AB v R

Judgment 1HOEBEN CJ at CL: I agree with pars [26] and [27] of the judgment of Adams J to the effect that error of the kind identified in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 did occur. Subject to what follows, however, I am not satisfied that a lesser sentence is warranted. As Adams J appreciated in par [36], the sentence imposed is well within the discretionary range. On my analysis of the facts surrounding the offending, that sentence remains appropriate. As Adams J pointed out at par [54] the quantity and purity of the drugs, the role of the offender, the degree of planning and the fact that this was not an isolated transaction but part of a system of trafficking in prohibited and dangerous drugs, leads to that conclusion. 2It follows that I do not agree with his Honour's conclusion at par [60] that in terms of s 6(3) of the Criminal Appeal Act 1912 a less severe sentence "is warranted in law" and should have been passed. As already indicated, I have reached a different conclusion. I do, however, agree with Adams J that the sentence needs to be adjusted in order to have regard to the period of custody before bail was granted. 3Accordingly, the orders which I propose are as follows: (1) Grant leave to appeal. (2) Allow the appeal. (3) Quash the sentence in relation to count 2 and substitute the following sentence: The appellant is sentenced to a term of imprisonment with a non-parole period of 5 years and 4 months to date from 1 July 2008 and to expire 1 November 2013, with a balance of term of 2 years and 1 month, which will expire on 1 December 2015. (4) The sentence imposed on 24 February 2012 is varied to commence on 1 November 2013. 4ADAMS J: Introduction 5On 18 November 2009 the applicant pleaded guilty to two offences under the Drug Misuse and Trafficking Act 1985 of supplying a prohibited drug, one of which concerned 296.9 grams of 79 per cent pure methylamphetamine (a commercial quantity - I refer to this offence as the commercial supply) and the other 192 grams of 80 per cent pure methylamphetamine (less than a commercial quantity). These offences attract maximum sentences respectively of 20 years imprisonment with a standard non-parole period of 10 years (s 25(2)) and 15 years (s 25(2)). In respect of the latter offence he was sentenced to a fixed term of imprisonment for 2 years commencing on 2 October 2007 and, in respect of the former, taking into account six offences on a Form 1, he was sentenced to head sentence of 7 years and 6 months with a non-parole period of 5 years and 5 months commencing on 1 July 2008. The effective sentence was, accordingly, 8 years and 3 months with a non-parole period of 6 years and 2 months. The offences on the Form 1 concerned supplies of methylamphetamine (193.9 grams, 83.1 grams, 82.2 grams), the supply of cocaine (38.2 grams) and possession of property reasonably suspected of being the proceeds of crime ($19,350 and $616,658). 6Whilst the applicant was on remand in relation to all these matters, police conducted searches at the houses of the applicant and his family. These led to the seizure of cash and further charges of dealing with the proceeds of crime. Following a late plea, these charges were dealt with by the same judge who had imposed the earlier sentences. On 17 February 2012, in respect of a charge of dealing with the proceeds of crime ($1,116,980) he was sentenced to an overall sentence of 3 years imprisonment with a non-parole period of 6 months to commence on 1 December 2013, the date immediately following the expiration of the previous non-parole period). Taken into account on a Form 1 were a further three offences of dealing with the proceeds of crime amounting in all to $4,392,300. (This is referred to below as the "February sentence".) The sentence reflected a discount of 35 per cent for the plea and pursuant to s 23 of the Crimes (Sentencing Procedure) Act 1999. 7The resulting combined sentence was an effective head sentence of 9 years and 2 months with a non-parole period of 6 years and 8 months. 8The applicant seeks leave to appeal only in respect of the sentence for the commercial supply which was imposed on 28 May 2010. The ground of appeal is that the learned sentencing judge erred in the manner in which she had regard to the standard non-parole period applicable to that offence, relying on Muldrock v The Queen [2011] HCA 39; 244 CLR 120. The facts 9These were not in dispute. The following account is taken largely from the sentencing judge's remarks on sentence (omitting quotation marks for ease of reading). 10On 24 October 2007 W, who had been given $38,550 and fitted with a listening device, went to the applicant's premises and said, in effect, that he wanted 7 ounces of methylamphetamine. The applicant said that he only had 1½ ounces and gave him a sample, retrieving white powder from a hiding place in the garden. W took what he was given to police. It was found to be methylamphetamine weighing 5.13 grams with a purity of 1.5 per cent. Next day, W visited the applicant, taking the money with him and having been fitted with a listening device, told the applicant that he wanted 7 ounces and handed him the cash. The applicant told him to meet him down the road in five minutes. W did so. The applicant handed W a plastic bag which he took to police. The bag was found to contain methylamphetamine weighing 192 grams with a purity of 80 per cent. This was the supply offence of which the applicant pleaded guilty on 18 November 2009. 11Later on that night police officers searched two residential premises. In the roof of the garage at one house they found 296.9 grams of methylamphetamine, some of which had a purity of 79 per cent. This is the commercial supply against the sentence for which the applicant seeks leave to appeal. In the other house they found $616,000, which included the money paid by W and all of which was the proceeds of crime, namely the supply of prohibited drugs. It was during the execution of this search warrant that the applicant was arrested. The approximate street value of the drugs sold to W was $56,000 and those found in the house between $84,000 and $220,675. 12The following is a brief summary, again not controversial, of the facts underlying the offences in the Form 1. The first three were committed on 17 April 2007 and concerned supplying 38.2 grams of cocaine, supplying 193.9 grams of methylamphetamine and dealing with $19,350 suspected of being the proceeds of crime. In respect of the first two, W made enquiries of the applicant as to the supply of cocaine and methylamphetamine. On the following day, he went to the applicant's home at Mount Pritchard, paid him $39,600 and was given cocaine and methylamphetamine, which he took away with him. Shortly after, he was arrested and these drugs were found in his possession comprising 34.1 grams of cocaine with a purity of 51 per cent and 193.9 grams of methylamphetamine with a purity of 33.5 per cent. W was arrested and charged. The third offence concerned the discovery by police later on 17 April 2007 of $19,350 (part of the money earlier paid to him by W to purchase the drugs) in the main bedroom of the applicant's house. (The applicant, who was arrested on 18 April 2007 for these offences, was granted bail on 11 May 2007 and was therefore on bail when he committed the offences to which he pleaded guilty in November 2009.) The fourth offence was committed on 20 August 2007 whilst the applicant was on bail and involved the supply to W of 83.1 grams of methylamphetamine with a purity of 24 per cent for $11,500. This transaction occurred at the applicant's home. The fifth offence occurred on 28 September 2007 when W met the applicant at his home and paid him $16,500 for the purchase of methylamphetamine. After giving W a sample to test, the applicant told him to go to another address and handed him three plastic bags which contained in all 82.3 grams of methylamphetamine with a purity of 82.5 per cent. At several previous meetings, W and the applicant had discussed the sale of ice, although this did not ultimately occur. The sixth offence arose from the discovery by police on a search of the applicant's home of $616,658 which was reasonably suspected of being the proceeds of drug sales. 13The Form 1 offences taken into account in the February sentence arose from the discovery by police of $1,312,900 concealed in the roof of his sister's premises on 25 October 2007, $544,550 found in the same premises on 8 April 2008 and, lastly, $2,478,850 found on the same day concealed in premises occupied by the applicant's niece. This money was reasonably suspected of being the proceeds of drug sales but it was not suggested the sales were made by the applicant. 14The applicant had become involved in the commission of the offences in order to obtain funds. Whether the money was for the purpose of financing a debt or paying demands by the outlaw motorcycle gang who had kidnapped his son (this matter is discussed below) was uncertain. The sentencing judge referred to both explanations but did not resolve the issue. The ground of appeal 15As mentioned above, the sole ground of appeal concerns the way in which the judge applied the standard non-parole period to sentencing the applicant on the second count on the indictment dealt with on 28 May 2010. The other sentences are not appealed from, nor is there any contention that the overall sentence was excessive. 16In respect of the standard non-parole period, the judge said - "There is a standard non-parole period of ten years for the second count on the indictment. The standard non-parole period is intended for an offence in the middle of the range of objective seriousness where the offender is found guilty after trial. I note in R v Way [[2004] NSWCCA 131; (2004) 60 NSWLR 168] the observations of the Court of Criminal Appeal as to the approach to be taken when determining whether there are reasons not to impose the standard non-parole period. If the conclusion I reach is that there are reasons not to impose the standard non-parole period, that standard non-parole period remains of relevance as a reference point, benchmark, sounding board or guidepost. I must then exercise my sentencing discretion in accordance with established sentencing practice and by reference to the matters identified in s 3A, 21A, 22, 22A and 23 of the Act. Here there were pleas of guilty and so the imposition of the standard non-parole period is not obligatory, but even after a plea of guilty there must be an appropriate relationship between the standard non-parole period and the objective criminality of the offences regardless of the other matters that may be taken into account by way of mitigation. When assessing the objective seriousness of the offence, the inquiry must be confined to matters that directly or causally relate to the commission of the offence. This involves an inquiry that would take into account the actus reus, the consequences of the conduct and those facts that might properly affect the mens rea of the offender." 17The judge then quoted a passage from the judgment of Howie J in R v Dang [2005] NSWCCA 430 at [24] dealing with the factors relevant to determining whether the offence of supplying a prohibited drug fell within the mid-range of seriousness, referring to the amount and purity of the drug as significant but not decisive matters, the number of occasions involved, the motivation for supply, the extent of planning and the offender's role. Her Honour also referred to R v Shi [2004] NSWCCA 135 where Wood CJ at CL referred to the centrality of the role of the offender in the assessment of objective seriousness. She then dealt with the prosecution submission that the objective seriousness of the commercial supply fell into the mid-range of objective seriousness and contrasted the submission of counsel for the applicant who submitted that his criminality was well below the mid-range for such an offence. Her Honour then said - "I am satisfied the offence is below the middle of the range of objective seriousness, but not appreciably so. I have come to that conclusion because, although this supply was not an isolated incident and the purity of the drug was high, the quantity of the drug supplied is towards the lower end of the commercial range [and] the offender's role, although above the level of a street dealer, is not that of a principal... [or] organiser and the drugs were not actually supplied." The judge then dealt with factors which aggravated the seriousness of the offences, and moved on to the applicant's subjective features. Her Honour then dealt with the Form 1 offences which, in her opinion, required the penalty that would otherwise be appropriate for the commercial supply to be increased and went on - "My finding that the s 25(2) offence is not in the middle of the range of objective seriousness, the plea of guilty and the s 23 considerations [ie, those matters giving rise to an additional discount] mean that there are reasons not to impose the standard non-parole period. I do not propose to do so. I indicate that I have had regard to the relevant statutory framework that relates to the sentencing of offences and to the principles established in the authorities which bear upon the issue and I have had regard to the purposes of sentencing which are set out in s 3A of the Crimes (Sentencing Procedure) Act." 18The judge then considered the statistical information about sentences for the two offences, describing them as having "some value as a reference point". Her Honour partially accumulated the sentences and slightly reduced the non-parole period for the commercial supply to take account of the accumulation. There were no other special circumstances justifying an additional adjustment. 19The sentences which otherwise would have been imposed were reduced by 35 per cent by virtue of the plea of guilty and "the s 23 factor". It follows that the starting point for the supply charge was a fixed sentence (ie, equivalent to a non-parole period) of 4 years 2 months (the result after discount being rounded down slightly) and for the commercial supply 11 years 8 months (again with a slight rounding down). Looking at the matter overall - which, to my mind, is the correct approach to avoid qualifying the discount by accumulation and thus ensure that it is actually applied - the starting point was 14 years 2 months which yields, after a 35 per cent discount, slightly over 9 years 2 months. 20(I note - though this is not the subject of complaint - that the judge did not take into account the imprisonment of the applicant between 18 April 2007 and 10 May 2007 following his being charged with the first three offences listed in the first Form 1.) Submissions 21It is was submitted by the applicant that the sentencing judge, in accordance with authority then binding on her, emphasised the necessity, even following a plea of guilty, that there be "an appropriate relationship between the standard non-parole period and the objective criminality of the offences, regardless of the other matters that may be taken into account by way of mitigation". It is also submitted that a mathematical analysis of the sentence confirmed the dominance of the standard non-parole period in the sentencing exercise. A 35 per cent reduction to the standard non-parole period of 10 years results in a sentence of 6 years 6 months, a year longer than the non-parole period ultimately imposed. That difference, it is submitted, suggests that it reflected her Honour's view as to the objective seriousness of the offence, being somewhat but "not appreciably" below the standard non-parole period. 22The prominence given to the standard non-parole period was, it was submitted, contrary to the principle stated in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [26] to [28]. 23The Crown's submissions emphasised the importance of considering the sentencing remarks fairly and in their entirety rather than confining attention to a discrete statement which might be suggestive of error. It is submitted that the mere fact that the sentencing judge determined the level of objective seriousness is not an error, nor is the utilisation of the standard non-parole period as a guidepost bearing on the appropriate sentence. 24So far as the mathematical argument is concerned, it was submitted by the Crown that the aggravating features mentioned by the sentencing judge (discussed below) were of such significance that, had the standard non-parole period dominated the process as contended by the applicant, the non-parole period ultimately imposed must necessarily have been higher. Consideration 25In R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168, the Court said (at [122]) that, when the standard non-parole period was departed from, it should "take its place as a reference point ... along with the other extrinsic aids such as authorities, statistics, guideline judgments and the specified maximum penalty, as are applicable and relevant. In particular, it can have a direct relevance as a reference point to be compared with a sentence which is provisionally reached" after taking into account what might be called the conventional matters, although (at [131]) the Court warned against starting with the standard non-parole period and "to oscillate about it by reference to the aggravating and mitigating factors, [noting that the] problem with that approach is that the standard non-parole period will tend to dominate the remainder of the exercise...". (Emphasis added). Accordingly, in Way the standard non-parole period is afforded particular significance. In Muldrock the High Court said (at [25]) that a sentencing court "is not required when sentencing for a Div 1A offence to commence by asking whether there are reasons for not imposing the standard non-parole period nor to proceed with an assessment of whether the offence is within the midrange of objective seriousness". Furthermore, it "is a mistake to give primary, let alone determinative, significance" to the standard non-parole period (at [26]). Nor does the Act permit a two-stage approach to sentencing (at [28]). 26In discussing the applicability of the standard non-parole period in this case the judge referred to Way, in particular, "as to the approach to be taken when determining whether there are reasons not to impose the standard non-parole period", imposition of which was not, as her Honour observed, "obligatory" because the applicant pleaded guilty to the offence. Her Honour said that it remained relevant "as a reference point, benchmark, sounding board or guidepost", going on to refer to exercising the "sentencing discretion in accordance with established sentencing practice and by reference to the matters identified in ss 3A, 21A, 22, 22A and 23 of the [Crimes (Sentencing Procedure) Act 1999]". 27To my mind, these passages imply that the judge intended to approach the application of the standard non-parole period in the manner criticised in Muldrock, namely by asking whether there were reasons for not imposing it. This approach is not corrected by noting that it was not obligatory to impose the standard non-parole period. Moreover, they show that the standard non-parole period not only dominated the exercise but reflected a two-stage approach. Firstly, her Honour stated that there must be "an appropriate relationship between the standard non-parole period and the objective criminality of the offences, regardless of the other matters that may be taken into account by way of mitigation". Then her Honour determined that the offence was below the middle of the range of objective seriousness, which again focused on the standard non-parole period and, in my view, was intended by her Honour to explain why, quite apart from subjective features, it should be departed from. The judge, having formed the view that the standard non-parole period should be departed from, went on to utilise it as central to the assessment of sentence by measuring the extent of objective seriousness by reference to that which attracted the standard non-parole period. It scarcely needs to be said that her Honour's reasons need to be read as a whole. However, there is nothing in those reasons which varies or qualifies the passages to which I have referred. 28I mentioned the Crown submission, in part by way of response to the argument advanced on behalf of the applicant that the sentence itself showed that the standard non-parole period had dominated the measure of the applicant's sentence, that aggravating features identified by the judge would have significantly increased the sentence and thus the standard non-parole period did not play the significant role contended for. The judge found firstly, that each offence was aggravated as the offender was on bail when they were committed and, secondly, "they were committed for financial reward". No complaint is made on the applicant's behalf in respect of these findings. 29I am, with respect, of the view that the second factor identified as aggravating the offences could not properly be so regarded. In Elyard v R [2006] NSWCCA 43, Basten JA discussed the application of s 21A(4) where a characteristic of the offence under consideration was also described as an aggravating factor in s 21A(2), in that case where the sentencing judge had taken into account in a case of aggravated dangerous driving causing grievous bodily harm as an aggravating factor that it was committed "without regard for public safety" (vide para 21A(2)(i)). Basten JA was of the view, in substance, that the creation of the aggravated offence with the accompanying greater maximum penalty indicated that it was based "upon an assessment [by the legislature] of the circumstances which will generally accompany an offence of that kind, including in this example, lack of regard for public safety", which was a common, if not invariable, attribute of the offence (ibid at [7] - [9]). His Honour added - "[10] To give effect to the underlying purpose [of s 23(4)] of the prohibition, differences in language between the definition of elements of an offence and the statement of aggravating factors, must be borne in mind, as must the purpose underlying the inclusion of a particular element in a particular offence. Such a purposive approach should be applied to the constraint contained in the last sentence of sub-s (2), as a more semantic approach to the language of the various paragraphs may otherwise fail to avoid the risk of "double-counting", being the result which is clearly intended. As a matter of principle, it follows that characteristics of an element of an offence should also not be treated as aggravating factors if they merely reflect the policy underlying the offence. There can be no doubt that the inclusion of the circumstances of aggravation identified in s 52A(7) of the Crimes Act are intended to prohibit conduct which may well occur in disregard of public safety, because the conscious creation of a drug-affected state, combined with the act of driving a motor vehicle, will usually satisfy that description. Accordingly, acting without regard for public safety should not, in such a case, be given additional effect as an aggravating factor in its own right, unless the circumstances of the case involve some unusually heinous behaviour, or inebriation above the statutory precondition. ... [12] It appears from the cases that the factor which has given rise to significant difficulty is par (i) dealing with offences committed "without regard for public safety". There has been limited consideration as to whether this factor involves an objective, or subjective test, and if subjective, what level of conscious or reckless disregard is required on the part of the offender. It may well be that this factor should be understood as encompassing both objective and subjective circumstances. However, the distinction can be helpful in order to avoid the danger of double-counting. Where the offence is of a kind which, objectively or abstractly, reflects a policy of prohibiting conduct which disregards public safety, it will be necessary, in order to engage the aggravating factor, to find some aspect of the specific conduct in question which goes beyond the objective element or underlying policy. ... [17] As discussed above, it is necessary to distinguish cases where a factor identified in sub-s 21A(2) as an aggravating factor is an element of an offence or, in the sense described above, an inherent characteristic or a characteristic that appertains generally to conduct covered by that offence, on the one hand, and other conduct which cannot properly be so described ..." Howie J (who agreed with Basten JA) said - "[40] [By virtue of s 21A of the Crimes (Sentencing Procedure) Act] not only must the sentencing court not take into account as an aggravating feature an element of the offence, it also must not take into account as an aggravating feature an inherent characteristic of the class of offence of which the offence before the court is an example... [This] must be so in order to avoid either real or apparent double counting of aggravating features..." 30There are many examples in the judgments of this Court where Elyard has been followed, to which I do not need to refer. Of particular relevance, however, is Bowden v R [2009] NSWCCA 45 where the sentences under appeal included one of ongoing supply of methylamphetamine. The sentencing judge had found as a circumstance of aggravation under s 21A(2)(o) that the offence was committed for financial gain. Hall J (at [65]) noted that the Crown had "properly conceded" error. 31In substance, the Court must avoid double counting. This is a self- evident matter of fundamental principle for which no authority needs be cited. One way of doing this is to apply, in terms, s 21A(2) by disregarding a listed aggravating factor "if it is an element of the offence". The reason for this is, as Basten JA explained in Elyard in the above-quoted passage, that the matter has already been factored in by the legislature in setting the maximum penalty as a marker of the seriousness of the offence. The same reasoning applies to any commonly present factors relevant to seriousness "if they merely reflect the policy underlying the offence" or "generally accompany" the offence; they need not be present in every case. Considered in this way, this is no more than to take into consideration the matters to which the creation of the offence is directed. 32I should refer to Couloumbis v R [2012] NSWCCA 264, which involved the offence of conspiracy to commit aggravated armed robbery, where the question arose whether the fact that the motive was financial gain was an additional aggravating feature in terms of s 21A(2)(o) of the Act. Harrison J (with whom McClellan CJ at CL and Adamson J agreed) said, after referring to the phrase "inherent characteristic" used by Howie J in Elyard - "[31] An inherent characteristic suggests something that is always present as a permanent and essential attribute of the thing under consideration. As counsel for the applicant quite properly conceded in this Court, examples of the subject offence in which financial gain was wholly absent could readily be identified. It follows that financial gain is no more an inherent characteristic of the offence than it is an element of the offence." In my respectful view, this passage is to be read as meaning, in effect, that the presence of financial gain in the context of aggravated robbery was not so common as to lead to the conclusion that it was a consideration in setting the maximum penalty as a marker of seriousness. As explained above, it is sufficient if the particular matter falls within the policy underlying the creation of the offence and the prescribed penalty. 33Cases of the commercial supply of a drug which do not involve the factor of monetary gain are extremely rare though one can imagine (with some difficulty) cases where the motive is otherwise. It seems plain that the penalty for the offence is in large part set with reference to the criminality of the trafficking in the drug for financial gain. The evident purpose of the legislation is to deter the commercial trading in drugs; and the fact that the level of punishment is measured by the amount of drugs involved does not in any way qualify this point. The description of the quantity as "commercial" is an obvious demonstration of this point. Moreover, in this case, the judge implicitly had regard to the motive of financial gain when assessing objective seriousness in her Honour's description of the nature of the applicant's dealing and, thus, to treat it as an aggravating feature was to double count. Although the offences of supply are not described as involving "commercial" quantities, it seems to me that deterring the supply of the specified quantities for profit is very much part of the legislative policy underlying the offence and, accordingly, that they were undertaken for financial gain is not an additional aggravating factor. In respect of the cash, there was no evidence of any particular motive and the seriousness of those offences can be considered without reference to financial gain: keeping safe the substantial proceeds of serious crime - a form of concealing evidence as well as necessarily encouraging the commission of drug supply offences - is a sufficient description of the gist of the offence. 34At all events, given the nature of the "aggravating" circumstances, I think they would have been unlikely to have significantly increased the non-parole period her Honour was minded to impose. It is also submitted that this argument was otiose by virtue of the February sentence. Since that second sentence in no way affected the first set of sentences, this argument must be rejected. 35Although each case must necessarily depend on its own facts, I note that the reasoning adopted by the sentencing judge in Bolt v R [2012] NSWCCA 50, which resulted in a successful appeal on this ground was similar to that used in the present case. As McCallum J observed (ibid at [32]), since, at the time of this sentence, the sentencing judge (rightly) considered herself to be bound by Way, it would not be surprising if principles disapproved in Muldrock had been applied. It follows that, subject to s 6(3) of the Criminal Appeal Act 1912, the sentence should be quashed and a lesser sentence imposed. Sentence for the offence under appeal 36Although I would readily accept that the sentence here impugned is within the discretionary range, it is nevertheless necessary that this Court consider for itself the appropriate sentence to impose. In Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284 (where the sentencing judge had misstated the maximum sentence), Spigelman CJ explained the correct approach once error had been identified - "[10] When the Court of Criminal Appeal turns its mind to forming the opinion which s6(3) requires, it must do so by reference to the facts as they exist at that time, insofar as the Court permits evidence of those facts to be placed before the Court. [11] The construction for which the Crown contends in this respect [that the Court should not consider fresh evidence tendered on the appeal when considering whether to re-sentence] does receive support from the approach to s6(3) in the judgment of this Court in R v Johnson [2005] NSWCCA 186. Hunt AJA concluded at [33]-[34] that the words in s6(3) "is warranted in law" require the Court to determine whether the sentence that had actually been imposed is "outside the appropriate range for the circumstances of the particular case". [12] It has been suggested that the substantive effect of this reasoning would be, if correct, that this Court would, even if it found error in some other respect, only intervene if it was also of the view that the sentence was manifestly excessive. It does not appear to me that his Honour intended such a consequence. His Honour expressly stated at [29]: "The applicant argued that, according to the Simpson case [R v Simpson (2001) 53 NSWLR 704; 126 A Crim R 525], this Court would not intervene unless it formed the view that the sentence imposed was 'manifestly excessive'. That is not the correct approach." [13] In contrast pars [33]-[34] of Johnson appear to be inconsistent with the practice of courts of criminal appeal when re-exercising the sentencing discretion pursuant to the provisions such as s6(3). Specifically, they appear to be inconsistent with the reasoning of the High Court in Dinsdale v The Queen (2000) 202 CLR 321 and of this Court in Simpson. [14] In Dinsdale the High Court was concerned with the terminology of the equivalent provision in Western Australia to s6(3). The judgments indicated that a court of criminal appeal is concerned with the full range of error of the character which, in Australian jurisprudence, is generally associated with the judgment in House v The King (1936) 55 CLR 499 at 505. (See at [3] per Gleeson CJ and Hayne J, at [21] per Gaudron and Gummow JJ and at [58] per Kirby J.) It is clear from the reasoning that an error identified in terms of a sentence being "manifestly excessive" is only one kind of error that satisfies the provisions of s6(3). (See at [6], [22] and [59]-[60].) Dinsdale affirmed that a Court of Criminal Appeal must re-exercise the sentencing discretion. [15] Further, as the very next paragraph of Simpson, to that upon which the Crown relies, stated: "[80] In the present case I do not believe there is any proper basis for the formation of an opinion in the statutory terms; the objective and subjective circumstances do not lead me to the conclusion that 'some other sentence ... is warranted in law and should have been passed'." [Emphasis added.] Plainly this is a reference to the full range of matters that inform the sentencing discretion. [16] The statement in Johnson that s6(3) requires the Court to determine whether the sentence is "outside the appropriate range" should not be regarded as a pre-condition to the formation of the opinion for which s6(3) provides. [17] The words "warranted in law" in s6(3) do not refer only to the situation in which a sentence actually passed was outside the permissible range. That would focus attention only on the time of the original sentence and the reasoning process of the sentencing judge. For the reasons I have identified above, the dual reference to the present tense reinforces the express reference to the "opinion" of the Court of Criminal Appeal to emphasise that it is the appellate court that is making a judgment as to whether or not the sentence actually passed was "warranted in law". The subsection is not directed to answering the question as to whether or not the particular sentence was warranted in law from the perspective of the original sentencing judge alone. [18] In these circumstances the phrase "warranted in law" should be understood as a reference to the entire body of legal rules that inform the exercise of a sentencing discretion, i.e. both statutory requirements and sentencing principles developed at common law. [19] The import of par [79] of Simpson was to ensure that submissions in the Court of Criminal Appeal did not proceed as if the identification of error created an entitlement on the part of an Applicant to a new sentence, for example, by merely adjusting the sentence actually passed to allow for the error identified. That would be to proceed on the assumption that the sentencing judge was presumptively correct, when the Court has determined that the exercise of the discretion had miscarried. Section 6(3) is directed to ensuring that the Court of Criminal Appeal does not proceed in that manner, but re-exercises the sentencing discretion taking into account all relevant statutory requirements and sentencing principles with a view to formulating the positive opinion for which the subsection provides." 37 Latham J, who agreed with the Chief Justice, added - "[83] An error is a "material error" if it has the capacity to infect the exercise of the sentencing discretion, regardless of whether it can be demonstrated that the error has in fact influenced the sentencing outcome. It is an error in the House v The King sense because the sentencing judge has taken into account an erroneous or irrelevant consideration. However, the error must be more than "trivial or immaterial": R v Jeremy Paul Price [2005] NSWCCA 285 at [56] ; see also Phillip Edward Smith v R [2007] NSWCCA 138 at [30] to [34]. [84] There may be errors in the sentencing process that are of such a technical nature that the error could not have affected the sentencing discretion, for example, where the error relates solely to an individual sentence which is wholly subsumed by sentences imposed for a number of offences: Regina v Tadrosse (2005) 65 NSWLR 740 ; [2005] NSWCCA 145 at [30]. Similarly, where an incorrect maximum penalty is applied in respect of only one offence among many offences carrying significantly higher maximum penalties, it is unlikely that such an error could be regarded as material. [85] It is only where the error can be seen to be material that s 6(3) is enlivened and the evidence of post-sentence conduct, if any, falls to be considered by this Court in determining whether some lesser sentence is warranted in law. In R v Burke [2002] NSWCCA 353, Sperling J (with whom Giles JA and Levine J agreed) set out his understanding of s6(3), consistent with this approach (at [83] - [86]):- "Where the sentence is not manifestly excessive, the appellate court must quash the sentence and re-sentence the offender if - and only if - (a) the sentence imposed below is vitiated by error, and (b) the sentence is more severe than the appellate court would have imposed and, necessarily, would now impose on re-sentencing the offender. ... However, ... some refinement is necessary. For example, if there were error in the sentencing process below which cannot have made any material difference to the result, the appellate court would not intervene, even if it would have imposed a less severe sentence were it re-sentencing the appellant." This aspect of Burke was cited with approval in Douar [(2005) 159 A Crim R 154] by Johnson J at [123]. [86] Of course, the materiality of the error says nothing about whether the error has in fact operated upon the sentencing discretion..." 38It has not been submitted here by the Crown that, if the Muldrock error was established, it was not material. Accordingly, I now move to the sentence appropriate to impose on the applicant. Subjective features 39The objective facts have been set out above. There was no dispute about the subjective features although their significance was not agreed. In this Court the parties did not contend that the sentencing judge's findings about this matter were wrong. The following is drawn from her Honour's remarks on sentence (again with quotation marks omitted). 40The applicant was 52 years of age when he was sentenced, living with his wife and three children aged between nine and 23 years. Since his incarceration on 25 July 2007 he received regular visits from his family, whom he described as his "pride and joy". 41The applicant was self-employed as a tradesperson between 1975 and 2000, then buying and managing an equestrian centre on the fringes of Sydney, which he sold in 2006 and later starting a successful business of manufacturing and selling compression guns. He intends to return to this business when he is released. The applicant reported that he commenced using illicit substances in about 1994 on what he described as a social basis, involving the use of 0.2 or 0.3 grams of cocaine and amphetamine three or four times a year. He smoked small amounts of cannabis about once a week. He did not consider this use to be a problem and has never sought any intervention for it. 42In 2006 the applicant's son was kidnapped by members of an outlaw motorcycle gang and held hostage for some 18 hours before being returned to the family without suffering physical harm. Those responsible have been dealt with. Since that time, however, the applicant has received continual harassment and threats, which he attributes to associates of those convicted of the kidnapping of his son and, as a consequence, he fears for his family's welfare. The applicant's wife reported that, since the kidnapping, the applicant's behaviour changed. He became more edgy and anxious. In her view he feels helpless because he cannot protect his family from intimidation. 43It appears that the sentencing judge accepted the opinion of the author of the pre-sentence report that the applicant did not appear to take full responsibility for his involvement in the offences, preferring rather to blame to the individual to whom he had buckled and agreed to source the drugs for and the police, stating it was a kind of entrapment. That author considered that the applicant appeared to display little insight into the impact of his offences on the wider community. 44So far as the applicant's imprisonment is concerned, in early December 2007 he was placed on protection at the direction of the correctional officers following information that suggested his safety might be in jeopardy, although he indicated he did not require protection. After two months it was thought that the threat was no longer of imminent concern and the non-association order was terminated. 45The sentencing judge referred to the facts that the applicant's mother, who suffers from dementia, is in a nursing home and one of his sisters needs a lung transplant, whilst his other sister has cancer. (By the time of the February sentence, sadly, his mother and a sister had died.) The judge accepted that the applicant's inability to provide support for his family made his custody more difficult for him. Her Honour quoted, (and I think accepted) the conclusion of the pre-sentence report - "[The applicant] is a 52 year old man, who initially presented as difficult to engage and somewhat reluctant toward involvement in the preparations for this report, however during the second interview appeared to relax somewhat and was more open. On the whole it is considered that whilst he would answer most questions posed, he appeared to only be willing to provide the barest minimum of information. The offender has the benefit of a stable and supportive family environment, however it is noted that following the kidnapping of his son several years ago, the stability of this environment appears to have deteriorated somewhat... [The applicant] and his wife have both confirmed that this event had a significant impact on the entire family, in particular the offender and the ongoing threat to his family's safety by way of threats and intimidation would appear to have been a destabilising factor in his life since that time. It is of concern that... [the applicant] appeared to take little responsibility for his offending behaviour and displayed no insight into the effects of his crime on those other than himself." 46So far as is relevant, the applicant was convicted on 7 July 1983 in what was then the Court of Petty Sessions of an offence of supplying heroin, in respect of which sentence was deferred on a recognisance to be of good behaviour for 3 years, on 26 March 1984 he was convicted in the District Court of supplying heroin and was imprisoned for 5 years with a non-parole period of 3 years and, lastly, on 24 February 1988 the applicant was convicted in the Local Court of possessing a prohibited drug and fined $400. 47The pleas of guilty were entered after the matter had been set down for trial three times but her Honour allowed a discount on the ground that the expense of a four to six weeks trial was avoided. Of considerable importance was a report which enlivened the application of s 23 of the Crimes (Sentencing Procedure) Act 1999, the contents of which, together with the plea of guilty, resulted in a reduction in the sentences that otherwise would have been imposed by 35 per cent. It is not submitted by either party that this discount was inappropriate. As I have already mentioned, apart from special circumstances resulting from the partial accumulation of the sentences, it was not submitted that there were other matters which should lead to the additional adjustment of the ratio between the non-parole period and the balance of term. Objective seriousness 48I have mentioned above how, following Muldrock, the standard non-parole period is not to be used. How should it be used? 49In R v Biddle [2011] NSWSC 1262, Garling J summarised the effect of Muldrock in the following way - "[23] In considering the imposition of a sentence under s 54B, the following considerations are appropriate: (a) The effect of s 54B(2), despite its apparently mandatory terms, is to preserve the full scope of judicial discretion to impose a non-parole period longer or shorter than a standard non-parole period: Muldrock at [25]; (b) When read with s 21A, s 54B requires an approach to sentencing which is consistent with the judgment of McHugh J in Markarian v The Queen (2005) 228 CLR 357 at [51]: Muldrock at [26]; (c) In considering all factors relevant to sentencing the Court must keep in mind the two legislative guideposts: the maximum sentence and the standard non-parole period: Muldrock at [27]; (d) In giving content in a specific case to the statutory phrase "... an offence in the middle of the range of objective seriousness ...", the assessment is made without reference to matters personal to an offender or class of offenders, and is made by reference wholly to the nature of the offending: Muldrock at [27]; (e) The standard non-parole period is not the starting point in sentencing for a mid-range offence after conviction: Muldrock at [31], nor does it have determinative significance in sentencing an offender: Muldrock at [32]." 50Taking up the point made at sub-para (d) (referencing Muldrock at [27]), what is the "nature of the offending" that gives content to the standard non-parole period signpost? The referenced passage might mean the offending conduct in the particular case or, on the other hand, the offending implied by the legal character of the offence. In Muldrock at [31] the Court noted, "The standard non-parole period represents the non-parole period for an hypothetical offence in the middle of the range of objective seriousness without regard to the range of factors, both aggravating and mitigating, that bear relevantly on sentencing in an individual case" (Emphasis added). This appears to be a statement of the effect of s 54B(3), which provides that the standard non-parole period can only be departed from for the reasons specified in s 21A whilst that section lists - together with the catch-all in s 21A(1)(c) - every matter capable of being relevant to sentence. Since those matters provide the very grounds for departing from the standard non-parole period, it does not make sense that they can also be the matters taken into account to decide whether in the first place the offence is in the middle of the range of objective seriousness. (The possible solution to this circularity by allowing departure only by reference to the subjective matters listed in s 21A requires limiting the general language of s 54B in a manner that is significantly at odds with its natural meaning.) Since it is impossible to evaluate the objective seriousness of particular offending without taking into account all the circumstances of its commission, the objective circumstances that bring an offence into the middle of the range must necessarily remain, as it were, skeletal and, in the nature of the case, hypothetical since every offence is committed in particular circumstances. It seems to me, with respect, that the High Court has now made it clear that the notion of the middle of the range of objective seriousness does not concern the facts in a particular case nor any facts other than the bare characteristics of the offence, given that it is not permissible to hypothesise circumstances against which to compare the particular case. 51It seems to me, with respect, that it follows from Muldrock that the standard non-parole period is a marker, together with the maximum sentence, of the gravity of an offence of the kind under consideration but it is not a measure of the appropriate punishment in the particular case or a number in the calculation of that sentence. Its significance in a particular case as a marker will vary. In a case such as Muldrock's the standard non-parole period of 15 years "[said] little about the appropriate sentence for this mentally retarded offender and this offence" (Muldrock at [32]). In other cases, its significance might well be greater. 52Assessment of the particular seriousness of an offence is obviously an essential part of the sentencing process. The facts of the matter themselves will, and certainly should, demonstrate both the seriousness of the particular offence and the culpability of the offender. Sometimes it is useful, and it is certainly conventional, to describe a level of seriousness, but s 54B(4) does not suggest a need either "to attribute particular mathematical values to matters regarded as significant" or "classify the objective seriousness of the offending": Muldrock (at [29]). Perhaps the description "middle of the range of objective seriousness", might be, for all its obscurity, informative in some cases, but if a two-stage process is to be avoided, it should not in my opinion be regarded as yielding a sentence or even range of sentences. Such a classification is likely to confuse the objective seriousness of the particular case with what might be called the-standard-non-parole-period-marker and potentially give it the dominant significance which was disapproved in Muldrock and, indeed (to some extent) in Way. 53To the above discussion, I would respectfully add the remarks of Basten JA (with whom Johnson J and I agreed) in R v Koloamatangi [2011] NSWCCA 288 - "[15] The introduction, in 2002, of standard non-parole periods in relation to some offences raised a question as to the extent to which the principles underpinning s 21A were being varied: Sentencing Procedure Act, Part 4, Div 1A. There was no doubt that, as this Court held in R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [50] affirmed by the High Court in Muldrock at [27], there were now two legislative guideposts for some offences, namely the maximum sentence and the standard non-parole period. In Way, the Court went further, noting that s 54B(2) was "framed in mandatory terms" so that, absent identification of reasons for ordering otherwise, it identified the period to be prescribed. Because the power of engagement was identified by reference to the "objective seriousness" of the offence, the effect of a mandatory provision would either be to devalue the other considerations prescribed by s 21A, or to prescribe the adoption of a two-stage procedure or, arguably, both. To the extent that Way upheld those approaches, its conclusions were rejected in Muldrock... at [25] and [28]. ... [17] So understood, the standard non-parole period provisions operated... [to prescribe, inter alia, the range of available penalties and the determination of relevant, permissible and irrelevant considerations]; by identifying, where applicable, another factor (or guidepost) to be taken into account. They did not operate... [to impose] a procedural constraint on the process. Other provisions ... [required] the Court to identify in its reasons the facts, matters and circumstances by which the non-parole period imposed varied from the standard non-parole period: s 54B(4); Muldrock at [29]. The Court emphasised that this exercise did not require the ascription of mathematical values to various elements, nor the need to "classify" the objective seriousness of the offending. Muldrock affirmed (at [26]) that the broad ranging and flexible inquiry envisaged by s 21A and confirmed in Markarian [Makarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at 378] was not subjected to a procedural straitjacket in respect of particular offences by the introduction of Div 1A into Part 4. [18] Perhaps because this Court in Way took the view that, where applicable and absent reason for departure, the standard non-parole period should be applied, it permitted a broad range of factors to be considered in determining the "objective seriousness" of the offence: at [84]-[86], Muldrock weakens the link between the standard non-parole period and the sentence imposed in a particular case and limits the range of such factors: at [27]. [19] What remains in doubt, however, is whether the sentencing court is required or permitted to classify, or prohibited from classifying, the particular offence by reference to a low, middle or high range of objective seriousness. The statements at [25] and [29] indicate that the sentencing judge is not required to undertake such an assessment or classification. The statement at [28] indicates that it would be wrong to adopt a two-stage approach which commenced with such an assessment and then sought reasons for departure. On the other hand, to treat the standard non-parole period as a guidepost requires that the phrase "the middle of the range of objective seriousness" must be given content: see [27]. Further, the Court recognised the need for a sentencing judge to maintain "awareness" of the standard non-parole period as an additional consideration bearing on the appropriate sentence: at [31]. That exercise must include reference to the statutory context for its consideration. Nor did the Court suggest that a conventional assessment of the objective offending, according to a scale of seriousness, was to be eschewed. The diminished role accorded the standard non-parole period is, in effect, a function of the fact that it involves an hypothetical offence, ascertained by reference to a limited range of considerations. In Carlton v The Queen [2008] NSWCCA 244; 189 A Crim R 332 at [90], I noted that, whilst s 54A refers to "the range" of objective seriousness: "The statutory language does not require the determination of a low range, a middle range and a high range of seriousness: it envisages a single range and an offence in the middle of the range... As a practical matter, it must be accepted that the middle of a range of seriousness is not a precise point, nor is there any paradigm by which it can be identified. This follows almost inevitably from the scope and variety of circumstances which can be relevant to considering seriousness." [20] Further, I suggested at [88] in Carlton that while the standard non-parole period is said to "represent" the non-parole period for an offence in the middle of the range of objective seriousness, the term "represents" is a curious one: "Section 54A(2) does not say that the standard non-parole period is that which 'should be' set for an offence in the middle of the range of objective seriousness. That the legislature eschewed such language may reflect the fact that a non-parole period is not determined solely by reference to an assessment of the objective seriousness of the offence; the exercise also takes into account subjective factors specific to the offender, but not relevant to the seriousness of the offence." [21] These comments do not appear to be inconsistent with the remarks in Muldrock . One consequence of Muldrock is that a sentencing judge will need to bear the standard non-parole period in mind as a marker, whether or not there are reasons why it should not be applied. One reason for non-application is a plea of guilty entitling the offender to a discount, although that is not a factor relevant to the objective seriousness of the offence, in the terms identified in Muldrock. More importantly, the standard non-parole period cannot have "determinative significance" - see Muldrock at [32] - nor even, as the Court also noted, much weight at all in circumstances such as those which arose in Muldrock itself." 54The most significant aspects in the assessment of objective seriousness are, of course, the quantity and purity of the drugs involved, the role of the offender and the degree of planning. It is clear also that this was not an isolated transaction but part of a system of trafficking in prohibited and dangerous drugs. Society must be protected from those who undertake the breaking of the law for profit, reflecting on the need both for general and personal deterrence. 55With respect, I agree with the sentencing judge's conclusions that the applicant, although above the level of street dealer, was not a principal or organiser. The quantity of drugs was just over the lower end of the commercial range (250g to less than 1kg) but it was of relatively high purity. So far as the offences on the Form 1 are concerned, that of dealing with the sum of $19,350 is of no real significance, for the reasons I have already mentioned; the other dealing, involving over $616,000 is not at all trivial. This offence, prescribed by s 193C of the Crimes Act 1900, attracts a maximum penalty of 50 penalty points and/or imprisonment for 2 years. It is by no means as serious as the offence of commercially supplying drugs. Nor can it be inferred that the money was the proceeds of drug supply, though of course this must be the inevitable suspicion. So far as the other drug offences are concerned, the cocaine was supplied to W on the same occasion as the methylamphetamine which were the subject of the supply count whilst the other methylamphetamine supplies occurred in the two months preceding his arrest. Taken together with the commercial quantity of methylamphetamine discovered by police in the applicant's house (being the substantive offence) and the agreed facts as to prior negotiations and meetings between the applicant and W which did not result in supplying drugs, the Form 1 offences show that the applicant had been in the business of supplying prohibited drugs for some time. The commission of the offence whilst on bail is a significant aggravating factor (s 21A(2)(j)) and that three of the Form 1 offences were committed whilst on bail is an indication of the applicant's attitude to breaking the law. Also, the Form 1 offences - except I think those that concern the cocaine and the smaller proceeds offence - add to the criminality of the substantive offence and should result in some increase in the sentence that would otherwise be appropriate. 56As to the applicant's subjective features, the following additional matters should be noted. The pleas of guilty and the s 23 matter are some evidence of contrition and remorse, though the former largely reflected, I think, acceptance of the inevitable. The fact that the applicant regrets the effect of his actions on his family and does not, as appears from the pre-sentence report, entirely accept his responsibility for his offences does not mean to my mind that it should not be concluded that he will not seek to avoid committing further offences in the future. The very lengthy crime free period (except for one minor offence) of about 20 years following his release from prison in 1983 to his commission of the present offences is to my mind significant and I would give some weight to the disturbing effects of his son's kidnapping as a contribution to the resumption of his criminal conduct. I am of the view that the applicant has reasonable prospects of rehabilitation. 57Bearing in mind the gravity of the offence, marked by the maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years for a case in the middle of the range of objective seriousness, I would propose a commencement point for the commercial supply charge of 10 years imprisonment. Applying the 35 per cent discount would result in a term of 6 years and 6 months. In respect of the non-parole period, there are no relevant special circumstances that would justify an adjustment of the ratio stipulated in s 44 of the Crimes (Sentencing Procedure) Act 1999, except for the adjustment made necessary by its accumulation on the fixed term imposed for the supply offence. Accordingly, I would impose a non-parole period of 4 years and 4 months commencing 1 July 2008, less a reduction of 1 month to account for the period of custody before bail was granted, resulting in a term of 4 years and 3 months. 58It is necessary to consider, under s 23(3) of the Act, whether the sentence is "unreasonably disproportionate to the nature and circumstances of the offence". No doubt, it is disproportionate but I do not think it is unreasonably so and would not propose an adjustment for this reason. 59The February sentence was ordered, in effect, to commence at the expiration of the non-parole period imposed for the commercial supply offence. That specified date must be altered to effect this outcome. Accordingly, that should be varied to commence on 1 November 2012. Section 6(3) of the Criminal Appeal Act 1912 60It follows from the above that, in terms of the sub-section, I am of the opinion that a less severe sentence "is warranted in law and should have been passed", this being so although, as I have mentioned, the sentence under appeal is certainly within the discretionary range. It will be seen that I formed this view on the basis of the criminality of the commercial supply offence. It was not submitted by the Crown that, considered alone, there was no basis upon which the sentence could be reduced. It is, however, submitted by the Crown that it is necessary to consider the overall sentence for all the offences for which the applicant is now imprisoned when dealing with the requirement of s 6(3) and that, when the offences for which the February sentence was imposed are taken into account, no lesser overall sentence would sufficiently reflect the applicant's overall criminality. It is accordingly submitted that this Court would not interfere with the sentence under appeal even if a lesser sentence for that offence were warranted. 61As has been mentioned, the February sentence was imposed for an offence under s 193B(2) of the Crimes Act of dealing with the proceeds of crime between 24 October 2007 and 9 April 2008 in the amount of $1,116,980, knowing that this sum was the proceeds of crime. An application for leave to appeal in respect of this sentence was filed on 21 September 2012 but this was not pressed. The Crown accepted that the application for leave to appeal against sentence was confined to the sentence imposed on 28 May 2010 for the commercial supply of methylamphetamine. 62There is no doubt that the sentence of February 2012 was significantly adjusted by virtue of the term which was imposed on the applicant in May 2010. Her Honour noted that the offence for which the later sentence was imposed was committed as part of a course of conduct engaged in by the applicant prior to his arrest on 25 October 2007 as "for which he has, for the most part, been sentenced". (With respect, this is not quite accurate. The possession of property dealt with on the earlier occasion was charged under s 193C of the Crimes Act as the suspected proceeds of crime and thus subject to the far lower maximum sentence of two years, whilst the offences considered in the February sentence were brought under s 193B(2), which involved knowledge that the property was the proceeds of crime and thus attracted a maximum penalty of 15 years imprisonment.) The offence on the indictment concerned $1,116,980, together with the further three similar offences committed at about the same time (reflecting the dates of discovery by police of differing amounts at three different locations) involved an additional $4,336,300. The February sentence was 3 years imprisonment commencing on 2 December 2013 with a 6 months non-parole period. The effect of this sentence was to add 6 months to the non-parole period that the applicant would otherwise serve and 11 months to his overall term. The non-parole period was set in light of the special circumstances found by the sentencing judge arising both from the partial accumulation with the earlier sentences and the applicant's need for a substantial period on parole to support his efforts at rehabilitation. It is clear that the sentence was substantially adjusted by virtue of the totality rule. 63The Crown submits that the criminality involved in the three offences in the two indictments, together with those taken into account, is such that no lesser sentence is warranted and, accordingly, the appeal should be dismissed in accordance with s 6(3). Counsel for the applicant did not, in terms, take issue with the Crown's contention as to the materiality of the February sentence. However, the matter is not without difficulty and requires attention to be paid to the relevant legislative provisions. 64The starting point, of course, for considering what the Court should do in the event of error being demonstrated in connection with a sentence is s 6(3) which, for convenience I quote - "On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefore, and in any other case shall dismiss the appeal." The issue is whether the sub-section should be read to enable sentences other than that under appeal to be considered, they having been imposed to reflect the total criminality of which the offence applicable to the sentence under appeal is a part, in other words, whether the phrase "some other sentence" referred to the particular sentence under appeal or the overall sentence imposed. 65In R v Georgiou [2005] NSWCCA 237 the Court considered an appeal against a number of sentences on the ground, in each case, that they were manifestly excessive and, secondly, gave rise to a justifiable sense of grievance when compared with the sentences passed on a co-offender. The Court agreed that the sentencing judge had not complied with the requirements of Pearce v R (1998) 194 CLR 610 requiring the fixing of an appropriate sentence for each offence and then considering questions of accumulation or concurrence. So far as three of the sentences which were entirely concurrent, Hulme J concluded that, in respect of the offence for which the longer sentence was imposed, no other sentence less severe was warranted whilst, in respect of the other two charges, those sentences should have been less but, because they involved additional criminality, there should have been at least some accumulation of these sentences with the other sentence. His Honour formed the same view as to the second set of sentences where, again, wholly concurrent sentences were passed. Accordingly, as his Honour said there was "no error unfavourable to the appellant". Having rejected the parity argument, his Honour proposed granting leave to appeal and the dismissal of it. Hidden J, in agreeing with this outcome, and with the conclusion that the sentencing judge fell into the error identified in Pearce, found it unnecessary to consider what might have been the appropriate sentence for each offence, viewed in isolation since the global sentence could not be said to be manifestly excessive and that, if it had resulted from what would otherwise have required a partial accumulation, "the applicant would have had no legitimate complaint". His Honour added - "[65] Generally speaking, in cases such as this no purpose would be served by recasting the sentences for particular offences when the global sentence is an appropriate measure of the overall criminality. For the purposes of s6(3) of the Criminal Appeal Act, the focus should be upon that global sentence and, unless it is more severe than is warranted in law, this Court normally should not intervene at all. I would hesitate to say that intervention would never be called for in this situation but, in my view, this is not such a case." If I may say so respectfully, Hidden J's additional comment should be understood in the context of the particular circumstances of the case. 66In R v Bottin [2005] NSWCCA 254 the applicant had been sentenced for four offences but appealed only in respect of the overall sentence imposed, conceding that the individual sentences did not demonstrate and were not the result of error. Accordingly, the question was whether the ultimate sentence reflected the criminality demonstrated by all the offences or was excessive. Dealing with this question, Studdert J (with whom Kirby and Howie JJ agreed), stated - "[37] Section 6(3) of the Criminal Appeal Act is to be read, where appropriate, in conjunction with s 7(1A) of that Act. There is a need to consider the total criminality of the appellant, and when this is done, it seems to me that the overall effect of the sentences passed, namely a non parole period of seven years and an available parole period of four years, affords appropriate punishment for the offences committed. In my opinion, punishment no less than that was warranted, and I would therefore not be disposed to interfere with the sentences as structured: see R v Carr [2002] 135 A Crim R 171 at para 35 and R v Shankley [2003] NSWCCA 253 at para 20." Given the nature of the appeal, this statement of principle is scarcely controversial. Technically, an appeal which is confined to the extent of accumulation involves appeals against the starting dates of particular sentences. That, of course, requires attention to be directed to the issue of overall criminality. No adjustment is sought or need be made to the constituent sentences. The question whether, if one sentence is affected by error, it should be varied by reference to the overall sentence therefore does not arise. (I discuss this case because later reliance is placed on it in the context of the present problem.) 67Bottin was followed a few months later by R v Smith [2005] NSWCCA 339 where, again, the applicant was sentenced for three offences. He raised two grounds of appeal, firstly that the sentence in respect of one of the offences was manifestly excessive and, secondly, that when sentencing the applicant for that sentence, the sentencing judge erred in the extent of its accumulation on the other offences. There was no appeal against the sentences imposed in respect of the other charges. Hulme J said - "[37] Having reflected on the matter, I regret to say that I am unable to agree with the view expressed in R v Bottin as to the operation of s6(3). To my mind "sentence" in that sub-section refers to the order made or sentence imposed in respect of one offence and not to the overall effect of a combination of sentences. This seems to me to follow from a number of factors. I mention but a few. [38] Firstly, the Crimes Act and other offence creating statutes impose penalties by reference to the commission of one offence. Arguing in the same direction is the fact that that no court imposes one sentence for a number of offences. Nor does this Court, when it interferes with the conviction or sentence relating to one of a number of offences and consequent sentences quash or vary the overall result of those sentences. Rather do the Court's orders relate to the one, leaving the other sentences undisturbed (or possibly undisturbed except as to their commencement date(s)). Thirdly, s7(1A) itself is predicated on there being, when an offender is sentenced for more than one offence, more than one sentence." Hidden J, however, said - "[52] However, while I appreciate the force of his Honour's observations about the passage from Bottin which he has quoted, I consider that the approach expressed in that passage is generally appropriate. I have expressed the same view: see, for example, R v Georgiou [2005] NSWCCA 237 at [65]. The issue normally arises in cases involving two or more offences of a like nature, or offences that are related in such a way as to be seen as part of a continuing criminal enterprise. This is not to say that the Bottin approach is necessarily confined to cases of that kind. [53] That said, there will be cases in which that approach should not be adopted. This, in my view, is one of them. Although linked in time, the three offences were of a different nature and were unrelated. The supply of the drug, in particular, was an entirely discrete offence, and a manifestly excessive sentence in respect of it could not be allowed to stand simply on the basis that the overall sentence was a fair reflection of the criminality of all three offences." Bell J preferred not to express a view on the correctness of the approach that found favour in Bottin. 68In Marinellis v R [2006] NSWCCA 307 I said - "[66] It has been the frequent practice of this Court to regard s 6(3) of the Criminal Appeal Act 1912 as requiring dismissal of an appeal where the overall sentence of a group of sentences is such that no less severe aggregate sentence is warranted in law, even though one or more of the individual sentences included in the group are manifestly excessive: see, for example, McCabe [2006] NSWCCA 220; Georgiou [2005] NSWCCA 237 (per Hidden J); Nightingale [2005] NSWCCA 147 and MM [2002] NSWCCA 431. The notion of an overall or aggregate sentence is useful for discussion, but it to my mind it has no warrant as a legal entity and I respectfully doubt that the word "sentence" in s 6(3) can be interpreted to encompass such a meaning. The insertion of the ameliorating provisions of s 7(1A) and the principles authoritatively enunciated in Pearce v The Queen (1998) 194 CLR 610 reinforce that doubt. However, this matter was not the subject of argument before us and, in the circumstances, I propose to follow the practice to which I have referred." McColl JA (with whom Latham J agreed) found it unnecessary to consider the question but added the following - "[13] ... I would merely observe having regard to Justice Adams' remarks on that issue that s 7(1A) was not inserted in the Criminal Appeal Act to deal with any perceived deficiency of s 6(3) in a case, such as the present, where the applicant appeals all sentences imposed upon him or her. It came about to address the issue which arose in R v Itamua [2000] NSWCCA 502 where, (at [54] - [55]) Smart AJ (with whom Sheller JA agreed, and Dowd J relevantly agreed) observed that s 6(3) did not empower this Court "to intervene in respect of sentences in respect of which no appeal is brought by either the appellant or the Crown", a situation his Honour described as anomalous and calling for remedial legislation. This cri de coeur was accommodated by the insertion of s 7(1A): see Criminal Legislation Amendment Bill, Second Reading Speech, New South Wales Legislative Assembly, Parliamentary Debates, (Hansard) 30 November 2001, vol 289 at 19301." 69The question arose more directly in Arnaout v R [2008] NSWCCA 278; (2008) 191 A Crim R 149 where the applicant was sentenced for seven separate offences, with two further charges on a Form 1 taken into account, and sought leave to appeal in respect of all sentences on three grounds: first, that the sentencing judge had given inadequate significance to early pleas of guilty; secondly, that the overall sentence and effective non-parole period were excessive having regard to the criminality demonstrated by the offences; and, thirdly, with respect to an offence of escaping from lawful custody, the sentence was excessive. The Court agreed that this last ground was made out. It was therefore necessary to consider whether the Court should intervene and, if so, to what effect. It was contended on behalf of the Crown that, despite the error, the Court should not intervene, submitting that reducing the sentence in respect of which error had been demonstrated would have resulted in an aggregate sentence less than that which should have been passed. Basten JA said (after quoting the above passage from my judgment in Marinellis - "[17] The reference to s 7(1A) was not in order to invoke its operation, but by way of assistance in understanding s 6(3)." His Honour then set out s 7(1A) and the observation of McColl JA quoted above and continued - "[19] As a matter of legislative history... [this observation may be correct]; but the reference by Adams J, though elliptical, was by way of confirmation for the conclusion that "sentence" in s 6(3) identified a specific sentence in relation to a particular offence and not an overall aggregation of sentences, a construction which obtains support from the separate identification in s 7(1A) of each sentence for any other offence. It is not necessary to rely upon s 7(1A), inserted in 2001, to interpret longstanding provisions of the Act; rather s 7(1A) reveals a further application of the meaning of "sentence" as defined in s 2(1) of the Criminal Appeal Act which, relevantly, includes "any sentence of imprisonment... imposed under Part 2 of the Crimes (Sentencing Procedure) Act 1999". That in turn picks up the definition of "sentence" in s 3 of the Sentencing Procedure Act, set out at [9] above. [20] It follows that the use of the singular form of "sentence" in s 6(3) does not mean an aggregation of sentences, merely because use of the singular may import the plural. No doubt an appeal under s 5(1) may relate to more than one conviction or sentence; but if an offender appeals against one only of three convictions, the Court is not empowered to consider the validity of other convictions. The same is true of sentences. The question is not whether separate "appeals" are required in relation to separate sentences - see [80] below - but rather to identify the matter with respect to which an applicant has sought to invoke this Court's jurisdiction. In fact, in the present case, separate grounds challenged the sentencing which achieved the aggregate term of mandatory incarceration (ground 2) and the sentence for the escape (ground 3). In relation to ground 2, a complaint as to the degree of accumulation of one or more sentences would be an appeal in respect of each sentence. Despite finding error, the Court could (and does) decline to intervene: that is separate from the proper approach in addressing ground 3. [21] As a matter of statutory construction, the approach adopted by Adams J in Marinellis is correct. In its terms, s 6(3) is concerned with an individual sentence (or sentences, if more than one is challenged). It requires that this Court form a view as to whether some other sentence, whether more or less severe, is "warranted in law and should have been passed". If the Court is of that opinion, it is obliged to quash the sentence and impose such other sentence in substitution: if it is not of that opinion, it is obliged to dismiss the appeal. Section 6(3) neither requires nor permits the Court to form an opinion about some other sentence, let alone an aggregation of sentences passed in respect of a variety of offences; nor is its dual obligation conditioned upon the existence of an opinion other than with respect to a sentence for a particular offence. Section 6(3) gives an appellate court no mandate to impose a sentence otherwise than according to law. It allows a discretion where different results are available in exercise of the power to sentence. It does not provide any authority to exceed powers elsewhere conferred. If the error were in imposing an additional term commensurate with the total period of incarceration, rather than that appropriate to the only relevant conviction, for this Court not to intervene would be to repeat the jurisdictional error. Accordingly, if this Court is satisfied that some other sentence was warranted in law with respect to the offence of escape from lawful custody, it is the obligation of the Court to impose that sentence. [22] Further, if there is some doubt or uncertainty about the proper construction of that provision (contrary to the views expressed above), that doubt or uncertainty should be resolved in favour of applying the rule of law and correcting legal error, an approach which conforms to the principle that, where the liberty of the individual is in issue, uncertainty or ambiguity should be resolved in a manner which favours the liberty of the individual: see Smith v Corrective Services Commission (NSW) [1980] HCA 49; 147 CLR 134 at 139 (Stephen, Mason, Murphy, Aickin and Wilson JJ); Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; 224 CLR 193 at [45] (Gleeson CJ, Gummow, Hayne and Heydon JJ); Piper v Corrective Services Commission (NSW) (1986) 6 NSWLR 352 at 361D (Kirby P, Hope and Samuels JJA). [23] The proper construction of s 6(3) does not, however, necessarily resolve questions relating to the application of the principle of totality and interference with the structure of multiple sentences. That exercise should be carried out in this Court, as it would be by a trial judge, by fixing an appropriate sentence for each offence, determining whether in principle they should be served concurrently, cumulatively or partly cumulatively and then considering whether the overall aggregation imposes a total effective period of imprisonment which requires adjustment downwards. The appropriate practice in this regard permits a degree of flexibility: see, eg, Johnson v The Queen [2004] HCA 15; 78 ALJR 616 at [18]-[26] (Gummow, Callinan and Heydon JJ). No doubt the reduction of any particular sentence is a variation of the sentence; a variation of the date of commencement of the sentence (and hence its termination date absent variation in length) is also a variation of a sentence. Whether such variations are now to be undertaken in the case of multiple sentences pursuant to s 6(3) or s 7(1A) need not be determined in the present case. It is a practice frequently undertaken and its validity can be addressed when necessary. [24] On the other hand, having determined that another sentence is appropriate with respect to a particular offence on an appeal by an offender, it would seem to be inappropriate to decline to intervene because the overall period of imprisonment could have been restructured so as to achieve the same result. That is not what s 6(3) requires or permits, for reasons given above. If the approach adopted in Kerr v Regina [2008] NSWCCA 133 (McCallum J, Beazley JA and Johnson J agreeing), at [36] is to be read as taking a different approach, both it and the other authorities adopting a similar view, may need to be reconsidered. However, it is not necessary to resolve that issue in the present case, because a relevant restructuring could not achieve an appropriate variation to give the present result." 70Price J, disagreed with Basten JA's judgment on this point, preferring the view expressed in R v Bottin [2005] NSWCCA 254 as to the operation of s 6(3). His Honour said - "[79] To my mind, the view expressed in Bottin as to the operation of s 6(3) is to be preferred ... [81] Although "sentence" in... [s 6(3)] is in the singular, the presumption is that words in the singular will include the plural unless the contrary intention appears. There is no indication that plurality is to be excluded. The opening words "On an appeal under section 5(1)" suggest on the other hand that the singular includes the plural. Section 5(1)(c) relevantly provides: "A person convicted on indictment may appeal under this Act to the Court: ... (c) with the leave of the court against the sentence passed on the person's conviction." [82] Where an offender has been convicted of more than one offence and more than one sentence is imposed, there is one appeal to this Court although that appeal may be founded on a number of grounds. As in the present appeal, separate appeals are not required for the individual sentences imposed. "Sentence" in that subsection refers, it seems to me, to the total sentence and not, where there is more than one sentence, to the sentence imposed in respect of one offence. It follows, in my opinion, that on an appeal under s 5(1) that the operation of s 6(3) is not confined to the sentence imposed in respect of one offence and that "sentence" includes the overall effective sentence. As was said by Hidden J at [65] in R v Georgiou [2005] NSWCCA 237: "...For the purposes of s 6(3) of the Criminal Appeal Act, the focus should be upon that global sentence and, unless it is more severe than is warranted in law, this Court normally should not intervene at all."" In the result, Price J agreed with Basten JA in Arnaout that it was not necessary to resolve the issue as to the overriding significance of the global sentence, since "a restructuring of the sentences by this Court could not achieve the same overall sentence... imposed by the [sentencing] judge." The sentence for the escape charge was therefore reduced. 71 With respect to Price J, the question is not resolved by asking whether more than one appeal is brought where a number of sentences are challenged. The question is, rather, (as Basten JA pointed out at [20] in the above quotation) whether a sentence which is not appealed from should be treated as though it were. Similarly, so far as s 6(3) is concerned, the reading of "sentence" as "sentences" does not resolve the question, which is whether "sentence" can be read as "aggregate sentence". (I have already pointed out the limited application of Bottin.) 72The last case in which this problem was discussed is McMahon v R [2011] NSWCCA 147. That case concerned an application for leave to appeal from the sentences imposed on 39 counts of tax fraud and 42 counts of identity fraud. The sentencing judge adopted the approach of dividing the offences into categories in relation to which he made an assessment of their relative seriousness, then passing sentence in relation to each group of offences and applying the principle of totality to the result. Amongst the consequences of this approach was that identical sentences, in respect of the tax fraud offences were imposed where the amount involved varied very considerably from $488 to $57,060, the argument of course being that the larger the amount the greater the criminality and therefore the heavier the sentence and, conversely the offences involving much smaller amounts should have attracted much lower sentences. Ultimately, the grounds requiring determination by the Court were that the sentencing judge erred in failing to set an appropriate sentence for each count, failing properly to apply the principle of totality and in the approach to accumulation and concurrence, together with other grounds, again, in substance, affecting each of the sentences imposed. Hoeben J (with whom Hodgson JA and Grove AJ agreed) proposed that leave to appeal be granted and the appeal be dismissed. The Court had received submissions on the question whether "some other sentence" in s 6(3) is a reference to each individual sentence under appeal or to the overall effective sentence, noting the different views expressed in Arnaout. Hodgson JA said in this respect - "[3] It is not necessary to resolve this difference in this case; but I would note that, even if the phrase were to be taken as referring to each individual sentence, it is not correct to say that the Court cannot, in considering whether some other sentence is warranted, take into account other sentences imposed on the appellant. For example: (1) The other sentences may be directly relevant to the criminality involved in the particular offence (for example, showing it to be part of planned ongoing criminal activity). (2) If a ground of appeal raises questions of concurrency or accumulation, other sentences must necessarily be considered. (3) Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 shows that there is not an absolute prohibition on adjusting an individual sentence by reason of considerations of totality. (4) Where, as in this case, a single non-parole period has been fixed in respect of a number of federal offences, as required by s 19AB of the Crimes Act 1914 (Cth), consideration of the adequacy of any individual sentence, which would ordinarily take into account the extent of full-time custody involved, must necessarily have regard to the totality. [4] Further, if an application for leave to appeal is made, and error in one sentence is shown but no practical result would be achieved because no lesser total sentence would be imposed as a result of a successful appeal, it would be open to the court to refuse leave to appeal on that ground." 73None of these examples, as I understand them, shed light upon the problem in the present appeal. 74With respect to those who differ on this point, I consider that the approach expressed by Hulme J in Smith, by me in Marinellis and, with further explication, by Basten JA in Arnaout is correct, at least in a situation such as the present where the appeal is confined to one sentence which is imposed prior to and entirely separate from the subsequent sentence for another charge, even though, in respect of the latter, it was committed as a part of the criminal activity generally being undertaken at the time of the earlier sentence. At all events, this case comes well within the exception mentioned by Hidden J in Smith (above quoted at [53]) where the approach his Honour preferred should not be adopted where "[although] linked in time, the ... offences were of a different nature and were unrelated". The commercial supply was, to use his Honour's phrase "an entirely discrete offence" and a sentence affected by error which, of itself, was such that a lesser sentence was warranted, "[should] not be allowed to stand simply on the basis that the overall sentence was a fair reflection of the criminality of all ... offences". Conclusion 75I propose the following orders - (1)Grant leave to appeal. (2)Allow the appeal. (3)Quash the sentence and substitute the following sentence: (i) The appellant is sentenced to a non-parole period of 4 years and 3 months commencing 1 July 2008 and ending on 31 October 2012 with a balance of term of 2 years and 3 months. (4) The sentence imposed on 24 February 2012 is varied to commence on 1 November 2012. 76It follows that the non-parole period currently being served by the appellant expired on 30 May 2013. By virtue of s 50 of the Crimes (Sentencing Procedure) Act 1999 the Court is required to direct the appellant's immediate release on parole. 77BEECH-JONES J: I have had the advantage of reading a draft of the judgment of Adams J. His Honour's judgment relieves me of the necessity to set out the background to the application for leave to appeal. 78I agree that that the sentencing judge erred in sentencing the applicant in 2010 on count 2 of the indictment to which he had pleaded guilty in November 2009 (the "first indictment") by attaching a significance to the non parole period that was not warranted having regard to the High Court's decision in Muldrock v R [2011] HCA 39; 244 CLR 120. In my view that conclusion follows from a consideration of the extracts from the sentencing judgment noted in the judgment of Adams J at [16] to [17]. The judgment in Muldrock was published subsequent to the sentencing judgment in this case. 79The next question that arises is whether any lesser sentence for that count is warranted in law (s 6(3) of the Criminal Appeal Act 1912). As noted by Adams J the sentencing judge applied a discount to each of the two offences on the first indictment of 35 per cent having regard to his plea and s 23 of the Crimes (Sentencing Procedure) Act 1999 (the "Sentencing Act"). This meant that for count 2 the notional starting point for the sentence prior to any discount was a head sentence of 11 years and 6 months with a non-parole period of 6 years and 9 months. If this arithmetic is extended, then the combined head sentence for counts 1 and 2 prior to the application of any discount was 12 years and 8 months with a non-parole period of 9 years and 5 months. 80The applicant was clearly operating a substantial retail enterprise selling illegal drugs. The scale of the enterprise is confirmed by the offences on the form 1 which included an offence of dealing with proceeds of crime being the not insignificant amount of $616,000.00 in cash that was found at premises connected with the applicant. 81The sentencing judge recorded the following: "The Crown submitted that each of the offences is aggravated as the offender was on bail for some of the Form 1 matters when he committed them. I find the offences aggravated in this way." 82The "Form 1 matters" included a number of offences of supply prohibited drugs committed in April 2007 and September 2007. Counts 1 and 2 being "each of the offences" referred to in the sentencing judge's comments were committed in October 2007. 83In this case a very significant matter affecting the approach to sentencing on count 2 was the number and seriousness of the offences listed on the form 1. The sentencing judge stated that they were taken into account "with a view to increasing the penalty that would otherwise be appropriate ... by giving greater weight to the need for personal deterrence" which the commission of those offences indicates ought to be given and "to the community's entitlement to exact retribution". These observations reflected the discussion in the judgment of Spigelman CJ in Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 at [42] concerning the significance of offences listed on a form 1 to sentencing for the "principal offence" as referred to in subsection 32(1) of the Sentencing Act. 84In addition, each of the five judgments in Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 confirm that the reference in s 33(2) of the Sentencing Act to taking into account offences on a form 1 warrants a consideration of the criminality involved in those offences and can justify the imposition of a longer sentence for the "principal offence" provided that no separate sentence is imposed for the form 1 offences (at [22] to [23] per Bathurst CJ; at [64] per Basten JA; at [102] to [107] per Hoeben CJ at CL; at [154] per Garling J and at [255] to [256] per Campbell J). As noted by Bathurst CJ the sentence imposed may be "significantly longer" (at [23] with whom Garling and Campbell JJ agreed). Further, all of the judgments in Abbas are consistent with this Court's earlier decision in R v Grube [2005] NSWCCA 140 which was to the effect that the process of taking into account offences on a form 1 can warrant the imposition of a sentence that is higher than the appropriate range for the criminality involved in the principal offence (at [36] to [37] per Hall J with whom Grove and Howie JJ agreed). 85Count 2 on the first indictment involved the applicant supplying a very substantial quantity of illegal drugs while released on bail for similar offences. Most significantly the total criminality disclosed by that offence and the form 1 offences warranted a substantial penalty and one that was "significantly longer" than would have been imposed had count 2 stood alone (Abbas at [23] per Bathurst CJ). Those offences reveal the additional need for deterrence of the applicant and retribution for count 2 (Abbas id). The supply occurred as part of the applicant's business of supplying illegal drugs at a retail level, which was substantial. Even allowing for the discount of 35 per cent and the applicant's subjective case including the more favourable matters revealed by the sentencing judgment for the offences dealt with in 2012, I am satisfied that no lesser sentence is warranted in law. 86This conclusion makes it unnecessary to consider the issue raised by Adams J as to whether the reference in "sentence" in s 6(3) of the Criminal Appeal Act is confined to those sentences that are the subject of the application for leave to appeal or embrace all of the sentences an offender is serving even if some of them have not been the subject of an appeal by either the offender or the Crown (see Arnaout v R [2008] NSWCCA 278; 191 A Crim R 149 at [19] to [24] per Basten JA; R v Smith [2005] NSWCCA 339 at [37] per Hulme J; Marinellis v R [2006] NSWCCA 307 at [66] per Adams J; cf Arnaout at [78] per Price J; R v Bottin [2005] NSWCCA 254 at [37] per Studdert J with whom Kirby and Howie JJ agreed; Kerr v R [2008] NSWCCA 133 at [36] per McClellan CJ at CL; Beazley JA and Johnson J agreeing). 87Otherwise I agree with Hoeben CJ at CL that a minor adjustment in the applicable sentence is warranted having regard to the time spent by the applicant in custody before he was granted bail. 88I agree with the orders proposed by Hoeben CJ at CL.