Quayle v R

Court of Criminal Appeal (NSW)|2010-02-11|Before: Grove J, Simpson J, Hulme J

CITATION: Quayle v R [2010] NSWCCA 16

HEARING DATE(S): 11 February 2010 JUDGMENT OF: Grove J at 1; Simpson J at 2; RA Hulme J at 3

DECISION: Leave to appeal granted. Appeal allowed. Sentences quashed. Re-sentenced.

CATCHWORDS: CRIMINAL LAW - sentence - supply prohibited drug (methylamphetamine) - no financial gain - evidence of substantial rehabilitation - sentences manifestly excessive

Drugs Misuse and Trafficking Act 1985 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Crimes (Administration of Sentences) Act 1999

R v Bloomfield (1998) 44 NSWLR 734 R v Brown [1999] NSWCCA 349 R v Busuttil [2000] NSWCCA 383 R v El-Hayek [2004] NSWCCA 25 R v Emanuel [2004] NSWCCA 267 R v Fathers, unreported, Court of Criminal Appeal NSW, 31 August 1994 R v Galati [2003] NSWCCA 148 R v Garner [2009] NSWCCA 79 CASES CITED : R v Groat [2001] NSWCCA 452 R v Hemsley [2004] NSWCCA 228 R v Holden [2002] NSWCCA 397 R v Kenny [2000] NSWCCA 92 R v Langdon, unreported, Court of Criminal Appeal, 18 November 1996 R v Novakovic [2004] NSWCCA 437 R v Simpson [2001] NSWCCA 534; 2001 53 NSWLR 704 Regina v Gu [2006] NSWCCA 104 Wong v The Queen [2001] HCA 64; 207 CLR 584

PARTIES: Andrew David QUAYLE (Applicant) Regina (Respondent)

COUNSEL: Mr D Patch (Applicant) Mr M Grogan (Respondent)

SOLICITORS: Greg Murray Law Solicitor for Public Prosecutions

IN THE COURT OF CRIMINAL APPEAL 2007/7949

GROVE J SIMPSON J R A HULME J

11 February 2010 Andrew David QUAYLE v Regina Judgment 1 GROVE J: I agree with R A Hulme J. 2 SIMPSON J: I agree with R A Hulme J.

3 R A HULME J: The applicant was sentenced on the 21 November 2008 by Woods ADCJ in the District Court at Dubbo for two offences of supplying a prohibited drug, namely methylamphetamine. These are offences against s 25(1) Drugs Misuse and Trafficking Act 1985 and the prescribed maximum penalty is imprisonment for 15 years and/or a fine of 2000 penalty units.

4 The applicant had been convicted after jury trial in respect of the offence committed first in time but had pleaded guilty to the second offence.

5 The sentences imposed were imprisonment for 4 years 6 months with a non-parole period of 3 years 4 months dating from 3 September 2008 (for the second offence) and imprisonment for 6 years with a non-parole period of 4 years dating from 3 September 2010 (for the first offence). The overall sentence was one of 8 years with an effective non-parole period of 6 years. The applicant is eligible for release on parole on 2 September 2014.

6 The sentencing judge recounted the facts relating to the offences as follows: "The offender was a truck driver and on 10 August 2006 he was seen by police leaving a house in Dubbo which had been under police surveillance. The police followed his vehicle, a prime mover and when he stopped at the Ampol Service Station they spoke to him and searched his truck and found quantities of the drug which was later sent to the analytical laboratories and certified to be methylamphetamine with a total quantity of 51.26 grams. The total amount was found in different amounts and packaging.

The police also found other items, including a supply of clear plastic bags, a set of scales and also in the briefcase with the drugs was an amount of $2000 in cash, in $50 notes all nearly bundled.

At the time he stated to police that all the drugs were for his own use and that he had not had time to split up the amount of drugs into small convenient lots for use when needed. He also said that it was common for truck drivers to purchase a large amount of the drugs because of the cost and then to split it up into the smaller needs. This defence was also presented to the jury in the trial and it included his comments that because of the heavy demands on truck drivers and to keep the schedules and to keep their job they had to work long hours to keep their jobs and, therefore, most truck drivers used drugs to stay awake for the long hours needed on the road.

Following the trial the jury found him guilty of the supply of prohibited drugs and for this purpose they considered the deeming provision for the supply of drugs in section 29 of the act.

The further facts are that seven weeks after the first apprehension already noted above, on 29 September 2006, while he was on bail, thus conditional liberty for the earlier offence, the offender was again stopped by police, this time whilst driving a utility motor vehicle in Baird Street, Dubbo and when the police searched the offender and the vehicle they found various quantities and packaging of drugs which was later sent to the analytical laboratories and certified to be methylamphetamine with a total quantity of 67 grams. There was also found on that occasion a quantity of clear resealable plastic bags and scales.

On this occasion he said to the police that the amount of the drugs was partly for his own use but also for a couple of other drivers who had given him the money to obtain drugs for them. He pleaded guilty to this count when the matter came before the court for trial on 27 September 2007 and the matter for sentence was then adjourned pending the trial on the other count".

7 The applicant was born in September 1971 so at the time of the offences he was aged 34 - 35 and at the time of sentence he was aged 37.

8 He has a criminal history but it is confined to traffic offences committed in 1990 and 1991 for which fines and relatively short periods of disqualification were imposed.

9 He was raised and educated in the Quirindi area and upon leaving school he completed a motor mechanics apprenticeship. He then moved to Dubbo where he became married. The marriage produced three children but subsequently broke down.

10 The applicant spent most of his working life as a long distance truck driver. He described to Mr Philip Nolan, psychologist, that the work was highly demanding and he drove long hours but it was financially rewarding.

11 After his arrest for the second offence the applicant was remanded in custody until he was granted bail on 16 November 2006. It was a condition of the bail that he reside with his parents in Quirindi and not engage in employment in the truck driving industry. The applicant secured employment as a mechanic at a feedlot in the Quirindi area and, although he experienced a significant reduction in his income, he told Mr Nolan that he was happy in that employment and saw it as an opportunity to rebuild his life.

12 The applicant had a history of amphetamine use. He claimed that this commenced because of the scheduling demands placed upon him in his work. He had three serious accidents driving trucks, one in 2002 near Dirranbandi, another in 2003 near Gatton and a further accident near Goondiwindi in 2004. In relation to the latter he had fallen asleep at the wheel of his truck and rolled the vehicle. He was off work for a period of 18 months as a result of his injuries. He continued, however, to use amphetamines during that period. On returning to work in 2006 he undertook shorter journeys for a time and stopped using drugs but upon resumption of long haul routes he re-commenced using amphetamines because of his fear of falling asleep and experiencing another accident.

13 He told Mr Nolan that since the 2004 accident he had experienced recurrent nightmares and flashbacks. He also had symptoms of anxiety and depression which were confirmed in testing conducted by Mr Nolan in March and May 2007.

14 It is pertinent to note the following in Mr Nolan's report of 16 July 2007 in relation to the applicant's drug use: "On the information Mr Quayle has given me, his drug use was mostly situational. He does not apparently have a past history of drug use. He admitted that he continued to use amphetamines while he was off work during 2005. This appears to be the only period he has been involved in substance abuse outside his work as a driver. Mr Quayle's main justification for the drug use was to function when driving. Using drugs while off work is inconsistent with this rationalisation. In my opinion, the fact that he used drugs during the period he was off work suggests he may have been either psychologically or physically dependent on them at the time. Stresses at the time arose from his work injuries and marital stress. Since his being charged with the current matters he has not used any illegal substances. He smokes and drinks alcohol occasionally."

15 Mr Nolan continued by expressing the opinion that there was a minimal risk that the applicant would return to drug use in any situation other than long distance driving. He said that the applicant's history suggested that drug use was associated only with that employment and that his current lifestyle gave no suggestion of addiction or dependency problems in any aspect of his life.

16 The psychometric tests administered by Mr Nolan in conjunction with his clinical evaluation yielded a diagnosis that the applicant was suffering from post-traumatic stress disorder and that, given the symptoms had a duration in excess of three months, the condition was classified as chronic. Mr Nolan observed, however, that the symptom level and degree of debilitation indicated that this was in the "mild to moderate" rather than "severe" range. Mr Nolan added that the applicant had shown improvement as at the date of his report and that, with support, should continue to do so.

17 Mr Nolan was not engaged initially for the purpose of preparing a report for use in the sentencing proceedings. The applicant had sought him out by himself and there was a subsequent referral by his general practitioner under a mental health plan for ongoing psychological treatment.

18 There was other evidence before the sentencing judge which confirmed the applicant's abstention from drug use since his second arrest. A Probation and Parole Officer who prepared a Pre Sentence Report in March 2007 stated that enquiries of an alcohol and other drugs worker had indicated that the applicant had attended eight sessions of counselling which were directed to establishing strategies to address relapse prevention. He also reported that the applicant's then current employer and the applicant's partner had observed no indications of continued drug use.

19 As part of that Probation and Parole Officer's conclusions he indicated that he saw little need for intervention by his Service given that the applicant had no significant record, that he had removed himself from the employment that brought about his involvement with drugs, and that he had already sought relevant counselling.

20 A second Pre Sentence Report of November 2008 included that the applicant claimed that he had continued to avoid drug use, had been attending drug and alcohol counselling in Tamworth and that regular urinalysis sampling had not detected any drugs in his system. The author of that report expressed concern that the applicant had minimised his involvement in the supply of drugs, claiming that the drugs were primarily for his own use but also to "help out some friends". It was that officer's opinion that the applicant was suitable for a "medium" level of intervention by his Service and that supervision would involve addressing drug relapse prevention and monitoring illicit drug usage through urinalysis testing.

21 Pathology reports were before the judge which indicated that in respect of tests conducted in July and November 2007 and January, February and July 2008, no prohibited drugs were detected.

22 Also before the judge were a number of testimonials which attested to the high regard with which the applicant was held both in his employment and generally within the Quirindi community.

23 The applicant gave evidence in the sentence proceedings. He confirmed that he had not used drugs since his second arrest in September 2006. He also confirmed that he had no intention of returning to long distance truck driving. In that regard he said: "No way in the world. I've had three accidents, a divorce, a gaol term and it has turned me right off that industry whatsoever. I just don't want to have nothing to do with them."

24 The applicant also confirmed that since returning to live at Quirindi, although he was not doing as well financially, he was happier because of the improvement in his quality of life, having weekends off, being home every night, and being able to spend time with his family and his children.

25 The applicant's mother gave evidence in which she confirmed that the applicant had "changed dramatically with the help of the counsellors, the psychologists" and that undertaking the counselling program with the local health service had been something carried out at the applicant's own initiative.

26 The applicant's current partner and the manager of the feedlot also gave evidence that supported the case made for the applicant concerning his rehabilitation.

27 None of the evidence led or produced on behalf of the applicant was the subject of any contest by the Crown. Indeed it was submitted on behalf of the Crown immediately after the conclusion of the oral evidence that: "I might say now, to assist I might say, there is authority to say where there is demonstrated rehabilitation, even in drug matters, where to imprison someone full-time would nullify that rehabilitation, that is exceptional circumstances. The Crown doesn't cavil with the evidence this man led."

28 The case advanced on behalf of the applicant in the District Court was to the effect that he had undergone such a significant degree of rehabilitation in the two years prior to sentence that the case should be regarded as exceptional and that although a sentence of imprisonment had to be imposed it should be ordered to be served by way of periodic detention.

29 The Crown's response was neutral. At the conclusion of the submissions made on behalf of the applicant the Crown representative made further reference to the need for there to be exceptional circumstances in order to justify a sentence other than full-time imprisonment. There was reference to cases which were said to be authority for a proposition that there could be exceptional circumstances if there was a demonstrated process of rehabilitation that would be nullified by the imposition of a full-time custodial sentence. However the judge's attention was also drawn to the fact that before him were two discrete offences and that the applicant had been supplying to other truck drivers who were on the road for lengthy hours thereby putting other road users at risk.

30 Immediately following his survey of the facts the sentencing judge made reference to the judgment of Howie J, with whom Grove and Simpson JJ agreed, in Regina v Gu [2006] NSWCCA 104 in which his Honour said: "27 …There has been a consistent line of authority in this Court that has made it quite clear that, unless there are truly exceptional circumstances present, a full-time custodial sentence ought to be imposed wherever the offender has been substantially involved in the supply of prohibited drugs; see R v Blanco (NSWCCA, unreported, 22 October 1987). It applies whether or not the offender has made a profit from the supply of drugs and a profit is an aggravating circumstance: R v Clarke (NSWCCA, unreported, 15 March 1990). Efforts at reform and rehabilitation since the offending will not generally be regarded as amounting to exceptional circumstances: R v Thompson (NSWCCA, unreported, 4 April 1994). The policy behind this line of authority has been held to be a rule to which sentencing judges must give serious consideration: R v Cacciola (1998) 104 A Crim R 178. It has been most recently referred to by Hulme J in R v Harmouche [2005] NSWCCA 398.

31 The judge made reference to the harm to the community that drugs cause. He said that the applicant being "able to access such a large amount of drugs of such high quality does suggest a degree of planning". He "noted" the efforts that the applicant had made in respect of rehabilitation, and referred to some of the evidence on that topic, but concluded that the circumstances were not so exceptional as to permit anything other than a full-time custodial sentence being imposed. That finding has not been challenged in these proceedings.

32 The judge reiterated the need for general deterrence and also stated that a custodial sentence was required as a deterrent to the applicant himself. He also concluded that the two offences were quite separate and distinct which warranted a degree of accumulation.

33 The judge made reference to the applicant's expression of regret for his actions but said that this appeared to be more regret for the predicament that the applicant found himself in and the effect it had upon his family rather than a regret concerning the effect "generally on society that the supply of drugs may cause".

34 The only matter of mitigation about which the judge made a definitive finding was the applicant's plea of guilty in respect of the second offence. He concluded that the utilitarian value of that plea warranted a reduction of the sentence for that offence of 25 per cent.

35 Statistics in relation to sentencing for this offence maintained by the Judicial Commission of New South Wales were placed before the judge. In respect of these the judge stated that "statistics are a blunt tool" and that in his view they could not determine the appropriate sentence in a particular case. He noted the maximum penalty of imprisonment for 15 years and then said: "(T)he tariffs of sentences ordered range generally between one and four years which, considering how destructive these drugs can be within society, do seem to be very low tariffs".

36 The judge did not make any direct finding as to the objective seriousness of the offences apart from observing that each was a case of possession deemed to be for the purpose of supply and "cannot be seen as at the top end of seriousness".

37 The applicant was remanded in custody at the conclusion of the trial in respect of the first of the offences on 16 October 2008. The judge noted that he had previously spent some time in custody prior to being released on bail which he referred to as a period of 44 days. In fact, the applicant had gone into custody following his arrest on 29 September 2006 and was released on bail on 16 November 2006, a period of 49 days. Accordingly there was an error in backdating the sentence to 3 September 2008. The first sentence should have been ordered to date from 29 August 2008.

38 In a notice of intention to appeal filed on 30 September 2009 the following grounds of appeal are notified: Ground 1 : The learned sentencing judge did not take into account, or did not properly or sufficiently take into account, some matters which amounted to "special circumstances" under section 44(2) of the Crimes (Sentencing Procedure) Act 1999

Ground 2 : The learned sentencing judge sentenced the applicant by first setting the total sentence for each offence, and then determining the non-parole period, in beach of section 44(1) of the Crimes (Sentencing Procedure) Act 1999

Ground 3 : The learned sentencing judge commenced his assessment of the appropriate penalty for each offence with the same starting point of a six year total term, when in fact the criminality involved in each offence was different

Ground 4 : The learned sentencing judge did not take into account, when determining the length of the non-parole period and the period on parole that the applicant was suffering from a Post Traumatic Stress Disorder

Ground 5 : The learned sentencing judge wrongly took into account, as an aggravating feature under section 21A of the Crimes (Sentencing Procedure) Act , that there was "a degree of planning" in the offences

Ground 6 : The learned sentencing judge failed to assess the evidence in the trial and reach his own view of the facts upon which he would sentence the applicant

Ground 7 : The learned sentencing judge failed to take into account the fact that there had been a significant delay (more than two years) between the commission of the offences and the time of sentence, coupled with significant rehabilitation by the applicant

Ground 8 : The learned sentencing judge did not take into account, or did not sufficiently take into account, the fact that the applicant had been required to abide by onerous bail conditions up until his conviction

Ground 9 : The learned sentencing judge did not adequately take into account the applicant's remorse and acceptance of responsibility

39 I propose to deal only briefly with grounds one to nine, as my conclusion is that the sentences are manifestly excessive.

40 The essence of the complaint under Ground 1 is that there was material capable of amounting to "special circumstances" and that the judge should have made such a finding and reduced the proportion of the sentences represented by the non-parole period. The matters alluded to were the applicant's rehabilitation in the two years preceding sentence; his need for an extended period of supervision on parole; the fact that he was suffering from post-traumatic stress disorder; and the accumulation of the two sentences. Clearly the judge found special circumstances, although he did not use that term, in respect of the accumulation of sentences because he made an adjustment to the non-parole period in respect of the second sentence so that the overall sentence conformed with the statutory ratio. The judge did not at any stage make reference in terms to special circumstances. Indeed it was not submitted on the applicant's behalf that such a finding should be made. The primary submission made before the judge on behalf of the applicant was that he should order that a sentence of imprisonment be served by way of periodic detention. However, that did not preclude a submission being made that special circumstances should be found.

41 It is difficult to say that a judge was in error for not doing something that he or she was not asked to do. A finding that there are, or are not, special circumstances is a discretionary finding of fact: see R v El-Hayek [2004] NSWCCA 25 per Howie J at [103]. In a case in which there are compelling circumstances for making such a finding, and the judge is in fact asked to do so, one might expect that if the judge declines to do so he or she would provide reasons: R v Novakovic [2004] NSWCCA 437 at [39] per Sully J. Cf R v Simpson [2001] NSWCCA 534; 2001 53 NSWLR 704 Spigelman CJ at [86]-[88]. It is unnecessary to express a concluded view about this ground because of the conclusion I have reached in relation to the total sentences themselves.

42 There is no merit in Ground 2. Section 44(1) Crimes (Sentencing Procedure) Act provides: "When sentencing an offender to imprisonment for an offence, the Court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence)."

43 Whilst the judge referred to the total terms of imprisonment that he was going to impose when giving reasons for the partial accumulation that he had in mind and the reduction for the plea of guilty for the second of the offences, when he came to announce the sentences he announced them in accordance with the legislative requirement.

44 In relation to Ground 3 it was submitted that the second offence had an aggravating feature (the applicant was on conditional liberty) that was not present in relation to the first offence. It was submitted that as a consequence by assessing the starting point at six years for both offences the starting point for the first offence must have been too high. True it is that the second offence had that aggravating feature and a distinction might well have been made for that reason. Apart from the conditional liberty aspect the circumstances of the two offences were largely indistinguishable.

45 In respect of Ground 4 it was contended that the fact that the applicant was suffering from post-traumatic stress disorder should have led to a reduction of the total term in respect of both of the offences. It was submitted that the fact that the applicant was suffering from "a mental disorder was relevant and potentially significant" and that accordingly the judge was "obliged to take it into account". I have earlier referred to the opinion of the psychologist that the symptom level and degree of debilitation caused to the applicant by the post-traumatic stress disorder was in the "mild to moderate rather than severe range". There was no material upon which it could be concluded that the applicant's post-traumatic stress disorder was relevant in any of the ways referred to in the authorities, see for example R v Hemsley [2004] NSWCCA 228 at [33]-[36]. Moreover there was no submission made to the judge that he should take into account this factor in the way now asserted. Indeed the relevance of this factor was confined to the issue of the rehabilitation of the applicant.

46 Ground 5 asserts that the judge erred in taking into account as an aggravating feature under s 21A(2) Crimes (Sentencing Procedure) Act that there was "a degree of planning in the offences." This assertion overstates the position. As I have earlier indicated, the judge referred to an aspect that "suggested" a degree of planning. Aside from that observation he did not make a finding beyond reasonable doubt that "the offence was part of a planned or organised criminal activity" (s 21A(2)(n)). I am not satisfied that error is disclosed.

47 In relation to Ground 6 the complaint is that the judge did not make a definitive finding as to the applicant's motivation and role in regard to the supply of the drugs in question. The judge did make reference to the applicant having told the police that the drugs that were in his possession on the first occasion were all for his own use and to him telling the police on the second occasion that the drugs were partly for his own use and partly for provision to other truck drivers. Clearly, in respect of the applicant's explanation in respect of the first offence the jury were not satisfied on the balance of probabilities. Whilst the judge did not purport to make any explicit finding of fact as to the applicant's role in the supply of drugs, the clear inference is that he sentenced in respect of both offences on the basis of the explanation given by the applicant on the second occasion, that is that the drugs were partly for his own use and partly for provision to other drivers. There is no suggestion of the judge finding that the applicant was involved for motives of financial gain. Indeed in the course of the judge's reference to s 21A he made no reference to 21A(2)(o) ("the offence was committed for financial gain").

48 Ground 7 complains that the judge failed to take into account the delay of in excess of two years between the offences and the time of sentence and the rehabilitation the applicant had undergone in that period. It is not so much the delay that was noteworthy in this case but rather the significant progress in terms of rehabilitation that the applicant had made in the intervening period. This is something that the judge "noted" in the context of considering whether there were exceptional circumstances for imposing something other than a full-time custodial sentence. He referred to it in no other context. In my view it was a matter of particular significance in the assessment of sentence.

49 Ground 8 complains that the judge did not take into account that the applicant had been required to abide by "onerous bail conditions" up until his conviction. A submission was made to the judge concerning the process of rehabilitation that the applicant had undergone and in that context reference was made to the applicant having been on bail for "quite a long period of time". It was not submitted to the judge that this should be taken into account in the terms for which the applicant now contends. There is no evidence that would support a finding that the bail conditions were particularly onerous. Indeed, the applicant gave evidence that he had been happy in the lifestyle that he had been able to lead whilst he was on bail in terms of his work, his ability to see his children on a regular basis, and in terms of his current relationship. There is no merit in this ground.

50 The final specific error raised in the grounds of appeal is that the judge did not adequately take into account the applicant's remorse and acceptance of responsibility. The judge said that whilst the applicant had expressed regret for his actions, it appeared to be more regret for what he had got himself into and how it had affected his family. This was a finding of fact which was well open to his Honour to have made. The applicant's evidence that he regretted being a supplier of drugs did not necessarily establish that he had accepted responsibility for his actions and had acknowledged the harm that his actions had caused (s 21A(3)(i) Crimes (Sentencing Procedure) Act). Moreover the judge had the advantage of having seen the applicant give evidence both at the trial and in the sentence proceedings and so he was well equipped to determine whether the applicant was genuinely remorseful.

51 I indicated earlier my view that the sentences imposed were manifestly excessive. My reasons for that conclusion are as follows.

52 At the time of sentence the applicant was 37 years old. He had no record of previous convictions of any significance. It was open on the evidence before the judge to find, although he did not find, that the applicant was a person of good character, was unlikely to re-offend, and had good prospects of rehabilitation (s 21A(3)(e)(f)(g) and (h)). A powerful case of rehabilitation was made out by the applicant and it is of considerable significance that he had been self-motivated in seeking out the psychological counselling that had assisted him in overcoming a drug dependence of some years standing. He had found worthwhile productive employment, was in a committed relationship and had strong family support.

53 Against those matters, however, it has to be recognised that the offences themselves were of significant seriousness in that on the first occasion the applicant was in possession for the purpose of supply of 51.26g of methylamphetamine and, on the second occasion, 67g of that drug. As the judge correctly noted, the trafficable quantity for methylamphetamine is 3.0g and the commercial quantity is 0.25kg. It is a matter of some significance in the assessment of the objective seriousness of the offence that the applicant was a user of drugs himself and that there was no evidence upon which it could be concluded beyond reasonable doubt that there was supply for commercial or financial gain.

54 It was open to the sentencing judge to allow a reduction of 25 per cent for the applicant's plea of guilty to the second offence. Against that, however, was the fact that this offence was committed whilst he was on bail for the first offence.

55 I have not arrived at my conclusion concerning the severity of the sentences by a review of other cases and the Judicial Commission sentencing statistics but they have confirmed it.

56 Cases such as R v Fathers, unreported, Court of Criminal Appeal NSW, 31 August 1994; R v Langdon, unreported, Court of Criminal Appeal, 18 November 1996; R v Brown [1999] NSWCCA 349; R v Kenny [2000] NSWCCA 92; R v Busuttil [2000] NSWCCA 383; R v Groat [2001] NSWCCA 452; R v Holden [2002] NSWCCA 397; R v Galati [2003] NSWCCA 148; R v Emanuel [2004] NSWCCA 267; and R v Garner [2009] NSWCCA 79; clearly demonstrate that the sentences imposed in the present case were out of all proportion to the gravity of the offences even without a consideration of the powerful subjective case advanced on behalf of the applicant. I do not propose to review the details of each of these cases but will cite two examples.

57 In R v Kenny the offender was found in possession of 58g of methylamphetamine. He admitted having dealt in the drug in the past. He was characterised as a "user/dealer". He pleaded guilty and had no previous convictions. A sentence of 2 years with a non-parole period of 12 months was reduced on appeal to 18 months with a non-parole period of 6 months.

58 In R v Galati the offender was found to be in possession of 22.75g of methylamphetamine and 19.04g of ecstasy. He was also in possession of other drugs and a number of weapons which were the basis of offences listed on a Form 1. Whilst on bail in respect of those offences he was found to be in possession of 36.88g of methylamphetamine. He was on conditional liberty at the time of all of the offences. It was found that he had been running a business selling drugs. He had a history of drug and alcohol addiction and previous convictions for a variety of offences including 14 drug offences. He had been previously imprisoned. The aggregate sentence imposed was one of 4 years with a non-parole period of 2 years.

59 The sentencing statistics that were placed before the judge and were referred to again in this Court indicate that the individual sentences imposed upon the applicant were at the upper end of the range of sentences that have been imposed in a period of approximately seven years prior to the date of sentence. The statistical database is large enough (805 cases) for these statistics to be significance even whilst acknowledging the well recognised limitations: Wong v The Queen [2001] HCA 64; 207 CLR 584 per Gaudron, Gummow and Hayne JJ at [59] and R v Bloomfield (1998) 44 NSWLR 734 per Spigelman CJ at 739.

60 The statistics indicate that of the 47 per cent of offenders who received a sentence of full-time imprisonment, the median sentence was 2 years 6 months; 80 per cent of offenders received a sentence between 18 months and 4 years; and a sentence of imprisonment for 6 years is in the top 3 per cent of all sentences imposed. Where there was a plea of guilty, a sentence of 4 years 6 months is in the top 6 per cent.

61 The conclusion I have reached is that the sentences should be quashed and the applicant re-sentenced. 62 Annexed to an affidavit of the applicant's solicitor there is a report of Ms Claire Wood, psychologist, which was filed for consideration in the event the Court came to re-sentence. It confirms much of the material that was before the District Court but also that the applicant has continued in his progress towards rehabilitation since being sentenced. He has complied with correctional centre discipline, has participated in a drug and alcohol rehabilitation group and has "reconnected" with the values instilled in him during his formative years by regularly attending church and bible studies. Ms Wood reports, however, that the applicant is still experiencing various symptoms of the post traumatic stress disorder that had been diagnosed by Mr Nolan. He also exhibits mild anxiety and moderate levels of depression. Ms Wood notes that whilst treatment is available in the correctional centre environment it is not as consistent as it might be within the community. Her opinion is to the effect that a longer period in the community under parole supervision would assist and accelerate the applicant's recovery.

63 I propose a degree of partial accumulation of the sentences to reflect the fact that they were distinct occasions of offending seven weeks apart. 64 I propose that the starting point for the sentence for the offence of 29 September 2009 be more than for the offence of 10 August 2009 to reflect the fact that is was committed whilst the applicant was on bail. However I am also of the view that the reduction of in the order of twenty-five per cent for the utilitarian value of the applicant's plea to that offence should be maintained.

65 There are special circumstances for reducing the proportion of the overall sentence represented by the non-parole period. Not only is this because of the partial accumulation but also for the reasons advanced by Ms Wood. Orders

66 I propose the following orders: 1. Grant leave to appeal.

Quash the sentences imposed in the District Court and re-sentence as follows: For the offence of 29 September 2008, sentenced to a term of imprisonment comprising a non-parole period of 1 year 6 months with a balance of the term of the sentence of 12 months. That sentence is to commence on 29 August 2008. The non-parole period expires 28 February 2010. The total term will expire 28 February 2011.

For the offence of 10 August 2008, sentenced to imprisonment comprising a non-parole period of 18 months with a balance of the term of the sentence of 18 months. That sentence is to date from 29 November 2008. I direct the release of the applicant on parole upon the expiration of the non-parole period on 28 May 2010. Parole is to be subject to the supervision prescribed by the regulations under the Crimes (Administration of Sentences) Act 1999. The total sentence will expire on 28 November 2011.

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