Smaragdis v R

[2010] NSWCCA 276

New South Wales
Court of Criminal Appeal

CITATION:	Smaragdis v R [2010] NSWCCA 276
HEARING DATE(S):	22 October 2010
JUDGMENT DATE:	30 November 2010
JUDGMENT OF:	Simpson J at 1; Fullerton J at 2; RA Hulme J at 56
DECISION:	1. Leave to appeal against sentence granted. 2. Appeal allowed. 3. Sentences imposed in the District Court quashed and in lieu thereof the following sentences are imposed: On the count of knowingly dealing with the proceeds of crime - a fixed term of 6 months commencing on 25 January 2010 and expiring on 24 July 2010. On the count of possessing the prohibited weapon - a non-parole period of 6 months commencing on 25 April 2010 expiring on 24 October 2010 and a balance of term of 4 months expiring on 24 February 2011. On the count of supplying cocaine - a non-parole period of 14 months to date from 25 September 2010 and expiring on 24 November 2011 with an additional term of 11 months expiring on 24 October 2012.
CATCHWORDS:	CRIMINAL LAW - appeal against sentence - supply prohibited drug - knowingly deal with proceeds of crime - possess prohibited weapon - whether sentencing judge failed to properly consider alternatives to full-time custody - whether sentencing judge failed to properly account for remorse - exceptional circumstances - whether sentences manifestly excessive - structure of sentence
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Weapons Prohibition Act 1998
CASES CITED:	Clarke v R [2009] NSWCCA 49 Hayek v R [2010] NSWCCA 139 Kite v R [2009] NSWCCA 12 Pham v R [2010] NSWCCA 208 R v Cacciola [1998] NSWSC 531; 104 A Crim R 178 R v Carrion [2000] NSWCCA 191; 49 NSWLR 149 R v Clark (Court of Criminal Appeal, 15 March 1990, unreported) R v Curtis (Court of Criminal Appeal, 22 April 1993, unreported) R v Douar [2005] NSWCCA 455; 159 A Crim R 154 R v Harmouche [2005] NSWCCA 398; 158 A Crim R 357 R v Hawkins (Court of Criminal Appeal, 12 September 1991, unreported) R v McArthur [2002] NSWCCA 390 R v Nasr [2004] NSWCCA 441 R v Saba [2006] NSWCCA 214 Santos v R [2010] NSWCCA 127 Vuni v R [2006] NSWCCA 171
PARTIES:	Terry Smaragdis (App) The Crown (Resp)
FILE NUMBER(S):	CCA 2009/11247
COUNSEL:	G Thomas (App) V Lydiard (Resp)
SOLICITORS:	Direct brief (App) Director of Public Prosecutions (Resp)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2009/11247
LOWER COURT JUDICIAL OFFICER:	Sorby DCJ
LOWER COURT DATE OF DECISION:	3 February 2010

- 1 -

2009/11247

SIMPSON J
FULLERTON J
RA HULME J

30 NOVEMBER 2010

Terry SMARAGDIS v R

JUDGMENT

1 SIMPSON J: I agree with Fullerton J.

2 FULLERTON J: The applicant seeks leave to appeal against sentences imposed in the District Court on 3 February 2010 after he pleaded guilty in the Local Court on 20 July 2009 to one count of supplying a prohibited drug, namely cocaine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985, one count of knowingly dealing with the proceeds of crime contrary to s 193B(2) of the Crimes Act 1900 and a further count of possessing a prohibited weapon, in this case a weapon known as a taser, contrary to s 7 of the Weapons Prohibition Act 1998.

3 The amount of cocaine the subject of the supply count was 25.6 grams. It carries a maximum penalty of 15 years imprisonment and/or a fine of $220,000. The proceeds of crime offence involved the sum of $8023. It carries a maximum penalty of 15 years imprisonment. The maximum penalty for a breach of s 7 of the Weapons Prohibition Act is 14 years imprisonment, to which a standard non-parole period of 3 years applies.

4 The applicant was sentenced to what his Honour specified as a “non-parole period” of 6 months commencing on 25 January 2010 for the proceeds of crime offence and a partially accumulated “non-parole period” of 10 months commencing on 25 April 2010 for possession of the taser. In respect of the supply of cocaine he was sentenced to imprisonment for 25 months comprised of a further partially accumulated non-parole period of 15 months to date from 25 October 2010 with an additional term of 10 months. In the result, an aggregate sentence of 2 years and 10 months was imposed comprised of a non-parole period of 2 years and an additional term of 10 months.

The findings of fact for sentencing purposes

5 At about 10.20pm on 10 February 2009 the applicant was observed by police in the driver’s seat of a Ford utility which was parked in a car park in a parking area at Picnic Point. As the police approached they detected the scent of cannabis emanating from the vehicle. The applicant was cautioned and his vehicle was searched.

6 The police located what was later confirmed to be a total of 25.6 grams of cocaine in a number of resealable plastic bags underneath the driver’s seat. A number of items indicative of drug supply were also located in the vehicle including a bag of bicarbonate soda, electronic scales, a bag containing hundreds of unused small plastic resealable bags, an open packet of Glucodin, two mobile telephones, a mortar and pestle, a small black note book, and a plastic cylinder containing a measuring cup. They also located cash in the total amount of $15,823 of which $8032 was held to be the proceeds of crime.

7 The taser and a re-charger were located behind the passenger seat. In the certificate from the ballistician who determined that the item was a prohibited weapon under the Weapons Prohibition Act, the taser was described as a handheld or anti-personnel device. He went on to describe it as being fitted with two static contacts designed to be pushed against the target by the operator which discharged an electrical current when the firing switch was activated. An electric arc is also clearly visible between the pair of electrodes, accompanied by a loud noise, when the switch is activated. The weapon did not have the capacity to fire a projectile in the form of what was described as a “taser dart”.

8 During the search of his car the applicant made a number of admissions concerning his possession of the cocaine. He also told police that he was effectively living in the car.

9 In an affidavit tendered in the sentence proceedings the applicant accepted “unreservedly” that he was involved in the supply of drugs and that the money found by police was substantially derived from the sale of drugs. He also gave evidence that he had developed an addiction to cocaine over the 12 months or so prior to his arrest. His Honour accepted that his drug use was associated with financial stress and depression following the collapse of his business as an on-site servicer of hydraulic equipment, which was due in part to a downturn in the industry and compounded by an incapacitating workplace injury the applicant suffered to his knee. The business was acquired in 2005. The purchase was funded by money the applicant borrowed from his mother which he was unable to repay when the business was sold at a considerable loss in October 2008.

10 In his affidavit he said he initially purchased cocaine for his own use from the proceeds of the sale of his business and, when those funds were exhausted, he serviced his addiction by selling cocaine to other users. The cocaine was acquired on credit in wholesale quantities of an ounce. The effect of his evidence was that he had sold cocaine to the value of about $7000 for six weeks or so prior to his arrest. The amount of cocaine supplied was not identified. The amount of the drug in his possession when he was arrested was, it would seem, part of the cocaine he had acquired in a wholesale quantity although not necessarily the residue of the ounce he spoke of in his evidence.

11 The applicant was not sentenced on the supply count for having actually supplied cocaine over this six-week period, or for having actually supplied the drug at all. He was charged (and sentenced by his plea of guilty) on the basis of the cocaine in his car to which the extended definition of supply under the Drug Misuse and Trafficking Act applied, namely that it was in his possession for the purposes of supply. The evidence of his actual supply of other quantities of the drug and the circumstances in which that occurred (evidence that was apparently led by the applicant’s counsel for other forensic purposes) was, however, relevant to the question whether exceptional circumstances were made out such as to enliven the sentencing discretion to permit his Honour to impose a non-custodial sentence.

12 His Honour considered that the objective seriousness constituted by the supply charge was below the mid range given the amount of cocaine involved. That said, the fact that the supply charge involved five times the indictable quantity was itself, in my view, sufficient to warrant it being described as trafficking to a substantial degree. He was also satisfied that the proceeds of crime offence fell below the mid range of objective seriousness having regard to the amount of money involved. In so far as the weapons offence was concerned, he found that whilst the applicant’s possession of the taser was objectively serious, given that it was a weapon that had the capacity to maim or immobilise a person by delivering an electric shock, the nature of the weapon (I assume relative to other weapons comprehended by s 7 of the Weapons Prohibition Act) also warranted a finding of objective seriousness below the mid range.

The applicant’s subjective circumstances

13 The applicant was 27 years of age at the time of sentence. He had no criminal record. He left school at School Certificate level in 1998 and undertook an automotive apprenticeship. He completed a three-year course at TAFE to that credit level. On acquiring his trade qualifications he found work in the industry.

14 His Honour noted the applicant’s failed business venture and the deteriorating mental and physical health he suffered as a consequence in 2008 and the adverse impact this had on his domestic relationship with his mother and other members of his family. Although the applicant did not seek psychiatric intervention at that time, and sought no assistance with respect to addressing his use of drugs as a means of dealing with his circumstances, he actively sought professional help after his arrest and his release to bail. In April 2009 the applicant was assessed by Hadi Stambouliah, psychologist, as presenting with symptoms of an adjustment disorder, obsessive-compulsive worry, depression and anxiety. He noted that the applicant did not complain that he was suffering from depression at the time of the offending but that he was using drugs at that time to ease the mental and physical strain associated with the loss of his business and the injury to his knee and domestic pressures in the family home. Mr Stambouliah reported that the symptoms of depression and anxiety had progressively ameliorated over the course of regular therapy sessions the applicant attended up to and including November 2009. His Honour also noted that the applicant had undergone major reconstructive surgery on his knee since his arrest. In his reasons for sentence he quoted the following paragraph from the applicant’s affidavit with approval:

“Since my arrest I have got myself back in a position that I was prior to having commenced my downward spiral and the taking of illicit drugs. With the help of my psychologist I am now better equipped to deal with the stresses that I had previously confronted and any new stresses that may present to me. My relationship with my mother has grown and as a result I know that should I face difficulties in the future, I can discuss these with my mother and seek her assistance and guidance. Since my arrest I have not taken any illicit drugs and have promised not only to myself but my family that I would never again engage in the conduct that I am to be sentenced about before this court.”

15 His Honour noted that the applicant reported to the psychologist that he felt guilt and remorse at having been arrested and charged with supplying drugs and that in the Probation and Parole Service report he did not attempt to justify his conduct. The reporting officer considered him to be genuinely remorseful and that he had taken positive steps to change his lifestyle, including severing contacts with his previous associates. This was confirmed by his mother. His Honour accepted the applicant’s remorse as genuine despite the fact that no evidence was led from him on the question.

16 His Honour also noted the applicant’s history of drug use and the steps he had taken to address his addiction as set out in the Probation and Parole Service report. This, together with a number of letters testifying to the fact that the applicant had remained drug-free since his arrest, satisfied his Honour that rehabilitation had progressed to the point where special circumstances were made out for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Act”), thereby entitling him to vary the statutory ratio between the non-parole period and balance of term on the supply count.

17 His Honour also accepted that the applicant had pleaded at the first opportunity entitling him to a discount of 25 per cent for the utilitarian value of the plea of guilty.

Grounds of appeal

18 In the applicant’s filed submissions four grounds of appeal were nominated:

(i) The sentencing judge erred by failing to properly consider alternatives to full-time custody;
(ii) The sentencing judge erred by failing to find exceptional circumstances such as would justify the imposition on a non-custodial sentence in accordance with Clarke v R [2009] NSWCCA 49;
(iii) The sentencing judge erred by failing to properly account for the applicant’s remorse;
(iv) The sentences imposed are manifestly excessive.

19 In supplementary submissions, filed three days before the hearing of the appeal, the applicant’s counsel mounted an additional challenge to the structure of the sentences by reason of what he submitted was a sentencing error in the partial accumulation of the sentences for each of three counts, which effectively negatived his Honour’s finding of special circumstances, and what he submitted was a further sentencing error in the imposition of a non-parole period for both the proceeds of crime charge and the weapons charge without specifying any balance of term as required by s 44 of the Sentencing Act.

20 For the following reasons I am not satisfied that any of the filed grounds of appeal are made out. I am satisfied, however, that error has been demonstrated in the way his Honour has structured the sentence, in particular because of the sentence imposed on the weapons charge.

Ground 1: The sentencing judge erred by failing to properly consider alternatives to full-time custody

21 The sentencing remarks make it clear beyond any question that his Honour was satisfied that nothing less than a full-time custodial sentence was appropriate, and that alternatives to full-time imprisonment (particularly periodic detention as the option urged upon him by the applicant’s counsel) would be an inadequate reflection of the objective seriousness of the offences, in aggregate, and the need for general deterrence.

22 The applicant submitted that in approaching the question in this way the sentencing judge failed to engage in the three-stage process referred to in R v Douar [2005] NSWCCA 455; 159 A Crim R 154 at [69]-[72] where Johnson J said the following:

[69] Although the authorities speak of a two-stage process, it is preferable to step back a stage and to identify a three-stage process in passing a sentence of imprisonment to be served by way of periodic detention. Each step requires the Court to consider the objective gravity of the offence balanced against the subjective circumstances of the offender, but it is the first of those considerations that will principally determine which of the available sentencing alternatives the Court should adopt: Zamagias at paragraph 23.

[70] The first question to be asked and answered is whether there are any alternatives to the imposition of a term of imprisonment. Section 5 prohibits a Court from imposing a sentence of imprisonment unless the Court is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. At this stage in the process, the only consideration is whether a sentence of imprisonment should be imposed, and not the manner in which that sentence of imprisonment is to be served: Zamagias at paragraph 25.

[71] The second step is reached where the Court has determined that no penalty is appropriate other than a sentence of imprisonment. The Court is next to determine what the term of that sentence should be. This has been regarded as the first step of a two-step approach: Foster at paragraph 30; Zamagias at paragraph 26. The determination of the term is to be made without regard to whether the sentence will be immediately served or the manner in which it is to be served. This is because any of the alternatives available in respect of a sentence of imprisonment can only be considered once the sentence has been imposed. It follows that the term of the sentence cannot be influenced by what order might be made after the sentence has been imposed. The sentence cannot be increased because it is to be served by way of periodic detention: Wegener at paragraph 22; Zamagias at paragraph 26.

[72] The third stage is reached once the length of the sentence of imprisonment has been determined. The Court is then to consider whether any alternative to full-time imprisonment is available in respect of that term and whether any available alternative should be utilised. The availability of an alternative to full-time custody will generally be governed by the length of the term that has been determined, subject to the restrictions or preconditions imposed by the legislature on a particular sentencing alternative. The appropriateness of an alternative to full-time custody will depend upon a number of factors; one of importance being whether such an alternative would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purpose of punishment. The Court in choosing an alternative to full-time custody cannot lose sight of the fact that the more lenient the alternative, the less likely it is to fulfil all the purposes of punishment: Zamagias at paragraph 28.” (emphasis added)

23 The applicant submitted that his Honour applied the first step in the sentencing process outlined by Johnson J, and determined that no penalty other than imprisonment was appropriate, but ignored the second and third steps by failing to properly consider whether the effective sentence of imprisonment of 2 years and 10 months could be served by way of periodic detention. This, he submitted, was an available sentencing option for offending of the kind for which the applicant was being sentenced.

24 The Crown submitted that the sentencing judge did follow the three-step approach in Douar and that he simply expressed his findings in inverse order in response to the primary submission advanced by the applicant’s counsel in the sentence proceedings that the general principle requiring the imposition of a sentence of full-time custody for the supply of drugs had been displaced. Despite not pronouncing the length of the sentence he intended to impose for each offence before resolving to sentence the offender to full-time custody, the Crown submitted that his Honour clearly considered the option of periodic detention but determined it was not appropriate given the objective seriousness of the offences as a whole.

25 I do not consider that his Honour’s approach involves error and, accordingly, I would reject the first ground of appeal.

Ground 2: Failure to find exceptional circumstances

26 After referring to the statement of general principle in Clarke, his Honour rejected the submission advanced by the applicant’s counsel that the case was one where exceptional circumstances presented such that a non-custodial sentence was an available sentencing outcome. His Honour said:

“…there are no exceptional circumstances in this case. Here the offender was a full time drug supplier, albeit with an addiction problem. His ute was his business. He carried a gun. He had a considerable amount of cash on him to pay his wholesaler and profit from the sale of drugs…”.

27 In his supplementary written submissions, which were developed further in oral submissions on the hearing of the appeal, the applicant’s counsel challenged his Honour’s reference in the above extract to the applicant “carrying a gun” and using the car for his business on the basis that they were findings of fact that were unsupported by the evidence and for that reason should not have been treated as aggravating factors. He also submitted that the applicant was effectively sentenced twice for the same conduct in circumstances where the sentencing judge took his possession of the money and his possession of the weapon into account when assessing the objective seriousness of the supply count and then partially accumulated the sentences on the two substantive counts that focused on this conduct both with each other and with the supply count.

28 While the actual or threatened use of a weapon is an aggravating factor under s 21A(2)(c) of the Sentencing Act, as is the fact that the offence was committed for financial gain (see s 21A(2)(o)), there is nothing in the sentencing remarks to support the submission that they were treated as aggravating factors. I am not persuaded that the extract that counsel focused upon should be interpreted that way when his Honour made reference to the applicant “carrying a gun”. As I see it, he was merely emphasising, in a shorthand way, his finding that the applicant was involved in the business of supplying drugs and that he had a weapon available to him for an offensive or defensive purpose related to the supply of cocaine - a finding that was entirely open on the evidence - as distinct from him having in fact used the taser for that purpose. I note that there was no evidence from the applicant, or otherwise in the materials tendered on his behalf, that might have explained his possession of the taser otherwise than for use as an accessory to his business. Although there was a spirited challenge to the sentencing judge’s remarks that the applicant was using his motor vehicle to carry on his business of supplying drugs, again I regard this as a finding open on the evidence. The fact that he was effectively living in his car because of a breakdown in his family situation, in part because of his mother’s suspicions about his drug use, does not diminish the fact that various accessories to facilitate the supply of drugs were located in the car. I will return to consider whether there should be some amelioration of the degree of accumulation in the re-sentencing exercise.

The question of exceptional circumstances

29 The applicant’s counsel submitted that the finding that there were no exceptional circumstances was contradicted by the evidence. In his submission the evidence established what he described as “wholly exceptional” subjective circumstances which, coupled with the finding that the offending was below mid range, warranted a departure from the general rule requiring the imposition of a full-time custodial sentence. He identified these subjective circumstances as the applicant’s addiction to cocaine (the onset of which was coincident with significant personal stresses and ill health), that he had no criminal record, that he had good prospects of rehabilitation and was unlikely to re-offend, that he was in employment at the time of sentence, that he pleaded guilty at the first opportunity and that he has shown remorse.

30 As this Court has repeatedly emphasised, when sentencing offenders who have supplied drugs to any significant degree, the general principle is that the imposition of a full-time custodial sentence is necessary to reflect the need for general deterrence (even where the quantity of drugs involved reduces the objective seriousness to below mid range), and that only in the exceptional case, where the applicant’s subjective circumstances can be shown to mitigate the objective gravity of the offending in such a way as to distinguish it from the general run of cases, will a non-custodial sentence be appropriate.

31 Most recently, in Santos v R [2010] NSWCCA 127 Latham J cited the observations of Handley JA in R v Saba [2006] NSWCCA 214 at [17]-[19] where his Honour noted that although the statement of general principle predates the decision in R v Clark (Court of Criminal Appeal, 15 March 1990, unreported), that decision is commonly cited as the seminal authority. In Saba, his Honour also noted that while the Court has not undertaken an exhaustive definition of what does and does not constitute exceptional circumstances there are nevertheless some clear guidelines that have emerged. In particular, the authorities have made it clear that a plea of guilty, remorse, an intention not to re-offend and proven rehabilitation in relation to an offender’s drug use, even where such circumstances can in combination be described as strong, are not matters of mitigation constituting an exceptional reason for departing from the general principle unless the aggregate of the circumstances point to the case being one of real difference from the general run of cases (see for example the analysis by Grove J in R v Carrion [2000] NSWCCA 191; 49 NSWLR 149 at [28] and [31] and R v Cacciola [1998] NSWSC 531; 104 A Crim R 178, both noted by Latham J in Santos at [30]).

32 The Crown referred to a number of authorities in order to distinguish between what this Court has regarded as a combination of strong subjective circumstances, even amounting to a powerful subjective case, but falling short of exceptional circumstances and cases which are distinguished in some material respect from the general run of cases such as to warrant a finding that the particular circumstance can properly be regarded as exceptional.

33 In R v Hawkins (Court of Criminal Appeal, 12 September 1991, unreported) this Court was not satisfied that exceptional circumstances were established where the offender was found with less than the trafficable quantity of prohibited drugs (in that case heroin in small but saleable quantities), where she had a minor record of prior criminal convictions, had cooperated with the police, had entered into a methadone program since the offending, and had been assessed as suitable for a community service order. Despite having a strong subjective case she received a sentence of full-time custody.

34 In R v Curtis (Court of Criminal Appeal, 22 April 1993, unreported) this Court was satisfied that the offender’s involvement as an intermediary in the supply of cocaine, even as a one-off offence, was not sufficient to treat the case as exceptional. The Crown appeal against the inadequacy of a sentence to be served by way of periodic detention was upheld and a period of full-time custody was substituted. I note that the quantity of drugs supplied was 338 grams and that the offender was rewarded by being provided with drugs worth $1,000.

35 Similarly, in R v McArthur [2002] NSWCCA 390 a relatively low level of culpability and a powerful subjective case were found to be insufficient to constitute exceptional circumstances. In that case the offender provided assistance to a friend’s drug supply operation whilst he was hospitalised for a short time, without any financial benefit or expectation that there would be a financial benefit when the offender supplied drugs on her friend’s behalf.

36 In R v Nasr [2004] NSWCCA 441 this Court found that an offender’s subjective case comprised of an early plea, remorse, significant progress towards drug rehabilitation, permanent employment for nearly two years since his release to bail and no prior criminal history, whilst impressive, was not exceptional and a sentence of full-time custody was substituted for a sentence to be served by periodic detention. In that case the offender was a member of a syndicate involved in the distribution of drugs in which he was involved on a daily basis for at least 10 days.

37 The applicant did not take the Court to any comparative cases or seek to distinguish those cases to which the Crown referred.

38 In oral submissions, he did submit that the applicant’s demonstratively positive rehabilitation in overcoming his drug addiction since his arrest was a feature of his subjective case which was exceptional. In support of that submission he referred the Court to R v Harmouche [2005] NSWCCA 398; 158 A Crim R 357 where at [52] Hulme J said:

“…the achievement of rehabilitation does not of itself constitute exceptional circumstances justifying a sentence other than full time custody albeit if there is evidence that full time custody is likely to have the effect of nullifying rehabilitation previously effected, the situation may be different…”.

39 He did not, however, point to any evidence before the sentencing judge which might have supported the submission that the applicant’s rehabilitation and drug-free status at the time of sentence would likely be nullified in some material way by a sentence of full-time custody.

40 Although his Honour grounded his finding that there were no exceptional circumstances largely by reference to the objective circumstances of the offending and, in particular, the clear commercial overtones giving context to the supply count elsewhere in his reasons for sentence, he gave consideration, and what I regard as appropriate weight, to the applicant’s subjective circumstances as part of the sentencing exercise. I am not persuaded that the features of the applicant’s subjective case relied upon by the applicant’s counsel, either individually or in aggregate, warranted a finding of exceptional circumstances, or that there are other features of the offending which serve to distinguish this case from what have emerged in the collected authorities as a general category of drug supply cases. Accordingly, I would dismiss the second ground of appeal.

Ground 3: Failure to properly account for remorse

41 It was submitted that evidence of the applicant’s remorse, which was accepted by the sentencing judge as genuine, should have been taken into account as a discrete mitigating factor justifying a discount on sentence in addition to the 25 per cent discount allowed for the utilitarian value of the plea.

42 As Simpson J observed in Pham v R [2010] NSWCCA 208 at [12], remorse which has always been a factor taken into account in mitigation is now regulated by s 21A(3)(i) of the Sentencing Act, which provides that it is to be regarded as a mitigating factor:

"... but only if:
(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and
(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)”.

43 While it was not submitted that the sentencing judge should have given a specifically weighted discount for remorse alone (see Kite v R [2009] NSWCCA 12 at [32]), or that it ought to have been included as a factor contributing to the 25 per cent discount for the plea of guilty, it was submitted that the sentencing judge should have specifically referred to s 21A(3)(i) and reduced the sentence to account for remorse over and above the 25 per cent for the utilitarian value of the plea. The difficulty with that submission is that his Honour expressly referred to remorse and, implicitly at least, took it into account as one of a number of factors in mitigation under s 21A of the Sentencing Act, when, after referring to his remorse, his lack of criminal antecedents and his drug addiction he said:

“There are no further factors in mitigation or aggravation under s 21A of the Crimes (Sentencing Procedure) Act 1999 other than those to which I have already referred”. (emphasis added)

44 In my view there is nothing to indicate that his Honour did not give appropriate weight to the applicant’s remorse as one of a number of interrelated considerations in the sentencing exercise.

45 I would reject the third ground of appeal.

Ground 4: The sentences are manifestly excessive

46 The applicant submitted that the sentences imposed were manifestly excessive having regard to the objective criminality constituted by each of the offences as below mid range and what he submitted was the applicant’s powerful subjective case.

47 The principles to be applied in determining whether a sentence is manifestly excessive were recently restated by this Court in Hayek v R [2010] NSWCCA 139 at [37]:

“…[T]he task is not for this Court to decide whether it would have exercised its discretion differently. The applicant must demonstrate that the sentence was “unreasonable or plainly unjust”: Vuni v R [2006] NSWCCA 171 at [33], citing Dinsdale (2002) 202 CLR 321 at 325; endorsed in Stewart v R [2009] NSWCCA 152 at [16] – [17].”

48 In Vuni v R [2006] NSWCCA 171, Hoeben J said at [33]:

“To establish that a sentence is manifestly excessive an applicant has to demonstrate that the sentence was “unreasonable or plainly unjust” ( Dinsdale (2000) 202 CLR 321 at 325). This has to be established in a context where there is no single correct sentence and that judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. Most pertinently the Court of Criminal Appeal may not substitute its own opinion for that of the sentencing judge merely because it may have exercised its discretion in a manner different from that of the sentencing judge. ( Markarian v The Queen [2005] HCA 25 at [26] – [28]).”

49 The quantity of drugs in the applicant’s possession for the purposes of supply was five times the indictable quantity. The evidence led in the applicant’s case also established that these drugs were part of a commercial enterprise in which the applicant had been supplying cocaine to users of the drug for sometime. While he was not to be sentenced for that offending, I do not regard a sentence of 25 months for the supply of 25 grams, particularised on the basis of the applicant’s possession for supply, as unreasonable or plainly unjust. Leaving aside the challenge to the sentencing order for the remaining two counts, I regard a sentence of 6 months for the weapons offence against a standard non-parole period of 3 years, and 6 months for the proceeds of crime count against a statutory maximum of 15 years, as within the judge’s sentencing discretion and not productive of sentences that could be fairly described as unreasonable or plainly unjust.

Further ground of appeal – structure of the sentence

50 Subject to s 46 of the Sentencing Act which relieves a sentencing court of setting a non-parole period where the sentence does not exceed 6 months, s 44 of the Act requires a court firstly to set a non-parole period, and then to specify the balance of term in accordance with the statutory ratio unless there is a finding of special circumstances. His Honour found that the applicant’s rehabilitation at the time of sentence was a special circumstance warranting the ratio between the non-parole period and the balance of term on the supply count being disturbed. However, after the sentences on each of the three counts were partially accumulated the adjustment to the statutory ratio to reflect the finding of special circumstances was very significantly reduced. The applicant submitted that this constituted a further sentencing error.

51 The Court may decline to set a non-parole period and instead impose a fixed term as provided for in s 45 of the Sentencing Act however, where that course is taken, reasons must be given although, as s 45(4) makes clear, a failure to do so will not invalidate the sentence. While it appears that in imposing partially accumulated “non-parole periods” of 6 months, his Honour may have simply intended to impose partially accumulated ”fixed terms” of 6 months, a fixed term for the weapons offence was not an available sentencing option, it being an offence which carries a standard non-parole period.

52 Since I have rejected each of the filed grounds of appeal, were a fixed term available to be imposed on both the weapons and proceeds of crime counts, this Court could have intervened to correct the error in nomenclature and to have re-sentenced the applicant by substituting fixed terms of 6 months (partially accumulated on each other and on the supply count consistent with the consideration his Honour gave to the principle of totality) and then considered whether there ought to be an adjustment to the ratio between the aggregate non-parole period and the balance of term both to reflect the finding of special circumstances both at first instance and as elaborated by the applicant’s affidavit of 22 October 2010 which was read as part of the re-sentencing exercise. Since that approach is not an option in this case because of the prohibition on the imposition of a fixed term for the weapons offence, the re-sentencing of the applicant will necessarily involve the structure of the sentence being considered afresh both as to the sentences to be imposed on the individual counts and the degree to which they should be accumulated.

Re-sentence

53 The applicant’s affidavit attests to the fact that he has maintained his commitment to remaining drug-free whilst in custody and to seeking assistance from both within the prison system and on his release to address what he recognises as residual risk factors. He has the continued support of his family. In addition, there is evidence of his rehabilitation as a serving prisoner in that he has the responsibility for the repair and maintenance of all mechanical equipment at the prison where he is currently housed. I am satisfied that this reflects that he is both trusted to perform those tasks and he is committed to employing his trade skills for the duration of his sentence.

54 The error in the imposition of non-parole periods on two of the three counts contrary to s 44(2) of the Sentencing Act - an error which can only be corrected by the applicant being re-sentenced and to what I am satisfied must be terms of imprisonment (see s 5(2) of the Sentencing Act) - coupled with his Honour’s finding of special circumstances, further enhanced by the applicant’s evidence to which I have referred, should result, in my view, in a more pronounced adjustment to the statutory ratio and some adjustment to the degree of accumulation across the three counts.

55 I propose the following orders.

1. Leave to appeal against sentence granted.
2. Appeal allowed.
3. Sentences imposed in the District Court quashed and in lieu thereof the following sentences are imposed:

On the count of knowingly dealing with the proceeds of crime - a fixed term of 6 months commencing on 25 January 2010 and expiring on 24 July 2010.

On the count of possessing the prohibited weapon - a non-parole period of 6 months commencing on 25 April 2010 expiring on 24 October 2010 and a balance of term of 4 months expiring on 24 February 2011.

On the count of supplying cocaine - a non-parole period of 14 months to date from 25 September 2010 and expiring on 24 November 2011 with an additional term of 11 months expiring on 24 October 2012.

The sentences I propose result in an aggregate sentence of 2 years and 9 months comprised of a non-parole period of 1 year and 10 months and a balance of term of 11 months.

: I agree with Fullerton J.

**********