Parente v R

HEADNOTE On 2 December 2016 the applicant was sentenced in the District Court following pleas of guilty to two counts of supply prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) and one count of supply commercial quantity of prohibited drug contrary to s 25(2). Three other offences (two counts of supply prohibited drug and one count of goods in custody) were taken into account on a Form 1. The sentencing judge imposed an aggregate sentence of 4 years' imprisonment with a non-parole period of 2 years. Upon and following his arrest on 26 June 2015, the applicant was found to be in possession of 100 tablets of 3,4-Methylenedioxyamphetamine ("MDA") weighing 16.8g and 338.8g of 1,4-butanediol, giving rise to the two s 25(1) offences, and 1.3728kg of Gamma butyrolactone ("GBL") in liquid form, which gave rise to the s 25(2) offence. Also found were $3000 cash, 17 Methylenedioxymethylamphetamine ("MDMA") tablets weighing 3.65g, and 2.92g of Methylamphetamine, giving rise to the three Form 1 offences. In relation to the seriousness of the offences, the sentencing judge found that the applicant's drug supply activities were "at the lower end of the scale" but not "at the very low level". His Honour found the GBL offence, concerning a commercial quantity, to be "at the lowest end of objective seriousness". The sentencing judge made several favourable findings in relation to the applicant's subjective case; that he was genuinely remorseful, was of previous excellent character, was unlikely to reoffend and had excellent prospects of rehabilitation. The sentencing judge described the case as one that presents "in very acute form" the issue of whether an offender's rehabilitation "can constitute the exceptional circumstances required to avoid the application of the general rule that persons substantially involved in supply of drugs must be sentenced to imprisonment". His Honour found that the offender had not shown exceptional circumstances and imposed a custodial sentence. The applicant appealed. The first ground of appeal asserted that the sentencing judge failed to take into account the applicant's loss of the right to practise as a lawyer. The sentencing judge had referred to the matter but did not explicitly address it in relation to extra-curial punishment. The next two grounds of appeal, one of which was added following the decision of Robertson v R [2017] NSWCCA 205, raised the issue of whether a "principle" attributed to R v Peter Michael Clark (Court of Criminal Appeal (NSW), 15 March 1990, unrep) has any continuing application. That "principle" is often stated as being that in cases of drug dealing to a substantial degree, a sentence of full-time custody must be imposed unless there are exceptional circumstances. Having found error, the Court was required to re-exercise the sentencing discretion. Held Per Macfarlan JA, Hoeben CJ at CL, Leeming JA, Johnson J and R A Hulme J, granting leave to appeal but dismissing the appeal (1) The sentencing judge had regard to the applicant's likely loss of the ability to practise law. There was no failure to take into account a material consideration: at [36]-[44]. (2) The Clark "principle" that drug trafficking in any substantial degree should lead to a custodial sentence unless there are exceptional circumstances was a significant feature of the applicant's sentence proceedings: at [48]. (3) A "custodial sentence" in this context is understood as one to be served by way of full-time imprisonment: at [64]. R v Leslie (1991) 55 A Crim R 68 referred to. (4) The Clark "principle" that drug trafficking in any substantial degree should lead to a custodial sentence unless there are exceptional circumstances is incompatible with the judicial sentencing discretion. It should no longer be applied: at [101], [108]-[110]. R v Peter Michael Clark (Court of Criminal Appeal (NSW), 15 March 1990, unrep); Robertson v R [2017] NSWCCA 205; R v Cacciola (1998) 104 A Crim R 178; Smaragdis v R [2010] NSWCCA 276; R v Gip; R v Ly [2006] NSWCCA 115; 161 A Crim R 173; Youssef v R [2014] NSWCCA 285; EF v R [2015] NSWCCA 36; Forti v R [2016] NSWCCA 127 considered. Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 91 ALJR 1063; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 applied. (5) A consistent message of deterrence in drug supply cases is necessary and the protection of the community will usually also be of significance: at [113]-[114]. Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A; R v Peel [1971] 1 NSWLR 247; R v Anderson (Court of Criminal Appeal (NSW), 29 November 1974, unrep); R v Speech (Court of Criminal Appeal (NSW), 11 December 1974, unrep); R v Saw; R v Loh (Court of Criminal Appeal (NSW), 20 December 1974, unrep); R v Constantinou (Court of Criminal Appeal (NSW), 19 December 1975, unrep); R v Sergi (Court of Criminal Appeal (NSW), 13 February 1976, unrep); R v Smith; R v Wright; R v Lorenzo; R v Rendall (Court of Criminal Appeal (NSW), 30 July 1976, unrep); R v Marino (Court of Criminal Appeal (NSW), 7 July 1983, unrep); R v Blanco (Court of Criminal Appeal (NSW), 22 October 1987, unrep) considered. (6) Sentencing judges must remain mindful of the maximum penalty and any standard non-parole period, which are set at a high level for drug supply cases: at [115]. Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 applied. (7) The correct approach is to determine; first, whether no sentence other than imprisonment is appropriate (regardless of how it might be served); second, if so, the length of such a sentence (regardless of how it might be served); and, third, whether any alternatives to full-time incarceration are available and appropriate: at [117]-[119]. Crimes (Sentencing Procedure) Act 1999 (NSW) s 5(1); Robertson v R [2017] NSWCCA 205 considered. R v Foster [2001] NSWCCA 215; 33 MVR 565; R v Zamagias [2002] NSWCCA 17; Douar v R [2005] NSWCCA 455; 159 A Crim R 154 applied. (8) There was error in the exercise of the sentencing discretion by the sentencing judge having regard to, and purporting to comply with, the Clark "principle": at [120]. (9) The error relating to Clark necessitated the re-exercise of the sentencing discretion but a lesser sentence is not warranted in law: at [124], [131]-[133]. Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 applied; Criminal Appeal Act 1912 (NSW) s 6(3) considered.

Judgment

1. THE COURT: Mr Ugo Parente ("the applicant") seeks leave to appeal against an aggregate sentence imposed in the District Court at Sydney by McLennan SC DCJ on 2 December 2016. The sentence was one of imprisonment for 4 years with a non-parole period of 2 years dating from 1 November 2016.
2. The sentence was imposed in respect of three offences contrary to the Drug Misuse and Trafficking Act 1985 (NSW) ("the Act"). A further three offences were taken into account in relation to the offence identified as Sequence 5.
3. Details of the offences, the relevant provisions of the Act, the prescribed maximum penalties, a prescribed standard non-parole period in relation to Sequence 5, and the sentences assessed for each offence (after a 25 per cent reduction for the applicant's pleas of guilty) are set out in the following table: Sequence Offence Offence and penalty provisions Sentence Seq 1 Supply prohibited drug (3,4-Methylenedioxyamphetamine ("MDA")) s 25(1) - max 15 years imprisonment and/or $220,000 fine 2 years Seq 5 Supply not less than commercial quantity of prohibited drug (Gamma butyrolactone ("GBL")) s 25(2) - max 20 years imprisonment and/or $385,000 fine - SNPP 10 years 3 years 6 months Seq 9 Supply prohibited drug (1,4-Butanediol) s 25(1) - max 15 years imprisonment and/or $220,000 fine 1 year 6 months

1. The three offences taken into account in relation to the offence in Seq 5 were as follows. Offence Offence provision Seq 4 Goods in custody ($3000 cash) Crimes Act 1900 (NSW), s 527C Seq 6 Supply prohibited drug (Methylenedioxymethylamphetamine ("MDMA") Drug Misuse and Trafficking Act, s 25(1) Seq 7 Supply prohibited drug (Methylamphetamine) Drug Misuse and Trafficking Act, s 25(1)

1. Because the GBL offence carried a standard non-parole period it was a requirement that the judge also specify an indicative non-parole period: s 54B(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The failure to do so does not invalidate the sentence: s 54B(7). Moreover, there was no issue raised on the application about it.

Grounds of appeal

1. The applicant seeks leave to appeal on the following grounds: 1 The sentencing judge erred in failing to take into account on sentence that the applicant was unlikely ever to practise as a solicitor again or, in the alternative, that the convictions would significantly affect any future possibility of a legal career. 1A The sentencing judge erred by impermissibly constraining his sentencing discretion. 2 [In the alternative to Ground 1A] The sentencing judge erred by constraining his approach to the test for "exceptional circumstances" in drug supply cases. 3 The sentence is plainly unjust or unreasonable.

The offences

1. The facts concerning the offences were not disputed.
2. The applicant came under the notice of police by the manner in which he drove a car at about 12.50am on Friday 26 June 2015. He made a sudden right-hand turn in front of a patrolling police car in King Street, Eastlakes. He was followed and stopped. His demeanour (nervous, fidgety, anxious and mumbling) attracted the officers' suspicion. He said that he had been visiting friends; that he was a solicitor; and that he had been with a client.
3. Police searched the applicant's car, following which he was arrested. They later searched his home at Punchbowl. Overall, the police found: ● $3000 in bundles of $2000 and $1000, all in $50 notes, in the applicant's pants' pockets (Seq 4 taken into account). ● 100 MDA tablets weighing 16.8g in the centre console of the car (Seq 1). ● 1.3728kg of GBL in liquid form (1088g in a 1 litre juice bottle found in the rear of the car; 1.8g in a small plastic fish-shaped container under the front passenger seat; and the balance in numerous bottles, vials and plastic containers in a locked safe in the applicant's bedroom, a kitchen cupboard and on top of a kitchen cupboard) (Seq 5). ● 338.8g of 1,4-butanediol in various bottles, vials and containers in the safe, in a kitchen cupboard and in the freezer section of the refrigerator (Seq 9). ● 17 MDMA tablets weighing 3.65g in a shoe box in the oven (Seq 6 taken into account). ● 2.92g of Methylamphetamine in two plastic bags on a kitchen bench and in a mug on top of a kitchen cupboard (Seq 7 taken into account).
4. Police also found in the applicant's bedroom and in various places in the kitchen: ● Many small resealable plastic bags in two drawers of a wardrobe. ● Two glass pipes in one of those drawers. ● $900 in cash in the locked safe. ● A significant quantity of small, empty plastic containers; more small resealable bags; small plastic fish-shaped containers and clear capsules. ● Plastic syringes of various sizes. ● Digital scales. ● Other glass pipes and a lighter in a case also containing some of the Methylamphetamine. ● An empty juice container like the one containing the GBL found in the car.
5. The statement of facts included that the applicant was polite and co-operative with police and, in a conversation with one particular officer, he cried and said that he had developed an addiction to drugs.
6. More will be said about the seriousness of the drugs supply offences later but the following quantities for each of the drugs prescribed in Sch 1 of the Drug Misuse and Trafficking Act may be noted at this stage. Drug Indictable quantity Commercial quantity Quantity possessed MDA 1.25g 0.125kg 16.8g GBL 50g 1.0kg 1.3728kg 1,4-Butanediol 50g 1.0kg 338.8g

Subjective case

1. A substantial body of documentary material concerning the applicant's background and personal circumstances was tendered in the sentence proceedings. The applicant did not give evidence.
2. The applicant was born in 1982 and was raised with his two siblings in the Newcastle area. His childhood years were uneventful until his mother developed kidney failure when he was aged 8 and she passed away when he was aged 14. Despite this traumatic experience he excelled in high school; he became school captain, dux and received many awards (including for his involvement in activities promoting drug awareness).
3. The applicant was active in politics while he was a student at university. He worked part-time in the electoral offices of two members of Parliament and won pre-selection as a candidate in a local government election. He also commenced a long-term relationship around this time.
4. After receiving degrees in Arts (Communications) and Law the applicant moved to Sydney and obtained employment as a solicitor. He took up a position with Marsdens Law Group ("Marsdens") in 2006. He specialised in criminal law. A senior partner wrote in a testimonial that the applicant "had generally been a diligent and competent lawyer who dedicated his time and his efforts to ensuring his clients were provided with clear legal advice and well represented in Court".
5. The applicant's relationship with his partner broke down in 2010. The history the applicant provided to Dr Olav Nielssen, psychiatrist, included that he was "very shocked" by this; he had thought the relationship would last forever. He had only taken to drinking alcohol in his late twenties and the first time he got drunk was in August 2010, shortly after the separation.
6. The applicant first used a drug (ecstasy) in early 2014. This was contrary to his previous beliefs and lifestyle. He attributed this decision to being depressed, the breakdown of his relationship and the pressures of work. He told Dr Nielssen, "It went from weekend relief from life to using it every day to function". He had used MDMA and occasionally cocaine but mainly methamphetamine (ice) with GBL to counter its effects. He claimed that a litre of GBL cost $2500 which was cheaper than buying it in 2 ml quantities in small plastic soy sauce containers for $20.
7. The applicant also told Dr Nielssen that the purpose of his drug supply was to sustain his own use and that the drugs he had purchased over time when they were available had accumulated in his possession. He also said that he was embarrassed about his drug use and had kept it from his family and friends. In the period before his arrest he was only associating with other drug users.
8. The applicant's work at Marsdens deteriorated; his files were in disarray, he was not attending court and appointments, and he was neglecting to return phone calls or respond to emails. A decision was taken at the end of April 2015 to terminate his employment. It was proposed that he would leave at a convenient time when some of his matters had been finalised but the applicant's arrest on 26 June 2015 precipitated the termination.
9. The applicant returned to live in Newcastle following his release on bail. His general practitioner referred him to Dr Stuart Edser, psychologist, for counselling in relation to substance abuse and anxiety. The applicant attended 13 sessions with Dr Edser between August 2015 and September 2016. Dr Edser provided a report in which he described in very positive terms the progress the applicant had made in overcoming his addiction and the significant changes he had made in his life.
10. In addition to the counselling sessions with Dr Edser the applicant also completed a two week Relapse Prevention Programme with the Mental Health and Substance Use Service at the Calvary Mater Hospital. (AB 76; 98.5)
11. Dr Nielssen diagnosed the applicant as having a depressive illness (in partial remission) and a substance use disorder (in remission). He said the factors contributing to the applicant becoming depressed included an inherited vulnerability; grief over his mother's long illness and death; the effect of the breakdown of his one serious relationship; and the effect of unhappiness in his job, especially after the loss of his relationship.
12. The applicant told Dr Nielssen that he had taken employment with a sports club and that "he realised he needs to change careers, and planned to work his way up in that industry". The sentencing judge had before him a number of certificates concerning vocational training in the hospitality industry the applicant had completed in 2016. In July 2016 he commenced in a casual position at a registered club in Maitland.
13. A Pre-Sentence Report included an assessment that the applicant presented "a low risk of re-offending". Dr Nielssen was of the same view and similar sentiments were expressed by the authors of various testimonials.

Some findings by the sentencing judge

1. The learned sentencing judge accepted a number of matters that were favourable to the applicant: "Firstly, he is genuinely remorseful for his conduct; secondly, he is of previous excellent character. He has obviously no previous convictions. He is unlikely to reoffend. His rehabilitation has been very substantial to date and overall his prospects are excellent and, of course, he has pleaded guilty."
2. As to the seriousness of the offences, his Honour noted the Crown's acceptance that the applicant was "operating as a user/dealer weighing packaging and distributing quantities of drugs for cash". He said, "It can be accepted that Mr Parente's activities in supplying to a small circle of fellow drug users places his activities at the lower end of the scale although I do not accept at the very low level". He noted that the supply of GBL offence concerned a commercial quantity and said, "[T]he legislature has deemed that his activities were of a commercial nature".
3. After referring to some matters pertinent to the supply of GBL offence, his Honour said: "What all that leads me to conclude is that in terms of what the legislature has deemed to be a commercial enterprise it falls at the very bottom of the range and, therefore, is at the lowest end of objective seriousness concerning the drug. … [T]aking into account weight value and the overall nature of his activities … it can be properly said to be this was at the very low level of commercial activity."

Ground 1 - Failure to take into account the applicant's loss of the right to practise

1. It was submitted to the sentencing judge that "it [was] almost certain [the applicant] will never practice [sic] in his chosen profession again" after having been a "diligent and competent lawyer who dedicated his time and efforts to ensuring his clients were well represented in court". It was submitted that this was a matter that could be taken into account in the applicant's favour (together with the adverse effects of media publicity) as "non-curial punishment".
2. During the course of oral submissions at the sentence hearing the judge said that this was an issue that was a "relevant factor, the weight of which will be something to be ultimately assessed in with the mix".
3. It was submitted that although the judge referred at an early stage of his reasons for sentence to the applicant being a "criminal lawyer", thereafter nothing more was said about the subject. The judge later referred to extra-curial punishment but only in relation to publicity surrounding the applicant's case. It was submitted that if his Honour had applied the relevant principle, he would have referred to it, likely at the same time as he referred to the publicity issue. Accordingly, it was submitted that there was error in the exercise of the sentencing discretion (per House v The King (1936) 55 CLR 499; [1936] HCA 40) by the failure to take into account a material consideration.

Determination

1. There is no doubt that the applicant's likely loss of the privilege of pursuing a promising career in the legal profession was a relevant matter to be taken into account in the assessment of sentence: see, for example, Oudomvilay v R [2006] NSWCCA 275 at [19]-[20]; Kenny v R [2010] NSWCCA 6 at [47]-[49]; Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1 at [95]-[97]; Michael v R [2014] NSWCCA 2 at [149]-[154]; Kearsley v R [2017] NSWCCA 28 at [13] (Macfarlan JA) and [76]-[80] (Harrison J).
2. However, there can also be no doubt that the sentencing judge had regard to this matter. It was probably the most prominent feature of the case. References to the applicant being a practising solicitor and to his career being at least adversely (and likely terminally) affected permeated the entire proceedings.
3. In recounting the facts of the offences the judge included the references to the applicant being a lawyer. When he came to review the applicant's subjective case, the judge commenced: "Mr Parente, at the time of his arrest, was hopelessly addicted to ice and other drugs. His career as a criminal lawyer with Marsdens was effectively over, his work performance having been completely compromised due to his addiction. His subjective case charts the story of a young teenager actively involved in campaigning against the use of drugs, the school captain who was universally regarded as an excellent role model. In 2006, he became an associate with one of Sydney's most respected criminal law firms. There is an impressive collection of testimonials testifying to his personal and professional qualities which on any objective assessment must be regarded as outstanding. The genesis for his tragic descent into hopeless addiction lies in the breakup of his only serious relationship of five years and the emotional effect of his work well understood to criminal lawyers which centred around both the perpetrators and victims of sexual abuse."
4. His Honour said towards the end of his judgment: "In cases such as this, it remains a policy of the law that sentences of imprisonment must be imposed that give full effect to the principle of general deterrence. The case of Mr Parente illustrates why the policy of the law should be adhered to. The worthwhile and productive life of someone who had given much to his society was almost completely destroyed by his addiction to drugs. … [D]uring the course of his addiction propelled by the all-consuming selfishness that addiction generates he went about supplying drugs to others, contributing thereby to the ruination of other lives. There is a price to be paid for that and the law has determined that it must be a custodial one." (Emphasis added)
5. In the "impressive collection of testimonials testifying to his personal and professional qualities" to which the judge referred there were frequent mentions of the applicant's legal career, including of the likely loss of that career. They included this by a senior partner of Marsdens: "I am confident that once he has his life back on track he will find the direction required to ensure he leads a once again law abiding life. Albeit no longer as a lawyer (a significant penalty in itself)."
6. A former member of the federal Parliament for whom the applicant had worked while at university, wrote: "I have discussed with Ugo how he sees his future. He understands the severity of the matter before the District Court and acknowledges that practising law may not be possible for several years and possibly not at all. But having undertaken law with the resolve to do good for others he sincerely regrets that this professional avenue may be closed to him."
7. The submissions for the applicant referred to the fact that the judge only referred to media publicity in relation to extra-curial punishment. The evidence of such media publicity comprised a number of news articles that were tendered. It is obvious that the only thing newsworthy about a 33 year old man facing drug supply charges was that he was a lawyer. The articles all had a headline that referred to that fact: for example, "Sydney criminal lawyer Ugo Parente behind bars on drug charges pending bail bid".
8. Having regard to all of this evidence it is abundantly clear that the applicant's potential loss of his career as a lawyer and the high regard in which he had previously been held was a prominent issue in the case. There can be no doubt that it is included in what the judge had in mind when he referred to the applicant's "tragic descent".
9. The judge did not explicitly state that he took into account the applicant's likely loss of his legal career as extra-curial punishment but it is clear enough that it was a matter to which he had regard. This ground must be rejected.

Ground 1A - error in impermissibly constraining the sentencing discretion

Ground 2 - alternatively, error by constraining the approach to the test for "exceptional circumstances" in drug supply cases

1. The grounds of appeal and written submissions for the applicant were filed on 7 August 2017. Ground 1A was added and further written submissions were filed on 22 September 2017, following the handing down of the judgment in Robertson v R [2017] NSWCCA 205 on 23 August 2017. In that case, Simpson JA, with the concurrence of Harrison and Davies JJ, raised serious questions about the "'principle' … frequently traced to a 1990 decision of this Court, R v Peter Michael Clark (Court of Criminal Appeal (NSW), 15 March 1990, unreported)" to the effect that drug trafficking in any substantial degree should normally lead to a custodial sentence and that only in exceptional circumstances will a non-custodial sentence be appropriate.
2. Simpson JA said (at [101]): "It seems to me that the peremptory terms in which Clark and the cases following are expressed are incompatible with the proper exercise of a judicial sentencing discretion, and incompatible with a number of statements made by the High Court. But that is a matter to be decided on another occasion, either by this Court (possibly constituted by five judges), or by the High Court."
3. The Acting Chief Justice directed pursuant to s 3 of the Criminal Appeal Act 1912 (NSW) that the Court be constituted by a bench of five judges in order to determine the issue raised by the present applicant as to whether the "principle" referred to in Clark has any continuing application.
4. Before turning to the issue itself it is necessary to examine how the issue was raised, and dealt with, in the course of the applicant's sentence proceedings. In short, it was a significant feature.

Significance of Clark in the sentence proceedings

1. The Crown and counsel for the applicant both provided the judge with written submissions. Citing a number of cases going back to Clark, the Crown submitted: "A person who supplies drugs on more than one occasion to a degree where his or her activities can be described as 'trafficking' or who is substantially involved in supply, must receive a full-time custodial sentence unless there are exceptional circumstances".
2. The Crown's submissions proceeded to refer to a number of further cases in which the concept of "exceptional circumstances" in this context had been discussed. This culminated in the submission that "this is not a case where exceptional circumstances apply".
3. The written submissions for the applicant made the point that the "policy that those who traffick in drugs to a substantial degree should be sentenced to full-time imprisonment is not a legislative provision". It was submitted that there were "exceptional circumstances" in that a sentence of full-time custody would likely nullify the rehabilitation the applicant had achieved.
4. During the sentence hearing, in the course of a discussion about the seriousness of the GBL offence, the judge said to the applicant's counsel: "The reason why we're having the discussion that we're having, of course, is because it is that very fact of a legislatively presumed commercial engagement of your client that puts him immediately into the area of Clark and those other authorities."
5. Counsel for the applicant accepted his Honour's proposition and pursued the contention that this was a case in which there were "exceptional circumstances".
6. Given the approach of both parties, it is unsurprising that in the course of giving his reasons for sentence the judge addressed the question for his determination which he described as follows: "This case then presents in very acute form the issue whether the rehabilitation of an offender such as Mr Parente can constitute the exceptional circumstances required to avoid the application of the general rule that persons substantially involved in supply of drugs must be sentenced to imprisonment."
7. After reference to the various matters put forward as amounting to "exceptional circumstances" and after quoting extracts from some judgments of this Court on the subject, the judge concluded: "In the circumstances, I do not consider that the offender has shown exceptional circumstances such as to avoid the imposition of a custodial sentence. The conclusion that the offender has been substantially involved in the supply of drugs is an unavoidable conclusion and not resisted, in fact, by Mr Pontello of counsel for the offender."

Submissions

1. Senior counsel for the applicant submitted that "the Clark test is an impermissible constraint on sentencing discretion for three reasons": it is prescriptive in terms of the result; it is inconsistent with the legislative framework; and, it is a two-stage test. Given that "this whole case … was conducted by the Crown, by experienced counsel for the applicant and by his Honour through the prism of Clark", there was error that enlivened the re-exercise of the sentencing discretion by this Court.
2. The Crown submitted that there was a concession by the applicant in the District Court that for the purposes of s 5 of the Crimes (Sentencing Procedure) Act a sentence of imprisonment was inevitable. The applicant had submitted, with reliance upon R v Harmouche [2005] NSWCCA 398; 158 A Crim R 357 at [52], that there was evidence that full-time custody was likely to have the effect of nullifying rehabilitation previously effected and that this was capable of amounting to "exceptional circumstances". However, the judge did not accept that there was such evidence. Having done so, the judge proceeded to exercise the sentencing discretion by way of instinctive synthesis of the relevant factors.
3. It was submitted by the Crown that, in accordance with authority, the judge was first required to determine the length of the sentence before considering whether it could be served in some manner other than full-time imprisonment. Having determined that there should be a sentence of four years, there was no scope for his Honour to consider whether it should be served by way of an intensive correction order as the applicant's counsel had sought. Accordingly, it was submitted, the sentencing judge's discretion was not constrained by the "rule" in Clark.
4. The Crown submitted that there was no occasion in this case to be considering the correctness of Clark as this was not a borderline case between imprisonment to be served by way of full-time custody or otherwise. Nevertheless, the Crown maintained that "the line of authority from Clark as set out in Smaragdis v R [2010] NSWCCA 276" should be followed. Specifically, the Crown referred to the judgment in Smaragdis v R of Fullerton J (Simpson J (as her Honour then was) and R A Hulme J agreeing) at [30]: "As this Court has repeatedly emphasised, when sentencing offenders who have supplied drugs to any significant degree, the general principle is that the imposition of a full-time custodial sentence is necessary to reflect the need for general deterrence (even where the quantity of drugs involved reduces the objective seriousness to below mid-range), and that only in the exceptional case, where the applicant's subjective circumstances can be shown to mitigate the objective gravity of the offending in such a way as to distinguish it from the general run of cases, will a non-custodial sentence be appropriate."

R v Peter Michael Clark

1. Clark was a Crown appeal against a sentence imposed in the District Court following the offender's pleas of guilty to two charges of supplying amphetamine. Two summary offences, one of possession of cannabis and another of administering amphetamine, were taken into account. One of the supply charges concerned the offender's possession of three bags of amphetamine, a total of 13.4g, and the other concerned his admissions to police that he sold amphetamine to friends if they sought it. He sold about three or four small plastic bags for $50 each per week and he had been doing so for about a month. He was found to be in possession of $2002 in cash which the sentencing judge found to be the proceeds of drug sales.
2. Hunt J (as his Honour then was), with the concurrence of Sharpe J (Enderby J dissenting), famously said (at pp 3-4): "This Court has, on occasions too numerous to mention, emphasised that sentences involving a substantial general deterrence are to be imposed on drug traffickers, and it has indicated that only in exceptional circumstances will a non-custodial order be appropriate. That statement is not, as has been suggested, restricted to those cases in which it has been demonstrated that a profit has been obtained. It may be the fact that in each such case a profit was made, as Kirby P pointed out in Regina v Hayes (1987) 29 A Crim R 452 at 463. That fact is not, however, thereby elevated to become a qualification of the statement itself. Insofar as Kirby P may be understood as suggesting to the contrary, I must respectfully disagree with him. What the statement is principally directed to is the trafficking, the dissemination of drugs to others. That is made clear by Street CJ in Hayes' Case at 457. The position is worse when there has been a profitable commercial exploitation, but trafficking alone in any substantial degree should normally lead to a custodial sentence."
3. Hunt J referred to the sentencing judge having acknowledged that a custodial sentence would normally be appropriate. However, the judge deferred passing sentence upon Mr Clark entering into "minor bonds" (presumably recognizances to be of good behaviour pursuant to the then s 558 of the Crimes Act 1900 (NSW)). The only factor mentioned by the judge as justifying that course was the absence of any convictions for a period of ten years, Mr Clark having "an earlier bad record". Hunt J observed that "that was not a special circumstance". He said (p 5): "… I can see no exceptional circumstances which would have justified such a non-custodial sentence in this case. The inadequacy of the sentences imposed manifests the appealable error which was made. The respondent was clearly involved in a commercial venture - not a large one, perhaps, and perhaps even not a particularly profitable one, but obviously a venture which was more than merely incidental to his own use of the amphetamine. Notwithstanding the absence of any prior drug related record, in my view this was a case in which custodial sentences were demanded."
4. Mr Clark was re-sentenced to a term of imprisonment with a minimum term of 9 months and an additional term of 3 months effective immediately from the date of judgment.
5. It was subsequently clarified in R v Leslie (1991) 55 A Crim R 68 that the reference to "a custodial sentence" was a reference to full-time imprisonment and not to a sentence of imprisonment ordered to be served in another way (in that case, periodic detention).
6. The "occasions" that the Court had "emphasised that sentences involving a substantial general deterrence are to be imposed on drug traffickers, and […] indicated that only in exceptional circumstances will a non-custodial order be appropriate" were not identified in Clark. Hunt J said they were "too numerous to mention".

The background to Clark

1. This Court had for a long period prior to Clark taken a strong view in relation to the need for "heavy penalties" so as to deter trading in illicit drugs.
2. In R v Peel [1971] 1 NSWLR 247, a Crown appeal succeeded in respect of a fine imposed for an offence of importing cannabis. The sentencing judge erred by regarding cannabis as "innocuous and that illicit traffic in it is to be similarly regarded" (261D). It was said that "the offence can only be regarded as serious and such as to warrant an adequate penalty by way of deprivation of liberty if the penalty is to have its primary effect of deterring the commission of such offences" (262C).
3. An appeal against the severity of a sentence of imprisonment for 5 years for supplying LSD was dismissed in R v Anderson (Court of Criminal Appeal (NSW), 29 November 1974, unrep). Street CJ said (p 2): "It is unnecessary to reiterate the serious nature of any offence associated with drug trafficking. It is a despicable and abhorrent traffic in the community and one which the courts will not hesitate to put down sternly. Participants in this traffic must expect to be sentenced to lengthy periods of imprisonment."
4. In R v Speech (Court of Criminal Appeal (NSW), 11 December 1974, unrep), where there were three offences of selling drugs of addiction, Street CJ referred to the need for "heavy penalties" (at p 3): "It has been said many times in this Court that the drug traffic will not be tolerated and whenever a trafficker in drugs comes before the Court he can expect to be dealt with severely. Broken men and women at the end of the drug chain whose lives so often come before the Court provide ample justification for the Court fixing heavy penalties on an occasion when any criminal is found to have been participating in the distribution of drugs."
5. McClemens CJ at CL put the Court's concern about drug trafficking even more vividly in R v Saw; R v Loh (Court of Criminal Appeal (NSW), 20 December 1974, unrep) in making the following statements (pp 1, 2 & 3): "The experience of this Court over the last few years that drug addiction has become a frightening phenomenon is that there is a very great link between crime, drug addiction, deterioration, degeneration, human misery, death, and it is a trade, in effect, in blood, in human life that this Court desires publicly to emphasise will be suppressed with the utmost vigour of the law." "[W]e are dealing with this matter as an exercise in deterrent justice, doing what we can to crush this awful traffic, and this traffic has got to be crushed wherever trafficking is found." "[T]he Court is left with no alternative but to say that cold and callous operators of a drug smuggling racket for purely economic reasons require heavy penalties."
6. Taylor J added reference to evidence by the head of Wisteria House Psychiatric Institute at Parramatta concerning the increasing prevalence of heroin use which would appear to have been influential in the strong view being expressed by the Court. Her evidence was that she was aware of one heroin addict in 1966 but was presently treating 250. Heroin use amongst young people was "absolutely absent" in 1966 but in the current time, children as young as 12 or 13 were becoming addicted. The death rate amongst addicts was said to be 25 to 30 per cent.
7. In R v Constantinou (Court of Criminal Appeal (NSW), 19 December 1975, unrep), an appeal against a sentence of 6 years for an offence of selling Indian hemp (against a maximum penalty of 10 years) was dismissed. This was despite the mitigating features of the offender being aged 49, having no previous convictions, and being otherwise of good character and reputation. Street CJ observed that "it was a most serious crime and it demanded a heavy sentence".
8. A similar offence, with an offender who was aged 58 who had led a "reputable and hardworking life", was considered in R v Sergi (Court of Criminal Appeal (NSW), 13 February 1976, unrep). Speaking for the Court, Street CJ endorsed observations by the sentencing judge including (p 4): "In my view the social consequences of the accused's actions in this case so outweigh the considerations personal to the offender as to require a severe deterrent penalty."
9. This stern line was maintained by the Court in R v Smith; R v Wright; R v Lorenzo; R v Rendall (Court of Criminal Appeal (NSW), 30 July 1976, unrep). Sentences of periodic detention were replaced by sentences of full-time imprisonment despite each of the respondents being young and having a minimal prior record. Street CJ said (at p 6): "Persons such as these four respondents are middle men in the chain. They can claim none of the leniency or sympathy that can be weighed where one is looking at the victimless crime represented by the user of a drug of this nature. The destruction of the users flows from the presence in the community of those who are prepared, for one reason or another, to take part in the distribution chain and, unpleasant although the task undoubtedly is, when viewing the subjective situation of each of these four respondents, there was no alternative in the present four cases to gaol sentences being imposed upon them which would mark the need to deter all who take part in this evil traffic."
10. The first mention that can be found of a need for something "exceptional" to justify something less than a full-time custodial sentence was in R v Marino (Court of Criminal Appeal (NSW), 7 July 1983, unrep). A 20 year old man became involved in supplying drugs in order to support his young family. He had no significant criminal record and was in regular employment. There were three offences of supplying a drug of addiction. The seriousness of the offences was such as would be assessed by today's standards as being of modest comparative seriousness - for example, one offence involved the possession for the purpose of supply of 60 tablets of amphetamine for $7 each.
11. The sentencing judge deferred passing sentence upon the respondent entering into a recognizance to be of good behaviour on two charges and imposed a fine of $2000 on one charge. The Crown appeal was upheld and concurrent full-time custodial sentences of 18 months were imposed. Lee J described the seriousness of the offending as follows (p 4): "[T]he facts with which this case is concerned in my view disclosed a state of affairs which could only be described as a deliberate willingness to participate in drug trafficking and to be part of the drug trafficking scene. … I am quite unable to see that the facts of the case can be presented in any other light than as blatant trafficking in Indian hemp and to some extent amphetamines."
12. After stating that the subjective features of the case "should carry little weight against the seriousness of the crimes" and finding that the primary judge had given too much weight to them, Lee J (Slattery and Roden JJ agreeing) said (p 5): "There is an abhorrence in the community against all forms of drug trafficking and in my opinion there is an expectation that it will be the exceptional case only in which a custodial sentence will not be passed." (Emphasis added)
13. In R v Blanco (Court of Criminal Appeal (NSW), 22 October 1987, unrep) there were two offences of supplying cannabis that brought deferral of sentence upon entering a recognizance and a sentence of imprisonment for 12 months to be served by way of periodic detention. The sentences were found to be inadequate, notwithstanding the respondent's strong subjective case, but the Crown appeal was dismissed in the exercise of the Court's discretion. Lee J (McInerney and Campbell JJ agreeing) reiterated the perceived need for "exceptional circumstances" to justify anything other than a full-time custodial sentence (p 3): "In our view, notwithstanding the very favourable subjective circumstances, we are of the opinion that the sentence plainly demonstrated error. It has been said in this court on many occasions that those who use drugs of any kind for the purpose of obtaining money, that is for profit to themselves, must expect, except in exceptional circumstances, the imposition of a gaol sentence." (Emphasis added)
14. It may be seen that the Court had consistently called for strongly deterrent sentences of full-time imprisonment to be imposed in drug supply cases, even where the offender presented a strong subjective case. Clark maintained this strong line but added the clarification that derivation of profit by the offender was not an essential requirement; "trafficking alone in any substantial degree should normally lead to a custodial sentence".

Post Clark

1. Subsequent judgments have engaged in analyses of what constitutes "trafficking alone in any substantial degree". There has been discussion of whether "trafficking" carries with it the connotation of supply on more than one occasion: for example, in R v Bardo (Court of Criminal Appeal (NSW), 14 July 1992, unrep) it was held that it did. This was later confirmed in R v Ozer (Court of Criminal Appeal (NSW), 9 November 1993, unrep) but there, Hunt CJ at CL added: "The sentencing principle stated in Regina v Peter Michael Clark and the other cases does not apply in this case. There are nevertheless obviously cases where, such is the detailed involvement of the accused in the preparation and execution of only the one commercial transaction, a full time custodial sentence is not only appropriate but also necessary."
2. McClellan CJ at CL confirmed a requirement for "exceptional circumstances" in cases involving a single instance of supply in R v Gip; R v Ly [2006] NSWCCA 115; 161 A Crim R 173. After referring to what Hunt CJ at CL had said in Clark, Bardo and Ozer, his Honour said (at [13]): "My understanding of these various statements is that where a finding can be made that an offender has engaged in repeated offences so that his or her activities can be described as trafficking, a full time custodial sentence should, unless there are exceptional circumstances, be imposed. However, if only one offence can be proved, but the circumstances surrounding that offence indicate that it was the result of a sophisticated commercial arrangement, the objective criminality involved may also require a custodial sentence, unless exceptional circumstances can otherwise be shown."
3. What can amount to "exceptional circumstances" has also been the subject of much discussion. Commonly, the discussion has focussed more on what cannot constitute such circumstances rather than what can. Judges have consistently avoided making definitive statements but a few examples are illustrative.
4. In R v Cacciola (1998) 104 A Crim R 178 it was held that a sentencing judge was in error in finding exceptional circumstances in a combination of subjective features: youth; no prior convictions; pleas of guilty; remorse; very promising prospects of rehabilitation; and readiness to assist the police. Priestley JA observed (at 182): "Each of the matters that the judge apparently took into account in arriving at the decision to impose the non-custodial sentence is really a commonplace matter which frequently happens to people convicted of crime. A number of the cases do have an aggregation of circumstances similar to those in the present case, but a combination of subjective circumstances each strong in itself does not add up to exceptional circumstances unless the aggregate of all those circumstances point to the case being one of real difference from the general run of cases that come before the courts. This case, in my opinion, did not fall into that class." (Emphasis added)
5. In Smaragdis v R [2010] NSWCCA 276 a combination of the following features was held not to amount to "exceptional circumstances": addiction to cocaine (the onset of which coincided with significant personal stressors and ill health); no previous convictions; good prospects of rehabilitation; unlikelihood of reoffending; being in employment at the time of sentence; pleading guilty at the first opportunity; and remorse.
6. In Polley v R [2015] NSWCCA 247, a combination of youth, a very positive endorsement given by the offender's employer, positive changes observed in the offender by the employer, exceptional advances achieved in rehabilitation, remorse, and an underlying depressive condition was held not to amount to "exceptional circumstances".

Times have changed

1. At the time Clark was decided, sentencing in this State was principally governed by the Crimes Act, the Sentencing Act 1989 (NSW), the Periodic Detention of Prisoners Act 1981 (NSW), and the Community Service Orders Act 1979 (NSW).
2. The only manner in which a term of imprisonment could be served other than by way of full-time custody was by periodic (weekend) detention under the Periodic Detention of Prisoners Act. Upon enactment, s 5(1) provided that such an order could be made in respect of a sentence of imprisonment (defined in s 4(1) to include penal servitude which was imposed in respect of felonies) of not less than 3 months and not more than 18 months. By the Periodic Detention of Prisoners (Amendment) Act 1989 (NSW) the maximum period was extended to 3 years.
3. In short, the sentencing options available to a court in the time of Clark were imprisonment to be served either full-time or by way of periodic detention, or alternatives to imprisonment which were limited to community service orders, recognizances to be of good behaviour or fines. Soon after Clark, periodic detention came to be regarded as "having a strong degree of leniency built into it and as being outwardly less severe in its denunciation of the crime": R v Hallocoglu (1992) 29 NSWLR 67 at 73E.
4. Sentencing legislation now is vastly different and makes a number of provisions on topics for which recourse previously was to the general law. Of most significance was the repeal of the Sentencing Act and the enactment of the Crimes (Sentencing Procedure) Act. In its current form it includes (with no pretence of being exhaustive): ● A list of the "purposes of sentencing" in s 3A. ● A provision that "A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate" in s 5(1). ● Other forms of "custodial sentences" in Div 2 of Pt 2. An offender sentenced to imprisonment may be ordered to serve the term by way of home detention if the term of imprisonment is not more than 18 months (s 6) or by way of an intensive correction order if the term of imprisonment is not more than 2 years (s 7). ● "Non-custodial alternatives" in Div 3 of Pt 2. "Instead of imposing a sentence of imprisonment" a court may make a community service order (s 8) or direct the offender to enter into a good behaviour bond (s 9). A charge may be dismissed without conviction (s 10). A conviction may be imposed without the imposition of any other penalty (s 10A). The execution of a sentence of imprisonment of not more than two years may be suspended upon the offender entering a good behaviour bond (s 12). ● Fines may be imposed instead of, or in addition to, sentences of imprisonment (s 15).
5. Intensive correction orders were introduced and periodic detention was abolished by the Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 (NSW). An intensive correction order has been held to be "a substantial punishment to be utilised in an appropriate case" although "as with all sentencing options which do not involve immediate incarceration, it may also reflect a significant degree of leniency": R v Pogson; R v Lapham; R v Martin (2012) 82 NSWLR 60; [2012] NSWCCA 225 at [108].
6. Intensive correction orders may vary in severity depending upon the conditions and the level of supervision considered appropriate by Corrective Services NSW. There may be requirements imposed for a curfew, electronic monitoring of movements, participation in programs, alcohol and drug testing, face to face contact with a supervisor at a certain frequency and the performance of 32 hours per month of community service work as directed: cl 186 of the Crimes (Administration of Sentences) Regulation 2014.
7. The Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW) received assent on 24 October 2017 but its commencement is awaiting proclamation. Its provisions include the abolition of home detention orders, community service orders, suspended sentences and good behaviour bonds. A replacement provision is made in respect of sentences of imprisonment ordered to be served by way of an intensive correction order (for a single sentence of up to 2 years or an overall sentence of up to 3 years (Sch 1, cll 7, 29)). Provisions are also made for "community correction orders" (Sch 1, cl 8) and "conditional release orders" (Sch 1, cl 9) as alternatives to the imposition of a sentence of imprisonment.
8. Notwithstanding these amendments, the fact remains that there are more sentencing options available to courts than there were in the time of Clark. Moreover, the option of ordering that a sentence of imprisonment be served by way of an intensive correction order may be significantly more onerous than the predecessor of periodic detention (as it was described in R v Hallocolglu).

Doubts about the Clark "principle"

1. In Robertson v R, Simpson JA observed (at [51]) that the statement by Hunt J in Clark "has been endorsed on countless occasions". She cited a number of cases from R v Cacciola (in 1998) to Smaragdis v R (in 2010).
2. Her Honour also noted (at [60]) that there had "been some notes of caution expressed, and there are indications that some members of the Court have experienced some discomfort or disquiet, perhaps at the absolute nature or the imperative tone of the statements, or perhaps at their prescriptiveness". She referred (at [61]-[66]) to the following: ● Priestley JA in R v Cacciola at (183-184) referred to what had been said in Clark as what "this Court continues to consider is the proper approach" but added, "always bearing in mind the need to consider every convicted person's case on its own merits and in its own circumstances". ● Rothman J in R v Gip; R v Ly at [41] noted that "the statement of principle by this Court in R v Clark … is not a legislative enactment … [and] ought not be the subject of analysis in the same way as a statute". ● McCallum J in Youssef v R [2014] NSWCCA 285 at [32] said: "The proposition approved by the majority in Clark, asserting as it does the existence of a constraint devised by the Court of Criminal Appeal on the exercise of the sentencing discretion of judges, may warrant reconsideration in light of the remarks of the High Court (in a different context) in Hili v R; Jones v R [2010] HCA 45 at [36] to [38]." ● Simpson JA herself had said in EF v R [2015] NSWCCA 36 at [10] that decisions such as Clark do not obviate "the need for sentencing judges to consider the circumstances of each case individually, including the availability (in a practical sense) of alternatives to full-time custody". ● Basten JA in Forti v R [2016] NSWCCA 127 at [20] spoke of the term "exceptional circumstances" being "no more than a handy phrase covering a range of factors which may provide guidance". He added, "What constitutes 'substantial' involvement in the supply of drugs and whether such activities may be described as 'trafficking' are matters for evaluation in the individual case".
3. After her extensive review of Clark and subsequent cases, Simpson JA said (at [69]-[71]): "What has consistently been stated as a 'principle' is (in my opinion), no more than and is properly to be seen as a conclusion drawn from a history of sentencing in respect of relevant offences. Without legislative authority, it could not be more. The decisions upon which the 'principle' is based are entitled to significant respect as the result of considered decisions and the experience of sentencing judges and appellate courts. Sentences imposed in the past, in relevantly similar circumstances, can and do provide significant guidance to sentencing judges. But they give rise to no binding precedent: The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at [29]. They are not statements of principle. Far less are they prescriptions for sentencing judges. The High Court has, more than once, used the metaphor of a 'yardstick' constituted by prior sentencing decisions against which a sentencing judge may measure a proposed sentence: see Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 52; [2010] HCA 45 at [54]; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [41]. It is amply established that sentencing judges may, and should, have regard to historical patterns of sentencing in respect of particular offences: see Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [6] and [59]-[60]; Markarian at [44]; Hili at [54]; Barbaro at [41]. That is seen as an aid to consistency in sentencing, something that promotes confidence in the criminal justice system: Wong at [6]-[10]. What is sought is not 'numerical equivalence' but consistency in the application of principle (Hili at [48]; Pham at [46]-[47]). There are, in the judgments of the High Court of Australia, many statements concerning the exercise of the sentencing discretion. Invariably, the judgments maintain the primacy of the sentencing discretion of the individual judge, and the need in that exercise to balance a complexity of sometimes competing or contradictory factors that exist in the individual case."

General principles of sentencing

1. Some general principles of sentencing are illustrative of the problem in the continued acceptance of the Clark "principle". (Some internal citations have been omitted in the quotations that follow.)
2. In Wong v The Queen; Leung v The Queen (2001) 207 CLR 584 at 611-612 [75]-[77]; [2001] HCA 64, Gaudron, Gummow and Hayne JJ described the correct approach to the sentencing task as follows: "[T]he task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an 'instinctive synthesis'. This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features. In R v Thomson [(2000) 49 NSWLR 383], Spigelman CJ reviewed the state of the authorities in Australia that deal with the 'two-stage' approach of arriving at a sentence, in which an 'objective' sentence is first determined and then 'adjusted' by some mathematical value given to one or more features of the case, such as a plea of guilty or assistance to authorities. As the reasons in Thomson reveal, the weight of authority in the intermediate appellate courts of this country is clearly against adopting two-stage sentencing and favours the instinctive synthesis approach. In this Court, McHugh and Hayne JJ, in dissenting opinions in AB v The Queen [(1999) 198 CLR 111 at 121-122 [15]-[18] per McHugh J; at 156 [115] per Hayne J] expressed the view that the adoption of a two-stage approach to sentencing was wrong. … We consider that it is wrong in principle. … So long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform. The core of the difficulty lies in the complexity of the sentencing task. A sentencing judge must take into account a wide variety of matters which concern the seriousness of the offence for which the offender stands to be sentenced and the personal history and circumstances of the offender. Very often there are competing and contradictory considerations. What may mitigate the seriousness of one offence may aggravate the seriousness of another. Yet from these the sentencing judge must distil an answer which reflects human behaviour in the time or monetary units of punishment." (Original emphasis)
3. An approach to sentencing in drug supply cases of first determining whether there has been trafficking to a substantial degree giving rise to an assumption that there must be a full-time custodial sentence, and then to inquire whether there are exceptional circumstances that would justify some alternative imposition, may be characterised as a "two-staged" approach that is contrary to the "instinctive synthesis" approach of taking into account all of the relevant factors in order to arrive at a single result which takes due account of them all.
4. In Markarian v The Queen (2005) 228 CLR 357 at 371 [27]; [2005] HCA 25, Gleeson CJ, Gummow, Hayne and Callinan JJ said: "Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies."
5. The Clark "principle", whether intended or not, has been given an interpretation in its practical application of dictating the particular path that a sentencing judge must follow. It is inconsistent with the flexibility to be afforded to sentencing judges in the exercise of the sentencing discretion.
6. It is, nevertheless, important to recognise one of the constraints mentioned in the final sentence of the quotation above; the need for consistency of approach in the assessment of sentence. The importance of this has been recently confirmed by the High Court. Speaking of individualised justice and consistency in sentencing, Kiefel CJ, Bell and Keane JJ said recently in Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 91 ALJR 1063 (at [49]): "In Elias v The Queen [(2013) 248 CLR 483 at 494-495 [27]; [2013] HCA 31], French CJ, Hayne, Kiefel, Bell and Keane JJ said: '[t]he administration of the criminal law involves individualised justice.' The imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned to do justice in that case. It is also the case that, as Gleeson CJ said in Wong v The Queen [(2001) 207 CLR 584 at 591 [6]; [2001] HCA 64]: '[t]he administration of criminal justice works as a system … It should be systematically fair, and that involves, amongst other things, reasonable consistency.' As was explained by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Hili v The Queen [(2010) 242 CLR 520 at 535 [49]; [2010] HCA 45]: '[t]he consistency that is sought is consistency in the application of the relevant legal principles'."
7. Kiefel CJ, Bell and Keane JJ also summarised (at [45]; and see similarly Gageler and Gordon JJ at [79]) the passage from the judgment of Gleeson CJ, Gummow, Hayne and Callinan JJ in Markarian v The Queen at [30]-[39] as follows: "[T]he imposition of a just sentence is not to be approached as if it were a mechanical or arithmetical exercise."
8. Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 was referred to by Simpson JA in Robertson v R (at [91]) in relation to prescriptive constraints on the sentencing discretion. The majority in the High Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) dealt with an issue of whether there was a "norm" for the setting of a non-parole period in sentencing for federal offences in this way (at 532-533 [36]-[38]): "The proposition stated by the Court of Criminal Appeal in this matter: 'that the 'norm' for a period of mandatory imprisonment under the Commonwealth legislation is between 60 and 66 per cent, which figure will be affected by special circumstances applicable to a particular offender' should not be accepted. Its error is revealed by consideration of two points: the first point is a general proposition about references to a 'norm'; the second comprises a set of more specific propositions drawn from what was said by the Queensland Court of Appeal in Ruha. [For present purposes it is unnecessary to be concerned about the propositions drawn from R v Ruha [2010] QCA 10; 198 A Crim R 430.] First, any reference to a 'norm' for non-parole periods for federal offences is, at the very least, apt to mislead. Reference to a 'norm' is ambiguous. It does not reveal whether the proposition is prescriptive or descriptive. That is, is the 'norm' that is identified a statement of what ought to be, or is it an observation of what has been done in past cases? If it is the former, what is its statutory root? As the earlier description of the applicable statutory provisions shows, there is none. Is it a proposition of universal application, or are there exceptions? Apparently there are exceptions: in 'special circumstances'. What are 'special circumstances'? What is the source of these exceptions? None was identified. If reference to a 'norm' is intended as a compendious description of what has been done in other cases, what are those other cases? Why are they useful comparators? Is the historical description of what has been done intended to guide what should be done thereafter? What is the principle that will tell a sentencing judge when or how the 'norm' should be applied? Even if the ambiguities inherent in references to a 'norm' were to be resolved, references to a 'norm' will necessarily mislead if they distract attention from the applicable statutory provisions: Pt IB of the Crimes Act. They will mislead if they suggest that the same kind of sentencing outcome will generally be expected in the sentencing of any federal offender. That is, they will mislead if they are read as saying that the same proportionate relationship should (or should normally) exist, between the time that is to be served in prison and the length of the head sentence imposed, in relation to all federal offences, no matter whether the offender has defrauded the Commonwealth, has been knowingly concerned in the importation of prohibited imports, or has committed some other federal offence. They will mislead if they suggest that matters such as the absence of prior convictions, or the willingness to co-operate with authorities, can have no effect on fixing a non-parole period, or time to be served before a recognisance release order takes effect, greater than a stated small percentage of the head sentence. They will mislead if they suggest that the offender must demonstrate some special circumstance to warrant departure from a set, mathematically calculated, relationship between the time to be served in custody and the head sentence."
9. Precisely the same reasoning is applicable in respect of the Clark "principle". The "principle", that drug trafficking alone in any substantial degree should normally lead to a custodial sentence and it will only be in exceptional circumstances that a non-custodial sentence will be appropriate was not stated in terms that indicate it was descriptive, that is "an observation of what has been done in past cases". Rather, it was prescriptive; "a statement of what ought to be". Crucially, it had no "statutory root". Further, it was expressed as being of "universal application" subject only to there being identified "exceptional circumstances"; and no such circumstances were identified.
10. The "principle" is also apt to mislead in that once it is conceded, or concluded, that there was "trafficking alone in any substantial degree", it suggests that the offender must demonstrate that there are exceptional circumstances before the sentencing discretion can extend to the imposition of a "non-custodial" sentence. (Non-custodial in the sense of not being one of full-time imprisonment: R v Leslie.)
11. The majority judgment in Hili v The Queen; Jones v The Queen rejected the notion of there being a "norm" in relation to the setting of a non-parole period for federal sentences, concluding in part by saying (at 534 [44]): "It is wrong to begin from some assumed starting point and then seek to identify 'special circumstances'. Rather, a sentencing judge should determine the length of sentence to be served before a recognisance release order takes effect by reference to, and application of, the principles identified by this Court in Power, Deakin and Bugmy."
12. The Clark "principle", in its practical application, has entailed precisely what the majority criticised in that passage. First, it entails a determination whether there has been "trafficking alone in any substantial degree". If that is the case, then there is an assumed starting point of a full-time custodial sentence unless "exceptional circumstances" can be identified. That is how the issue was approached in the present case. The first issue was conceded. It then became a matter of the applicant having an onus of persuading the sentencing judge that there were "exceptional circumstances".
13. Simpson JA was correct to refer in Robertson v R (at [89]) to the "principle" in Clark as one that "crosses the boundary between identifying the 'unifying principles' to be applied in any sentencing decision and imposing an unlegislated judicially created constraint on the sentencing discretion". She explained (at [90]): "First, there is no statutory warrant for any such prescription. Second, the prescription fails to define 'drug dealing to a substantial degree'. Third, the prescription fails to define what might constitute 'exceptional circumstances'. Fourth, the prescription fails to identify the source of the exception."
14. For these reasons, the "principle" described in Clark - that drug trafficking alone in any substantial degree should normally lead to a custodial sentence and it will only be in exceptional circumstances that a non-custodial sentence will be appropriate - should no longer be applied in sentencing for drug supply cases.

How should sentencing in drug supply cases be approached?

1. Sentencing in drug supply cases should be approached in a manner consistent with the general principles referred to earlier. Nonetheless, there are some matters that should be emphasised.
2. First, it is necessary for a sentencing court to be mindful of the purposes of sentencing listed in s 3A of the Crimes (Sentencing Procedure) Act which include "(b) to prevent crime by deterring the offender and other persons from committing similar offences" and "(c) to protect the community from the offender".
3. Since at least the 1970s (see the cases referred to above at [63]ff) there has been no doubt about the importance of general deterrence in drug supply cases. An inherent characteristic of most activity relating to illicit drug supply is that participants take steps to ensure it is carried out covertly with the result that significant resources have had to be devoted by law enforcement authorities to detection and successful prosecution. A consistent message of deterrence from sentencing judges is necessary.
4. Further, having regard to the social impact of drug use, particularly as an underlying cause of other criminal offending, protection of the community will usually be of significance as well.
5. Secondly, it is necessary for sentencing judges to remain mindful of the maximum penalty and any standard non-parole period. They are legislative guideposts (Muldrock v The Queen (2011) 244 CLR 120 at 132 [27]; [2011] HCA 39) and for drug supply offences they are set at a high level. Gleeson CJ, Gummow, Hayne and Callinan JJ spoke of the importance of having regard to the maximum penalty in Markarian v The Queen at 372 [31] as follows: "[C]areful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick."
6. Thirdly, Simpson JA in Robertson v R at [50] was, with respect, correct to observe: "[I]t may be accepted that examination and analysis of sentencing practices establishes that, where the facts of an offence demonstrate drug dealing "to a substantial degree", a sentence of imprisonment will ordinarily be imposed. Moreover, recognition of the serious social implications of drug dealing (reflected, if in nothing else, in the maximum prescribed sentences) suggests that, in the ordinary case, a sentence other than imprisonment will fail to meet sentencing objectives."
7. Finally, it is a requirement of the Crimes (Sentencing Procedure) Act that, "A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate" (s 5(1)). This is a consideration of the possibility of options such as a fine, a bond, or a community service order (at present) rather than of the possible alternative ways in which a sentence of imprisonment might be served (presently, by way of full-time imprisonment, home detention or an intensive correction order). As Simpson JA noted in Robertson v R at [97]: "[T]here is nothing in s 5 that directs a judge, having decided that no alternative to imprisonment is a viable option, then to exclude from consideration any non-custodial means by which the sentence may be served."
8. What her Honour said is consistent with the approach endorsed by this Court: R v Foster [2001] NSWCCA 215; 33 MVR 565 at [30]; R v Zamagias [2002] NSWCCA 17 at [22]-[29]; and Douar v R [2005] NSWCCA 455; 159 A Crim R 154 at [70]-[72]. That approach is to determine: (1) whether no sentence other than imprisonment is appropriate (regardless of how it might be served); (2) if so, the length of such a sentence (regardless of how it might be served); and (3) whether any alternatives to full-time incarceration are available and appropriate.
9. As to the appropriateness of imposing a sentence of imprisonment to be served in some alternative way, it is important to have regard to the following from the judgment of Howie J in R v Zamagias at [28] (and see similarly in the judgment of Johnson J in Douar v R at [72]): "[T]he appropriateness of an alternative to full time custody will depend on a number of factors, one of importance being whether such an alternative would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purposes of punishment. The court in choosing an alternative to full time custody cannot lose sight of the fact that the more lenient the alternative the less likely it is to fulfil all the purposes of punishment." (Citation of authority omitted)

Conclusion

1. There was error in the exercise of the sentencing discretion in the present case by the sentencing judge having had regard to, and purporting to comply with, the Clark "principle". This is not a criticism, as his Honour was required by the doctrine of precedent to do so.
2. As it happened, due to the judge's determination that imprisonment was appropriate and that it should be for 4 years, there was no available alternative to full-time custody. The debate about exceptional circumstances could, in hindsight, be seen as redundant.
3. Despite the fact that the result might not have been affected, it remains that his Honour allowed an extraneous or irrelevant matter to guide him along the path to his determination. In that sense, the sentencing discretion miscarried.
4. Leave to appeal should be granted and Ground 1A should be upheld. It is therefore unnecessary to decide Ground 2.
5. It is necessary for this Court to re-exercise the sentencing discretion afresh: Kentwell v The Queen (2014) 252 CLR 601 at 617-618 [42]; [2014] HCA 37. The question for the Court is whether some other sentence, whether more or less severe, is warranted in law and should have been passed: s 6(3) of the Criminal Appeal Act.

Resentencing

1. Although it is unnecessary to determine Ground 3 (manifest excess), it is useful to have regard to some of the submissions that were made in relation to it.
2. The written submissions of senior counsel for the applicant raised the following contentions: ● The offences were serious but they were found to be towards the low end of the range (sequences 1 and 9) and at the lowest end of the range (sequence 5). ● There was an exceptional subjective case. ● There was a degree of partial (notional) accumulation of the indicative sentences notwithstanding that the reasons for offending, the date of the offences and the period of offending behaviour (generally) were identical. ● Each of the indicative sentences, and the aggregate sentence itself, were manifestly excessive when the objective circumstances are properly considered in the context of the subjective case.
3. Affidavits of the applicant and his solicitor were read at the hearing of the application. The applicant deposed to certain events that had given rise to him experiencing anxiety and elevated blood pressure in gaol. He has been provided with medication in relation to the latter. He has engaged in employment and is willing to undertake courses. He has completed an Advance Diploma in Hospitality Management that he hopes will assist him with employment following his release. He anticipates progressing to a classification level that will permit him to have work release and study or day leave. The affidavit by the applicant's solicitor annexed Corrective Services NSW documents that support the applicant's claims as to events that have given rise to his anxiety. They also confirm that he has been a well behaved inmate.
4. It is appropriate to approach the resentencing task by accepting the findings made by the sentencing judge as to the relatively low level of objective seriousness of the offences. That said, it is necessary to be mindful that they are serious offences to start with and there are substantial maximum penalties that provide guideposts. There is the additional guidepost of the standard non-parole period for the GBL offence which is also set at a high level.
5. It is also appropriate to have regard to the various favourable findings made by the sentencing judge as to subjective matters: genuine remorse; no previous convictions and excellent prior character; excellent prospects of rehabilitation including substantial rehabilitation prior to sentencing; and unlikelihood of reoffending. The 25 per cent allowance for the early pleas of guilty should also be factored in.
6. The two matters relied upon as "extra-curial punishment" must be taken into account. The media publicity the applicant endured is of relatively minor significance; the likely loss of what was a promising career in the law is more significant.
7. Despite these favourable matters, the importance of general deterrence and protection of the community cannot be gainsaid.
8. It is important to bear in mind the need to take into account the three additional drug offences in the assessment of the sentence for the GBL offence. Further, while it must be accepted that there was a substantial degree of correlation between each offence, it cannot be said that there was no additional criminality. In these circumstances it is appropriate that there be some notional accumulation of the sentences assessed for each of the three offences.
9. In the synthesis of all of these considerations we are of the view that a sentence less than that imposed at first instance is not warranted.

Orders

1. The following orders are made: (1) Leave to appeal against sentence allowed. (2) Appeal dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 November 2017