The appeal
13 Counsel for the appellant, Ms Francis, submitted that both sentences are manifestly excessive and that in relation to the sentence for the drug offence, his Honour failed to give adequate weight to evidence disclosing special circumstances warranting a variation of the statutory ratio between sentence and non-parole period. Her argument concerning the sentence for the break, enter and steal offence centred upon a jurisdictional question, and it is convenient to deal with that first.
14 By s112 of the Crimes Act, that offence carries a maximum sentence of 14 years imprisonment. However, as I have said, because the appellant's offence was being dealt with summarily the maximum sentence his Honour could impose was 2 years imprisonment. It is effectively that term which Judge Dive imposed and Judge Barnett confirmed.
15 However, as noted, Judge Dive said that the appellant was entitled to the full utilitarian value of his plea of guilty. No doubt, that was a reference to a discount of 25 per cent, the top of the range of discount for the utilitarian value of a plea envisaged in R v Thomson and Houlton [2000] NSWCCA 309, 49 NSWLR 383. That being so, his Honour's starting point of sentence must have been 2 years and 8 months. Ms Francis submitted that such an approach exceeded his Honour's jurisdiction, because that starting point was greater than the maximum sentence available to him.
16 The answer to that submission is to be found in a case to which the Crown prosecutor referred us, R v Doan [2000] NSWCCA 317, 50 NSWLR 115. That case was concerned with s27 of the Criminal Procedure Act as it then stood, the equivalent of the present s267. The issue was whether the two-year maximum available to a magistrate was confined to a "worst case" appropriate for summary disposal. That proposition was rejected by Grove J, with whom Spigelman CJ and Kirby J agreed. After a review of interstate authority, his Honour expressed his conclusion in this way:
35 The result of true construction of the statutory provisions in New South Wales is that, what has been prescribed is a jurisdictional maximum and not a maximum penalty for any offence triable within that jurisdiction. In other words, where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit. The implication of the argument of the appellant that, in lieu of prescribed maximum penalties exceeding two years imprisonment, a maximum of two years imprisonment for all offences triable summarily in the Local Court has been substituted, must be rejected. As must also be rejected, the corollary that a sentence of two years imprisonment should be reserved for a "worst case".
17 By parity of reasoning, it was open to Judge Dive in the present case to determine a starting point of sentence above the two-year jurisdictional limit. The only constraint imposed upon him by the relevant provision of the Criminal Procedure Act was that the sentence actually passed could not exceed 2 years. Accordingly, his Honour's approach was not in error.
18 Otherwise, Ms Francis submitted that the sentence for the drug supply offence is manifestly excessive, given the small quantity involved (5.14 grams). Again, she noted that Judge Barnett had found the appellant's plea of guilty to this offence as having high utilitarian value. Assuming that that plea also earned him a reduction of the order of 25 per cent, the starting point of sentence must have been about 6½ years.
19 Generally, Ms Francis argued that the two sentences are excessive in their totality, and fail to give adequate weight to the period of roughly 2 years that the appellant was in the Drug Court program and such progress as he made during that period. He had had a difficult background, which it is not necessary to recite, and Ms Francis submitted that at the time Judge Barnett sentenced him he was at an age where his rehabilitation would have been fostered by a significantly longer period of parole eligibility than that allowed by his Honour.
20 However, the offence of supplying heroin was not that of a user/dealer, but was in the context of a commercial venture. It was committed while the appellant was on the conditional liberty of the Drug Court program, which his Honour rightly described as "a seriously aggravating feature…". The sentence for that offence of 5 years with a non-parole period of 3½ years represents a limited departure from the statutory ratio, but his Honour made it clear that he did so only because of the measure of the accumulation of that sentence upon the sentence for the break, enter and steal. He was not prepared to find special circumstances otherwise because of the appellant's "betrayal of the opportunity for rehabilitation", adopting the expression of Wood CJ at CL in R v Tran [1999] NSWCCA 109 at [15].
21 His Honour determined the sentences, and the structure of them, after a careful review of the applicant's background and his progress through the Drug Court program. I can find no error in his approach and I am not persuaded that this Court's intervention is called for.
22 I would dismiss the appeal.