38 If the application for leave to appeal had been filed before the sentences for the other offences had expired, the Crown could have given consideration to lodging a Crown appeal against the sentences for the other offences, while those sentences were still current, and, whether or not a Crown appeal was brought, this Court, depending on when the application was heard, could have given consideration to varying the sentences for the other offences pursuant to s 7(1A) of the Criminal Appeal Act, while those sentences was still current. It should, however, be pointed out that, although the application for leave to appeal was not filed until 17 October 2008, a notice of intention to appeal was filed promptly on 5 December 2007 and extended on a number of occasions, so that the Crown had early notice that an application for leave to appeal against sentence might be brought.
39 Senior counsel for the applicant gave the court an explanation of why the delay in filing the application had occurred. The exhibits which had been provided by the District Court registry to the applicant's solicitors had not included the letter giving details of the assistance the applicant had provided. Senior counsel for the applicant had formed the opinion that an attempt should be made to obtain access to the letter of assistance in order to check whether a sufficient discount had been allowed for the assistance and, rather than "fragment" any application, the filing of the application should be deferred until after access had been obtained.
40 An application was made to the sentencing judge to obtain access to the letter of assistance but, notwithstanding various undertakings offered on behalf of the applicant, the sentencing judge declined to allow access. Ultimately, senior counsel for the applicant was able to inspect the letter of assistance in a court registry. It was only after this inspection had taken place that the application for leave to appeal against sentence was filed. Senior counsel informed the court that, to his knowledge, the applicant had never been advised by any person, and had not instructed any person, to delay commencing his appeal against sentence until after the sentences for offences 1, 3, 4 and 5 had expired.
41 Senior counsel for the applicant is well and favourably known to this Court and I consider that his explanation for the delay should be accepted and that the Court should proceed on the basis that the commencement of the application was not deferred for tactical reasons. In these circumstances I do not consider that the Court should dispose of the application by refusing leave to appeal.
42 At the hearing of the application it was suggested in the course of the argument that the sentencing judge might have decided to reflect in the sentence for offence 2 most of the criminality in all of the offences and to make the sentences for the other offences relatively short and concurrent with each other and that, even if the sentence for offence 2, considered by itself, was held to be manifestly excessive, the totality of the sentences was not manifestly excessive and was appropriate to reflect the totality of the criminality in all of the offences; and, this being so, the second ground of appeal should be rejected.
43 At the conclusion of the oral hearing of the application counsel were directed to lodge written submissions on the question whether, if the Court were to find that the sentence for offence 2, considered by itself, was manifestly excessive, the Court could nevertheless decline to intervene and dismiss the appeal, on the grounds that the totality of the sentences appropriately reflected the totality of the criminality in all of the offences and no less severe aggregate sentence would be warranted.
44 Pursuant to this direction, written submissions were lodged by both parties.
45 An initial question is whether the sentence for offence 2 was manifestly excessive, considered simply as a punishment for the criminality in offence 2 (but also taking into account the additional offences).
46 As the sentencing judge quantified the combined discount he was allowing for the plea of guilty and the assistance provided by the applicant, it is legitimate to refer to what the putative sentence would have been, before allowing the discount. As I have already noted, the putative sentence would have been six years three months, and not five years six months as assumed by the parties.
47 The methylamphetamine the subject of offence 2 was in resealable bags and was clearly in the applicant's possession for the purpose of supply. The quantity of the drug was 38.09 grams. The trafficable quantity for methylamphetamine is 3 grams and the commercial quantity is 250 grams.
48 I have already upheld the first ground of appeal that the sentencing judge erred in finding that the motive for the offences, and in particular offence 2, was sheer greed. The sentencing judge clearly treated this finding as an aggravating factor.
49 The six additional offences were to be taken into account in sentencing the applicant for offence 2 and two of the additional offences had been committed while the applicant was on bail. The additional penalty because additional offences are taken into account in sentencing for an offence need not be small (Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act (2002) 56 NSWLR 146).
50 On the other hand, four of the six additional offences were for possession of quite tiny amounts of cannabis leaf. The largest of the amounts was 5 grams, whereas under the Drug Misuse and Trafficking Act the "small quantity" applicable to cannabis leaf is 30 grams. Another of the offences was possession of a tiny amount of methylamphetamine (.37 grams). The small quantity prescribed for methylamphetamine is 1 gram. The applicant was a user of both cannabis leaf and methylamphetamine.
51 The remaining additional offence was possession of $2,565 in cash. The agreed facts of the offences include that, when asked about the cash, the applicant told police that he bought scrap metal for his business. By agreeing that this offence should be taken into account in sentencing him the applicant was conceding that the cash was reasonably suspected of having been unlawfully obtained; however, he was not conceding that the cash was in fact connected with drugs.
52 The Court was referred by counsel for the applicant to a number of cases which were collected in what was described as a comparative table of cases. Only limited assistance can be obtained by an examination of other cases but the other cases to which we were referred by counsel for the applicant do suggest that the sentence passed on the applicant was excessive. The other cases to which the Court was referred include R v Decandia (NSWCCA 8 July 1994), R v Smiroldo (2000) 112 A Crim R 47, R v Bacon (2000) 120 A Crim R 28, R v Brown [2001] NSWCCA 367, R v Hofer [2001] NSWCCA 544, R v Fogg [2002] NSWCCA 395, R v Connell [2003] NSWCCA 90 and R v Meres; R v Dineen [2003] NSWCCA 193.
53 In my opinion, had there been no discount for a plea of guilty and assistance, a sentence of six years three months would have been manifestly excessive as a punishment simply for the criminality in offence 2 (and the additional offences) and, consequently, a sentence of three years nine months, after allowing the combined discount, should be regarded as manifestly excessive and I would uphold the second ground of appeal insofar as it relates to the sentence for offence 2.
54 A further question is whether, even if the sentence for offence 2 was, as I have held, manifestly excessive, nevertheless no less severe aggregate sentence would have been warranted to reflect the total criminality in all the offences; so that, if this Court can dismiss an appeal against sentence, where there are sentences for multiple offences, on the grounds that no less severe aggregate sentence would have been warranted to reflect the total criminality in all the offences, that power could be exercised in the present case.
55 I am not persuaded that no less severe aggregate sentence than that imposed was warranted to reflect the total criminality in all of the offences.
56 It is true that all of the sentences for the other offences were made to commence from the same date, that the two longest sentences of 12 months each (for offences 1 and 5) were made fully concurrent with each other and that the lesser sentences of three months for offence 3 and six months for offence 4 were completely subsumed in the longer sentences.
57 On the other hand, the sentence for offence 2 was made fully cumulative on the sentences for the other offences. Of the other offences, offence 3, the firearms offence, was, on the agreed facts and the evidence of the applicant which the sentencing judge accepted, a very minor offence and hardly called for any sentence of imprisonment and offence 4 of supplying 1.35 grams of methylenedioxymethylamphetamine was, for a drug offence, a very minor offence. If there was any inadequacy in the sentences for offences 1 and 5, particularly in making them fully concurrent with each other, that inadequacy was offset by what I consider to be the manifest excessiveness of the sentence for offence 2.
58 As I have reached a conclusion that it is not the case that no less severe aggregate sentence would have been warranted to reflect the total criminality in all the offences, it is unnecessary to determine the question of principle which was the subject of the parties' further written submissions. The Court is indebted to counsel for these submissions, although, ultimately, it was unnecessary to determine the question to which the submissions were directed.
59 As I consider that the applicant's appeal against the sentence for offence 2 should be allowed, it is necessary to re-sentence the applicant for offence 2. Earlier in this judgment I set out the objective facts of the offence and the subjective circumstances of the applicant and I will not now repeat what I said.
60 In my opinion, an appropriate head sentence before allowing a combined discount for the plea of guilty and the assistance provided by the applicant would be 4 ½ years. I would allow a combined discount, as the sentencing judge did, of 40 per cent, producing (with slight rounding off) a head sentence of two years eight months. I would find special circumstances in the circumstances which the sentencing judge found to be special circumstances and I would divide the head sentence between a non-parole period and a balance of the term so that the total of the fixed terms (12 months) and the non-parole period of the sentence for offence 2 bears the same proportion to the total head sentences as that adopted by his Honour (three years to four years nine months). Accordingly, the non-parole period of the sentence for offence 2 would be one year four months and the balance of the term would be one year four months.
61 In my opinion the following orders should be made:-
- Leave granted to appeal against the sentence for offence 2.
- Appeal against the sentence for offence 2 allowed.
- Sentence imposed by the sentencing judge for offence 2 quashed.
- In lieu thereof sentence the applicant to a non-parole period of one year four months commencing on 29 August 2008 and expiring on 28 December 2009 and a balance of the term of one year four months.
- Direct that the applicant be released on parole on 28 December 2009.
62 BUDDIN J: I agree with James J.