Role of the offender
27An important consideration for the purpose of determining both grounds of appeal is the role played by the applicant in the drug enterprise which gave rise to the charges. The applicant stood to be sentenced in accordance with an agreed statement of facts tendered at the proceedings on sentence. That statement revealed that he came to the attention of police during an investigation into the ongoing supply of methylamphetamine by Kane. There was no suggestion that the applicant became involved in Kane's enterprise any earlier than 10 August 2011.
28The statement of facts further revealed that, for the transactions with which the applicant was charged, the undercover police officer sought to acquire a nominated quantity of drugs from Kane; Kane sought to acquire that quantity from the applicant and the applicant obtained the drugs from another person and supplied them to Kane for on-sale to the undercover officer. There were conversations and messages between the two men consistent with those arrangements which otherwise shed little light on their dealings.
29The only other material before the sentencing judge relating to the applicant was a pre-sentence report prepared by a probation and parole officer. That report recorded the applicant's explanation that, at the time of the offences, he had been experiencing significant financial stressors. He stated that he had borrowed money from "his co-offender" (clearly a reference to Kane) and had consented to become involved in the offences in order to repay the debt and achieve further financial benefits. In his assessment of the applicant's attitude to the offences, the author of the pre-sentence report said:
"whilst expressing a level of regret in relation to his offending Mr Kemp, during interview, appeared to fail to accept full responsibility for his ongoing involvement, rather placing blame on the co-offender for 'abusing his trust'".
30In written submissions provided to the sentencing judge, the Crown submitted that the following matters were relevant to the assessment of the objective seriousness of the applicant's offending and his role in the enterprise:
"This offender was a distributor of the prohibited drugs sold by the end-seller to the UCO.
This offender was not simply a courier.
This offender had the contacts within the chain of distribution to source large quantities of prohibited drugs at relatively short notice.
*
The threshold for "commercial" quantity is 250 grams. This case involved nearly twice that amount.
*
This was not an isolated incident of supply of prohibited drugs but rather was one of ongoing business relationship between this offender and the end-seller, Mr Kane, and
*
This is not a "user/dealer" case. That is, Mr Kemp was engaged in the business of selling prohibited drugs for profit and not to finance his own "habit"."
31The submission that the incident was part of an ongoing business relationship between the applicant and Kane finds no support in the agreed statement of facts, unless it was a reference to the agreement to supply a week before the actual supply. As already noted, Kane was charged with ongoing supply commencing in July but the applicant was not.
32At the proceedings on sentence, counsel for the applicant indicated that he accepted the Crown's submissions except where indicated otherwise. As to the applicant's role, he made reference to a psychiatrist's report that had been relied upon by Kane at his proceedings on sentence. That report was included in the material handed to the sentencing judge in the applicant's case, presumably to allow comparison for the purpose of parity. In that report, the psychiatrist recorded Kane's explanation that he was able to obtain amphetamine when approached by the undercover policeman "because of his association with somebody who worked in the trucking industry". Counsel for the applicant informed the judge that that was not a reference to the applicant. He submitted that the applicant was "the conduit" between Kane and the man in the trucking industry. The Crown did not dispute those matters.
33However, at a later point in his submissions, counsel for the applicant volunteered that the applicant was "higher up in the chain" than Kane. In my respectful opinion, that concession was misconceived. It appears to reflect what Adams J has referred to as the "hypnotic" effect of the chain metaphor frequently adopted in the discussion of drug supply. It is often assumed, without analysis, that the supply of drugs involves a vertical or linear hierarchy from manufacturer to end buyer (here, the undercover police officer) in which the seriousness of the role of any individual participant is necessarily greater the closer that person is to the ultimate supplier. That may in fact be the case in some instances but the experience of other cases cannot be elevated to the status of a legal principle or presumption. Each case must be assessed on its own facts according to the material before the court.
34On the strength of the relatively limited material before the sentencing judge in the present case, I am unable to discern any convincing basis for a differential assessment of the seriousness of the role played by each of the applicant and Kane. It may be accepted that, on the occasion the subject of count 2, the applicant evidently had access to a person able to provide drugs in the quantity sought by the undercover officer. Conversely, however, there was material to suggest that it was Mr Kemp who seconded him to an established arrangement.
35In the appeal, the Crown (not unreasonably) drew attention to the concession made at first instance by counsel for the applicant. Generally speaking, there is good reason for this Court to confine argument within the premises established by the manner in which a case was conducted at first instance. However, as with any general principle, that approach should not be applied inflexibly so as to exclude consideration of the interests of justice. Where, as I think occurred here, a concession made on behalf of an offender reflects a misconception of the relevant principle, the point should not be regarded as being foreclosed only because it was the subject of a concession below.
36There is nothing in the material before this Court to suggest that the concession reflected any specific instruction given by the applicant. Rather, it appears to reflect a misconception of the law. My consideration of the relevant material has persuaded me that the applicant ought to have been sentenced on the basis that his role in the offence in count 2 was not more serious to any significant degree than that of the co-offender, Kane.