Decision
40I accept the Crown's submissions that the outcome of the present appeal is governed by the dictum of Simpson J in De La Rosa at [303] - [305], which I set out in full:
A history of sentencing can establish a range of sentences that have in fact been imposed. Such a history does not establish that that range is the correct range, nor that either the upper or the lower limit is the correct upper and lower limit. Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts
But it would be a mistake to regard an established range as fixing the boundaries within which future judges must, or even ought, to sentence. To take that attitude would be, de facto, to substitute judicial selection of sentences in individual cases for the boundaries of sentencing for a particular offence laid down by Parliament. In this case, that range is from 0 to 25 years. Of course, it is well established that the maximum sentence is reserved for the most serious cases. It is equally well established that it would be an extraordinary proposition that a person convicted of an offence of importing prohibited drugs would escape any custodial penalty. The point I am making is that the ranges of sentences actually imposed, while illuminating, are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence. But it is only by examination of the whole of the circumstances that have given rise to the sentence that "unifying principles" may be discerned: (citation omitted).
In the end, the sentencing discretion is individual: it must be exercised by the individual judge, in respect of the individual offender. Significant sentencing considerations include the role played by the offender in the particular importation or enterprise, the quantity of the drug involved, and its estimated street or wholesale value (having regard, inter alia, where relevant, to its purity). Also of considerable significance are the character andantecedents of the offender (s 16A(2)(m)). This last consideration bears upon the offender's prospects of rehabilitation, and also to any claim for leniency made on his or her behalf by reason of prior good character. (Emphasis added).
41It needs to be borne in mind that this statement of principle, like those in Wong and Hili, were made in the exercise of federal jurisdiction. In the state jurisdiction, s.8 Judicial Officers Act 1986 (NSW) renders information, including reports, about sentencing disseminated by the Judicial Commission a relevant consideration to be taken into account in the interests of consistency. This statutory consideration may, therefore, extend the use which may be made of statistics and comparable sentences in the exercise of state jurisdiction. But strict limits remain. As Simpson J said in the extract above, sentencing is peculiarly individual: "It must be exercised by the individual judge, in respect of the individual offender". And, of course, in respect of the particular offending. As the High Court pointed out in Muldrock v. The Queen [2011] HCA 39; 244 CLR 120 at 132 [29], the sentencing task requires the judge to:
identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed
42Moreover, as the plurality pointed out in Hili at 539 [60], "what reveals manifest excess", or inadequacy, of sentence is a consideration by the appellate court of all the matters that are relevant to fixing the sentence. The detection of manifest error is not "fundamentally intuitive".
43I also bear in mind the basic rule stated in Lowndes v. The Queen [1999] HCA 29; 195 CLR 665 at 671 - 2 [15]:
...a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion.
44I am unable to see that the helpful comparative information provided by the applicant demonstrates that the sentence passed on the applicant is plainly unjust. Necessarily, it is impossible for the Court to closely examine all of these cases in an attempt to distil a guiding principle, or guiding principles, in relation to this category of offence by which the appropriateness of the sentence passed may be measured. Given the fact sensitive nature of the sentencing task, even a close examination of the various sentences passed for offences falling into the same legal category, provided by a group of cases said to be comparable, can but rarely prove decisive. Naturally, when taken together, a group of cases said to be like will produce a numerical range; and sometimes this effect will be useful, even very useful. But the only true range, as Simpson J said, is the range fixed by Parliament. The principle of consistency calls for consistency of approach, not, as was said in Hili, numerical equivalence.
45Having regard to all the facts, matters and circumstances that the sentencing judge considered appropriate to the individual sentencing task before him, as I have set out above, I cannot detect even latent error. A review of his reasons does not suggest that: the matters considered were not appropriate; other appropriate matters were overlooked; he was mistaken about the facts found; or that he made any error of principle. It may be that greater weight could have been given to the consideration of the applicant's lack of education, intellectual difficulties or personality dysfunction: Muldrock at 137 [50] - 139 [55]. This may have led to a diminution of the significance of the considerations of general deterrence and retribution which his Honour emphasised, but not necessarily: R. v. Engert (1995) 84 A Crim R 67 at 68 and 71. Moreover, such considerations, to the extent to which they suggest the applicant is dangerous, at least when drug and alcohol affected, may have brought the need for protection of society into sharper focus to the same overall effect: his Honour was unable to find that the applicant was unlikely to re-offend. Mere questions of weight, or emphasis, do not readily fit the House v. R [1936] HCA 40; 55 CLR 499 template. His Honour did refer to these considerations in his assessment of the facts, and also in the conclusions I have set out in full above ([32]). That I may have weighed them differently is not to the point.
46I am not satisfied that the applicant's proposed ground of appeal has been made good. The sentence imposed was within the range reasonably open at first instance. I am not of the opinion that another sentence is warranted in law and should have been passed.
47The orders I propose are:
(1)Leave to appeal granted;
(2)Appeal dismissed.