Ellis v R

Drugs Misuse and Trafficking Act 1985 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Bankruptcy Act 1966 (Cth)

Dunn v R [2010] NSWCCA 128 Hutton v R [2008] NSWCCA 99 Majid v R [2010] NSWCCA 121 McIvor v R [2010] NSWCCA 7 Pearce v The Queen [1998] HCA 57; 194 CLR 610 Pfeiffer v R [2009] NSWCCA 145 R v Baker [2000] NSWCCA 85 R v Barlow [2010] NSWCCA 215 R v BCC [2006] NSWCCA 130 R v Gent [2005] NSWCCA 370; 162 A Crim R 29 CASES CITED : R v Jamieson Vincent [2006] NSWCCA 276 R v JRD [2007] NSWCCA 55 R v Kennedy [2000] NSWCCA 527 R v Knight; R v Biuvanua [2007] NSWCCA 283; 176 A Crim R 338 R v McEvoy [2010] NSWCCA 110 R v Smith [2006] NSWCCA 129 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 Regina v Way [2004] NSWCCA 131; 60 NSWLR 168 Ryan v The Queen (2001) 206 CLR 267 SKA v R; R v SKA [2009] NSWCCA 186 Sorbello v R [2006] NSWCCA 225 Wong v The Queen [2001] HCA 64; 207 CLR 584

PARTIES: Cameron Antony Ellis (Applicant) Regina (Respondent)

COUNSEL: Ms C Loukas (Applicant) Mr P Ingram SC (Respondent)

SOLICITORS: Aboriginal Legal Service Solicitor for Public Prosecutions

• 1 - IN THE COURT OF CRIMINAL APPEAL 2009/8622 & 2009/8667

SIMPSON J HOEBEN J R A HULME J

17 December 2010 Cameron Antony ELLIS v Regina Judgment 1 SIMPSON J: I agree with R A Hulme J. 2 HOEBEN J: I agree with R A Hulme J and the orders he proposes. 3 R A HULME J: On 30 October 2009, the applicant, Cameron Antony Ellis (aka Baker-Ellis), was sentenced in the District Court by his Honour Judge King SC in respect of the following offences.

4 For an offence of supplying (between 8 June and 20 September 2008) more than the indictable quantity of a prohibited drug, namely 3,4 methylenedioxymethylamphetamine (MDMA) the applicant was sentenced to a fixed term of imprisonment of 2 years 6 months to date from 17 September 2009.

5 For an offence of supplying (on 14 August 2008) not less than the commercial quantity of MDMA, the applicant was sentenced to imprisonment for 8 years 6 months, with a non-parole period of 4 years 6 months, to date from 17 June 2010.

6 For an offence of supplying (between 23 April and 24 July 2008) not less than the commercial quantity of MDMA, the applicant was sentenced to imprisonment for 9 years, with a non-parole period of 5 years, to date from 17 March 2011.

7 The overall sentence was one of 10 years 6 months, with a non-parole component of 6 years 6 months, with effect from 17 September 2009.

8 An offence of supplying a prohibited drug contrary to s 25(1) Drugs Misuse and Trafficking Act 1985 (the Act) attracts a maximum penalty of imprisonment for 15 years and/or a fine of $220,000.

9 An offence of supplying not less than the commercial quantity of a prohibited drug contrary to s 25(2) of the Act attracts a maximum penalty of imprisonment for 20 years and/or a fine of $385,000. A standard non-parole period for this offence of 10 years is also prescribed in Div 1A of Part 4 Crimes (Sentencing Procedure) Act 1999.

10 The judge also sentenced a number of other offenders who were involved in the same drug supply network as the applicant. Three of them also applied for leave to appeal against the sentences imposed. Although they were dealt with on separate occasions by his Honour, the applications were heard together by consent. However, as no issue of parity was raised, it is convenient to deal with each application in a separate judgment. The other applications are the subject of the following judgments: McKellar v R [2010] NSWCCA 295; Locke v R [2010] NSWCCA 296; O'Brien v R [2010] NSWCCA 297.

11 There were agreed facts before his Honour in each of the four cases which began with general observations to the following effect. The applicants (and others) were involved in a drug distribution network on the Central Coast of New South Wales. Mark Locke and the applicant were said to be primarily responsible for street level distribution within the network, frequently conducting their supplies as a joint criminal enterprise. They generally operated from a hotel in Toukley. At times they would use "runners" who worked for them.

12 Locke initially sourced his drugs from others, including Ryan McKellar, who had a number of customers. At a later stage Locke was sourcing his drugs from Ben O'Brien. The applicant and another offender (Michael Streater) sourced their drugs primarily from Ben O'Brien who, in turn, obtained them from his older brother.

13 From that point the agreed facts focussed upon the offences committed by the individual offenders. In relation to the present applicant, the commercial quantity supply offence that occurred between 23 April and 24 July 2008 involved the supply of MDMA tablets, primarily to undercover police operatives, on seven occasions. The total quantity supplied was 1,696 tablets with an aggregate weight of 417.32 grams.

14 The commercial quantity offence that occurred on 14 August 2008 involved the supply of 1,000 tablets weighing 296.1 grams to an undercover operative.

15 The supply offence that occurred between 8 June and 20 September 2008 involved the supply on 12 occasions of a total of 218 tablets, with an estimated weight of 54.5 grams. These supplies were to various customers who were not police operatives and were detected primarily with the aid of electronic surveillance.

16 The applicant was arrested on 30 September 2008. The agreed facts refer to his house being searched but there is no reference to anything of significance having been found. He was taken to a police station where he exercised his right to silence and was charged.

17 The judge assessed the commercial quantity offence that was made up of a number of transactions as falling "into the high range of objective seriousness for such an offence". He did so after referring to the number of transactions, the length of the period in which they occurred, the number of tablets supplied and their weight. He referred to the commercial quantity prescribed for MDMA (125 grams) and the large commercial quantity (500 grams) and noted that the total amount supplied was more than three times in excess of the former and only approximately eighty-three grams less than the latter.

18 The commercial quantity offence that comprised the single transaction on 14 August 2008 was assessed as being "at least at the high end of the mid range of objective seriousness". Finally, although it was unnecessary because of the absence of a prescribed standard non-parole period, the judge assessed the supply offence as falling "in the mid range of objective seriousness".

19 Material before his Honour in relation to the applicant's background included oral evidence by the applicant, his mother and his grandfather, a Pre Sentence Report, a letter from The Glen Centre, an alcohol and other drug rehabilitation facility, and various related documents and certificates.

20 The applicant was aged 19 at the time of the offences and 20 at the time of sentence. He had no previous criminal convictions.

21 When the applicant was three years of age his parents separated and he did not regain contact with his father until he was about 14 or 15. When he was aged 10 his mother entered into a new relationship which was described as "an alcohol and drug fuelled abusive relationship" involving physical abuse of her and verbal abuse of the applicant. He left school upon completion of Year 10 and has had intermittent employment since. At one point he was helping his mother with domestic cleaning.

22 The applicant claimed to have been using both alcohol and drugs for the six months prior to his arrest in five-day binge sessions interspersed by two to three days of abstinence. He claimed to have been consuming three cases of beer and using ecstasy and "speed" during the binge periods. In his evidence before the judge he said that he used 5 to 15 ecstasy tablets per weekend and that he committed the offences to "support my addiction". The judge rejected the claim that this was the sole reason and concluded that, "the consistent ongoing conduct and the large sums of money that were involved must have been funding lifestyle choices greater than the claimed alcohol and drug use, particularly where there is no evidence of the offender having any other source of income during the period of the offences".

23 The applicant remained in custody following his arrest until 5 November 2008 when he was released on bail. One of the conditions of his bail was that he attend and reside at The Glen Centre. The judge referred to the conditions there as "significantly restrictive". A report from The Glen Centre confirmed that the applicant had complied with the program successfully. It described him as having made a genuine effort and that he was well regarded, having developed leadership skills and ceased drug use. He was said to have been a positive influence on others attending the program.

24 Whilst residing at The Glen Centre, the applicant completed a number of courses to which his Honour made specific reference. There was also material to the effect that he had an intention to commence a TAFE course in community services with a view to seeking employment in youth counselling.

25 The judge held that the applicant was entitled to have taken into account "his prior good character, that he is genuinely contrite and remorseful, has good prospects of rehabilitation and has already made a significant effort to rehabilitate himself".

26 Finally it should be noted that the judge indicated that he would, "reduce the minimum time required to be spent in custody by six months to take account of the almost one year of quasi-custody at The Glen Centre".

Ground 1 - His Honour erred in his approach to prior good character

27 Written submissions by Ms Loukas, counsel for the applicant, identified the following passage in the judge's sentencing remarks as the basis of this ground: The offender has no prior convictions, but in circumstances where he engaged in a continuing and significant course of criminal conduct over approximately a 5 month period at the age of 19, his prior good character, whilst relevant to the sentence, must have a diminished impact. The offences cannot be described as an uncharacteristic one-off aberration. (R/S 23)

28 It should be noted, however, that the judge immediately proceeded to say: The Court accepts that on sentence the offender is entitled to have taken into account his prior good character … [the judge then referred to other mitigating factors such as remorse and rehabilitation].

29 It is contended that the judge erred by taking into account the offences for which the applicant stood for sentence in diminishing the weight that he gave to prior good character and that this was "contrary to legal principle". Ryan v The Queen (2001) 206 CLR 267 and Pfeiffer v R [2009] NSWCCA 145 per McClellan CJ at CL at [17] and [18] were cited in support of this proposition. Closer attention to those authorities reveals, however, that the proposition is ill-founded.

30 In Pfeiffer, the applicant committed a single offence of supplying goods and services without disclosing that he was an undischarged bankrupt (s 269(1)(ad) Bankruptcy Act 1966 (Cth)). The offence involved a number of transactions. The period of offending is not entirely clear from the judgment but appears to have been at least in the order of 18 months. The applicant's guilt of a further offence of seeking credit without disclosing the bankruptcy was taken into account. That offence occurred about 3 years after the primary offence. Although the applicant had prior convictions, they were of such an age and nature that it was common ground that they could be disregarded. Thus, apart from the offences for which the applicant stood for sentence, he should have been regarded as a person of otherwise good character.

31 The sentencing judge in Pfeiffer, however, said: The offence before me cannot be characterised as being out of character. This is because it can hardly be said that the commission of this offence by the offender over a lengthy period of time involving the repeated obtaining of monies from the Elliotts was an aberration. Further, it cannot be said that this offence was out of character as he committed a further similar offence on 13 March 2004 being the charge on the section 16AB document.

32 After citing the above passage from the sentencing remarks, McClellan CJ at CL continued: [18] The applicant submitted, in my opinion correctly, that if his Honour concluded that the prior offences were stale and of no consequence then the appropriate conclusion was that the applicant was otherwise a person of good character. The applicant emphasised that in Ryan v The Queen (2001) 206 CLR 267 the High Court indicated that previous good character is a relevant mitigating factor in sentencing. When seeking to identify whether an offender is otherwise of good character the offence for which he or she is being sentenced is irrelevant (see McHugh J at 279).

33 It is clearly the case that the offences for which an offender is being sentenced are irrelevant to the question whether the person is "otherwise of good character". It would seem that the sentencing judge in Pfeiffer was not of the view that the offender was of prior good character by his statement that the present offences were not "out of character".

34 It does not follow, however, that the offences for which an offender is to be sentenced are entirely irrelevant to the issue of good character as a mitigating feature. It is useful to note the terms of the judgment of McHugh J in Ryan v The Queen at 279 to which McClellan CJ at CL referred: [36] In considering a prisoner's good character when sentencing, the court must distinguish two logically distinct stages. First, it must determine whether the prisoner is of otherwise good character. In making this assessment, the sentencing judge must not consider the offences for which the prisoner is being sentenced. Secondly, if a prisoner is of otherwise good character, the sentencing judge must take that fact into account. However, the weight that must be given to the prisoner's otherwise good character will vary according to all of the circumstances of the case.

35 It was held that the sentencing judge in Ryan had erred by allowing no leniency on account of prior good character. McHugh J, however, also said: [33] Sentencing is not a mathematical process. Various factors have to be weighed. The otherwise good character of the prisoner is one of them. It is a mitigating factor that the sentencing judge is bound to consider. But the nature and circumstances of the offences for which he or she is being sentenced is a countervailing factor of the utmost importance. The nature of the offences for which the appellant was being sentenced meant that his otherwise good character could only be a small factor to be weighed in the sentencing process.

[34] First, there were multiple offences involving repeated acts committed over a number of years. They were not isolated incidents which might be said to be out of character. Second, the appellant was, as his counsel conceded before Nield DCJ, leading a double life. Over many years, the appellant was doing "good works" while he was committing grave offences. This contradiction indicates that the appellant's otherwise good character was a minor factor to be weighed. Third, the appellant committed the offences in the course of his priestly duties and it was as a priest that he did the "good works" which are at the heart of his claim of good character. This reduces the weight that ought to be given to his otherwise good character. Fourth, and related to the third point, the offences involved breaches of trust. (Citation of authority omitted). 36 So, whilst the offences for which an offender is being sentenced are irrelevant to the question whether the person is "otherwise of good character", they may, depending upon the circumstances, be relevant to the assessment of the weight to be given to good character as a mitigating factor.

37 In Pfeiffer it was relatively easy to see that the sentencing judge had erred by giving insufficient weight to the offender's prior good character. The offence was not in the worst case category and yet the sentence imposed was 92 per cent of the maximum penalty. McClellan CJ at CL attributed this anomalous result to the judge's treatment of the applicant's character.

38 In the present case, the sentencing judge clearly did not transgress in the manner of the sentencing judges in Ryan and Pfeiffer. It is clear from his remarks that (a) he was satisfied that the applicant was of prior good character, and (b) he took this into account as a mitigating factor.

39 A number of cases in this Court have confirmed that there are circumstances in which evidence of good character will have diminished significance. Johnson J dealt with the authorities comprehensively in R v Gent [2005] NSWCCA 370; 162 A Crim R 29 at [45] - [69]. His Honour said, in part: [51] What weight will be given to evidence of good character on sentence depends, to an extent, on the character of the offence committed: R v Smith (1982) 7 A Crim R 437 at 442; Ryan at 309 (paragraph 143).

[52] In R v Kennedy [2000] NSWCCA 527, Howie J (Simpson J agreeing) referred to factors which operate to afford less weight to prior good character on sentence. His Honour said at paragraphs 21-22: "It is unnecessary for the purposes of determining this appeal to consider the circumstances in which a court may legitimately determine that it will give less weight to prior good character as a mitigating factor. Generally speaking such a situation might arise where general deterrence is important, the particular offence before the court is serious and it is one frequently committed by persons of good character. Another situation may be where the prior good character of the offender has enabled him or her to gain a position where the particular offence can be committed.

Less weight might also be given to prior good character in a case where there is a pattern of repeat offending over a significant period of time . That will frequently be the case in child sexual assault offences because such offences are often committed during a period of an ongoing relationship between the offender and the complainant."

40 The passage from R v Kennedy which I have emphasised is apposite. I am of the view that it was open to the judge in the present case to find that the applicant's prior good character had a "diminished impact" in circumstances where the offending conduct involved repetitious and substantial drug dealing over an extended period of time.

Ground 2 - The sentence imposed is manifestly excessive.

41 Submissions were made by Ms Loukas in support of this ground in four categories. It is convenient to deal with each in turn, although in a different order.

His Honour failed to give adequate weight to the applicant's youth

42 Attention was drawn to what was asserted to be a "cursory manner" in which the judge had regard to the applicant's youth. His Honour made reference to his date of birth and noted that he was "approximately nineteen at the time of the offences and is now almost twenty". His Honour was mistaken as to the latter, the applicant was two months short of his 21st birthday when he stood for sentence.

43 The Crown noted that the judge also referred to the applicant's youth as one of the factors that amounted to special circumstances warranting a reduction in the proportion of the sentence to be represented by the non-parole component.

44 A problem for the applicant with the submission made in respect of this issue is apparent in the following from the written submissions: Whilst it is not possible, nor instructive, to ascertain the precise weight that his Honour attributed to the applicant's youth at the time of the offences, it is submitted that the sentence imposed by his Honour is suggestive of inadequate regard being accorded to the applicant's youth.

45 In Majid v R [2010] NSWCCA 121, Johnson J said the following in relation to grounds of appeal asserting that a sentencing judge gave "insufficient weight" to some relevant factor: [40] The second, third and fourth grounds of appeal complain that the sentencing Judge had given " insufficient weight " to different aspects of the Applicant's subjective case in passing sentence. In Stephens v R [2009] NSWCCA 240, Grove J (McClellan CJ at CL and RA Hulme J agreeing) observed at [16]-[18], that there are inherent problems in a ground expressed in that fashion succeeding, as the ground tacitly concedes that some weight had been placed upon the factor by the sentencing Judge. Circumstances in which matters of weight will justify intervention by this Court are narrowly confined, whether the proceeding is a Crown appeal or an offender's application for leave to appeal with respect to sentence: R v Baker [2000] NSWCCA 85 at [11]; Ryan v R [2009] NSWCCA 183 at [33]; Cao v R [2010] NSWCCA 109 at [57].

46 In R v Baker [2000] NSWCCA 85, Spigelman CJ said: [11] … Questions of weight in the exercise of a discretion are matters for the first instance judge. The circumstances in which matters of 'weight' will justify intervention by an appellate court are narrowly confined."

47 It was not suggested, nor is it otherwise apparent, that immaturity was a causal link to the offending behaviour, or that there was anything impetuous in the manner in which the applicant conducted himself. Nevertheless, the fact that the applicant was a very young man at the time of the offences, coupled with the fact that he had not been in conflict with the criminal law before, were particularly prominent features of the applicant's subjective case.

48 I would not conclude that the judge gave inadequate weight to the applicant's youth but it remains to be considered as part of the overall subjective case in the assessment of whether the sentences are manifestly excessive.

His Honour failed to give adequate weight to the applicant's good prospects of rehabilitation

49 The contention in relation to this issue is that despite the judge's references to the applicant's successful participation in the program at The Glen Centre and that he had good prospects of rehabilitation, the sentence imposed did not reflect that adequate weight had been given to these matters.

50 Similar comments can be made about this issue as those made above in relation to the issue concerning the applicant's youth. Again, the matter remains relevant to the overall assessment of whether the sentences are manifestly excessive.

His Honour imposed a sentence that was outside the acceptable range of sentences for the offence

51 In support of this contention the applicant's written submissions commence with the assertion that "the starting point of almost fifteen years (fourteen years eight months) prior to discount for early plea was too high". Ms Loukas then sought to support that proposition with reference to a number of other cases.

52 The first point to be made is that there was no starting point of "almost fifteen years". The judge allowed a reduction of sentence for the utilitarian value of the applicant's pleas of guilty of 25 per cent, in conformity with the guideline in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383. He did not, as the submission seems to suggest, first determine the totality of the overall sentence before reducing it by that margin. The correct approach in accordance with Pearce v The Queen [1998] HCA 57; 194 CLR 610 was for his Honour to first, "fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality" (per McHugh, Hayne and Callinan JJ at [45]). Nothing his Honour said indicates that he did anything other than this.

53 Whilst acknowledging the limitations of relying upon sentences imposed in other cases, Ms Loukas nonetheless took the Court in detail to three. It is unnecessary to set out here any detailed analysis of the cases. Each is immediately and obviously distinguishable.

54 Sorbello v R [2006] NSWCCA 225 involved only a single offence in which the offender was in possession of a commercial quantity of MDMA for the purpose of supply. There was a "powerful" subjective case. The severity appeal succeeded and the eight year sentence reduced to six years but that was only in respect of a parity ground.

55 Hutton v R [2008] NSWCCA 99 also involved a single offence committed by a courier who was promised $500 worth of amphetamines in exchange for buying a commercial quantity of MDMA in Sydney in order to take it to Queensland. The offence was found to be at the lower end of the range of objective seriousness. An appeal against a six year sentence was dismissed.

56 In R v Jamieson Vincent [2006] NSWCCA 276 there were two commercial supply offences committed in the context of drug dealing over 15 months. The offender was on a good behaviour bond at the time. The main point of distinction is that one of the offences did not attract the standard non-parole period because it pre-dated the commencement of the relevant legislation. The sentencing judge was erroneously informed by the Crown that it did not apply to the other offence as well. For that reason, although the sentences were increased upon the Crown appeal being allowed, Spigelman CJ said that the standard non-parole period for the second offence would not be given much weight.

57 Brief summaries of three other cases were provided in a schedule annexed to the written submissions. Those cases were R v Smith [2006] NSWCCA 129, R v BCC [2006] NSWCCA 130 and R v JRD [2007] NSWCCA 55. They involved sentences which were far removed from what could realistically be expected as appropriate in the present case: a 2 year sentence described as "inadequate"; and two 2 year suspended sentences, each described as "manifestly inadequate".

58 Finally, Ms Loukas drew attention in the course of her oral submissions to the recent case of R v Barlow [2010] NSWCCA 215. There the Court found that a 2 year 6 month sentence, to be served by way of periodic detention, was within the sentencing judge's discretion, but there were some unusual features. The offence only became known to the police through the respondent's confession which came after his parents reported their suspicions about their son's behaviour. There was a 40 per cent reduction for a plea of guilty as well as assistance to authorities. A considerable number of the mitigating features in s 21A(3) Crimes (Sentencing Procedure) Act 1999 were found to be present.

59 A submission was made that the applicant is, "entitled to be sentenced in accordance with the actual range of sentences being imposed rather than by the range that this Court might think is appropriate". Reference was made to comments made by Howie J in McIvor v R [2010] NSWCCA 7 at [17] to this effect. It is unnecessary to explore this submission further than to observe that the applicant has not established what constitutes "the actual range of sentences being imposed". None of the cases to which reference was made establish any "range".

His Honour's assessment of the objective seriousness of the offences carrying standard non-parole periods was in error

60 In the course of his sentencing remarks the judge first made comments about the seriousness of the applicant's "overall conduct", which he said fell into the "high range of objective seriousness". In this context he reviewed the totality of the offending conduct, including reference to the total amount of the drug supplied (767.92 grams or approximately 2,918 tablets) which he remarked was "substantially more than a large commercial quantity (500 grams)". He then made reference to the interaction of the applicant with the other offenders and the relative role played by the applicant compared to them.

61 Next, his Honour turned to an assessment of the objective seriousness of the individual offences. In this context he made the findings of objective seriousness to which I have earlier made reference. His Honour only made reference to the quantity supplied, and the day on, or the period in, which it occurred.

62 It was submitted for the applicant that the judge "was in error in basing his assessment of high range by reference to the large commercial quantity". It was pointed out that the applicant was not charged with supplying the large commercial quantity, an offence which carries a maximum penalty of imprisonment for life. Accordingly, "his Honour's mathematical addition was not appropriate in the circumstances".

63 It is not entirely clear whether this was a reference to the initial comments the judge made about the applicant's "overall conduct" but the references to an assessment of "high range" and "mathematical addition" suggest that it was.

64 I do not regard his Honour's reference to the seriousness of the applicant's overall conduct as erroneous. It was important that he assessed the seriousness of the individual offences, which he did. But in sentencing for multiple offences it was necessary for him also to have regard to the totality of criminality and I believe that was all his Honour was describing in the remarks that preceded the individual offence assessment. The reference to the large commercial quantity seems to have been a means of putting the aggregate quantity of drug involved in the overall offending into some context. There is no suggestion that the judge inappropriately had regard to the maximum penalty prescribed for such an offence.

65 It was also submitted that the judge erred in "attributing determinative importance to the weight of the drug", contrary to Wong v The Queen [2001] HCA 64; 207 CLR 584. I do not regard what his Honour said as an error in this respect. Certainly he did refer to the weight of the drug, but he also referred to the variation in quantities supplied on particular occasions, the period in which the supplies occurred, and the overall role that the applicant played in comparison to those of the other offenders.

66 The only submission that was made that tended to suggest that the judge overlooked a material consideration was a reference to the applicant's "drug addiction and drug use". I infer from the submission a contention that his Honour was in error in only referring to these issues in the context of the applicant's subjective case and not as matters relevant to the objective seriousness of the offences. Reference was made to a now well-known passage from Regina v Way [2004] NSWCCA 131; 60 NSWLR 168: [86] Some of the relevant circumstances which can be said "objectively" to affect the "seriousness" of the offence will be personal to the offender at the time of the offence but become relevant because of their causal connection with its commission. This would extend to matters of motivation (for example duress, provocation, robbery to feed a drug addiction), mental state (for example, intention is more serious than recklessness), and mental illness, or intellectual disability, where that is causally related to the commission of the offence, in so far as the offender's capacity to reason, or to appreciate fully the rightness or wrongness of a particular act, or to exercise appropriate powers of control has been affected: Channon v The Queen (1978) 20 FLR 1 and R v Engert (1995) 84 A Crim R 67. Such matters can be classified as circumstances of the offence and not merely circumstances of the offender that might go to the appropriate level of punishment. Other matters which may be said to explain or influence the conduct of the offender or otherwise impinge on her or his moral culpability, for example, youth or prior sexual abuse, are more accurately described as circumstances of the offender and not the offence.

67 I take the submission to amount to criticism of the judge not finding that the applicant's drug use or addiction was a motivation for committing the offences. However, the judge concluded that he should reject the claim that the applicant was committing the offences simply to support an addiction and found that he was also motivated by a desire to supply what he called "lifestyle choices". This was a finding of fact well open to his Honour, particularly given his observation that there was no evidence of the applicant having any other source of income. I would also observe that the applicant's evidence of interspersing periods of bingeing on drugs and alcohol with periods of abstinence was inconsistent with him being a person driven to offend by a rampant addiction.

68 Next, it was submitted that there was error in the judge not following the sequential process of assessment of a sentence where a standard non-parole period applies. Reference was made to the judgment of Simpson J in SKA v R; R v SKA [2009] NSWCCA 186 at [136] where her Honour described the steps as (i) the construction of a notional offence in the mid-range of objective seriousness; (ii) evaluation of the relative objective seriousness of the offence at hand; and (iii) determination of sentence depending upon the finding in (ii), using the standard as a reference point if the offence is not mid-range, or considering whether there are reasons to depart from the standard if it is mid-range.

69 The manner in which the judge is supposed to have erred in following this process was not articulated in written or oral submissions. The judge correctly identified that the standard non-parole period was intended for a mid-range case where the offender was convicted after trial: R v Way at [68] - [71]. He assessed the first commercial supply offence as being "in the high range of objective seriousness for such an offence and the second such offence as being "at least at the high end of the mid-range". He did not articulate the features of a notional mid-range offence but that was not necessary: Dunn v R [2010] NSWCCA 128 at [16]. Aside from the plea of guilty, there were a host of other matters referred to in the course of the sentencing remarks that justified a departure from the standard non-parole period. Importantly, however, the judge was conscious of the fact that the standard was "still relevant as a guidepost, reference point, benchmark or sounding board".

70 The only error I can detect in his Honour's approach to the assessment of objective seriousness is in the nature of the descriptions he used. "In the high range" is ambiguous. It is safe to conclude that he did not regard the offence as falling in the worst case category because the sentence for the first commercial supply offence certainly does not reflect that. More likely his Honour meant above mid-range. But how much above mid-range? And, "at least at the high end of the mid-range" implies that he considered the second commercial supply offence was somewhere between the top of that range and beyond: see R v Knight; R v Biuvanua [2007] NSWCCA 283; 176 A Crim R 338 per McClellan CJ at CL at [4] and Howie J at [39]. But to what extent? The same issue is raised in ground 5 of Locke's application. Findings of this character are not required to be made with absolute precision but there should be some indication of degree, such as "slightly above", "significantly above" or "substantially above" (the terms suggested by Simpson J in R v McEvoy [2010] NSWCCA 110 at [90]).

71 What remains to be considered is whether the individual sentences, and the overall imposition, are manifestly excessive.

72 In relation to the youth of the applicant, the Crown made the same submission as was made in the case of Locke. That is, that "it would have been better if his Honour had taken it into account in a more conventional way and it would have had a corollary effect", that is, a reduction in the total term would have automatically reduced the length of the non-parole period. The judge only took this aspect into account in finding special circumstances for reducing the latter.

73 I reiterate the view I expressed in the case of Locke. The youthfulness of the applicant was relevant in setting the total term of the sentences, not simply non-parole periods.

74 Aside from his age, the applicant in this case had a number of impressive aspects of his subjective case to be considered, particularly in relation to the successful rehabilitation he had undertaken between arrest and sentence. His prospects for further rehabilitation were most promising and warranted significant weight. On the other hand, the offences were of considerable seriousness. However, in the end, I have come to the conclusion that the sentences were impermissibly excessive.

75 In re-sentencing I propose that the fixed term sentence for the indictable supply offence be maintained. There is no utility in setting a non-parole period in respect of that offence. The finding by the sentencing judge of special circumstances for the purposes of s 44(2) Crimes (Sentencing Procedure) Act in relation to the commercial supply offences should be maintained.

I propose the following orders: 1 Application for leave to appeal granted. 2 Appeal allowed. 3 The sentence for the offence of supply prohibited drug (8 June - 20 September 2008) of imprisonment for a fixed term of 2 years 6 months from 17 September 2009 and expiring on 16 March 2012 is confirmed. 4 The remaining sentences imposed in the District Court are quashed and the applicant sentenced as follows: Supply commercial quantity of prohibited drug (14 August 2008) : Sentenced to imprisonment comprising a non-parole period of 4 years and a balance of the term of the sentence of 3 years. The sentence is to date from 17 March 2010. The non-parole period will expire on 16 March 2014 and the total term will expire on 16 March 2017. Supply commercial quantity of prohibited drug (23 April - 24 July 2008) : Sentenced to imprisonment comprising a non-parole period of 4 years and a balance of the term of the sentence of 3 years 6 months. The sentence is to date from 17 September 2010. The applicant will be eligible for release on parole upon the expiration of the non-parole period on 16 September 2014. The total term will expire on 16 March 2018. That is a total sentence of 8 years 6 months with a non-parole component of 5 years. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.