His Honour erred in finding that the offence was aggravated in that it was planned and was part of organised criminal activity .
14 The ground of appeal was based on the following parts of his Honour's remarks on sentence.
"20. In determining an appropriate sentence to impose upon the offender for the offences to which she has pleaded guilty, I must recognise the purposes of sentencing outlined in s 3A of the Crimes (Sentencing Procedure) Act and I must take into account such of the aggravating factors referred to in s 21A subs (2) of that Act as are present, and such of the mitigating factors referred to in subs (3) of that section as are present and any other relevant factor.
21. Although the evidence is silent, I assume, in the absence of being told to the contrary, that the offender supplied drugs to users of them in order to obtain the where-with-all to obtain drugs to meet her addiction to them. The offender was a street level supplier, someone who took many risks for little reward, although this does not lessen the seriousness of her offences.
22. The offences were planned, albeit without much sophistication, as street level dealing in drugs is planned without much sophistication, and were part of an organised criminal activity."
15 In par 22 of his remarks his Honour was referring to the aggravating factor in s 21A(2)(n) of the Crimes (Sentencing Procedure) Act, that "the offence was part of a planned or organised criminal activity".
16 Section 21A(2)(n) has been the subject of interpretation by this Court. See for example R v Yildiz (2006) 160 A Crim R 218; Fahs v R [2007] NSWCCA 26; Hewitt v R (2007) 180 A Crim R 306. It has been consistently held by this Court that a sentencing judge should not find that the aggravating factor in s 21A(2)(n) was present, unless there is evidence that would permit a finding beyond reasonable doubt that the degree of planning in the instant case exceeded the degree of planning which would ordinarily be expected in an offence of that kind.
17 It was submitted on behalf of the applicant in the present case that the evidence did not permit a finding that the degree of planning exceeded what would ordinarily be expected in the case of a person supplying drugs at street level. Indeed, the sentencing judge in his remarks on sentence had made a finding to the effect that the applicant's offences were planned only to the extent that street level dealing in drugs is ordinarily planned.
18 It was further submitted on behalf of the applicant that the sentences imposed on the applicant were severe (although it was not submitted that they were manifestly excessive) and that it could be inferred from the severity of the sentences that the sentencing judge's finding that the aggravating factor in s 21A(2)(n) was present had had a material impact on the sentences.
19 It was further submitted on behalf of the applicant that a less severe sentence was warranted and should have been passed (Criminal Appeal Act s 6(3)).
20 I accept that the sentencing judge did err in finding that the aggravating factor in s 21A(2)(n) was present. There was no evidence that either offence was part of a planned or organised criminal activity, as that expression has been interpreted by this Court.
21 However, contrary to the submission made by counsel for the applicant, I do not consider that the error had any material impact on the sentences passed by his Honour.
22 In par 22 of his remarks on sentence the sentencing judge qualified his finding that the offences were planned by saying that the offences were planned "without much sophistication".
23 Furthermore, it is clear from his Honour's remarks that his Honour was mindful that the applicant was a street level supplier and that such planning as she had done was no greater than that done by the general run of street level suppliers of drugs.
24 I do not consider that it can be inferred from the level of the sentences the sentencing judge imposed that the sentencing judge sentenced the applicant on the basis that she had engaged in exceptional planning or that the sentencing judge gave any material weight to the finding he had made about s 21A(2)(n). The level of the sentences imposed on the applicant can readily be explained by other factors. It was clear that the applicant had been carrying on a business of supplying drugs, even if only at a street level; she had nine previous convictions for drug offences, apart from her other criminal history; and she was on bail in relation to another offence at the time of committing these offences. The sentencing judge moulded the sentences he imposed, so that the total period the applicant would necessarily have to spend in custody which would be solely referable to these offences (from 2 October 2008 to 2 July 2010) would only be one year nine months.
25 Reference was made by counsel for the applicant to the statistics kept by the Judicial Commission of sentences for offences under s 25(1) of the Drug Misuse and Trafficking Act. These statistics would suggest that the sentences imposed on the applicant, while towards the top of the range, were not at the top of the range.
26 In Yildiz, another case involving the supply of drugs, Simpson J, with whose judgment Hoeben J agreed, held that the sentencing judge had erred in finding that the aggravating factor in s 21A(2)(n) had been present, because the degree of planning had not exceeded what would ordinarily be expected for an offence for a kind for which the offender had been sentenced. Her Honour then added (at 160 A Crim R 225 (39)) "however, in my view, it was something that, at most, marginally affected the selection of the ultimate sentence". I consider that similar reasoning is appropriate in the present case.
27 In my opinion, leave to appeal against sentence should be granted but the appeal against sentence should be dismissed.
28 ROTHMAN J: I have had the advantage of reading the reasons for judgment of James J in draft. I agree with his Honour and the order he proposes.
29 I would express the view that there was not even a marginal effect from the error disclosed, because, as the sentencing judge makes clear, he has treated the s 21A(2)(n) factor as not taking the offence beyond that which is involved in ordinary "street level dealing" and, therefore, it has not been used to "aggravate" the culpability ordinarily involved in the offence.
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