AYACHE, Baiyan v R

Ground 1: Entitlement to a discount of 25 per cent 12It is accepted by both parties, as it must be, that the applicant pleaded guilty at the earliest opportunity. The sentencing judge accepted that proposition. The sentencing judge, relevantly, said: "The Court reduced his sentence by about 25 per cent to reflect the utility of his early guilty plea. The Court is satisfied on the material before it that the conditions referred to in subpara 21A(3)(i) have been met and that he is remorseful and, accordingly, the sentence was reduced further to reflect that remorse. (ROS, 1) ... The combination of circumstances of this case satisfies the Court beyond a reasonable doubt that the Offender was involved in supplying drugs to users himself or to a wholesaler who would then on-sell them to people who would use them. In terms of the distribution chain before an actual user, therefore the Offender was either on the lowest or second-lowest rung of the drug trafficking hierarchy. Although an isolated aberration, the amount of drug, the form in which it took and the fact that it was distributed between three locations indicates, in the Court's view, that he was involved in drug trafficking to a substantial degree. The Court is satisfied beyond a reasonable doubt that the offence was premeditated and that he must have appreciated that he was enmeshing himself in organisation [sic] criminal activity. The fact that this was not for greed but rather to provide drugs for his own usage, that it developed in the context previously noted is a matter that is borne in mind. The evidence before the Court satisfies it that his prospects of rehabilitation and not re-offending are very good." (ROS, 12-13) 13The gravamen of the submission on this ground is that the use, by the sentencing judge, of the expression "about 25 per cent" (ROS, 1) indicates that his Honour allowed a discount of less than 25 per cent and not the full 25 per cent and in so doing his Honour fell into error. The applicant submits that there is "no explanation as to why the discount fell below the highest end of the range". 14In my opinion, this submission is wholly without merit. Sentencing is a process of intuitive synthesis. It is not a mathematical exercise. The discount for a plea of guilty was dealt with in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [152], Spigelman CJ said: "In my opinion, the appropriate range for a discount is from 10-25 percent." In the conclusion, the Chief Justice (with whom the remainder of the Court, Wood CJ at CL, Foster AJA, Grove and James JJ, agreed), at [160], relevantly said: "(ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, e.g. assistance to authorities, a single combined quantification will often be appropriate. (iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 percent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge." (Emphasis added.) 15There is nothing in the remarks on sentence of the sentencing judge to suggest that the term "about 25 per cent" was less than 25 per cent. It may well have been more than 25 per cent. Far more importantly, the proposition that there must be mathematical precision of the kind for which the applicant contends cannot be supported. 16The maximum sentence available to be imposed was 25 years' imprisonment. The sentencing judge allowed a discount of about 25 per cent for the utilitarian value of the plea and allowed a further reduction (there being no complaint as to two stage sentencing) for remorse. 17The reduction for remorse was not quantified. Nor should it have been. 18As earlier stated, the process of sentencing is intuitive. The sentencing judge was entitled to describe the discount at the highest end of the range as "about 25 per cent" when it was being applied in circumstances where other matters were being taken into account which required a reduction in what might otherwise have been an appropriate sentence. The alternative would be to encourage sentencing judges to impose sentences, which include years, months and days, a practice which has been uniformly deprecated. This ground of appeal fails.

Ground 2: Manifest excess 19The applicant submits that in light of the applicant's compelling subjective case, the sentence is manifestly excessive. The sentencing judge found that the applicant had a compelling subjective case and listed numerous positive findings as to the subjective circumstances of the applicant. In addition to those matters, the applicant submits that the sentence was manifestly excessive because insufficient attention was paid to the low purity of the drug and the applicant's limited role in supply: Markarian v R [2005] HCA 25; (2006) 228 CLR 357. 20The applicant also submits that, when compared with the sentencing statistics for this offence, the sentence was outside the range available. 21His Honour, the sentencing judge, referred to the statistics on sentencing. Further, the sentencing judge referred to a number of judgments and the circumstances associated with sentences imposed for similar or the same offences. His Honour summarised a number of those, at length, in the course of arriving at the sentence to be imposed. 22Moreover, the sentencing judge made specific and detailed reference to the purity of the drug and the fact that it had been cut to a significant degree by the addition of sugar. Plainly, the sentencing judge also took into account the nature of the applicant's drug addiction and its short term rather than chronic nature and the positive aspects of his attitude to life in fixing a non-parole period of 2 years in a head sentence of 5 years. 23As this Court said in Vuni v R [2006] NSWCCA 171 at [33]: "To establish that a sentence is manifestly excessive an applicant has to demonstrate that the sentence was 'unreasonable or plainly unjust' (Dinsdale [2000] HCA 54; (2000) 202 CLR 321 at 325). This has to be established in a context where there is no single correct sentence and that judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. Most pertinently the Court of Criminal Appeal may not substitute its own opinion for that of the sentencing judge merely because it may have exercised its discretion in a manner different from that of the sentencing judge. (Markarian v The Queen [2005] HCA 25 at [26] - [28])." (Per Hoeben J (with whom Tobias JA and James J agreed).) 24In my view the sentence imposed on the applicant was within range and is not manifestly excessive. The sentencing judge has made no error. I would propose that the Court make the following orders: (1)Leave to appeal granted; (2)Appeal dismissed. 25ADAMSON J: I agree with Rothman J.

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