Forti v R

Court of Criminal Appeal (NSW)|2016-06-06|Before: Basten JA, Rothman J, Fagan J, Sharpe JJ

Solicitors: Jack Rigg Solicitors (Applicant) C Hyland, Solicitor for Public Prosecutions (Respondent) File Number(s): 2015/38644 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 28 August 2015 Before: Sweeney DCJ File Number(s): 2015/38644

Judgment

BASTEN JA: On Monday, 6 June 2016, the Court heard an application for leave to appeal by Matthew Forti with respect to sentences imposed by Sweeney DCJ in the District Court on 28 August 2015. The sentences, for offences under the Drug Misuse and Trafficking Act 1985 (NSW), involved a non-parole period of 12 months to date from 28 August 2015, with an additional term of 10 months imprisonment. Pursuant to that sentence, the applicant was due to be released on 27 August 2016. An application for leave to appeal was not filed until 15 February 2016, with grounds being supplied two weeks later. The principal ground of appeal was that the sentencing judge erred in imposing a sentence of fulltime imprisonment. Given the primary purpose of the appeal, being to avoid a custodial sentence, the delay is unfortunate and was said to have resulted from delays in obtaining a transcript of the judgment on sentence.

Nature of offending

The nature of the offending was set out clearly and concisely in the reasons of the sentencing judge. It involved three offences and one matter taken into account on a Form 1. The applicant entered an early plea and obtained a 25% discount on sentences otherwise appropriate. The sentencing hearing was brief, the facts surrounding the offending having been agreed.
On 1 November 2014 a young woman, who apparently knew the applicant as a potential supplier of "Euro" tablets (being tablets of MDMA or ecstasy manufactured in Europe), obtained four tablets from the applicant for the sum of $240. On the evening of 7 November 2014, she gave two of the tablets to a friend. Each consumed about one and a half tablets at a dance party the following afternoon. The friend suffered a cardiac arrest and died of a "drug overdose" later that afternoon.
Three days later (11 November 2014) the applicant sent text messages to the woman who had purchased the drugs, saying in one that he was "about to go assist police with their investigation." The facts did not indicate that he did so, but the police were aware from the friend of the deceased that the applicant had supplied the MDMA tablets. The young woman was arrested on 23 December 2014 and charged in relation to the supply of the two tablets provided to the deceased. The supply of four tablets constituted the first charge against the applicant.
The agreed facts stated that the police obtained authority to intercept the applicant's telephone service on 9 January 2015 and, between that date and 5 February 2015 intercepted messages and phone calls indicating that the applicant was involved in the supply of MDMA.
The applicant was arrested on 7 February 2015. In a recorded interview with police, he admitted that, on 10 January 2015, he had supplied some MDMA tablets to a number of friends at a party. That supply constituted the second charge.
At the time of his arrest, the applicant told police that he had a "pill testing kit" in his car, "some Ritalin" in his pocket and "some caps and a few pills" in his home. He was searched and two Ritalin tablets were discovered in his wallet. Possession of those tablets constituted the offence on the Form 1 which was taken into account in sentencing with respect to the third offence.
The police also searched the applicant's car and found an MDMA drug testing kit. A search of the applicant's bedroom revealed three MDMA tablets, nine gelatine capsules containing MDMA powder, a container with 49 empty gelatine capsules (the container being marked "contents 100"), one small MDMA tablet and a set of digital scales. The total weight of the MDMA located in the bedroom was 2.3 grams. This quantity was the subject of the third charge of possession for the purposes of supply.

Personal circumstances of applicant

The sentencing judge gave careful attention to the applicant's personal circumstances. She noted that he was a young man, being 19 years of age. (In fact the first offence was committed when he was 18, shortly before his 19th birthday.) He had had no prior contact with the criminal justice system. He commenced using drugs in about February 2014 (that is some nine months before the first offence) and his purpose in supplying drugs was partly to fund his own drug use and partly to cover his living expenses.
The sentencing judge summarised his circumstances at the time of sentencing in the following passage: [1] "He has completed the MERIT program for people who are using drugs and want to stop using drugs. He has stopped using drugs and he has had urinalysis to demonstrate that he has no illicit drugs in his system. He has stopped seeing the people that he was previously associating with that he regarded as having had a negative influence on him. Those significant steps towards his rehabilitation are to his credit. Mr Forti has many positive factors in his favour. He appears to me to be essentially a positive young man who went astray for a while subsequent to a family breakdown. He has now rebonded with his family and resumed a positive life. He is assessed by the author of the Pre-Sentence Report as at low risk of reoffending and I am satisfied that that is an appropriate assessment of him. He has learnt a harsh lesson of the consequences of his behaviour."

Sentencing considerations

In considering the factors relevant to sentencing, the judge took into account the matters set out above and noted that there had been media coverage of his case, presumably resulting from the death of the young woman. The judge was satisfied that, given the substantial progress by way of rehabilitation, specific deterrence of the applicant was not required. She accepted, however, the need to deter other young people "who are minded to supplying drugs to friends and who do not see it as serious conduct and who do not think of the consequences of their behaviour." [2] The judge also stated, in a passage which attracted attention on the appeal, that "the usual principle is that supplying drugs in a substantial way, particularly where there is an element of financial profit, should normally lead to a custodial sentence." [3]
Counsel for the applicant on sentencing invited the Court to consider a community service order, a suspended sentence or an order for assessment for an intensive correctional order as appropriate non-custodial orders. The judge did not disregard these submissions, stating: [4] "I have been asked by his counsel to deal with him by way of a sentence other than fulltime custody. Despite his positive personal circumstances, including his prior good character, his pleas of guilty, his acceptance of responsibility and demonstration of contrition, I am of a view that the circumstances of his offences require that he serve some time in fulltime custody."
The judge accepted that there were special circumstances warranting departure from the statutory prescription of the minimum proportion of the sentence to be served by way of mandatory custody. She decided, appropriately, to deal with the matter by way of an aggregate sentence and indicated that had she imposed individual sentences, they would have been (a) on the first count, 16 months' imprisonment; (b) on the second count, 12 months' imprisonment, and (c) on the third count, taking into account possession of the Ritalin tablets on the Form 1, 12 months' imprisonment.

Failure to adopt a non-custodial option

Senior counsel for the applicant noted the statutory prohibition on sentences of imprisonment unless the Court be satisfied that no non-custodial penalty is appropriate. [5] Further, the Sentencing Procedure Act, by requiring that in imposing a sentence of six months or less, the Court must indicate and record its reasons for deciding that no other penalty is appropriate, reflects the principle that such short terms of imprisonment require explicit justification.
Counsel for the applicant also referred to the sentencing principle that courts should refrain from sending young persons to prison, unless the gravity of the crime renders such a course necessary. He referred to the reasoning of Lee CJ at CL in R v Pham, [6] relied upon by McClellan CJ at CL in KT v The Queen. [7] McClellan CJ at CL also referred to the emphasis to be given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, an emphasis which "may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity". [8] Counsel submitted that these considerations warranted the adoption of a non-custodial option. He also submitted that the sentencing judge had not given adequate (or indeed any) reasons for rejecting such an option.
It was not true to say that the judge had disregarded non-custodial options: the passage in which she expressly addressed them has been set out at [13] above. The reason for doing so was identified, namely "the circumstances of his offences". There were in fact two relevant circumstances which had been discussed in considering the objective seriousness of the offences which justified that conclusion.
It is convenient to refer first to the statement of the "usual principle" noted at [12] above. Counsel took issue with the proposition that the applicant had been supplying drugs "in a substantial way".
In Wayne William Reid v R [9] Buddin J referred to "the well-entrenched principle that in the absence of exceptional circumstances a fulltime custodial sentence ought to be imposed whenever the offender has been substantially involved in the supply of prohibited drugs." [10] It has also been explained in Smaragdis v R [11] by Fullerton J (Simpson and R A Hulme JJ agreeing) that "a plea of guilty, remorse, an intention not to re-offend and proven rehabilitation in relation to an offender's drug use, even where such circumstances can in combination be described as strong, are not matters of mitigation constituting an exceptional reason for departing from the general principle unless the aggregate of the circumstances point[s] to the case being one of real difference from the general run of cases". [12]
Care should be taken in using the term "exceptional circumstances" as if it were a statutory prescription requiring definition. It is no more than a handy phrase covering a range of factors which may provide guidance. [13] Further, what constitutes "substantial" involvement in the supply of drugs and whether such activities may be described as "trafficking" are matters for evaluation in the individual case.
There were a number of features of the present case which demonstrated that the applicant had engaged in supply as an ongoing activity over a period of some months. For example, (a) the supply in November 2014 was to a customer who already knew of him as a potential source of MDMA; (b) the admitted supply at a party on 10 January 2015 indicated ongoing selling; (c) the fact that he had ongoing financial needs, including resulting from his own drug use; and (d) the paraphernalia found in the applicant's car and bedroom on 7 February 2015, including an MDMA drug testing kit, scales and capsules. The judge further accepted that intercepted telephone calls indicated that he was making arrangements to supply MDMA to friends at a party on 7 February 2015, the day of his arrest.
The judge made clear how she assessed his involvement in the supply of drugs, stating: [14] "In assessing the objective seriousness of the offences I take into account that there was not a single, isolated instance of supply, but there were three supplies over a period of about four months. Each supply involved small quantities and the overall quantity supplied was small. Quantity alone does not determine sentence but it is a relevant factor to be taken into account. On the evidence Mr Forti was a low level dealer supplying mostly to friends, but he admitted supplying to other people who knew of his capacity to supply his friends."
In short, there was no error in the evaluation by the judge of the level of his activities, nor was that assessment inconsistent with the conclusion that a sentence of imprisonment was required.
The second factor which warranted a sentence of imprisonment was the applicant's response to the death of the young woman on 8 November 2014. As the judge noted, after hearing of the death, "Mr Forti apologised to the young woman [to whom he supplied the drugs] … but he went on supplying the drug to other people after that event." [15] That was a highly material factor and was undoubtedly one of the circumstances taken into account by the sentencing judge in rejecting the possibility of a non-custodial sentence.
This aspect of the applicant's challenge to the sentence imposed must be rejected.

Other considerations

The sentencing judge indicated individual sentences of imprisonment for 16 months, 12 months and 12 months in respect of the three offences. The applicant submitted that there was error in failing to allow a significant degree of leniency with respect to the second offence on the basis that the police had no knowledge of his activities in that regard other than through his voluntary admission. Indicating a sentence of the same order as the other offences failed to reflect the principle established in R v Ellis. [16] That ground of challenge should be accepted; the consequences will be addressed below. (The indicative sentence is no part of the sentence imposed and its correctness or otherwise is not the subject of an appeal.)
The applicant also challenged the manner in which the sentencing judge dealt with the first offence. The judge stated, entirely correctly: [17] "A young woman who took the drug Mr Forti supplied to her friend died. Mr Forti has not been charged with causing her death. Legally he cannot be held responsible for her death and I am not sentencing him for that. His unlawful act was supplying the drug to his friend, who supplied it to the young woman who died."
All of that was true, but the indicative sentence for the first offence was the lengthiest, namely imprisonment for 16 months. The real significance of the death in the present context was that it should have provided a dramatic warning to the applicant of the error of his ways and should have led him to abandon his activities: it did not. That fact alone warranted a sentence of fulltime custody with respect to the later offending. It did not, however, warrant a lengthier sentence for the first offence. To that extent, there was substance to the applicant's complaint that the first indicative sentence was excessive. Again, the consequence of that finding will be addressed below.
Thirdly, the applicant submitted that inadequate weight had been given to his youth and immaturity. As noted above, the authorities support the view that with a young person in contact with the criminal justice system for the first time, significant weight should be given to rehabilitation, and especially in a case such as the present where there was affirmative evidence of successful progress in that regard. It was submitted that the judge failed to give proper weight to that consideration and, allowed the factor of general deterrence undue weight.
Taken by itself, this would not have amounted to error. It was clear that the sentencing judge was fully aware of the steps taken by the applicant and treated them favourably. There is, however, a question as to how such a consideration should have been reflected in the indicative sentences and the final aggregate sentence.
There is another factor to be considered. Despite statements by this Court that substantial involvement in the supply of drugs will usually give rise to a custodial sentence, the JIRS statistics indicate otherwise. Thus, sentences in the higher courts (thus excluding the Local Court) from October 2008 to September 2015 for a principal offence involving the supply of ecstasy (including deemed supply) in an amount less than the commercial quantity, where there were multiple offences, but offenders with no prior history and having pleaded guilty, were as follows. Ninety-three cases were identified of which only 17 (18%) resulted in sentences of imprisonment. Two-thirds involved suspended sentences, community service orders or bonds. (The other 18% were intensive correction orders, periodic detention and home detention.) When the figures are further refined to cover only offenders between the ages of 18 and 20 years, the percentage imprisoned falls to 5%, from a pool of 41 cases.
Whilst these statistics do not reveal the range of conduct involved, nor the personal circumstances of the offenders, they are nevertheless troubling in that they demonstrate that the sentence imposed on the applicant is undoubtedly of a kind restricted to a small percentage of offenders. Indeed, and perhaps surprisingly, when the criteria of multiple offences, no prior convictions and guilty pleas are removed, the statistical distribution (not limited to 18-20 year olds) is hardly varied, despite the fact that the pool then contains 740 cases.

Resentencing

The considerations set out above indicate that there should be a grant of leave to appeal in the present case.
The next question is whether these circumstances permit the Court to intervene so as to vary the aggregate sentence imposed by the sentencing judge. By reference to the matters discussed above, intervention is appropriate for the following reasons.
First, the starting point for the sentence (before the discount for pleas) was approximately two years five months. That in itself is a significant sentence for a first offender. Given that only 5% of first offenders in the applicant's age bracket are sent to gaol, such a sentence would appear to be at the very top of the range, if not excessive.
Secondly, if the first indicative sentence should have been in the order of 12 months and the second sentence (subject to the Ellis discount) should have been of the order of eight months, even accepting that those figures are the subject of a 25% discount, there is nevertheless, a high degree of accumulation, suggesting that the sentence imposed was excessive.
Thirdly, taking into account the small amounts of the drug involved, the positive steps by way of rehabilitation and the accepted assessment of a low likelihood of reoffending, in combination with the first two factors, demonstrate that the sentence imposed was manifestly excessive.
It follows that the sentence imposed by the sentencing judge should be set aside. The next step is for this Court to resentence the applicant.
Allowing for the 25% discount for the plea of guilty, the sentence indicated for the first offence should be reduced from 16 months to 12 months. The indicative sentence for the second offence (subject to the Ellis discount) should be reduced from 12 months to eight months. There should be no variation of the third indicative sentence of 12 months.
To reflect the ongoing activity of supply in circumstances following the death of the young woman in November 2014, those sentences would attract a significant degree of accumulation. An aggregate sentence of imprisonment for 18 months should be imposed. (That reflects a starting point of two years imprisonment, prior to the discount for the pleas.) The finding by the trial judge of special circumstances should be confirmed, for the reasons which she gave. Given the satisfactory steps already taken by way of rehabilitation and the strong desirability of encouraging that process, a non-parole period of nine months' imprisonment should be imposed, with an additional term of nine months.

Conclusion

For these reasons I supported the orders made by the Court at the hearing on 6 June 2016.
ROTHMAN J: I agree with Basten JA.
FAGAN J: The applicant pleaded guilty in the Local Court to three offences of supplying prohibited drugs (namely MDMA, otherwise known as ecstasy) contrary to s 25(1) Drug Misuse and Trafficking Act 1985 (NSW) and was sentenced by her Honour Judge Sweeney in the District Court on 28 August 2015. Particulars of the respective charges were as follows: 1. Count 1 concerned the actual supply on about 1 November 2014 of four tablets of MDMA. The weight of the tablets is said to have been about 0.88g and the sale price was $240, $60 each. 2. Count 2 was also particularised as an actual supply, on about 10 January 2015, of "some tablets" of MDMA. The applicant received payment for these drugs but the amount is not disclosed in the agreed facts which were before the sentencing judge. 3. Count 3 was a case of deemed supply. On 7 February 2015 police searched the applicant's home and seized total of 2.3 g of MDMA in the form of four tablets and nine 9 capsules which contained the drug as powder.
The maximum penalty for each offence is 15 years imprisonment. In sentencing for Count 3 the learned sentencing judge was asked to take into account an additional offence of possession of two tablets of Ritalin, an amphetamine which is commonly prescribed for the treatment of Attention Deficit Hyperactive Disorder but which is prohibited in the absence of a prescription. Although taking this offence into account required that the sentence on Count 3 should be greater than it would otherwise have been, the difference would not be very substantial. The indicative sentences nominated by her Honour, as required by s 53A(2)(b) Crimes (Sentencing Procedure) Act 1999 (NSW), were 16 months on Count 1 and 12 months for each of Counts 2 and 3.
I respectfully agree with Basten JA that her Honour did not err in "failing to deal with the applicant otherwise than by way of a full-time custodial [sentence]" (ground 1). I concur in his Honour's reasons for rejecting this ground, as given at [16] - [25].
Ground 2 is that her Honour erred in failing to discount the sentence for the second count in accordance with the principle stated in R v Ellis (1986) 6 NSWLR 603 by Street CJ at 604, as follows: "Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence. The leniency that follows a confession of guilt in the form of a plea of guilty is a well recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned."
The agreed facts upon the basis of which sentence was passed in the present case made very clear that the commission of the offence charged in Count 2 became known to police only through the applicant having disclosed it to them during an interview following his arrest on 7 February 2015. The principle in R v Ellis was engaged. The learned sentencing judge referred (at RoS 4) to the way in which police had learned of the second offence. Her Honour's indicative sentence of 12 months for an offence which was in every other respect closely comparable with Count 1 (for which 16 months was indicated) is only consistent with her Honour having allowed a 25% reduction on the principle in R v Ellis.
It has been held in CMB v Attorney-General for NSW [2015] HCA 9; (2015) 317 ALR 308 at [40] - [43] and [70] - [73] that s 23 Crimes (Sentencing Procedure) Act now embodies and gives effect to the principle in R v Ellis. In Panetta v R [2016] NSWCCA 85 at [32] - [33] Adams J cited previous decisions of this Court in which the view had been taken that s 23 only applied to assistance to authorities in respect of offences committed by persons other than the informant and not to the situation which was considered in R v Ellis of the informant providing information about his own crimes. Those decisions were not referred to in the judgments in CMB v Attorney General for NSW but the High Court's holding that s 23 applies is clear enough.
The significance of s 23 being engaged is that it requires by subs (4) that a sentencing judge's remarks should explicitly disclose what the sentence would have been but for the discount for assistance. Her Honour's failure to do this was a specific error which requires that this Court must exercise the sentencing discretion afresh. As held in Panetta v R at [35] - [36], the combined effect of ss 23(6) and 101A of the Crimes (Sentencing Procedure) Act does not relieve the Court of this duty.
Ground 3 is that her Honour failed "to apply the appropriate sentencing principles for [a] youthful offender". The applicant committed the first offence just before his nineteenth birthday and the other two within the next three and a half months. I respectfully agree with Basten JA's conclusion at [29] and [30] that error is not shown in this respect. Her Honour was well aware of the applicant's age and considered it specifically at RoS 6 and again at RoS 8, where she noted that "his rehabilitation is substantially advanced". This was a reference to his having completed a drug use rehabilitation program conducted by the Royal North Shore Hospital for which he was commended with respect to his "high level of engagement and compliance" (quoted from his presentence report).
Ground 4 is that her Honour "placed too much weight on general deterrence". I also consider that this ground is not made good. Her Honour said at RoS 8: "Because of the importance of general deterrence in sentencing people for supplying drugs, the usual principle is that supplying drugs in a substantial way, particularly where there is an element of financial profit, should normally lead to a custodial sentence."
This was a correct statement of principle in accordance with R v Clark (Court of Criminal Appeal (NSW), 15 March 1990, unrep) and the many subsequent decisions of this Court which have cited that authority. A number of these cases were cited by Fullerton J in Smaragdis v Regina [2010] NSWCCA 276 at [30] - [31].
Ground 5 is that the aggregate sentence of 12 months with a balance of term of 10 months was manifestly excessive. I do not consider that it was. Approaching the case as one suitable for the imposition of an aggregate sentence, it is necessary to take account of the circumstance that each of these offences was not to be considered alone but on the basis that together they constituted a course of conduct in an established, ongoing business of supplying prohibited drugs.
The degree to which the applicant was entrenched in this business is shown by the fact that he persisted in it undeterred by the knowledge that an end user had died as a result of using one or more of the tablets supplied by him in the commission of the first offence. Three and a half months later, in early February 2015, he was in possession of items which indicated the continuance of this supply business as an organised venture: a small quantity of MDMA tablets and powder, empty capsules capable of being filled with MDMA powder and a drug testing kit for MDMA.
A proportionate relationship between indicative sentences such as that nominated by her Honour would be appropriate to this case. It has been mentioned that the indicative penalty for Count 2 should be less than that for Count 1 because of the R v Ellis discount. Count 3 would also warrant a sentence less than that for Count 1 because the third count was a deemed supply, no actual transaction in the drugs which were found on the applicant's premises having taken place at the date of execution of the search warrant which led to this charge being laid.
Consideration of other sentencing decisions for contraventions of s 25(1) Drug Misuse and Trafficking Act where small quantities of MDMA have been involved shows that, when account is taken of the aggravating circumstance that the applicant was engaged in a business of supply, indicative sentences of the order nominated by her Honour were appropriate. Those indicative sentences would fulfil the requirement that repetitive offending as part of a sustained and organised course of activity, be punished more severely than isolated infringements: R v J.R.D. [2007] NSWCCA 55 at [29]; Einfeld v Regina [2010] NSWCCA 87; (2010) 200 A Crim R 1 per Basten JA (with whom Hulme and Latham JJ agreed) at [146]; Lago v R [2015] NSWCCA 296 at [49]. In this area of the criminal law, particularly, repetition of supply offences is significantly aggravating.
In Chiang v R [2016] NSWCCA 45 this Court considered a sentence of six months plus a balance of term of three months appropriate to a single count relating to 24 MDMA tablets weighing 7.1g. The Court's decision was made on the basis that the tablets were all in possession for supply to friends of the offender but that he had no profit motive. He had no prior convictions, was aged 25 years, had pleaded guilty and had expressed remorse. He was allowed a 25% discount for his plea.
Comparison with the present case requires recognition that the present applicant committed three offences with small quantities as opposed to one in Mr Chiang's case, that two of the applicant's offences were of actual supplies whereas Mr Chiang's was a deemed supply and that all three counts in this appeal were part of an ongoing business whereas Mr Chiang's offence was in isolation. The applicant here acted pursuant to a motive of profit whereas it was accepted in Chiang v R that the offender did not. The applicant admitted that he supplied drugs to fund his own drug use and to support his living and educational expenses. His commitment to such an illegal business, as an integral aspect of his economic arrangements for the pursuit of his own objectives and lifestyle, places each of his offences in a significantly worse category than Mr Chiang's deemed supply of his friends at no profit on one occasion.
In Nguyen v R [2009] NSWCCA 112 the offender was in possession of 27 tablets weighing 6.35g, which he held for supply. No supply actually took place. The offender was apparently young but his age is not given in the Court's reasons. A severity appeal was considered on the basis that he intended to supply the tablets "to the public in general". The reasons do not spell out his subjective circumstances but there is no indication that he had any prior convictions or that there was anything else in his antecedents which denied him leniency.
This Court considered that the offender in Nguyen v R intended to profit by the sale of the drugs and rejected his claims to the contrary. He had pleaded guilty and it may be inferred that he was sentenced on the basis of a 25% discount. A sentence of 6 months non-parole period with a balance of term of 12 months was not disturbed. Each of the offences of the applicant under consideration in the present case was significantly more serious than the one instance in Nguyen v R because the applicant's offences were part of an ongoing business.
In Braithwaite v Regina [2005] NSWCCA 451 a 21 year old offender pleaded guilty to one count of supplying MDMA and one count of supplying methamphetamine, both committed on 20 August 2004. The MDMA count concerned 47 tablets weighing 17.78g. The methamphetamine was in 24 doses with a total weight of 20.89g. A 25% discount was allowed for pleas of guilty. The offender was in possession of scales and $540 in cash.
On appeal this Court considered that the sentencing judge had erred in declining to give significant weight to the offender's youth and immaturity. Allowing the appeal a sentence of 8 months non-parole period and a balance term of 16 months was imposed for the MDMA offence (total 2 years) and 6 months non-parole period plus 12 months balance of term (total 18 months) for the methamphetamine charge. They were to be served concurrently. The point of distinction between these two offences and three counts to which the applicant pleaded is the time span: a single date in Braithwaite v Regina compared to an ongoing entrenched business conducted by the applicant, of which the three counts under consideration on this appeal were manifestations.
When comparison is made between the present applicant's offences and the charges considered in the three cases cited, the applicant's offences in my view individually warranted indicative sentences of the order which her Honour nominated. The indicative terms involve an appropriate degree of additional severity, relative to the other cases, to reflect the margin of greater criminality in the applicant's course of repetitive drug supply. The aggregate which her Honour ultimately imposed, 12 months with a balance of term of 10 months, was an appropriate and justifiable penalty derived from the three indicative terms.
I have considered the sentencing statistics supplied by the applicant but I find them to be of no assistance. The statistics beg a number of questions: "What were the objective facts of the cases dealt with by full-time custody in the statistical count? What were the facts of the cases dealt with more leniently?" and so on. I do not consider that such statistics provide any usable shortcut which would circumvent the necessity to make comparison with other sentencing decisions in which similar quantities of drugs and like subjective circumstances of offenders have been involved, for the purpose of achieving consistency and relativity. By relativity I mean a proportionately heavier penalty for more serious offending, relative to other decisions of the Court.
For these reasons whilst accepting that a specific error in sentencing occurred as a result of her Honour's failure to nominate the amount of discount given for the applicant's self-incrimination on Count 2, I would arrive at the same result as her Honour and would therefore grant leave but dismiss the appeal.

Endnotes

Judgment on sentence at pp 7-8.
Judgment on sentence at p 8.
Judgment on sentence at p 8.
Judgment on sentence at pp 8-9.
Crimes (Sentencing Procedure) Act 1999 (NSW), s 5(1).
(1991) 55 A Crim R 128 at 135.
[2008] NSWCCA 51; 182 A Crim R 571 at [24].
KT at [25].
[2009] NSWCCA 37 (Buddin J, McClellan CJ at CL and James J agreeing).
Reid at [21], approved at [22].
[2010] NSWCCA 276.
Smaragdis at [31].
R v Saba [2006] NSWCCA 214 at [17]-[19] (Handley JA).
Judgment on sentence at p 5.
Judgment on sentence at p 6.
(1986) 6 NSWLR 603 at 604D (Street CJ, Hunt and Allen JJ agreeing).
Judgment on sentence at p 5.

Amendments 30 November 2016 - [56] - deleting "said" before "at [146]". 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. Decision last updated: 30 November 2016

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