44 The attack mounted under this ground concentrated on the total sentence and the individual sentences imposed in respect of the charges the subject of the second indictment. In the latter connection, attention was drawn to the fact that the non-parole period of 5½ years in respect of the first offence in that indictment, grossed up by adding back the 45% discount allowed, equates to an undiscounted period of 10 years, and that this is the standard non-parole period specified for the offence. Counsel pointed out that the statute provides that such a non-parole period for an offence in the mid-range of objective seriousness is to be set unless that court determines that there are reasons for setting a non-parole period that is longer or shorter than the non-parole period, that this qualification requires a judge to take into account factors other than those bearing on the objective seriousness of the offence, that Geraghty DCJ's characterisation of each of the offences in the second indictment was on the scale of objective seriousness "not less than mid-range", and that there were a number of mitigating factors in the case including the Applicant's impressive history prior to 2000, his Honour's findings concerning the Applicant's health and the consequential increase in the burden imprisonment would impose and his Honour's finding of special circumstances.
45 It was submitted that when regard was had to these findings, a sentence lower than the non-parole period was appropriate. It was submitted that similar reasoning applied to the, albeit slightly shorter, sentences for other offences in the second indictment.
46 There is a ready answer to these submissions.
47 One lies in his Honour's characterisation of at least a number of offences in the second indictment as "not less than the mid-range" of objective seriousness. That was to grossly undervalue them. In so concluding I do not ignore the fact that the Crown Prosecutor who appeared before his Honour suggested that the offences - he seems to have regarded the matter globally - were "not less than mid-range". However, judges are not bound by concessions by Crown Prosecutors and his Honour was wrong in following the suggestion in this case.
48 It may be accepted that this Court should not interfere with such a finding unless it concludes that the finding was not open - see R v Dang [2005] NSWCCA 430; R v Mulato [2006] NSWCCA 282 at [37]; Perry v R [2006] NSWCCA 351; Stanford v R [2007] NSWCCA 73. However in this case his Honour's finding was demonstrably wrong. The objective seriousness of a number of the offences included in the second indictment was at, or virtually at, the top of the range.
49 Firstly, it is clear that each offence was committed as part of a commercial operation directed to making money. Secondly, although the Applicant obviously had suppliers, he was the principal of the operation. Thirdly, the operation were well organised. As Geraghty DCJ said, "Gregory Fisher conducted a cynical, well organised criminal enterprise for his own financial gain …". Fourthly, insofar as each of the offences the subject of the second indictment were concerned, the offending was carried on for a lengthy period and involved deliberate criminality time after time for an extended period.
50 Fifthly, the quantities the subject of some of the charges included in the second indictment were at the top of the range of quantities encompassed by the offences charged. A consideration of the summaries of quantities supplied and other data contained in the Agreed Facts shows that the sales of MDMA tablets clearly exceeded 1 kilogram, the upper limit for a commercial quantity of that drug. 300 tablets a week (the approximate number sold to Walters) for 6 months would total 7800 tablets. At 0.3 gram per tablet, the total weight would exceed 2.3 kg. There were in addition, not insignificant sales not involving Walters and the 263 grams found during the police 2005 searches.
51 The Statement of Facts in terms states that the Applicant received at least 4 separate deliveries of commercial quantities of GHB and for much of the period Walters sold 0.5 litres a week - amounts totalling clearly in excess of 4 kg. In the case of methylamphetamine, on 9 or 10 occasions the Applicant bought 0.25 kilograms so the upper limit of a commercial quantity of that drug, 1 kilogram, was clearly reached.
52 The situation is not as clear in the case of the other drugs. In the case of cocaine, Purvis' sale of 31.5 grams and the 36.97 grams found at the time of the police searches total over 78 grams; Walters' sales of 7 grams per week for (say) 6 months would amount to 180 grams and Lambourn's sales of (taking an average figure) 12.5 grams per week during April to December 2004 would equal 480 grams. There were also sales to Fintic of 3.5 grams per week. Given the period of the latter's operations and the 31.5 grams sales by Purvis thereafter (of drugs supplied by the Applicant), it seems reasonable to infer, to the criminal standard, that the Applicant's sales to Fintic were not less than 40 grams. In all these figures 778, and even accepting there is a degree of imprecision in the calculations, the quantity the Applicant supplied was well up in the commercial range.
53 The information in the Statement of Facts does not justify the conclusion that the quantity of ketamine supplied was as high but the figure would seem to have exceeded 300 grams.
54 Of course the Applicant is not to be punished for supplying quantities in excess of those charged. Furthermore, when one comes to consider the objective seriousness of the offences, it is clear that the offences must be considered individually - see R v Reyes [2005] NSWCCA 218. Nevertheless, the figures do however demonstrate that, insofar as quantity of 3 of the drugs is concerned, the Applicant's offending was at the top of the range and in the case of a fourth, well above half way.
55 A sixth factor to take into account in the case of the offences involving MDMA, GHB and methylamphetamine is that, given the limited quantities found at the time of the police searches, a quantity of not less than the top of the commercial range for MDMA, GHB and methylamphetamine was not merely the subject of deemed supply but actually disseminated into the community.
56 A seventh factor to take into account in the case of the methylamphetamine is that its purity was high. Given the length of time the Applicant's operations continued, the number of tablets analysed and the extent of similarity in the quantity of MDMA in the tablets, it is to be inferred that those supplied accorded with that commonly sought or enjoyed by users of that drug. Given the length of time of which the supply of the other drugs continued, a similar inference should be drawn in the case of them.
57 I do not forget that in R v Way (2004) 60 NSWLR 168 at 86, the Court said that relevant to the objective seriousness of an offence were "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 self control has been affected …" and that in this case there is evidence that the need to feed either a drug addiction or the suppliers who supported that drug addiction was a factor that motivated the Applicant into drug dealing; furthermore, that there is, in the report of Mr Taylor to which reference has been made, evidence of emotional disturbance leading to impairment of judgment and control.
58 However, relevant to the weight to be given to these matters is that the Applicant is by no means unintelligent, he clearly was able to run a reasonably efficient and well organised business, must have known the damage that the drugs in which dealing could do, and that there were in the community resources, in the form of professionals or bodies like the Salvation Army, to help and that he had a long period in which to reflect on what he was doing. Furthermore, there is nothing in R v Way to indicate any intention to overrule the decision in R v Henry (1999) 46 NSWLR 346 at [202], [278] and [331] that "There is no warrant … to assess a crime induced by a need to fund a drug addiction, as being lower in the scale of moral culpability than other perceived requirements for money". In these circumstances, such of the Applicant's personal factors as may be relevant to an assessment of the objective seriousness of his offences are not entitled to more than limited weight relative to the other matters to which I have referred.
59 It should also be mentioned that in assessing the objective criminality of the Applicant's offending on the charges in the second indictment, Geraghty DCJ took into account that the Applicant was on bail at the time. He should not have done so for that circumstance is rather a subjective one than one going to the objective seriousness of the offence.
60 When to this assessment of the objective seriousness of the offences included in the second indictment, one recognises that they were committed while he was on bail on similar charges, his criminality can only be regarded as extreme. But for his other subjective circumstances, a sentence equal to the 20 years maximum for each of the offences involving MDMA, GBH, and methylamphetamine would have to be the subject of serious consideration. Of course, those other subjective circumstances were such that a sentences of 20 years for these offences might not have been appropriate but whether the circumstances of each of these offences is judged by comparison with the statutory maximum or with the standard non-parole period, starting points before allowance for pleas and assistance significantly higher than 10 years for each of these offences were required.
61 That conclusion has an obvious relevance also to the complaint that the total effective sentence imposed on the Applicant was manifestly excessive. However also relevant in that connection is the degree of accumulation of sentences that Geraghty DCJ ordered.
62 Save in the case of the offence I have numbered 6, the commencing date of each sentence was only 2 months later than the commencing date of the sentence before. Thus the effective sentence imposed for a number of the Applicant's offences was 2 months. Given that the non-parole period imposed for offence 6 was 5 years and 6 months and the non-parole periods for offences 7, 8 and 9 was only 5 years, the non-parole periods for these last 3 offences were wholly subsumed within the non-parole period of the sentence for offence 6 and no effective punishment was imposed for those other 3 offences.
63 For reasons apparent in the references to, and quotation from, R v Harris above, such results were grossly inadequate responses to many of the Applicant's offences.