(h) $2,340 in cash (Form 1 offence)
8 The applicant admitted to the possession of these items. Later that same day, members of the Federal Police executed a search warrant at the residence of Mr Martin. During the execution of that warrant, 101 sheets of blotting paper with 1,000 heart-shaped logos printed on each sheet, identical to those seized from the applicant's premises, and ten sheets of blotting paper with various logos printed on each (1,000 logos per sheet) were also seized.
9 In the course of an interview between Federal Police and Mr Martin, the latter claimed that the sheets of blotting paper containing the logos had been produced on the instructions of the applicant, by way of payment of a debt of $3,500 owed by Mr Martin to the applicant. The relevance of this information lies in the applicant's purported explanation for his involvement in the offences, provided to a Probation and Parole Officer for the purposes of a report dated 30 November 2004 (Exhibit E). The applicant maintained that he owed a favour to a long-time friend whose partner asked for the applicant's assistance in the storage and transportation of the LSD. An explanation in the same terms was provided to Ms Seidler, Clinical and Forensic Psychologist, for the purposes of her report dated 19 November 2004. Clearly, the applicant's account was not consistent with the content of Exhibit B. His Honour noted that there was no evidence to support the applicant's assertions in this regard.
10 The Australian Federal Police estimated that the liquid LSD was capable of producing 82,000 individual doses or tabs, based on a dosage of 50 micrograms of LSD per tab. There was some discussion in the course of the sentencing proceedings as to the reliability of that estimate, in the light of the possibility that individual dosages may in fact contain 100 micrograms of LSD per tab. The quantity of MDMA was estimated to produce something between 500 and 1500 individual doses, depending upon the purity of the ultimate product. Based on the estimates of the number of doses available from the liquid LSD and MDMA and from the cannabis, the Federal Police estimated a total street value of all of the drugs seized from the applicant's premises at between $837,000 and $2,581,000 approximately. The LSD alone was said to have a street value of between $820,000 and $2,460,000. However, his Honour ultimately arrived at the conclusion that a more sound estimate of the value of the LSD was between $200,000 and $1,500,000.
11 The supply of a small quantity of LSD charge arose out of the supply by the applicant to a 22 year old female acquaintance of one paper tab impregnated with LSD, on 7 February 2004.
12 The grounds of appeal filed on behalf of the applicant assert four specific errors on the part of the sentencing Judge. In addition, it is argued that the sentence imposed on the applicant was, in all the circumstances, manifestly excessive and that a lesser sentence was warranted in law. Before addressing the grounds of appeal, it is necessary to make some preliminary observations of the remarks on sentence, which were unfortunately attended by patent error.
13 At the beginning of the remarks on sentence, his Honour referred to the maximum penalty in respect of the second, third and fourth charges as 18 years' imprisonment, apparently in reliance upon the written Crown Submissions which became Exhibit D in the proceedings. Regrettably, the error was not corrected by the applicant's counsel. The applicable maximum penalties are 15 years' imprisonment in respect of charge (ii), 10 years' imprisonment in respect of charge (iii), and 15 years in respect of charge (iv) when prosecuted on indictment. It may be seen that a sentence in excess of the maximum penalty was imposed in respect of charge (iii). The sentence imposed in respect of charge (ii) represents 80 percent of the statutory maximum; however, taking into account the erroneous maximum penalty against which his Honour assessed the gravity of the offence, it would appear that his Honour intended to impose a head sentence representing two-thirds of the maximum penalty.
14 His Honour next referred to the standard non-parole period (15 years) prescribed for the offence by s 54 of the Crimes (Sentencing Procedure) Act 1999 and to this Court's decision in R v Way [2004] NSWCCA 131. Apart from noting that it was "not to be regarded as either a starting post or a finishing post or anything apart from that", there was no further discussion of the relevance of the standard non-parole period to the sentencing exercise being undertaken. The Crown's written submissions on sentence canvassed the authorities relating to Way and sought to place the offence "well beyond the middle range of objective seriousness", having regard to the quantity of the drug and its commercial value. In these circumstances, his Honour erred in not identifying a basis for departing from the standard non-parole period. Nowhere in the remarks on sentence does his Honour assess the objective gravity of the offence in terms of the spectrum of offences of this type, nor is there any attempt to meet the requirements of s 54B(4) of the Crimes (Sentencing Procedure) Act; R v Mills (2005) 154 A Crim R 40; [2005] NSWCCA 175.
15 The applicant's counsel in this Court conceded that the supply large commercial quantity offence lies in the upper range of objective gravity, a concession properly made in my view when one has regard to the quantity of LSD and the evidence pointing to the large scale production of LSD for profit.
16 The remainder of the remarks on sentence deal with the applicant's co-operation with the investigating police, his age and personal circumstances, the pleas of guilty, the importance of general deterrence, the applicant's prior good character and the finding of special circumstances. His Honour then passes to a determination of "the minimum time that must be spent in custody in respect of these matters." His Honour acknowledges that he must take into account the principles in Pearce v The Queen (1998) 194 CLR 610. He also acknowledges that "these are separate offences and could, if appropriate, be dealt with by separate cumulative sentences". There follows a decision to impose wholly concurrent sentences, absent any explanation for that course, and a reference to the principle of totality "in arriving at the sentences I regard as appropriate". The minimum period of custody is then fixed at 12 years. Despite his Honour's earlier reference to the minimum custodial term for the criminality represented by the various offences, a non-parole period of 12 years is imposed for the supply large commercial quantity offence, and all remaining sentences are subsumed within that sentence.
17 One can readily appreciate the difficulty inherent in sentencing the applicant for a number of offences, one of which overshadowed the others to such an extent that any accumulation would result in an overall sentence of considerable magnitude. That said, it was nevertheless incumbent on his Honour to determine individual sentences for each charge commensurate with their individual objective gravity, and then to consider questions of concurrency and accumulation. Disregarding for present purposes the error in relation to the maximum penalties applicable to charges (ii) and (iii), it cannot be maintained that the same sentence was warranted for each of those offences, given that one involved an indictable quantity and the other involved a trafficable quantity. The latter was capable of summary prosecution, whereas the former was not. For these reasons, I am of the view that his Honour did not comply with Pearce, despite his stated intention to have regard to it.
18 I return to the grounds of appeal. Not surprisingly, the applicant relies upon the error in the imposition of sentences according to the wrong maximum penalties for charges (ii) (iii) and (iv).
19 The Crown acknowledges, as indeed it must, that this error has been demonstrated. However, the Crown submits that it has not been shown that in the circumstances of this case, a lesser sentence was warranted in law. That submission is made regarding the sentence imposed for the offence of supply large commercial quantity of LSD, whilst at the same time acknowledging that his Honour failed to comply with the requirements of Pearce v The Queen (1998) 194 CLR 610.
20 It is not always the case that a sentence imposed by reference to a wrong maximum penalty necessarily requires the Court to re-sentence; see R v O'Neill [2005] NSW CCA 353; R v Tadrosse [2005] NSWCCA 145. However, it is necessary, in my view, to re-sentence the applicant in the circumstances of this case for the very reason identified by the Crown, that is the failure to abide by the requirements of sentencing in accordance with Pearce, and because of the imposition of a sentence in excess of the maximum penalty prescribed by law. The same approach was taken by this Court in R v Felton [2002] NSWCCA 443: (2002) 135 A Crim R 328 (another example of sentence according to the wrong maximum penalty and failure to follow Pearce) wherein Howie J said:
Judges of the District Court must understand that the principle in Pearce is considered by this Court to be fundamental to the proper exercise of the sentencing discretion: See R v AEM (2002) NSW CCA 58. A failure to comply with it will almost inevitably mean that this Court will be required to allow an appeal and vary the sentence."
21 Given the necessity to intervene and re-sentence the remaining submissions on behalf of the applicant may be briefly dealt with. The applicant contended that his Honour erred in failing to have regard to an apparent concession by the Crown on the sentencing proceedings that the drug LSD should be treated as a drug in the mid-range of seriousness. Counsel relied upon the South Australian decision of R v Mangelsdorf & Ors (1995) 83 A Crim R 272 in support of the proposition that LSD should be treated as a less serious drug than heroin, but more serious than cannabis. Reliance was also placed on a report prepared by Professor Starmer dated 16 February 2005, which was Exhibit 1 before his Honour. Professor Starmer expressed the view that LSD had a "wide margin of safety and no human fatality due to direct toxicity of the drug has been reported".
22 In the course of his remarks, his Honour said:
There has been some reference in argument as to whether LSD is either more harmful or less harmful than other forms of drugs. I take the view that that is not a productive exercise. They are illegal and that is that.
23 The submissions on this ground disregard the statements of this Court in R v Nai Poon (2003) 56 NSWLR 284 and R v Dang [2005] NSW CCA 430. In the course of the latter decision, Howie J said:
This Court no longer approaches the evaluation of the seriousness of a particular supply offence by distinguishing between different types of drugs according to the perceived dangerousness of the drug being supplied. Rather the Court has stressed that the appropriate consideration is the relevant statutory regime and the maximum penalty prescribed for the offence: R v Nai Poon (2003) 56 NSWLR 284: R v Neale (2004) 138 A Crim R 493.
24 His Honour was, therefore, correct to disregard the submissions made before him as to the relative danger attending the consumption of LSD as opposed to another form of prohibited drug.
25 The applicant next complains that his Honour failed to have regard to the absence of relevant aggravating factors and the presence of relevant mitigating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999. It is not contended that the failure to refer to s 21A, in terms of itself, establishes error, rather that by not specifically addressing the matters enumerated under s 21A, his Honour was led to a generally less favourable assessment of the offences than was in fact the case.
26 Of the mitigating factors in s 21A(3), his Honour did refer to the applicant's prior good character, absence of criminal convictions and the pleas of guilty ((e), (f) and (k)). Reference was also made to a submission on the finding of special circumstances, namely that the applicant's prospects of rehabilitation were good (h). It appears to me that these factors were all that could be usefully called in aid of the applicant. Counsel in this Court sought to rely on (b), that is, the absence of planning or organisation, but the applicant's association with Mr Martin and the indications of large-scale production of LSD tabs tended, in my view, to establish planning and organisation. In short, his Honour did not fail to take account of the relevant mitigating factors. There is no substance to this ground of appeal.
27 The applicant further complains of the failure by his Honour to nominate a discount for the pleas of guilty. On that subject, his Honour said:-
As far as the plea of guilty is concerned, I have taken it into account. I do not itemise the discount I have given but I have given a discount in arriving at the sentence I have had to arrive at, but I do not quantify it.
28 The applicant pleaded guilty to all charges at the first available opportunity. That fact does not of itself require the quantification of a discount, or fetter the judicial discretion in that regard, but his Honour gives no reasons for departing from the upper end of the range identified in R v Thomson and Houlton (2000) 49 NSWLR 383; 115 A Crim R 104; (see R v Johnstone NSWCCA 307) assuming he arrived at a discount of less than 25 percent. A refusal to quantify the discount leaves the applicant and this Court in the realm of speculation as to the extent of the discount his Honour had in mind. The applicant's submission is that his Honour's starting point was a head sentence of 24 years and that manifest excessiveness is thereby demonstrated. I return to this aspect of the matter below.
29 The applicant's primary ground of appeal is that the sentence imposed on the applicant was manifestly excessive, having regard to the applicant's age. Senior counsel submitted that his Honour did not take sufficient account of the applicant's age (54 at the time of sentence) in determining the sentence ultimately to be imposed. His Honour did, in fact, refer to the applicant's age, in terms which suggested that it was at the forefront of his Honour's consideration of the factors affecting sentence. Following a reference to the importance of general deterrence, his Honour said:-
The other counter-balancing factor as I see it is the age of the offender, and that, I do make it clear, has had an impact on me to reduce overall what the sentence I would otherwise have regarded as appropriate because of his age, and in any event when he is in due course released he will be considerably older than he is now. So that accounts why the overall sentence that I have reached here is not perhaps as high as might be warranted, it is because of his age.