Ground 2
28 The supply of heroin for which the applicant was sentenced was a deemed supply under s 29 of the Drug Misuse & Trafficking Act. The quantity of heroin in the possession of the applicant was 8½ grams, which, according to an analyst's certificate, had a purity of only 28 per cent.
29 Under the Drug Misuse & Trafficking Act the trafficable quantity for heroin, the possession of which gives rise to a rebuttable presumption of having possession for supply, is 3 grams and the commercial quantity for heroin is 250 grams. Hence, the quantity of heroin in the applicant's possession was little more than the trafficable quantity and close to the bottom of the range of quantities which give rise to an offence under s 25(1) of the Act (but not an offence under s 25(2) of supplying not less than a commercial quantity of the drug).
30 It is true that in sentencing for drug offences there are other factors to be taken into account, apart from the quantity of the drug involved, but the quantity of the drug involved remains important and in the present case there were no special circumstances which would make the supply of a relatively small quantity of a drug an offence of greater than usual objective seriousness. Compare Markarian v The Queen (2005) 215 ALR 213 per Gleeson CJ, Gummow, Hayne and Callinan JJ at (33).
31 In the present case the applicant had pleaded guilty and the sentencing judge had found that the plea of guilty had been entered at the earliest opportunity and had demonstrated some contrition, with the consequence that the applicant should have received a discount in sentencing for his plea of guilty and contrition.
32 In my opinion, notwithstanding the presence of some aggravating factors to which the sentencing judge referred in his remarks on sentence, a sentence of eight years for an offence of a deemed supply of 8½ grams of heroin of a purity of 28 per cent, to which the applicant had made an early plea of guilty and where there were no circumstances rendering the offence especially objectively serious, was manifestly excessive.
33 I would uphold the second ground of appeal.
34 I have upheld the first two grounds of appeal, namely that in sentencing the applicant the sentencing judge failed to comply with the principles of sentencing in Pearce and that the sentencing judge imposed a manifestly excessive sentence for the offence of supplying a prohibited drug. The sentencing judge made the sentence for the offence of the ongoing supply of drugs equal to, and fully concurrent with, the sentence for supplying a prohibited drug. In all of these circumstances, I consider that it should be held that the sentencing of the applicant miscarried generally and this Court should intervene generally and re-sentence the applicant for all of the offences, without it being necessary to consider whether the third ground of appeal should be upheld.
35 I have earlier in this judgment set out the objective facts of the offences and the subjective features of the applicant and there is no need to repeat these matters. In re-sentencing the applicant I take into account the principles of sentencing stated in Pearce and the relevant provisions of the Crimes (Sentencing Procedure) Act. It is convenient to deal first with the offence under the Firearms Act.
36 I would not impose any different sentence for the offence under the Firearms Act from that imposed by the sentencing judge, that is a fixed term of imprisonment (or a non-parole period) of three years. This sentence is equal to the standard non-parole period for an offence under s 7(1) of the Firearms Act.
37 There were aggravating factors in that the firearm contained two live rounds and the serial number had been obscured and the applicant had previous convictions for firearms offences.
38 On the other hand, the applicant had informed police about the firearm, the firearm was being kept securely in a safe, the applicant assisted police by opening the safe and the applicant pleaded guilty to the offence.
39 I will now consider the sentence which this Court should impose for the offence of the ongoing supply of drugs.
40 In submitting that the sentence imposed by the primary judge was manifestly excessive, counsel for the applicant had stressed that the quantity of the drug supplied on each occasion was very small.
41 Counsel for the applicant submitted to the Court a table setting out short particulars of twenty-eight cases which have come before this Court of sentences for offences under s 25A of the Drug Misuse & Trafficking Act. Of these cases the sentence imposed on the applicant by the primary judge is the heaviest sentence which has been imposed on any offender, apart from the two co-offenders in R v Huang: R v Lin [2001] NSWCCA 76. It was submitted by counsel for the applicant that the criminality of both Huang and Lin was at a much higher level than the criminality of the applicant.
42 Other cases to which the Court's attention was particularly drawn by counsel for the applicant were R v Jordan [2002] NSWCCA 228, R v Siljanovski: R v Kostadinovic [2003] NSWCCA 38, R v Koklas [2003] NSWCCA 302, R v Mucenski [2004] NSWCCA 299.
43 A number of submissions were made by the Crown about the sentencing of the applicant for the offence under s 25A.
44 It was submitted that s 25A is not primarily concerned with the quantity of the drug supplied. In R v Giang [2005] NSWCCA 387 Hulme J, with the concurrence of the other members of the Court, said at paragraph (18), with respect to sentencing for offences under s 25A:-
"While quantity is a relevant consideration in the determination of the proper penalty, it is wrong to look merely at the quantity supplied and to attempt to judge an offender's conduct by that quantity and those provisions of the Act which impose penalties for supply and grade those penalties by reference to quantity. The persons at whom the section is directed are those who are indulging in a practice or business of supplying prohibited drugs - see Simiroldo (2000) 112 A Crim R 47 at 50-51 (15); R v Hoon ; R v Pouoa [2000] NSWCCA 137 at (39) et seq."
45 The Crown submitted that it was clear, and the sentencing judge had found, that the applicant had engaged in the selling of drugs on more than simply the four occasions relied on to establish the offence. This was a matter which could properly be taken into account in sentencing the applicant (Giang at par 17).
46 The sentencing judge had found that the applicant's role was "more significant" than that of being a mere street dealer and that the applicant's possession of a firearm was consistent with his being a serious operative in the drug trade.
47 As the applicant had previous convictions for the supply of drugs, more weight could properly be given in the sentencing of the applicant to some of the purposes of punishment, such as individual deterrence.
48 The offence had been committed while the applicant was on parole and the fact that the offence had been committed while the applicant was on conditional liberty was an important circumstance of aggravation.
49 Even if the sentencing judge should be taken as having accepted the applicant's claim that he had engaged in drug dealing in order to support his own addiction, that was not a circumstance of mitigation R v Henry (1999) 46 NSWLR 346.
50 As regards the submissions made by counsel for the applicant on the basis of the table of cases put before this Court, the cases in the table were limited to cases which had come before this Court and did not extend to sentences for offences under s 25A generally. As this Court has repeatedly said, the penalty which a court should impose in a particular case cannot, except in the case of co-offenders, be arrived at by a detailed comparison of the particular case with some other case or even a number of other cases.
51 I have taken into account the submissions made on behalf of the parties.
52 I accept that caution should be exercised in considering the other cases of sentences for offences under s 25A which were submitted to this Court by counsel for the applicant. However, these other cases (and counsel for the Crown on this application did not refer the Court to any other cases) do appear to me to indicate that the sentence imposed by the primary judge on the applicant, even if not manifestly excessive, was very severe and higher than this Court should impose.
53 In R v Huang: R v Lin the two applicants were co-offenders. Huang supplied heroin on three occasions to an undercover operative, the heroin being provided by Lin. Each of Huang and Lin pleaded guilty to a charge under s 25A. The sentencing judge sentenced Huang to a term of imprisonment for eight years with a non-parole period of six years and Lin to a term of imprisonment for eight years with a non-parole period of five and a half years. For a separate offence Lin was sentenced to a fixed term of imprisonment of two years upon which the sentence for the offence under s 25A was made fully cumulative. Appeals by Huang and Lin against the severity of their sentences were dismissed by this Court.
54 In Huang and Lin the quantities of the drug supplied were very much greater than the amounts in the present case, being 27.9 grams, 83.5 grams and 346 grams and the degree of purity of the drug was much higher, namely about 70 per cent. The amount paid for the drug supplied on the last occasion was $72,000. Even though the quantities of the drug supplied are by no means the only matter to be considered when sentencing for offences under s 25A and effect must be given to the evident purpose of s 25A, I consider that it is of some significance in the present case that the quantities supplied were so small and that the degree of purity of the drug was so low.
55 Taking into account the objective facts, the subjective features of the applicant, the relevant provisions of the Crimes (Sentencing Procedure) Act and the submissions of the parties, I consider that a total sentence of six years should be imposed for the offence under s 25A.
56 Taking the same matters into account, I would impose a sentence of a non-parole period or fixed term of imprisonment for three years for the offence of supplying a prohibited drug. I would impose the same sentence as the primary judge for the offence of goods in custody.
57 I would find special circumstances in the circumstances found by the sentencing judge to be special circumstances and I would maintain approximately the same ratio between the total effective sentence and the total effective non-parole period.
58 In accordance with the statement of principles of sentencing in Pearce, I have regard to questions of totality and cumulation and concurrence of sentences.
59 In my opinion the following orders should be made.