[103] JC told his Honour during his testimony that he commenced smoking cannabis on a daily basis when he was 11 years old. Byrne had supplied him with prohibited drugs which included methylamphetamine, 'LSD' and cannabis when he was 16 years old. This evidence was not rejected by his Honour. In these circumstances JC's drug addiction could be regarded as a matter of mitigation."
23 The applicant's submission was not that his Honour did not advert to the fact that the applicant began using drugs from an early age. Indeed, his Honour's remarks on sentence specifically refer to the fact. The burden of the applicant's submission is simply that his Honour gave insufficient weight to the matter, as evidenced by the sentence he imposed. This is clearly enough a challenge to an exercise of discretion upon well known principles made plain in House v The King [1936] HCA 40; (1936) 55 CLR 499. At the risk of unnecessary reproduction, it is instructive to repeat what was said in that case at 504-505:
"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
24 The applicant's submission is limited to the propositions that his Honour failed to take into account the applicant's use of drugs from an early age as a material consideration and/or that the result at which he arrived is unreasonable or plainly unjust. The difficulty for the applicant in making that submission, however, is that it relies upon no more than the decision that his Honour made to support it.
25 There is no doubt that minds may differ about what weight should be given to particular matters that are germane to the sentencing equation. There is equally no doubt that a complete failure to advert to something as fundamentally important as the influence upon the applicant of a premature introduction to illicit and addictive drugs would constitute error on the part of a sentencing judge. In the present case the applicant relies upon the perceived problem with the sentence as evidence of the error. The argument is circular. The sentence may equally reflect consideration and accommodation of the very matters that the applicant contends should have been considered. In crude terms, the sentence may well have been longer in the absence of the matters that the applicant emphasises.
26 The maximum sentences for each of the offences are substantial. The nature and extent of the criminality, including the number of transactions, involved in the second count are also substantial. The sentence is not to my mind unreasonable or plainly unjust. It has not been demonstrated, and I do not accept, that his Honour failed to take account of any material consideration. Nor can it be demonstrated that he did not take account of matters when he specifically referred to them in his remarks on sentence. It is of no consequence that some other judge may hypothetically have sentenced the applicant in a different way. No error has been demonstrated.
27 In my opinion the first ground of appeal is without merit.
Ground 2
28 In R v Sutton [2004] NSWCCA 225, Howie J commented at [30] in the following terms:
"[30] His Honour found special circumstances and reduced the ratio between head sentence and non-parole period from the statutory ratio of 75 per cent to about 70 per cent. This meant a reduction in the non-parole period by about three months after the applicant had served four years six months in gaol. With respect, this rather makes a mockery of a finding of special circumstances in response to the need his Honour found for 'extended supervision and counselling'. I believe that the non-parole period should be four years."
29 The applicant sought to embrace his Honour's remarks as having some applicability to her case. She argued that the extent of his Honour's variation of the statutory ratio in this case also made a mockery of the finding of special circumstances. She submitted that proper effect was not given to the finding of special circumstances. I disagree.
30 His Honour specifically referred to special circumstances in his remarks on sentence. He said this:
"I do find special circumstances because of the accumulation of the sentences and the necessity for counselling for illicit drug, alcohol and gambling."
31 Special circumstances are not limited to the question of whether or not the particular offender needs an extended period of supervision. The primary question should be the length of the minimum period of incarceration: R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704. If special circumstances are found, the ratio between the non-parole period and the additional term needs to be taken into account, rather than simply leading to an increase in the additional term: R v P [2004] NSWCCA 218 at [24] and [26]. In other words, a finding of special circumstances should not normally lead to the imposition of a total longer sentence, but should lead to a shorter non-parole period and a longer parole period.
32 A finding of special circumstances is purposive, in that it is a warrant for reducing the non-parole period below the statutory ratio. Consideration of factors giving rise to a finding of special circumstances is not always limited to the rehabilitation of the offender but will often be the purpose for such a finding: R v El-Hayek [2004] NSWCCA 25; (2004) 144 A Crim R 90 at [105].
33 Can it be said in the present case that his Honour's finding of special circumstances was not carried through in the sentence that he imposed? In the particular circumstances of this case, does a reduction of the non-parole period by only 2 months constitute a failure by his Honour properly or adequately to reflect the finding?
34 Counsel for the applicant drew in this context upon the comments of Anita Duffy, a psychologist, in a report concerning the applicant dated 10 March 2009 in the following terms:
"She has since completely detoxified in custody and is able to reflect on this period in her life with some horror. She is aware that she needs further help to deal with difficulty in controlling her emotions and managing her behaviour patterns that led her to abuse drugs, alcohol and to gamble. Her Anxiety Disorder which appears to have been evident since childhood needs to be addressed comprehensively through counselling, relaxation techniques and cognitive behaviour therapy.