt every day, the sale of 4 to 5 grams a day would total a kilogram or thereabouts. On the other hand, if the applicant sold on average even 10 grams a day, the amount involved would be a total of 2.4 kilograms, more than twice the large commercial quantity. Clearly enough the applicant could not – whatever the facts tendered might have established – be punished for selling any quantity greater than 1 kilogram.

It is necessary to approach the question of quantity realistically whilst accepting that the evidence is very uncertain and not losing sight of the fundamental importance of applying the standard of poof to the issue.
The sentencing judge did not attempt to quantify the amount of drugs sold but, rather, took an overall view of the level of objective seriousness, which must have comprehended, as the most significant features, the quantity of drugs dealt, the period of dealing and the level in the hierarchy at which the dealing occurred. His Honour said, in respect of Count 1, that “bearing in mind that the offence was committed apparently over an eight month period, I am of the view that this should be assessed, objectively speaking, as being not quite at the mid-range of seriousness …” adding that, in respect of both matters, “there are findings of special circumstances”. This would suggest a non-parole period of something less than ten years to be further diminished by virtue of the special circumstances.
In addition to special circumstances were what his Honour described as “strong subjective features”, which would have suggested a further reduction in the significance of the indicative non-parole period. (I have expressed it this way because it is wrong to start with the standard non-parole period and then reduce or add to it as the subjective features are brought to bear.)
Of course, it is not appropriate to approach the question of sentencing arithmetically. But that is not to say that the process of sentencing is should not be systematic and logically coherent. I do not doubt, if I may respectfully say so, that the sentencing judge approached his Honour’s sentencing task in this case in that way. The above analysis is undertaken for the purpose of appreciating the elements of that approach and the way in which they interacted to produce the ultimate outcome.
Also of considerable importance for the purpose of assessing objective seriousness in respect of a drug dealing offence is the place of the offender in the hierarchy of supply. As the sentencing judge observed, the applicant was not a street level supplier but, as I understand his Honour’s reasons, he thought the applicant was one rung above that level. As far as this aspect of objective seriousness is concerned, accordingly, the applicant’s drug dealing was significantly less than in the mid-range of seriousness. It seems to me that this is the view taken by the sentencing judge as, having regard to the quantity of drugs dealt by the applicant, it would be otherwise difficult to see his Honour’s view that, overall, the objective seriousness was something less than the middle of the range.
If this interpretation of the sentencing judge’s reasons is a fair one – and I believe it is – I would not be prepared to depart from his Honour’s assessment of objective seriousness as something less than the middle of the range although, as must already be apparent, the evidentiary basis for that finding is somewhat exiguous.
The utilitarian discounts
Three significant features quite apart from the ordinary subjective factors were of great importance in sentencing this applicant. The first is that by virtue of his early plea, a utilitarian discount of 25% was given. The trial judge also took into account information provided by police warranting a significant further reduction to the applicant’s sentence pursuant to s 23 of the Crimes (Sentencing Procedure) Act 1999. The applicant had made full disclosures to the police, as I have said, of the scale of his dealing without which he certainly could not have been charged with the offence in the first count: The police had evidence (it seems, though as I have said, the quantities sold to the undercover operative are unknown except for the last deal) that could have justified a charge only in relation to an indictable quantity. In this respect a further discount of the kind to which R v Ellis (1986) 6 NSWLR 603 referred of 15% was allowed. The total of the discounts applied to the sentence in Count 1 was 65%. The Crown in this Court did not submit that any of these discounts were inappropriate. Although the total discount allowed is exceptionally high, I think it fair to say that this was an exceptional case having regard to the extent of the disclosures.
I have had the benefit of reading the judgment of Bell JA in draft and wish to comment briefly upon her Honour’s observations concerning the Ellis discount with which (with unfeigned respect) I am unable to completely agree. Her Honour referred to Ellis as representing “a useful shorthand way of describing the significant element of leniency that may be extended in a case in which an offender voluntarily discloses his or her guilt of an offence which he or she was not suspected of committing” and being “a powerful factor justifying leniency” in an appropriate case. Ellis certainly was a remarkable case in which the appellant, who had, because of religious convictions, confessed his hitherto unknown involvement in a series of armed robberies. But the significant reduction in sentence that this conduct entails was not confined to the disclosure of unknown offences or unsuspected involvement. Street CJ said (6 NSWLR at 604) –
“When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence.
The leniency that follows a confession of guilt in the form of a plea of guilty is a well recognized part of the body of principles that cover sentencing. Although less well recognized, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned.”
In the present case, although it may well be that the police suspected that the applicant had been trading in drugs well before they mounted the covert operation that culminated in his arrest, the only conclusion from the evidence is that there was no proof – and, realistically could be no proof – of that prior trading except for the applicant’s own candid admissions. That confession provided the crucial evidentiary foundation for the charges to which he pleaded guilty and for which he was sentenced.
With respect, I am unable to see the relevance of the possibility that the applicant might, on the evidence of the covert officers and quite apart from his confession, have been charged with ongoing supply of drugs under s 25A of the Drug Misuse and Trafficking Act 1985. In such a case, the most important feature would remain the scale of his trading. Had the prosecution had no more than the evidence of the police, that element would necessarily have been less by a very substantial margin indeed than that which he voluntarily admitted. Furthermore, it could not have been concluded that he was more, or much more, than a street level supplier.
Accordingly, the Ellis factor (whether quantified or not) must have been a very significant, certainly far more than marginal, feature in sentencing the applicant. The trial judge’s assessment of the appropriate discount was 15%. I think it must inevitably be concluded that this figure was compacted somewhat because of the other discounts (particularly for assistance) and would have been greater but for them. At all events, the Crown did not submit in this Court that this discount was in the slightest degree excessive.
Regrettably, the sentencing judge’s reasons did not explain whether he applied the combined discount of 65% to the initial sentence which he, absent the discounts, would have imposed or that he applied them serially in the way described by Hodgson JA in R v MP [2003] NSWCCA 195. It now seems to be accepted that both methods may be used but, given the different outcomes, it is important that the sentencing judge makes it clear which method is adopted: R v Frank Waqa [No 2] (2005) 156 Crim App Rep 454. The reason why this is important in this appeal is that if the sentencing judge applied a combined discount a starting point of 18½ years would be implied which, the Crown concedes rightly, would be an undoubtedly excessive sentence and entirely inconsistent with the finding accepted by the Crown as appropriate, that the applicant’s offence was “not quite at the mid-range of seriousness”. On the other hand, had the sentencing judge applied the discounts serially, that would have implied a starting point of about thirteen years and four months. In other words, the arithmetic result of serial calculation leads to a discount to the overall sentence of about 50%.
Although, the sentencing judge did not explicitly state which method he used, I am of the view that he did apply the discounts serially, principally because I do not believe that his Honour could have thought that a starting point of the order of eighteen years was appropriate. Furthermore, such a sentence would have implied a non-parole period well in excess of the standard non-parole period, and far greater than would have been appropriate in light of his Honour’s finding that the offence was “not quite at the mid-range of seriousness”. Considering the count 2 offence in isolation, the “signpost” would point to a non-parole period of about eight or nine years, which would, in turn, point to a head sentence of about eleven to twelve years. To this must be added some period for the Form 1 offences. On the other hand, there must be some allowance also for subjective features.
Subjective features
In addition to the discounts to which I have referred and leaving aside a relatively unremarkable life history, the most material subjective features were that the applicant was genuinely remorseful and probably had good prospects for rehabilitation. The applicant was 43 at the time of the offences. His criminal history disclosed convictions in 1990 for supplying prohibited drug. He was sentenced to concurrent terms of imprisonment of eighteen months plus additional terms of six months for 17 counts of supply and 29 other counts were taken into account in what was then a Form 2. These offences constituted a breach of a three-year recognisance which had been earlier imposed that year for supplying a prohibited drug. In February 2007 the applicant was fined for possessing a prohibited weapon without a permit and possessing a prohibited drug. These convictions were by no means insignificant, yet they revealed offences which had occurred a considerable time before the current offences. There was evidence which, I think, was accepted by the sentencing judge, that the applicant’s drug dealing commenced when workers compensation payments for a work injury ceased and he needed the income from dealing mainly to provide financial support but also to pay for his own amphetamine addiction.
Discussion
The fundamental question to be determined on this appeal is whether in regard to all the objective and subjective features and, in particular, the discounts which were given, the applicant’s sentence is manifestly excessive.
In my view, the sentence on Count 1 (taking into account the Form 1 offences) is manifestly excessive. The sentencing judge’s assessment, in effect, of a non-parole period of somewhat less than ten years as a signpost relating to objective seriousness should be accepted for present purposes. I would hold that the starting point of thirteen years and three months before application of the discounts is manifestly excessive, accepting that there was no error in the serial application of the discounts. In reaching this conclusion, I am doing little more than applying the sentencing judge’s own (uncontroversial) conclusions as to the significance of the various relevant elements going into the sentencing process. It seems to me, with respect, that it is not appropriate to evaluate them on some different basis.
I have already mentioned the sentence to which the signpost of a non-parole period of eight or nine years points. There must be some increase for the Form 1 offences (which, for the reasons I have already given, I think should not be substantial). It is necessary nevertheless to assess the objective seriousness in a general way, bearing in mind that the process is not arithmetical and the standard non-parole period is but one material factor. Read for the applicant on the appeal is an affidavit to be used in the event of resentencing. That affidavit shows that the applicant’s rehabilitation is proceeding well. When taking into account the subjective features, in particular the genuine remorse, of the applicant my view is that the appropriate starting point before discounting is ten years. Applying the sentencing judge’s mode of calculating the discounts, this would yield an overall sentence of four years and nine months and result in a non-parole period of three years and six months (rounding down slightly). Accepting the sentencing judge’s view of the applicant’s rehabilitation prospects, I would find special circumstances and reduce the non-parole period to three years.
It is necessary to consider whether this sentence is “unreasonably disproportionate to the nature and circumstances of the offence”. I do not believe that it is. Of course, it is disproportionate to the nature and circumstances of the offence but it is not unreasonably so to my mind, firstly because I consider that the sentence is a substantial one and, secondly because it is necessary in the public interest to give the significant discounts that apply to the circumstances here. Nor do I see how it is in the public interest to break faith with the applicant who would rightly have been advised that he would receive a discount of roughly that which was afforded him.
Proposed orders
I propose the following orders –
1. Leave to appeal is granted.
2. The sentence for Count 1 is quashed. In lieu thereof the appellant is sentenced to a non-parole period of three years commencing on 14 December 2006 and ending on 13 December 2009; the balance of his sentence is one year and nine months ending on 13 August 2011. The earliest date upon which the appellant is eligible to be released on parole is 13 December 2009.
LATHAM J: I agree with Bell JA.

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LAST UPDATED:
11 August 2008