Although his Honour was in the minority as to whether the sentence on a Crown appeal was inadequate, I do not understand there to be any dissention from his Honour's characterisation of the offence.
15 I do not accept that there is some distinction to be drawn between persons who have and those who have not "organised their affairs in such a way as to limit the full effect of the [Act]". The legislation was designed to target, amongst others, persons who are repetitive dealers in small amounts of drug to users. They can be street suppliers or stand further up the hierarchy. The purpose of the offence is to reflect their actual involvement in the distribution of drugs into the community beyond individual supplies considered in isolation. The Judge was entitled to act on the basis that the applicant was prepared to supply to persons who sought her out for that purpose, be it with money or goods to barter in exchange. The fact that she may have been responding to the police officer does not seem to me to be of any great significance. It is common in such offences that the supplier will have been the victim of a police "sting". There is little other opportunity of getting evidence against them. Again the applicant gave no contrary version than that which appears from the bare facts. There was no suggestion that she would not have supplied drugs other than because of the approach by the police officer or that in some way she was pressured into offending.
16 It was further submitted that it was erroneous that the penalty for the agreement to supply was greater than the actual supply. I do not believe there is anything inconsistent or erroneous in that approach. As was explained in Vu v R [2006] NSWCCA 188, the seriousness of any particular activity falling within the concept of "supply" under the Act will depend upon the particular facts of the case before the court and no generalised statement can be made about the relative seriousness of differing forms of supply. There is no suggestion here, as there was in 1985, that the applicant had no intention of supplying that quantity of the drug. In the absence of evidence from the applicant, the facts should be taken at their face value and that she intended to supply that amount of drug but was denied the opportunity of doing so before her arrest. It was open to the Judge to sentence as he did. This ground is not made out.
17 The second ground is that the Judge failed to apply the principle of totality. It was noted that the Judge had not referred to the decision in Pearce or to the approach to sentencing for multiple offences that this decision advocates. However, it is acknowledged in the written submissions that the Judge did make orders clearly designed to address the issue of totality by making some sentences for the offences occurring in 2005 partially cumulative and making some concurrent. However, it was submitted that it was an error to fully accumulate the supply offences on the s 25A offence. In my view, notwithstanding that the 2005 offences all occurred from the one involvement with the undercover officer, the Judge was entitled to structure them as he did.
18 The real question is whether the overall sentence of 10 years with a non-parole period of 7 years 6 months was too severe to deal with the total criminality of the applicant before the court. I am not persuaded that it was. I agree that there is merit in the complaint that the Judge referred to the applicant having been treated leniently by courts in the past. Without knowing the facts of the matters for which those courts sentenced the applicant, the Judge could make no valid assessment of the leniency or otherwise of those sentences. Not only did it have no foundation, it had no significant relevance to the exercise of the sentencing discretion. Even had she been treated leniently in the past, such a course would not justify a court increasing the sentence to be imposed beyond what was appropriate. As I have indicated, the Judge was entitled to take into account personal deterrence, but beyond that the earlier sentences had no significance.
19 Therefore, I understand that the applicant might well be aggrieved at the tone of the sentencing remarks containing as they did statements adverse to the applicant that had no evidentiary basis. But looking at the sentences imposed objectively they were, while heavy, justified by the seriousness of the applicant's offending in light of her criminal history.
20 The fourth ground of appeal has merit. It complains that the Judge failed to give an adequate discount for the early pleas of guilty to all matters. As has been noted, the applicant pleaded guilty in the Local Court. Had she not pleaded guilty then clearly the Crown would have been put to considerable time and trouble in proving all the matters. There would presumably have been two trials. Therefore, there was a clear utilitarian value in the pleas that deserved proper recognition and an appropriate discount. With respect to the Judge this did not occur.
21 There was no reference to a discount for a plea of guilty during the sentencing remarks. Immediately after sentence was pronounced the applicant's legal representative asked the Judge to indicate whether he had allowed any discount for the utilitarian value of the plea. The Judge responded: