Ground 2
13 In support of this ground, counsel for the Applicant drew attention to statements in the authorities to the effect that regard should be paid to "the existence of a general pattern of sentencing by criminal courts for offences such as those under consideration" - see R v Oliver (1980) 7 A Crim R 174 at 177; R v Visconti (1982) 2 NSWLR 104 at 107 - and submitted that the Judicial Commission Statistics for the supply of a non-commercial supply of amphetamines showed that the sentence imposed on the Applicant was in the upper 25% of all sentences imposed by higher courts following a plea of guilty for such offences and that only 17% of "all offenders" who pleaded guilty received a higher sentence than the Applicant in a pool of 117 cases".
14 That is to misread the statistics which reflect the sentences imposed, not starting points prior to discounts for pleas etc. Statistics to August 2006 - somewhat later than those relied on by counsel - indicate that the sentence imposed on the Applicant is further down the scale than the submissions suggest. Of 98 offenders in the "Non-consecutive terms only, plea guilty" category 51 received sentences of under 2½ years, 17 received sentences of that length and 30 received longer sentences, though none received a sentence longer than 6 years. Of 116 cases involving "Consecutive and non-consecutive terms, plea guilty", 47% of sentences were under 2½ years, 20% were of 2½ years and 33% were above 2½ years. Again none exceeded 6 years. The 116 cases were those sentenced to full time custody out of a total of 330 offenders.
15 The statistics do not show the quantities or the circumstances of the offences, the results of which are reflected in them and accordingly this analysis does not, of itself, indicate that the sentences imposed were outside an appropriate range. Nor does a comparison of sentence and quantities. The judge's starting point of 3 years and 4 months for the first offence was approximately one-quarter of the maximum penalty provided, while the quantity was, as has been said, marginally above 20% of the 250 grams quantity which is at the top of the relevant range under the Drug (Misuse and Trafficking) Act for methylamphetamine.
16 That is not, of course to suggest that quantity is the only relevant factor. Numerous decisions, including some in the High Court and some in which I have participated recognise that it is not. But given the harm done by drugs, and the profits to be derived by those who deal in them, are to a very large degree dependent on quantity, and also that Parliament has provided increased penalties for increased amounts, quantity is clearly an important factor.
17 On the Applicant's behalf, reliance was also placed on this Court's decision in R v Payne [2005] NSWCCA 84 where in a Crown appeal, this Court set aside the sentence imposed at first instance and substituted imprisonment for a term of 20 months including a non-parole period of 12 months, the sentence to be served by way of periodic detention. The Court's starting off point prior to allowing a 15% discount for a plea was 2 years.
18 The element of periodic detention is a matter which can be put to one side. That had been the form of the sentence imposed at first instance, the Respondent had not been in custody and there had been substantial delays not the fault of the Respondent between his commission of the offence in February 2002 and his being sentenced on 11 November 2004. During the hearing of the appeal in Payne the Crown indicated that it was not seeking the imposition of a full time custodial sentence.
19 The drug involved was methylamphetamine and the quantity 34.7 grams although it was accepted this was to be shared between the Respondent and his partner. As is the case here, the offence was committed in breach of a bond imposed some 9 months earlier, although in that case as an incident of the suspension of a sentence imposed for the supply of 10.8 grams of methylamphetamine. Bell J, with whose decision Hall J substantially agreed, recorded that a sentence of 12 months imprisonment for the offence of supply methylamphetamine, notwithstanding that it was for a gratuitous supply (of part of the quantity) to an associate was manifestly inadequate. Furthermore, in selecting the starting point of 2 years, her Honour recognised that it was necessary to exercise restraint because of the proceedings being a Crown appeal.
20 To my mind, R v Payne does not support the Applicant's case. Although there is the obvious difference between the starting points of 3 years and 4 months here and the 2 years used in that case, this is not a Crown appeal, the offence involved a greater - indeed in percentage terms appreciably greater - quantity of drug and Judge McLoughlin was not satisfied that all of the drug was to be used by the Applicant or in gratuitous supply to his partner. One must also bear in mind that sentencing is a discretionary exercise and the mere fact that the Court of Criminal Appeal in one case selected 2 years as a starting point is no indication that a higher starting point is not appropriate particularly in the absence of those considerations that apply to a Crown appeal.
21 (Before I leave R v Payne, I should acknowledge that in that case Adams J, who dissented, took the view that the sentencing should be approached on the basis that, since about half the 34 or so grams was for the offender's own use, sentencing should proceed upon the basis that the quantity the subject of deemed supply was only about 17 grams. I am by no means persuaded that that reflects the terms of s29 of the Act, paragraph (a) of that section referring to "the prohibited drug", not merely part of it. In any event, the decision of the majority was as I have indicated.)