59 Ms Sewell's evidence, in my opinion, was compelling. I have no doubt on the evidence before his Honour that MDMA and methylamphetamine had been manufactured on the premises notwithstanding the respondent's evidence. The presence of MDP2P and caffeine were some of the circumstances which pointed strongly to manufacture. The difficulty, however, for the Crown as Mr Babb fairly conceded in this Court was that the forensic chemist's evidence could not be linked to the manufacture of the 1.0938 kilograms of MDMA the subject of count 1. As the Judge correctly pointed out, suspicion was not enough, proof beyond reasonable doubt was required. His Honour, in my view, did not err in his assessment of the respondent's role in the commission of the offence.
60 The Crown argued that his Honour erred when he said: (ROS at 10)
"I accept that his addiction has so conditioned his mental processes that he has not appreciated the full extent of his criminality."
61 There was no evidence, the Crown submitted, on which to base this finding.
62 The Judge had heard evidence of the respondent's drug addiction and had the opportunity, unlike this Court, of seeing and hearing him give evidence. It was open to his Honour to make such a finding on the evidence before him. In any event, as was submitted for the respondent, his Honour did not suggest that he regarded this to be a matter in mitigation, but rather as providing some explanation for the respondent's involvement in the offence.
63 I am not satisfied that the second ground of discrete error alleged by the Crown has been established.
64 The Crown did not submit that his Honour erred in characterising the offence as falling within the middle of the range of objective seriousness. The Crown, however, submitted that it was hard to reconcile this finding with the sentence imposed, especially as the head sentence but for the plea would have been 10 years imprisonment. The Crown was also critical of the utilitarian discount for the plea of guilty being assessed at 25 per cent.
65 In his sentencing remarks, the Judge acknowledged that the Court was required to take into account the standard non-parole period even though a guilty plea had been entered.
66 The Judge said (ROS at 11):
" The fact that the case falls within the mid range of seriousness does not of itself mean, in circumstances where the offender has pleaded guilty, that the standard non-parole period applies. I do take into account as I have already stated the nature and circumstances in which the offender came to be involved. I take into account his remorse and I also take into account in particular that he is at the crossroads in a period in his life. He is now forty-one years of age. His business has gone, his parents who are on the pension and have done their best to educate he and his sister and make them good citizens have been involved in expenses and the selling of the business. He has a son who is at present fourteen years of age and on the evidence of his sister he is devoted to and whom he wishes to be of assistance.
These factors, particularly as I have stated, his present age and his plea of guilty and the fact that the offence is concerned with taking part in the manufacture of the prohibited substance in the count one, and that amount only and for the period referred to in the indictment, I consider that it is appropriate not to apply the standard non-parole period of fifteen years." (italics added)
67 And further (ROS at 13):
"I consider the appropriate sentence but for the plea of guilty would be a period of imprisonment of ten years . I would consider that the offender is entitled to a discount of twenty-five per cent. The reason for that, despite the fact that the plea was made on 11 February 2008, is that the thrust of the offender's defence to the offence was that the evidence obtained on the covert search was evidence which could have been successfully challenged by the accused as appropriately admissible. The Crown has accepted that if the evidence was found to be inadmissible, that is the evidence of the covert search occurred, then the Crown case against the offender would not be as strong. The plea therefore by the offender does have considerable utilitarian value and because of that utilitarian value, I consider that the offender is entitled to the discount of twenty-five per cent. A discount of twenty-five percent would bring about a sentence of seven and a half years imprisonment." (italics added)
68 His Honour found special circumstances being the respondent's need to continue with his efforts at rehabilitation and to ensure that he remains drug free. A non-parole period of 4 years was set.
69 It is apparent from the Judge's sentencing remarks that his assessment of the utilitarian value of the plea focussed on the respondent's waiver of a possible defence. Such a consideration has no bearing on the utilitarian value of the plea which was entered on the first day of the trial following what was described as the presentation of a "fresh indictment". Counsel for the respondent acknowledged in written submissions that the fact that the respondent pleaded guilty where he may have had a defence available to him went to the strength of the Crown case and was not a matter relevant to the utilitarian value of the plea: see R v Sutton [2004] NSWCCA at [12].
70 Having made that concession, counsel for the respondent argued that the discount could be justified as encompassing the utilitarian value of the plea and remorse. Mr Dhanji further cited R v Halls [2008] NSWCCA 251 where a discount of 20 per cent for a plea entered on the second day of the trial was found to be within the available sentencing range.
71 Remorse was a factor which was taken into account by his Honour in departing from the standard non-parole period and to take remorse into account again in the assessment of the value of the plea would amount to impermissible double counting. This Court has emphasised that a discount for remorse "in combination with the discount resulting from the utilitarian value of the plea of guilty is to be avoided": R v M.A.K; M.S.K [2006] NSWCCA 381 at [44]. In any event, the Judge did not combine in his assessment of the value of the plea its utilitarian benefit and remorse and I reject Mr Dhanji's submission.
72 This was a plea which was entered on the first day of a trial which was estimated to take two weeks. The respondent had been committed for trial after a three day committal hearing in October 2007. The trial whilst not straight forward was not unduly complex. The rationale for a twenty five per cent discount did not exist in this case. As was said in R v Thomson & Houlton (2000) 49 NSWLR 383 per Spigelman CJ at [155]:
"The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, for example, on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial."