West, Trent v The Queen

[2017] NSWCCA 271

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

West, Trent v R [2017] NSWCCA 271

Hearing dates:

8 November 2017

Date of orders:

23 November 2017

Decision date:

23 November 2017

Before:

Gleeson JA at [1]; Rothman J at [4]; Hamill J at [74]

Decision:

(1)   Leave to appeal against sentence be granted;

 

(2)   Appeal be allowed;

 

(3)   The sentence imposed upon Trent West on 6 March 2017 by the District Court be quashed and in lieu thereof the Applicant be sentenced to imprisonment for a non-parole term of 8 months, commencing 2 March 2017 and a remainder of term of a further 10 months, concluding 1 September 2018;

 

(4) Pursuant to s 50 of the Crimes (Sentencing Procedure) Act 1999, the Court directs that the Applicant be released on parole forthwith;

(5) The conditions of parole shall be governed by the provisions of the Crimes (Administration of Sentences) Act 1999 to which s 51(1AA) of the Crimes (Sentencing Procedure) Act refers.

Catchwords:

CRIMINAL APPEAL – submission that sentencing judge confine subjective circumstances to the finding on non-parole period rejected – acceptance that sentencing judge erroneously constrained sentencing discretion in relation to the imposition of full-time custodial sentence – effect of policy decisions and prior comments of Court requiring “exceptional circumstances” on statutory regime, if any, discussed – exceptional circumstances probably shown – appeal allowed – applicant’s immediate release ordered.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

Cases Cited:

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
Johnson v R (2004) 78 ALJR 616; [2004] HCA 15
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Markarian v R (2005) 228 CLR 357; [2005] HCA 25
R v Brown [2013] NSWCCA 178
R v Clark (Court of Criminal Appeal (NSW), 15 March 1990, unrep)
R v Gip; R v Ly (2006) 161 A Crim R 173; [2006] NSWCCA 115
Robertson v R [2017] NSWCCA 205
Vaiusu v R [2017] NSWCCA 71
Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14

Category:

Principal judgment

Parties:

Trent West (Applicant)
Regina (Respondent Crown)

Representation:

Counsel:
Mr G James QC/Mr E James (Applicant)
Ms B Baker (Respondent Crown)

  Solicitors:
Ashkan Tai Lawyers (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent Crown)

File Number(s):

2016/139213

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

06 March 2017

Before:

Wells DCJ

File Number(s):

2016/139213

Judgment

1. GLEESON JA: I agree with the orders proposed by Rothman J.

2. As to appeal grounds 1 and 2, I agree that these grounds must fail for the reasons given by his Honour.

3. As to appeal ground 3 concerning the remarks in R v Clark (Court of Criminal Appeal (NSW), 15 March 1990, unreported) that an offender who is involved in the supply of prohibited drugs “to a substantial degree” must receive a full-time custodial sentence unless “exceptional circumstances” can be demonstrated, I agree with the subsequent comments of Rothman J in R v Gip; R v Ly (2006) 151 A Crim R 173; [2006] NSWCCA 115, that such comments are not prescriptive, but are used by way of guidance only. I do not consider that the correctness of the so-called “principle” in R v Clark need be determined in the present case. In my view, the sentencing judge erred in constraining her sentencing discretion when considering the “appropriate penalty”, by her comments that “the only proper sentence” is one of full-time imprisonment. With respect to re-sentence, I agree with the reasons of Rothman J for the orders he proposes.

4. ROTHMAN J: The Applicant, Trent West, seeks leave to appeal (and if leave be granted, appeals) the sentence imposed upon him in the District Court on 6 March 2017. The Applicant pleaded guilty to a charge of supply prohibited drug (35.76g of cocaine) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985.

5. The Applicant filed a Form 1 which sought to have the sentencing court deal, in sentencing for the charged offence, with an offence of dealing with suspected proceeds of crime being $1,654.10 that was found in the Applicant’s possession.

Grounds of Appeal

6. The Applicant raised, initially, two grounds of appeal, but, sought to add a further ground of appeal, to which the Crown does not object. As a consequence, the three grounds of appeal are:

Ground 1: Her Honour erred in limiting the relevance of the Applicant’s subjective features to the process of finding special circumstances, for the purpose of only determining the non-parole period, rather than also extending their relevance to the determination of the head sentence;

Ground 2: The sentence imposed was manifestly excessive;

Ground 3 (the further ground): Her Honour erroneously constrained her sentencing discretion by holding that, because the Applicant had engaged in trafficking to a substantial degree, a full-time custodial sentence had to be imposed in the absence of showing exceptional circumstances.

Objective Facts

7. The Crime and Corruption Commission and Queensland Police were jointly engaged in a drug trafficking investigation which was code-named “Operation Ghillie” (“the Operation”). Prior to 5 May 2016, the Operation investigators had identified the Applicant as a person whom they suspected as being involved in the supply of drugs and that he was meeting with other persons for the purpose of supplying drugs.

8. At about 4:50pm, on 5 May 2016, police officers, acting covertly, observed the Applicant leave a meeting with others from an address at Burleigh Heads and travel south on the M1. Police were unable to intercept the Applicant’s vehicle until Tweed Heads, where they spoke to the Applicant about issues with his vehicle and issued a traffic infringement notice in relation to those issues.

9. New South Wales Police officers attended at about 5:30pm and the Applicant’s vehicle was searched after he had been informed that the police had information which led them to suspect that he had prohibited drugs in his possession. Police located a small black carry bag with a number of compartments when the latch on the passenger seat was pulled forward, allowing access to the area behind the seat.

10. Inside the carry bag police located a small brown paper bag, which contained a plastic resealable bag holding white powder. The Applicant was cautioned by police and then asked what was in the bag. The Applicant answered that it was cocaine and was then arrested.

11. A further search of the car located a set of Digiweigh electronic scales, on which police observed specs of white powder, a plastic bag containing approximately 30 smaller resealable plastic bags and $1,404.10 in cash. The black bag also contained a second brown paper bag, inside of which, in turn, was another plastic bag, containing white powder. In the front cabin of the van, police located three mobile phones: a Blackberry; an iPhone S; and a Nokia mobile phone.

12. The Applicant was taken to Tweed Heads Police Station where he declined to comment on the items located in his car. He was asked if there were anything else in his possession which he answered in the negative in the words: “No; nothing at all”.

13. Police searched the Applicant and located $250 in the pocket of his pants to which the Applicant commented “I forgot about that”. The total cash in the Applicant’s possession was $1,654.10, which was the basis of the Form 1 offence to which reference has been made.

14. The white powder was analysed. The first bag contained 12.81g of cocaine that was not tested for purity. The second bag contained 22.95g of cocaine with a purity of 33%. In total the Applicant had in his possession 35.76g of cocaine, all of which were seized from the Applicant’s vehicle. Police estimate the street value to be approximately $10,728.

15. Police were unable to examine the contents of the Blackberry, but an examination, using police computer programs, was performed on the iPhone and there did not appear to be any drug-related messages on the phone.

16. As earlier stated the Applicant pleaded guilty and did so on 6 September 2016 at Lismore Local Court, having been arrested on 5 May 2016 and granted bail on 9 May 2016.

Subjective circumstances

17. The Applicant was born on 2 January 1981 and has no prior New South Wales offences in his criminal record. He has three offences committed in Queensland that were committed when he was 21, namely, on 16 January 2003 (two counts) and on 1 February 2013. The last mentioned offence was dealt with by no conviction recorded and the assumption must be that it was extraordinarily minor. It was an offence of stealing and the Applicant was fined $400.

18. The other two offences were the possession of dangerous drugs and the possession of drug equipment in respect of the latter of which a conviction was recorded, but no further punishment imposed. On the first of the offences, the conviction was recorded and a suspended sentence imposed of 2 years, it being suspended for 3 years, after serving 2 months imprisonment.

19. As a consequence of the foregoing, it is clear that the Applicant had prior offences, but they were, plainly, minor, when compared with the offences now before the Court. Further, those offences occurred at an early age.

20. The Applicant had a drug addiction, earlier in his life, which he has sought to overcome and his Pre-Sentence Report sets out a number of his subjective circumstances.

21. He is a single man with no dependents who resides with his father, and a friend, in his mortgaged home on the Gold Coast in Queensland. The Applicant’s father is undergoing treatment for cancer.

22. The Applicant attended a Queensland high school and completed year 12. He achieved qualifications as an electrician and operated his own business for approximately 9 years.

23. He employs five full-time staff and is highly regarded in the industry. He has a low risk of re-offending.

24. The Applicant is described in the Pre-Sentence Report as “motivated to remain illicit-drug free”. The Applicant, at sentence, also tendered a consultant psychiatrist’s report, compiled on 21 February 2017. This psychiatrist was one of the psychiatrists managing and treating the Applicant during his drug rehabilitation.

25. The Applicant was referred voluntarily for outpatient rehabilitation on 12 May 2016, shortly after his arrest. The psychiatrist refers to his criminal record relating to the drug offences, when he was around 21 years of age, being 12 years earlier than the Report and to case notes regarding the Applicant’s rehabilitation progress.

26. The psychiatrist had examined the Applicant over a period of nine months prior to the date of his Report, noting his chronic longitudinal past history of psychostimulant abuse and addiction. The psychiatrist suggested that he was probably addicted to psychostimulants during the time of the subject offending.

27. The psychiatrist’s Report referred to the Applicant’s early life and drug abuse and alcohol abuse during adolescence. It also noted that following the first set of offending, he re-entered employment and seemingly cleaned up his life.

28. The psychiatrist noted that the Applicant relapsed into intermittent “recreational drug abuse”. The psychiatrist suggested that the Applicant was the subject of “chronic underlying stress-induced disorders of body and mind which he dealt with by compulsive fitness training” and referred to his lifestyle as “unhealthy”, involving, as it did, “workaholic over-commitment, the avoiding of personal worries by always being busy and distracted and a psychological denial of personal problems”.

29. In the opinion of the psychiatrist, the association of sudden loss of physical fitness (caused by the Applicant’s inability to engage in physical exercise as a result of an assault injury) and the exacerbation of substance dependency and abuse was a factor in the Applicant’s offending. He described the Applicant as a maladapted, anxious person with tension problems and a workaholic life pattern.

30. The psychiatrist assessed the Applicant, on the basis of DSM IV and suggested that the Applicant has drug addiction of the psychostimulant type, in stable remission after police interdiction and a lengthy rehabilitation experience, Chronic generalised anxiety disorder, induced by lifestyle, and now in relative remission. On Axis II (Personality), the psychiatrist assessed the Applicant as having a stress prone, dependent personality; excessively eager to please others; and relatively stress intolerant.

31. On Axis III (Physical Problems), the psychiatrist noted that in the six months prior to his arrest, the Applicant experienced an exacerbation of his drug addiction, probably as a reaction to a precipitant loss of physical fitness and the relinquishing of physical outlets for tension problems. On Axis IV (Psychosocial Issues), the psychiatrist repeated some of his family history, including his mother’s alcohol abuse and otherwise his commitment to his family and the other matters to which reference has already been made. The psychiatrist concluded that the Applicant has proven “to be a highly motivated patient of a residential and outpatient rehabilitation service”. He said:

“Despite a patchy immaturity, stress intolerance and drug dependence since the age of 13 years, this [Applicant] has exhibited positive aspects within his life involving, in particular commitment to work and to family connections.”

32. The Applicant had submitted, and continues to submit, to comprehensive treatment of his stress, anxiety and his drug dependence.

33. The Applicant also tendered, on sentence, a report from the Yvonne Murray, the CEO of Breaking Through Transitional Services, which is extremely positive and attests to much of the rehabilitation progress to which the psychiatrist referred. The Applicant has also undergone drug screening and shown to be clean of drugs for a significant period.

34. Further reports were tendered from Jan Patty, psychologist, relating, amongst other things, to the lack of any recidivist tendencies and the rehabilitative approach taken at the centre with which she is associated. Character references were forthcoming from: the medical practitioner, who had dealt with the Applicant; an owner of a ceramic tiling company, with whom he attended school and with whom he deals in industry; directors and owners of principal contractors, with whom he deals; and the owner and head coach at his gym.

35. Immediately prior to the offending, the Applicant had significant personal issues associated with the breakup of a long-term relationship and death of two people close to him. These facts are referred to by some of the other referees. All the referees attest to his otherwise good character and reliability.

Remarks on Sentence

36. The sentencing judge summarised the facts on sentence, which were the subject of Agreed Facts before the sentencing court. There was also a reference to the prior offending, the psychiatrist’s report and the other subjective circumstances.

37. The sentencing judge referred to the offending as having occurred when he was much younger and also referred to the fact that when he was a younger man, he received a bravery award after helping save the life of another man who had rolled a tractor and become stuck under it. The Applicant performed a rescue operation by jumping into the water, retrieving the victim of the accident and performing CPR.

38. As to the objective seriousness, the sentencing judge asked whether the offending amounted to “substantial drug trafficking” and accepted the submission that there was no evidence of far reaching criminal enterprise, nor that he was in possession of the drug to supply it to persons other than friends and to defray his own costs of personal use.

39. Nevertheless, the judge remarked that there are other factors going to determine whether there has been substantial drug trafficking. Her Honour determined that he had been involved in substantial drug trafficking, on the basis of the quantity of drugs, which is, according to her Honour, well above the amount a street user dealer might have; the possession of drugs of the purity already described; the amount of cash in his possession; and the possession of scales and 30 smaller plastic bags and three telephones.

40. Her Honour referred to the Applicant’s financial problems and the escalating emotional problems. Her Honour then said:

“In terms of the overall objective seriousness, I take all of those matters into account and also that this was not a one-off offence in the sense that this was the first time that he had some cocaine in his possession. Those indicia and the quantity suggest that it had been ongoing for at least a short period of time and there was a level of organisation, though not a far-reaching sophisticated criminal enterprise.

That brings the Court to the question of whether there are exceptional circumstances, such as would lead to a sentence other than full time imprisonment. Substantial drug trafficking in the absence of exceptional subjective circumstances or other circumstances, generally but not always, leads to a sentence of full time custody.

It is true that he has, in all other aspects of his life, made a valuable contribution to the community. He has taken substantial steps in his rehabilitation since he was apprehended. It is an absolute shame that he had not done so before it got to that point, particularly in the light of his prior experience.

A number of the references and at least one or more of the professional opinions have told the Court how difficult and what a waste it would be to send such a person to full time custody when he has contributed so much and made such significant steps in his rehabilitation. Sadly, this is a situation that the Courts confront regularly, but the Courts cannot lose the sight of the fact in cases where there is objectively serious criminal conduct, then that person puts themselves at risk of a full-time sentence of imprisonment. That is precisely what has occurred in this particular case.

The objective seriousness, despite his generally favourable subjective circumstances, cannot be disregarded and having considered the appropriate penalty, the only proper sentence is one of full-time imprisonment. Taking into account his subjective circumstances though, the difficulties he has had with the combined problems of mental health issues and drug addiction issues, I will find special circumstances and adjust the ratio of the non-parole period as opposed to the parole period.

I have allowed a discount of 25%. I reiterate that in sentencing offenders, the Court must have regard to rehabilitation, but the Court also has to impose sentences that reflect deterrence, that is deterrence of an individual offender and deterrence of other people in the community who might commit similar offences. His mental health difficulties are not submitted as being relevant to deterrence in the sentencing process. However they are relevant to his overall subjective circumstances.”

41. As earlier stated, taking into account the Form 1, the Applicant was sentenced to a non-parole period of 1 year and 4 months, commencing 2 March 2017 within a head sentence of 2 years and 6 months expiring 1 September 2019.

Submissions and consideration

Ground 2: manifest excess

42. In order for the Applicant to succeed on the ground of manifest excess, the Court must be persuaded that the sentence imposed is “unreasonable” or “plainly unjust”: House v The King (1936) 55 CLR 499; [1936] HCA 40. There are other principles that govern the manner in which this Court will approach such a ground.

43. First, intervention by this Court is not justified simply on the basis that the sentence imposed is markedly different from the sentences imposed in other cases or that the Court, if it were exercising its discretion afresh, would have exercised that sentencing discretion differently.

42. Sentencing judges are entitled to flexibility in sentencing consonant with the statutory regime and consistency of approach: Johnson v R (2004) 78 ALJR 616; [2004] HCA 15; Vaiusu v R [2017] NSWCCA 71 at [28]; Markarian v R (2005) 228 CLR 357; [2005] HCA 25.

43. Given the subjective circumstances of the Applicant, in my view, the sentence imposed is heavy, but, subject to that which follows, within the range available to the sentencing judge.

44. Further, manifest error is disclosed only when identifiable error does not explain the sentence imposed. In my view, this ground must fail.

Grounds 1 and 3: confined use of subjective features and constraint of sentencing discretion

47. The passage from the remarks on sentence, recited above, involve two aspects upon which counsel concentrated in dealing with the issues in this appeal. One of those issues is whether there is a requirement for an offender, when being sentenced for an offence involving “substantial drug trafficking” to show exceptional circumstances to avoid the imposition of a sentence of full-time custody.

48. This Court has made clear on a number of occasions that it will not comb through remarks on sentence with a view to finding error. Regard must be had to the workload of sentencing courts and the circumstance that, for example in the District Court and at the Magistrate level, many sentences are imposed ex tempore. It is the substance of the judgment that is important; not errors of expression.

49. As to Ground 1, a proper construction of the whole of the Remarks on Sentence results in the Applicant failing to establish that the sentencing judge did not take account of subjective circumstances in setting the head sentence, as well as the non-parole period. The passage upon which the Applicant primarily relies, recited above, refers to the inability to disregard objective seriousness on account of the favourable subjective circumstances. The sentencing judge was not, in that comment, suggesting that subjective circumstances could be disregarded, or were being disregarded, in the setting of a sentence to be fixed.

50. Nevertheless, the substance of Ground 1 of the appeal and of the additional Ground 3 of the appeal are, in some respects, related. The passage recited above from the Remarks on Sentence clearly discloses an approach by the sentencing judge that required an offender to satisfy the court that there were exceptional circumstances in order to avoid a full-time custodial sentence, when the offence involved “substantial drug trafficking”.

51. Earlier in these reasons for judgment, I have noted that the sentencing judge accepted the submissions on behalf of the Applicant below that there was no evidence of a far reaching criminal enterprise and that, in reality, the Applicant’s possession of that quantity of the drug was for the purpose of supplying it to known friends in order to defray his own costs of personal use.

52. In those circumstances, it is not clear precisely what criteria were used when her Honour derived that the Applicant was involved in “substantial drug trafficking”.

53. Further, and accepting for this confined purpose only, that the Applicant was involved in “substantial drug trafficking”, it is not immediately apparent why the circumstances of his addiction and the kind of trafficking in which he was involved, together with the subjective circumstances found by her Honour below, did not amount to “exceptional circumstances” for the purpose of her Honour’s view that exceptional circumstances were required in order to avoid a full-time custodial sentence. Moreover, even if a full-time custodial sentence was not avoided, those circumstances must amount to a situation in which the full-time custody aspect of it was at the lowest end of the spectrum.

54. The purposes of sentencing are well known. They are prescribed by s 3A of the Crimes (Sentencing Procedure) Act 1999, which reflects Australian common law and involves: punishment; deterrence, both specific and general; the protection of the community; the promotion of rehabilitation; rendering the offender accountable for the conduct; denunciation; retribution and recognition of the harm done to the victim and the community. As was explained by the High Court in Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14, these purposes often pull in different directions. The task is a difficult one, rendered more difficult by the imposition of constraints or the prescription of rigid and inflexible rules.

55. To reiterate an earlier comment, sentencing judges must have the degree of flexibility that is consonant with the statutory regime and consistency of approach. Consistency of approach is obtained by the consistency in the application of principle; not by the slavish adoption of a gloss on the legislative regime nor by numerical equivalence: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45.

56. In my view, all that is intended by the expression “exceptional circumstances” is a statement as to that which will ordinarily apply, given the seriousness with which society must treat substantial drug trafficking. It is not intended to be a jurisdictional or preconditioned gateway to the imposition of a sentence other than a full-time custodial sentence.

57. I reiterate my comments in R v Gip; R v Ly (2006) 161 A Crim R 173; [2006] NSWCCA 115 in which I sought to make clear that comments such as those of the Court in R v Clark (Court of Criminal Appeal (NSW), 15 March 1990, unrep) are not legislative enactments. They are not to be analysed in the same way as one analyses a statute. Such comments are not prescriptive but are used by way of guidance only. For a definition of “exceptional circumstances” in an analogous statutory context, see R v Brown [2013] NSWCCA 178 at [22] et seq.

58. In Robertson v R [2017] NSWCCA 205 Simpson JA, with whom Harrison and Davies JJ agreed, analysed the authorities in this area and said:

“[101]    The Court in Ejefekaire was correct in its assumption that, in EF, I did not intend to say that ‘the longstanding principle ... is no longer good law’. To have done so would have been presumptuous. What I did – and do – intend to do was question whether what was called a ‘longstanding principle’ was ever good law. It seems to me that the peremptory terms in which Clark and the cases following are expressed are incompatible with the proper exercise of a judicial sentencing discretion, and incompatible with a number of statements made by the High Court. But that is a matter to be decided on another occasion, either by this Court (possibly constituted by five judges), or by the High Court.

[102]    There is a further consideration. Clark was decided in 1990, at a time when sentencing was generally left to judges, subject, of course, to prescribed maximum sentences. In 2002 a significant change was made to the legislative sentencing regime. Section 21A was inserted into the Sentencing Procedure Act. It bore the heading ‘General sentencing principles’. Sub-section (1) stated:

‘(1)    In determining the sentence to be imposed on an offender, a court must impose a sentence of a severity that is appropriate in all the circumstances of the case.’

Sub-section (2) went on to state relevant considerations.

[103]    Later in that year, s 21A was amended. Curiously, sub-s (1) was omitted. In its place, the following sub-section was inserted:

‘(1)    General

In determining the appropriate sentence for an offence, the court is to take into account the following matters:

(a)    the aggravating factors referred to in subsection (2) that are relevant and known to the court,

(b)    the mitigating factors referred to in subsection (3) that are relevant and known to the court,

(c)    any other objective or subjective factor that affects the relative seriousness of the offence.

The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.’

As indicated in sub-s (1), sub-ss (2) and (3) set out, respectively, the aggravating and mitigating factors that are required, where known, to be taken into account. Sub-section (4) provided that the court was not to have regard to any such aggravating or mitigating factor if it would be contrary to any Act or rule of law to do so; sub-s (5) provided that neither the aggravating nor mitigating factors required the court to increase or reduce the sentence for the offence.

[104] This provision is the statutory counterpart of Pt 1B of the Crimes Act 1914 under consideration in Hili. The provisions of s 21A do not support a judicial gloss on the sentencing discretion. In Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638; [2012] HCA 1 the High Court rejected a proposition that a judicially developed gloss on Pt 1B of the Crimes Act 1914 could be accommodated (see [19]).

[105]    The practical consequences of what I have said (if accepted) should not be overestimated. When sentencing judges are freed of the judicially imposed constraint, they must, nevertheless, give full and proper consideration to the guidance they will obtain from past sentencing decisions, providing a ‘yardstick’ against which to measure any proposed sentence. In practice, it is likely that this will result in a conclusion that (absent some unusual circumstance) a sentence of imprisonment ought to be imposed. But, as EF and the present case show, and as Priestley JA recognised in Cacciola, there will be exceptions, and sentencing judges should not be constrained by the language of mandate to disregard available sentencing options.”

59. With respect to Simpson JA, I agree with the comments recited above. As her Honour said at [95] in Robertson, with which comment I also agree:

“The task of a sentencing judge is to impose a sentence that is just in all of the circumstances, those circumstances including the objective gravity of the offence in question, together with the personal circumstances of the offender, and any mitigating circumstances. Nowhere in the legislative regime is there any direction that, in sentencing in relation to drug offences, a sentencing judge must first determine to impose a sentence of full-time imprisonment, and then to examine the case for ‘exceptional circumstances’. Such an approach, in my opinion, comes dangerously close to the forbidden ‘two-stage sentencing’: Wong at [74]-[76], Markarian at [37].”

60. The provisions of s 5 of the Crimes (Sentencing Procedure) Act are couched in mandatory terms. While the High Court has deprecated the term “mandatory”, in contradistinction to “directory”, the terms of s 5 of the Crimes (Sentencing Procedure) Act make clear that the starting point, in imposing a sentence on any offender, is that full-time custody is the last choice; not the starting point for the imposition of a sentence.

61. In order to impose a sentence of imprisonment (whether full-time or otherwise), the Court must be satisfied that no other possible alternative is available. The Court must not start with the proposition that full-time custody is necessary, unless exceptional circumstances can be established. To start with such a proposition is inconsistent with the provisions of s 5 of the Crimes (Sentencing Procedure) Act.

62. Analysing the comments of her Honour in the Remarks on Sentence, there are a number of aspects, which are of concern. An understanding of the approach taken is that her Honour started with the proposition that full-time imprisonment was the prima facie position, unless the Applicant satisfies the Court of exceptional circumstances. Of course, a person who commits a serious criminal offence, which this offence is and remains, puts themselves at risk of full-time sentence of imprisonment. That does not mean that the starting point is the imposition of a full-time sentence of imprisonment.

63. Further, although this may be a little unfair as a reading of her Honour’s comments, her Honour considers “the appropriate penalty”, which I understand to be a reference to full-time custody and then comments that “the only proper sentence” is one of full-time imprisonment. Her Honour does not, expressly, refer to any other possible sentence. Last, issues such as the imposition of an Intensive Correction Order (“ICO”) or a custodial sentence other than a full-time custodial sentence are not expressly considered by her Honour.

64. In my view, her Honour approached the question of whether a full-time custodial sentence is the only appropriate sentence, from the wrong starting point, namely, that it will be the only appropriate penalty, unless exceptional circumstances can be shown.

65. Moreover, the subjective circumstances of the Applicant are such that, in my view, when coupled with the nature of the offending, amount to exceptional circumstances, in any event.

66. The sentencing judge erred in principle by erroneously constraining her sentencing discretion.

67. Error has been demonstrated and, subject to being satisfied that a lesser sentence is warranted, the appeal should be granted. It is then for the court to resentence: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Re-sentencing

68. In this case the process of re-sentencing is complicated by the fact that the Applicant has already spent over eight months in full-time custody. Were it not for that circumstance, it would seem to me that a number of avenues might be available, one of which, subject to the statutory and other tests, might be an ICO. As Simpson JA explained in Robertson, supra at [42]:

“In my opinion, this was a case in which the imposition of a sentence to be served by way of an ICO would have been appropriate. An ICO is a sentence of considerable severity. It is a sentence of imprisonment (although the fact that it is to be served in the community introduces a substantial degree of leniency). It is subject to stringent statutory conditions, as well as other conditions that may be imposed to suit the circumstances of the individual case. It involves a minimum level of community service, and potentially intrusive supervision. The full regime may be found in the Crimes (Administration of Sentences) Act 1999 (NSW) and the Crimes (Administration of Sentences) Regulation 2008 (NSW), and is spelled out in some detail in R v Pogson; R v Lapham; R v Martin (2012) 82 NSWLR 60; [2012] NSWCCA 225.’

69. I agree with her Honour’s description of an ICO and, in the circumstances of the case now before the Court, such a sentence may have been an appropriate sentence, were it not for the full-time custody already served and that one is not entitled, without satisfying the statutory criteria, to impose such a sentence.

70. There are other difficulties associated with the imposition of an ICO at this stage. For example, such a sentence could not be imposed without the procedural requirements, which are necessary for its imposition. It must, for example, be referred to the Commission of Corrective Services for assessment before a final order is made. Such reports take approximately six weeks. Further, as earlier stated, one must be satisfied that a custodial sentence is the only appropriate course.

71. In light of the fact that the Applicant has already served over eight months of the sentence imposed upon him, otherwise appropriate sentences, other than full-time custody, become unavailable. Further, I would continue the sentencing judge’s view that 25% discount for the plea of guilty is appropriate. I would propose a starting point of 2 years as the head sentence.

72. Applying the 25% discount would see the imposition of a head sentence of 18 months. Further, I would also hold that special circumstances exist and I would propose that the non-parole period be 8 months, commencing 2 March 2017, with a remainder of term of 10 months concluding 1 September 2018.

73. For the foregoing reasons, I propose that the Court make the following orders:

1. Leave to appeal against sentence be granted;

2. Appeal be allowed;

3. The sentence imposed upon Trent West on 6 March 2017 by the District Court be quashed and in lieu thereof the Applicant be sentenced to imprisonment for a non-parole term of 8 months, commencing 2 March 2017 and a remainder of term of a further 10 months, concluding 1 September 2018;

4. Pursuant to s 50 of the Crimes (Sentencing Procedure) Act 1999, the Court directs that the Applicant be released on parole forthwith;

5. The conditions of parole shall be governed by the provisions of the Crimes (Administration of Sentences) Act 1999 to which s 51(1AA) of the Crimes (Sentencing Procedure) Act refers.

74. HAMILL J: I agree with Rothman J.

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Decision last updated: 23 November 2017