Ground 4
26 It is convenient at the commencement of my consideration of this ground to refer to a number of matters upon which counsel for the Applicant did not rely. Firstly, there was no conceivable basis upon which the discount of 20% that Taylor DCJ gave the Applicant can be justified. Indeed his Honour's remarks when awarding this discount seem to indicate a wholly inadequate appreciation of the principles upon which discounts for the utilitarian value of a plea are to be assessed.
27 In R v Thomson and Houlton (2000) 49 NSWLR 383 at [152] et seq, this Court made clear that in general the discount for the utilitarian value of a plea should be assessed in the range of 10-25%, that in determining where in that range a particular case should fall the primary consideration is the timing of the plea, and that a discount towards the bottom of that range is appropriate for late pleas, for example on the date fixed for trial. Although not all of his remarks are apposite here, I would endorse the remarks of Howie J in R v Stambolis [2006] 160 A Crim R 510 at [11]:-
"Frankly I do not understand how on the established principles it could be determined that the pleas of guilty for the offences for which the respondent was sentenced were early pleas and that they justified a discount of 25 per cent. There is no utility in a plea of guilty that has not been forthcoming. If the accused is not prepared to plead guilty until the Crown takes some course, then so be it. But if by withholding the plea the offender achieved the result he wanted, I do not understand why he should receive further favourable treatment on the basis that the plea of guilty had utilitarian value when it did not. Rarely, if ever, will the reason why the accused has withheld the plea of guilty be a relevant matter in determining the utilitarian discount. Where it has been used as a bargaining tool in order to achieve a favourable outcome from the Crown in respect of some other charge, I do not understand that this circumstance can excuse the delay or provides a basis for asserting that the plea was made at the first reasonable opportunity."
28 There was nothing in the circumstances of the case that suggested it was unusually difficult for the Crown to prove and, given that the pleas were only entered some time after the trial had begun, there is no basis for a discount in excess of (approximately) 10%.
29 Secondly, his Honour erred in his approach to the Applicant's conviction in Victoria. Both the evidence before his Honour and his Honour's findings to which I have referred indicate that the Applicant was carrying on a business of dealing or facilitating the dealing in substantial quantities of illegal drugs. That he should do so after receiving a significant sentence in Victoria for engagement in the same field of endeavour indicates that the sentence then imposed had not been sufficient to deter him. There was no evidence of remorse and, despite the bald statement that the Applicant planned to lead a quiet and lawful lifestyle in the future, nothing to indicate that he had learnt his lesson. He was a recidivist and retribution, deterrence and protection of society cried out for a more severe sentence than otherwise would have been appropriate. A fortiori is this so when the offences were committed while the Applicant was still on parole. Although his Honour recorded that fact, nowhere is there to be found in his remarks recognition of the fact that offending whilst on conditional liberty is a seriously aggravating circumstance - see e.g. Barnes v R [2007] NSWCCA 69 at [23]; R v Henry [1999] NSWCCA 107 at [28].
30 Thirdly, his Honour erred in making the sentences concurrent. Whether the quantity the subject of the first charge was a "taste" or otherwise, it was an entirely separate transaction involving a different drug from the heroin the subject of the second count, with its own attendant criminality and with its own actual or potential for harm - see Harris v R [2007] NSWCCA 130.
31 Fourthly, his Honour erred in finding there was a need for supervision on parole and, in light of the statement in the Pre-Sentence Report that I have quoted, finding special circumstances and extending the balance of term at the expense of the non-parole period. There was simply no evidence and no other reasonable basis for these decisions.
32 Counsel for the Applicant sought to support this ground by referring the Court to a selection of cases where this Court considered or imposed sentences for offences of the nature of the Applicant's second offence.
33 In R v Shalala [2003] NSWCCA 330 the offender had been found guilty after a trial of a deemed supply of 260.4 grams of heroin found in a vehicle he was driving and sentenced by Sides DCJ to imprisonment for 7 years, including a non-parole period of 5 years. The offence was committed in December 1998 so the standard non-parole provisions had no application. This Court said that a complaint that the sentence was excessive was without merit and well within the range established by the statistics and properly reflected the objective criminality. The Court did not have before it an issue of whether the sentence was unduly low.
34 In R v Martin [2005] NSWCCA 266 the offender had participated in a joint criminal enterprise between May and July 2002 to obtain and resell for profit of the order of I kilogram of heroin. She had a criminal record described as "appalling and littered with very serious offences", pleaded guilty, was given a discount of 20% for doing so and sentenced to imprisonment for 8 years including a non-parole period of 6 years. Treatment the offender was receiving for a medical condition was regarded as reducing the need for the sentence to reflect specific deterrence. This Court again took the view that the sentence was not manifestly excessive and did not have to consider its adequacy. For my part, I have the greatest difficulty in reconciling it with the 20 years maximum when the quantity was very close to the top of the range, the offender was a principal and must have known the quantities in which she was dealing.
35 In Nguyen v R [2007] NSWCCA 15 the offender was also a principal in the supply of approximately 1 kilogram of heroin in the course of an operation that was regarded as well planned and sophisticated. The offender was motivated by greed. He pleaded guilty. Without any reference to the standard non-parole period, the sentence imposed was of imprisonment for 10 years including a non-parole period of 6 years. In rejecting a contention that the sentence was manifestly excessive, Price J, with whom the other members of the Court agreed, observed that the offence was properly characterised as beyond the mid-range of objective seriousness and that if the sentencing judge had used the standard non-parole period as a reference point, a lengthier sentence might well have been imposed. For the same reasons, this sentence gives me the same difficulty as did that imposed on Martin.
36 In Ancuta v R [2005] NSWCCA 275, the offender had purchased 701.6 grams of heroin for an amount of approximately $250,000. He pleaded guilty to a charge of deemed supply and at first instance was sentenced to imprisonment for 9 years including a non-parole period of 6½ years. This Court found that the sentencing judge had made a number of errors adverse to the offender and, regarding the offences as at not less than the mid-range of objective seriousness, re-sentenced him to imprisonment for 8 years including a non-parole period of 5 years. A discount of 20% was allowed for an early plea, the offender was not found to be motivated by greed, he had exhibited a degree of remorse and had gone some way towards rehabilitation.
37 In Tran v R [2006] NSWCCA 266, the offender pleaded guilty to the supply of about 835 grams of heroin in circumstances where he acted as a middle-man or broker. This Court reduced a sentence of 8 years, including a non-parole period of 5 years, to one of 7 years including a non-parole period of 4 years and 3 months. The reduction was effected on parity grounds and the sentence finally imposed reflected combined discounts of 40%. Adding that back would indicate an undiscounted period of 11 years and 8 months.
38 In Vu v R [2007] NSWCCA 2, the offender was found guilty of supplying 792 grams of heroin. He had flown to Brisbane with a co-offender who, in the presence but not with the participation of Vu, arranged to supply some 792 grams of heroin. In due course $300,000 was paid to the co-offender near where Vu was found in a vehicle with the heroin. Vu's criminality was found to be much less than that of the co-offender. This Court reduced a sentence of 10 years and 8 months, including a non-parole period of 8 years, to one of 8 years including a non-parole period of 6 years. Again parity was the ground upon which the Court interfered. The undiscounted starting point for the sentence imposed on the co-offender was 12 years.
39 I do not regard any of these cases as supporting the proposition that the sentence imposed on the Applicant was manifestly excessive. In this connection it is appropriate to regard the sentence imposed on the Applicant as embodying a starting point of 10 years, (i.e. the 9 years imposed with the 10% discount that should have been awarded added back), to recognise that his offence was below the middle of the range of objective seriousness to a moderate degree, but to recognise also that it was committed while the Applicant was on parole and had previously been convicted of a serious offence involving the supply of drugs.
40 Given the degree of discretion involved in sentencing, Shalala's sentence of 7 years does not demonstrate that 10 years is manifestly excessive, particularly when regard is had to the introduction of the standard non-parole period. The sentences imposed on Martin and Nguyen do so only if one concludes they were correct, a conclusion of which I remain unpersuaded. In Ancuta, the quantity of drug and the role of the offender were more serious than in this case, but the offender was not found to be motivated by greed and had gone some way towards rehabilitation. The fact that the sentences imposed on Tran and Vu reflected considerations of parity makes them unpersuasive.
41 Furthermore, in none of the cases relied on was the offender on parole in respect of an earlier serious drug offence.
42 In the result, I remain unpersuaded that the full term of the sentence imposed on the Applicant was manifestly excessive. I have already indicated that the reduction in the non-parole period was unjustified. The 6 years term of that was, in my view, lenient. As Wood J remarked in Schaal (unreported, NSWSC, 8 September 1989), "just as those stakes (in the drug trade) are high, so, however, must be the risks if caught". Particularly so is this in the case of those engaged in profit on their own account, who know the quantities in which they deal, and whose profits, it may be inferred, increase with increased quantity. The Applicant was such a person and he elected to involve himself in a not insubstantial amount.
43 I propose that the Court:-
(i) Grant leave to appeal.
(ii) Dismiss the appeal.
44 HIDDEN J: I agree with the orders proposed by Hulme J and, generally, with his Honour's reasons. The overall sentence is severe but, particularly in the light of the applicant's previous conviction and the fact that he was on parole at the time of the subject offences, it cannot be said to be outside the bounds of the proper exercise of discretion.
45 Hulme J has found that the sentencing judge fell into error in aspects of his approach to sentence which were favourable to the applicant: the discount for the pleas of guilty, the approach to the applicant's prior conviction, the concurrency of the sentences and the finding of special circumstances. It may be that, in finding that the previous conviction did not play "a very significant part in coming to sentence", the judge gave that conviction less weight than he might have done. In the discount for the pleas of guilty, the concurrency of sentences and the finding of special circumstances, it could be said that the applicant was treated leniently. The Crown prosecutor in this Court, quite properly, raised those matters as part of her response to the grounds of the application which asserted that inadequate weight had been given to the applicant's subjective circumstances and that the sentence on the second count is manifestly excessive.