Huang v R

Court of Criminal Appeal (NSW)|2017-08-28|Before: Hoeben CJ, Davies J, Bellew J

Judgment

HOEBEN CJ AT CL: I agree with Davies J and the orders which he proposes.
DAVIES J: On 13 May 2015 the applicant pleaded guilty in the Local Court to the offence of supplying not less than a large commercial quantity of a prohibited drug, namely, 14.935 kilograms of ephedrine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for this offence is imprisonment for life and/or a fine of 5,000 penalty units. There is a standard non-parole period of 15 years.
On 25 August 2016 he was sentenced by Judge Lakatos SC in the District Court to a period of imprisonment of ten years comprising a non-parole period of seven years commencing 20 May 2014 and expiring 19 May 2021 with a balance of term of three years expiring 19 May 2024.

The facts

The sentencing judge dealt with both the applicant and a co-offender Haihui He at the same time. There was an extensive set of agreed facts. The following is the sentencing judge's summary of those facts.
The applicant, Mr Huang, agreed to supply 15 kilograms of ephedrine to an undercover policeman. The large commercial quantity for that drug is five kilograms. The applicant was in a joint criminal enterprise with three others: Mr He who was sentenced at the same time as the applicant, and two other co-offenders, Mr Chen and Mr Lin, who had earlier been sentenced by the same judge.
The applicant met with the undercover officer (UCO) on three separate occasions with the first time being on 12 May 2014 when the agreement to supply the drug was reached. The second meeting occurred on 19 May 2014 when there were discussions as to the precise arrangements for the transfer of the money and the drugs on the following day. The third meeting occurred on 20 May 2014 when the supply of the drug was facilitated by the four co-offenders.
On 12 May a person called George introduced the UCO to the applicant and they met at a fast food restaurant at Bass Hill. During these meetings the applicant drove a white Toyota which had been rented between late April and late May 2014. The parties discussed the first transaction as a test of each other and the meeting was recorded on a listening device. The discussion involved the UCO asking for 10 to 15 kilograms of ephedrine at a cost of $80,000 per kilogram, a matter with which the applicant agreed or appeared to do so.
Accordingly, an agreement was made with the UCO for the applicant to supply the UCO with 15 kilograms of ephedrine at a cost of $80,000 per kilogram at a total cost of $1.2 million. The applicant provided the UCO with a phone number. There was further discussion about whether the applicant had some ice for sale but he convinced the UCO that it was of poor quality and any such purchase should be deferred. The agreement therefore was to supply 15 kilograms of ephedrine the following week and, if the UCO was satisfied with it, he could then place more orders.
Some seven days later on 19 May it was agreed between the applicant and the UCO that they would meet to discuss arrangements for the supply of the drug. On the morning of that day police observed an Asian man, who it was thought was probably the co-offender Chen, arrive at the applicant's house where he collected another unidentified Asian man before driving to an address at Chester Hill where a third man entered the vehicle.
About mid-day that day the applicant arrived at a cinema car park at Auburn driving a white Toyota. He met the UCO and had a conversation with him about the supply of the 15 kilograms of ephedrine the following day. The applicant confirmed that the drug was available and invited the UCO to go and see for himself. Further arrangements were made as to how the money would be transferred to the applicant.
After the meeting the applicant drove to Park Road, Auburn which was a safe-house that the applicant and Mr He had used. That address Park Road, Auburn appeared on a bill of lading relating to the importation of 42 kilograms of ephedrine seized by customs. The bill of lading was in fact in the boot of Mr He's car when he was arrested. There was a conversation between the applicant and the UCO about the problems involved in that importation because the applicant believed that the UCO had contacts in customs who could help, and the UCO was provided with a reference number relating to the bill of lading.
At about 1.30pm Mr He left Park Road, Auburn. By this time the police had fitted the vehicle with a tracking device which showed that it was driven around the streets and car parks in the neighbourhood. There were a number of telephone conversations between the applicant and Mr He on the evening of 19 May including organising a meeting at a nearby hotel.
On 20 May the applicant contacted Mr He in the late morning about going to Auburn immediately. Mr He indicated that he didn't wish to go but would rather get 'the boy' to go. The applicant later attended at Mr He's house and arrangements were made between them to stay in touch via telephone.
At 11.50am the UCO drove into the cinema car park and the applicant arrived shortly thereafter driving his Toyota. The applicant told the UCO that he did not have the drug with him but it would be delivered once he had seen the cash. The UCO showed Mr Huang $1.2 million in cash in a black bag. The applicant told the UCO that the drugs were being delivered by his partner (who he referred to as "Harry") who was on the way. The applicant called Mr He close to mid-day that day directing him to bring the drug, to put it in the car and referred to having the money there with him.
Mr He indicated that he did not want to conduct the transaction personally but would send another person to do so. The applicant insisted that there was no time and that he, Mr He, was required to undertake that task. Some minutes later there was a telephone call between Mr Lin and another person called Liu about the drug transaction. A minute later Mr He arrived with Mr Chen. The applicant approached Mr He who was at that point sitting in a vehicle. Mr He passed a purple plastic bag containing five kilograms of the drug to the applicant. The applicant took the bag and returned to the UCO. Meanwhile, Mr Lin parked his vehicle close by and Mr Chen walked from Mr He's vehicle and spoke to Mr Lin. Mr Lin opened the boot of the car he was driving and Mr Chen took a backpack out of it containing the remaining ten kilograms of ephedrine which was taken to the UCO's vehicle.
Police arrested the applicant next to the UCO's vehicle. Mr Chen and Mr Lin were also arrested. Mr He drove his vehicle out of the car park. He was blocked by police and reversed violently away from the police car but was blocked from behind by the Tactical Operations Unit. He was subsequently arrested and cautioned but declined to comment.
There were 15 plastic bags containing a brown crystalline substance which when analysed was found to be 14.9437 kilograms of ephedrine, the purity being between 77.5% and 78.5%. Traces or presumptive evidence of ephedrine was found on a number of items as well as on Mr He's jeans and singlet, and also on Mr Chen's clothing.
The applicant's Toyota was searched upon his arrest and a number of items located. There was a wallet with various personal cards in his name, a document relating to the renting of the vehicle and a Telstra phone amongst others. A Toyota vehicle registered to Mr He was also searched and the police located the following: a fold-out knife in a brown case in the driver's side console; two foreign exchange records disclosing the exchange of Australian dollars for Chinese currency in sums of about $9,000 and $18,500, those transactions occurring in mid-February and early March 2014; a grey plastic bag containing a large number of resealable plastic bags; a food saver device and a box of food saver bags; a bill of lading to which reference has already been made; a Telstra mobile phone and other assorted items. The bill of lading pertained to a container used to import illegally 42 kilograms of ephedrine in the name of a Chinese man, Mr Shi Teng Fei, who was said to be residing at Park Road, Auburn. A number of the items were tested and were found to test positive for ephedrine. Mr Lin's car was also searched and items found.
Police attended the premises at Park Road, Auburn and discovered that it was a sparsely furnished unit, it was devoid of clothing and personal effects. It appeared to be used as a 'safe-house', and two Samsung mobile phones secreted in a zipped cushion on a bed were found. Police also searched the premises at Wilmot Road, Auburn where Mr He resided, and found the following: multiple documents and two passports in his name, three mobile phones, digital scales, food saver bags, a sealed food saver bag containing 22 grams of ephedrine the purity of which was assessed at 78.5%. The scales found in Mr He's premises tested positive for ephedrine and his fingerprint was located on it as well as on a box containing the bags.
The applicant's premises at Wilmar Avenue, Auburn were searched and the following located: multiple documents in his name, three mobile phones, $2,200 in cash, digital scales, a box of food saver bags, a heat sealed plastic package containing seven grams of ephedrine and 1.65 kilograms of granular corn starch.

Subjective matters

The subjective matters concerning the applicant were relevantly contained in a pre-sentence report prepared by Ms Linda Brett of Corrective Services NSW.
The applicant is 28 years old. He is a citizen of the People's Republic of China and comes from Fujin in the far north east of the country. His father, mother and two siblings continue to reside there and the applicant has maintained contact with them.
He claimed that his needs as a child were adequately met. He did not complete high school in China before coming to Australia on a student visa at the age of 18. He intended to work and send money back home to his family.
After he arrived in Australia, the applicant was employed in a variety of positions including as a cleaner, waiter, painter and gyprocker. In 2012, he became addicted to the drug ice through what he described as a poor choice of associates.
The applicant told Ms Brett that he was pressured into the current offending due to a substantial drug debt resulting from his addiction. He claimed to have ceased using drugs while in custody. He said that he was ashamed of his offending and that he fully understood the harm to the community caused by the supply of illicit drugs.
The applicant was employed in custody as a headset assembler. Ms Brett noted that he has complied with industry routine and had been co-operative with other industry staff and inmates in the course of that work.
The sentencing judge found the applicant's criminal record to be modest. In 2009, he appeared in the Local Court at Parramatta for traffic offences. In 2011, he appeared in the Local Court for assaulting police, resisting arrest and failing a breath test and was given a community service order as well as s 9 bonds. He was called up for a breach of the community service order and was sentenced to two months' imprisonment. In February 2015, he was punished for fighting while in custody by being confined to the cells for one day.
Ms Brett assessed the applicant's risk of re-offending as low/medium according to the Level of Service Inventory - Revised actuarial risk/needs assessment tool. The sentencing judge found, however, that the Court had insufficient material on which to reach any firm conclusion with respect to the applicant's likelihood of reoffending, prospects of rehabilitation and level of remorse.
Ms Brett understood that the applicant was a person of interest to the Department of Immigration and was expected to be deported upon the completion of his sentence.

His Honour erred in finding that the offence was aggravated pursuant to s 21A(2)(m) Crimes (Sentencing Procedure) Act 1999 in that the offence involved a series of criminal acts;

His Honour erred in finding that the offence was aggravated pursuant to s 21A(2)(n) Crimes (Sentencing Procedure) Act 1999 in that it was part of a planned or organised criminal activity;

His Honour erred in finding the offence was aggravated pursuant to s 21A(2)(o) Crimes (Sentencing Procedure) Act 1999 in that it was committed for financial gain;

Submissions

The applicant submitted that the sentencing judge erred in his application of aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act by failing to give adequate reasons as to how the aggravating factors impacted on the sentencing process (ground one) and by considering, as aggravating factors, matters which were inherent in the elements of the offence (grounds two and three). It is convenient, therefore, to deal with these grounds together.

Ground 1

The sentencing judge found that the offence was aggravated pursuant to s 21A(2)(m) in circumstances where it involved a series of criminal acts, namely a "two step procedure" whereby Mr He produced a five kilogram bag of ephedrine and Mr Chen, some minutes later, produced a backpack containing ten kilograms of ephedrine. The applicant submitted that the sentencing judge failed to explain adequately the weight given to the aggravating factor and how it impacted upon the sentencing process.
The applicant relied on R v Walker [2005] NSWCCA 109 (at [32]) and R v Mills [2005] NSWCCA 175; 154 A Crim R 40 (at [49]) to assert that the sentencing judge must, when considering matters under s 21A(2), identify not only the relevant factors but also the weight given to them and their role in the structuring of the sentencing order.
The applicant submitted that the mere provision of the 15 kilograms of ephedrine in two parcels separated by a matter of minutes could not logically raise the objective seriousness of the offence.
The Crown submitted that while the sentencing judge considered the offence to involve, "technically", a two stage process, he was in substance concerned with the level of planning undertaken by the applicant and his co-accused. The Crown submitted that the sentencing judge correctly found that the present offending constituted more than a "straight supply" and that it was open to the sentencing judge to have found, in those circumstances, the presence of relevant aggravating factors.

Grounds 2 and 3

The applicant's submissions in respect of grounds two and three may be conveniently dealt with together. The applicant submitted that the sentencing judge took into account aggravating factors which might be considered to be inherent in the offence under s 25(2) of the Drug Misuse and Trafficking Act. These aggravating circumstances were, respectively, the planned or organised nature of the activity and the financial gain to be made by the applicant.
The applicant submitted that the sentencing judge failed to set out adequately the way in which the aggravating factors under ss 21A(2)(n) and 21A(2)(o) impacted on his assessment of the objective criminality of the offending. Having failed to do so, there was a real risk that the sentencing judge may have double counted the factors of planning and financial gain since both were said to be part and parcel, as it were, with the supply of large commercial quantities of drugs.
The applicant submitted that the proper test to be applied in respect of s 21A(2)(n) was whether the planning was of such an order as to exceed that which might be expected for an offence of that kind: Elyard v R [2006] NSWCCA 43 at [43]; R v Yildiz [2006] NSWCCA 97; 160 A Crim R 218 at [39]. The applicant submitted that, in the present case, the level of planning and organisation did not meet that threshold.
In respect of the s 21A(2)(o) aggravating factor, the applicant submitted that there was no evidence before the Court to establish whether, and to what extent, he was to receive a financial benefit from the transaction. The sentencing judge was unable to reach a conclusion on the matter, although he rejected the applicant's evidence that he participated in the supply in order to clear a $15,000 debt owed to his drug dealer.
The applicant noted that the sentencing judge acknowledged that, while the applicant was not likely the ultimate beneficiary of the supply, his rewards would be greater than the other co-accused given his position of leadership in the syndicate relative to them. The applicant submitted that, in any event, a degree of financial gain is an inherent characteristic of an offence such as the present. The applicant submitted that the sentencing judge erred in finding an aggravating factor in relation to financial gain when the amount of the applicant's financial gain, if any, could not reasonably be expected to exceed the amount inherent to this type of transaction.
The Crown submitted that the manner in which the drugs were supplied in the present case revealed a level of organisation above that expected in a case of a supply at the lowest level of offending: Prculovski v R [2010] NSWCCA 274 at [43]; Wat v R [2017] NSWCCA 62 at [44]. There were three separate meetings between the applicant and the UCO including the ultimate transaction leading to the applicant's arrest. There were also multiple telephone calls and WeChat messages exchanged between the applicant and his co-offenders in connection with the offending. These measures, it was submitted, constituted a "significant" level of planning.
The Crown submitted that it was open to the sentencing judge to conclude that the applicant, who his Honour found had a more senior role in the enterprise than each of the co-offenders, was to receive a relatively greater financial reward. In those circumstances, the sentencing judge made no error in finding that the offence was committed for financial gain.
The Crown submitted that the sentencing judge's remarks do not reveal that his Honour took into account as an aggravating factor that the offence involved multiple criminal acts, over and above his finding that the offence was aggravated by it being part of a planned or organised criminal activity.
In relation to the test to be applied for determining whether an aggravating factor has been established on the facts relative to the elements of the offence, the applicant submitted in reply that the yardstick identified in Prculovski - that one makes a comparison with the lowest level of offending for the type of offence - is not an appropriate one in the present case. The applicant sought to rely on an "offence of its type" test which compares the offending conduct with that which is an inherent characteristic of, or would ordinarily be expected in, the relevant offence: Elyard at [40]; Fahs v R [2007] NSWCCA 26 at [22].

Consideration

The sentencing judge dealt briefly with the aggravating factors in relation to the offending as follows (ROS 18): Moving then to the aggravating and mitigating circumstances in relation to both offenders pursuant to s 21A, so far as Mr Huang is concerned this offending in fact did involve a multiple series of criminal acts in the sense that, looked at technically at least, the supply of the 15 kilograms occurred in a two step procedure albeit separated by a short space of time. Clearly enough there was much conversation and preparation between the UCO and these offenders. In my view this was somewhat more of a sophisticated situation than a straight supply. It was clearly in my view part of a planned or organised criminal activity, even for a large commercial quantity and clearly enough so far as Mr Huang was concerned the offence was committed for financial gain.
In Fahs, Howie J (Simpson and Buddin JJ agreeing) said: [22] Had the only relevant factor been the existence of planning in the commission of the offence, there might have been a valid argument that planning was an inherent characteristic of every offence involving on-going or commercial drug trafficking: see Elyard v R [2006] NSWCCA 43. But it is not an inherent characteristic of supplying drugs that it is "part of a planned or organized criminal activity" in the sense that those words convey. For example, I do not believe those words apply to the normal street dealer who purchases drugs from various sources simply to obtain the wherewithal to purchase drugs for his own use. Therefore, in an appropriate case this aggravating factor can be taken into account when sentencing for drug trafficking offences. In this case it would have been open to the Judge to find that such a factor existed in respect of each of the offences because it was clear that the applicant was committing the crimes as part of a drug trafficking organisation capable of supplying large amounts of different types of drugs to order.
In Prculovski, Howie AJ (McClellan CJ at CL agreeing) said: [43] It is not necessarily an error to take into account, when sentencing for a s 25A offence, either that the offence was committed for financial gain or that it involved planning. Where the financial gain or the planning is significant, that is more than might be expected in the lowest level of offending for this type of offence, the court is entitled to take that fact into account as a matter of aggravation. … . [44] So far as planning was concerned, it would, in my opinion, have been open to a court to find that this was one step up from the type of conduct that is found in the lowest form of the offending, for example a person who supplies at a street level or in licensed premises to users of the drug. Here an order was placed and filled by the applicant from the person next up the rung. The other two supply offences showed that he applicant and his supplier were prepared to supply at a higher level if requested to do so.
This approach has been followed in Farkas v R [2014] NSWCCA 141; 243 A Crim R 388 at [62] and Wat at [44] and [48].
In my opinion, the sentencing judge's mention of the multiple series of acts and the other matters was clearly intended to demonstrate that, as his Honour said, the arrangement was more sophisticated than a straight supply. His Honour qualified his remark concerning the number of acts by saying that "technically" there were two acts of supply "albeit separated by a short space of time". The tenor of those statements involved a consideration of the planning and organisation and were not specifically directed to s 21A(2)(m) of the Sentencing Act.
The facts disclosed that the planning and organisation certainly went beyond the sort of supply referred to by Howie AJ in Prculovski. It was suggested by the applicant that the test in Prculovski was not the appropriate test. Rather, what was said in Elyard correctly stated the position.
A few things should be said about that submission. First, the relevant remarks in both cases were made by the same judge, Justice Howie. It is not immediately apparent that his Honour was deviating in Prculovski from what he had earlier said in Elyard. Secondly, at the hearing of the present appeal the matter was mentioned only in passing. In those circumstances it would not be appropriate for this Court to determine that there was a conflict in the authorities and then to decide between them. Thirdly, if there is any difference in position in the authorities, it would be of no consequence in the present case because the factual finding made by the sentencing judge went beyond the test in Prculovski.
His Honour concluded that it was somewhat more sophisticated "even" for the supply of a large commercial quantity. That finding points to the planning and organisation going beyond what is inherent in the supply of a large commercial quantity and does not involve a comparison only of the type referred to in Prculovski. The matters mentioned in the Crown's submissions (at [41] above) provide strong support for the sentencing judge's conclusion. The finding that the offence was aggravated by the planning or organisation was open to his Honour. It was not inherent in the offending.
I do not consider any error is shown in relation to grounds 1 and 2.
In relation to financial gain being an aggravating factor, both Prculovski and Farkas were cases that concerned offences against s 25A of the Drug Misuse and Trafficking Act. That section relevantly provides: (1) A person who, on 3 or more separate occasions during any period of 30 consecutive days, supplies a prohibited drug (other than cannabis) for financial or material reward is guilty of an offence. It was held, nevertheless, that it would not be an error to take into account as a matter of aggravation the fact that the offence was committed for financial gain if the financial gain was significant and above that expected in the lowest level of offending.
Wat was a case that concerned an offence of knowingly taking party in the supply of a large commercial quantity of a drug contrary to s 25(2) of the Drug Act. Ground 1 of the appeal in that case asserted error in taking into account financial gain as an aggravating factor. The Court considered that the principle from Prculovski and Farkas applied to an offence under s 25(2) in the sense that it was an inherent characteristic of the class of offence in Wat that there be financial gain. Price J said (Bathurst CJ and Campbell J agreeing) at [44]: For an offence of knowingly taking part in the supply of not less than the large commercial quantity of a prohibited drug contrary to s 25(2) of the DMT Act, it will almost inevitably be the case that inherent characteristics of that class of offence are a level of planning and financial gain. These inherent characteristics are not to be treated as aggravating factors, unless "the financial gain or the planning is significant, that is, more than might be expected in the lowest level of offending for this type of offence" Prculovski v R [2010] NSWCCA 274 at [43] (Howie AJ, McClellan CJ at CL agreeing); Farkas v R (2014) 243 A Crim R 388; NSWCCA 141 at [62] (Campbell J, RA Hulme J agreeing).
The issue, therefore, in the present matter is whether any financial gain obtained by the applicant was 'significant' as was explained in Prculovski.
The evidence of any financial gain was slight. The evidence was that the applicant became addicted to ice and had a bad drug habit which he needed to support. There was evidence that he owed some $15,000 to some people arising from his drug habit. Ms Brett, who prepared the Probation and Parole Service report, identified financial problems as being one of the applicant's criminogenic needs.
The sentencing judge impliedly rejected the proposition that the applicant involved himself in the supply only to clear his drug debt because, as his Honour noted, there was other evidence that the applicant had money and means. His Honour then said this (ROS 27): Nevertheless it is clear that this offender was entrusted with a large commercial quantity of the drug and entrusted to receive $1.2 million in payment. No doubt he was to obtain a financial reward and although there is no evidence of the quantum I am prepared to conclude that his share in the rewards was at the highest end of the known participants. The only evidence of what any person in the arrangement was being paid related to Mr Lin who agreed to lend his car to Mr He for $2,000.
A little later in his remarks his Honour said (ROS 28): Clearly enough this offender was involved in this crime for the purpose of profit, the amount of which is not known.
On the paucity of evidence available, I do not consider that it can be concluded that any financial reward to be received by the applicant was 'significant' nor that it was more than was likely to be inherent in the offence which involved the supply of a large commercial quantity (cf. the amounts in Wat at [47]).
It is clear that his Honour regarded the financial reward as an aggravating factor given the three separate references to it ([45], [58] and [59] above). There was no evidence to justify a finding that the financial reward was more than was inherent in the offence itself.
I would uphold ground 3.

Ground 4

Since error has been found it is necessary to re-sentence the applicant: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. Submissions made in relation to ground 4 concerning manifest excess were advanced in respect of re-sentencing in the event that error was found and the Court moved to re-sentence the applicant.

Submissions

The applicant submitted that the sentence of ten years' imprisonment with a non-parole period of seven years was excessive in all the circumstances. The applicant relied in this regard on statistics of sentences imposed in other like cases as a yardstick, but submitted that any comparative exercise should be undertaken with care: R v Pham (2015) 256 CLR 550; [2015] HCA 39 at [47] and [49].
At the hearing of the appeal, counsel for the applicant handed up sentencing statistics extracted from the Judicial Information Research System (JIRS) relating to the terms of sentence and non-parole periods imposed from October 2009 to September 2016 for the supply of large commercial quantities of pseudoephedrine, ecstasy, cocaine and amphetamine contrary to s 25(2) of the Drug Misuse and Trafficking Act. Counsel also handed up some tables of comparative cases involving ephedrine and pseudoephedrine.
The applicant submitted that while JIRS did not contain sentencing statistics relating specifically to ephedrine, the sentences imposed in cases of the large commercial supply of pseudoephedrine were an appropriate point of comparison. These indicate that the applicant's sentence fell in the top 29% of all sentences imposed and that the non-parole period imposed on him fell in the top 20% of all non-parole periods or fixed terms imposed.
The applicant submitted that the objective circumstances of the offence did not warrant a sentence of the order imposed upon him. Counsel for the applicant indicated that the principal factors upon which that submission was based were the quantity of the drugs involved and the role of the applicant in the enterprise, which role was beneath the level of principal organiser and beneficiary.
While accepting that quantity is not determinative of the sentence imposed, the applicant drew to the Court's attention cases in which a sentence of about ten years had been imposed for the supply of pseudoephedrine in the order of up to twenty times the quantity of ephedrine supplied in the present case.
The applicant relied on the statistics submitted to the Court for the proposition that the sentence and non-parole period imposed on the applicant were towards the higher end of all sentences imposed. Considering the applicant's role in the offending and the quantity of drugs supplied, and having regard to other comparable sentences, it was submitted that the sentence imposed on the applicant was manifestly excessive.
The Crown submitted that reference to sentencing statistics was of limited assistance in the present case in determining whether the sentence imposed on the applicant was manifestly excessive. In this regard, the Crown relied on Vaiusu v R [2017] NSWCCA 71 per R A Hulme J (Bathurst CJ and Beech-Jones J agreeing) at [28].
The Crown submitted that the difficulties of using comparative statistics were compounded when those statistics did not relate to the particular drug supplied in the present case. In any event, the statistics relied upon by the applicant did not suggest that the present sentence was manifestly excessive or outside the range of sentences discernible from those cases.
The Crown submitted that the applicant's offending was objectively very serious. The amount of ephedrine supplied in the present case was three times the threshold amount for the large commercial quantity. The purity of the ephedrine was high (between 77.5% and 78.5%) and the total price of the 15 kilograms supplied was $1.2m. These factors, the Crown submitted, were significant matters which must be taken into account.
The Crown drew the Court's attention to the sentencing judge's finding that the applicant was at the apex of the hierarchy of known offenders and that he occupied the position of leader and organiser. The applicant fixed the sale price and conducted the negotiations leading to the supply, indicating his significant role in the offending.
In response to the table of cases prepared by the applicant, the Crown submitted that there was a relevant distinction to be drawn between some of those cases which involved the offender "knowingly taking part in" the supply, as opposed to the present case in which the applicant assumed a more central role in the enterprise.
The Crown submitted further that general deterrence was an important consideration in the sentencing exercise undertaken by the sentencing judge.
Having regard to the objective seriousness of the offending and the applicant's subjective circumstances, the Crown submitted that the sentence imposed on the applicant was not "unreasonable" or "plainly unjust". If the Court were to find error in the sentencing judge's decision, the Crown submitted that no lesser sentence was warranted at law.

Consideration

The applicant read, on the usual basis, an affidavit from his solicitor which annexed various documents showing the courses, mainly literacy and language courses, that the applicant had undertaken and completed. He also relied on an affidavit that he had sworn which made reference to those courses. That affidavit also asserted that he had not used any illegal drugs since he had been in custody and that, apart from missing a muster one morning, he had not had any gaol charges. He expressed in the affidavit concern for the health of some members of his family. He also referred to the fact that he has no visitors because his family is in China and that, since he had been at the South Coast Correctional Centre, it was too far for his friends to visit. The affidavit also expresses considerable remorse for his offending.
An examination of the comparative cases demonstrates that the majority of them involved amounts far exceeding the quantity of drugs in the present case, and in most cases involving pure forms of the drugs. Whilst many factors need to be considered, the amount of the drugs involved and the role played by an offender are two significant considerations in assessing objective seriousness.
I agree with the sentencing judge's assessment that the applicant was not a principal in the drug supply organisation but he occupied the role of a leader and organiser of the known offenders in dealing with the UCO. An examination of the comparative cases with regard to the quantity of drugs puts the present matter into a low category of seriousness notwithstanding the amount was about three times the large commercial quantity.
Taking those matters with the aggravating factor concerned with planning, I consider that the objective seriousness was on the low side of the mid-range of seriousness.
I have already noted the subjective matters which were before the sentencing judge.
The applicant is entitled to the benefit of a 25% discount for his early plea. I am prepared to accept on the basis of the present evidence that he is remorseful, and on the basis of Ms Brett's assessment that he is at low to medium risk of re-offending.
I bear in mind what the High Court has recently said about the use of comparative cases when identifying the appropriate sentence in Director of Public Prosecutions v Dalgliesh [2017] HCA 41;(2017) 349 ALR 37 at [51] and [52], but the cases identified by counsel in this matter have been of assistance.
I consider an appropriate starting point for the sentence is ten years' imprisonment. Discounted for the early plea and with an allowance being made for special circumstances for rehabilitation for the applicant's drug addiction, I consider that the applicant should be sentenced to a period of imprisonment of seven years and six months commencing on 20 May 2014 and expiring 19 November 2021 with a non-parole period of five years and three months expiring 19 August 2019.

Conclusion

I propose the following orders: 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the sentence imposed by Judge Lakatos SC in the District Court on 25 August 2016. 4. In lieu thereof, sentence the appellant to a term of imprisonment of 7 years and 6 months commencing 20 May 2014 and expiring 19 November 2021 with a non-parole period of 5 years and 3 months expiring 19 August 2019.
BELLEW J: I agree with Davies J

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: 14 December 2017

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