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.