Such a submission was based primarily upon what was argued to be the accepted successful efforts of the appellate to rid himself of drug addiction in the long period between the commission of the offences and the hearing of the plea, and the fact that he had not re-offended during such time.
22 Counsel for the respondent submits that in reality, in referring to his usual practice, the sentencing judge did little more than deal with the submissions which had been put to him and that the use of the phrase "usual practice" did not indicate that his Honour was not aware of his responsibilities in that regard. It is submitted that his Honour's remarks do not demonstrate error.
Conclusion relating to Ground 1
23 Whilst it is true that sentencing remarks should not be read as if they are the terms of a constructive trust or a will, and whilst appropriate regard needs to be given to the pressure under which trial judges are working when giving reasons for sentence, the words which were used by his Honour are clear and unambiguous. True it is that his Honour is a most experienced sentencing judge and it may well be that he intended to say that it was not unusual for there to be a non parole period fixed at a level of approximately two thirds of a head sentence. However if the plain meaning of the words do reflect his Honour's approach then it is apparent that he fell into sentencing error in using as a benchmark his "usual practice".
24 It is apparent from a consideration of the above authorities that although there is a range into which many cases fall for the fixing of a non parole period, it is not by reason of any standard practice. Rather, it is after consideration of all of the relevant factors which may vary from case to case. In such circumstances the use of the term "my usual practice" does not appear to me to be merely a semantic infelicity but an incorrect statement of principle. In such circumstances the sentencing discretion is reopened and it falls to this Court to re-sentence the appellant.
25 It should be observed that Ground 2 of the appeal is that the learned sentencing judge erred in failing to place sufficient weight on the prospects of the appellant's rehabilitation. Although if my conclusion above is correct, this ground no longer falls to be considered on this appeal, the issue of rehabilitation was a matter which it was submitted by the appellant to his Honour to be a significant sentencing factor.
26 The offences with which his Honour was concerned took place between 4 October and 20 November 2002. The count of trafficking in a commercial quantity of methylamphetamine involved 2.3 kilograms of the mixed drug; 1.25 kilograms being the commercial quantity which was applicable. The maximum term of imprisonment for that count is 25 years.
27 As the sentencing judge observed "although the period of Count 1 trafficking is relatively short, the extent of the trafficking activity was frenetic and all revolved around (the appellant)". After a careful analysis of the evidence before him, his Honour found as a fact that the value of the benefit the appellant derived in relation to Count 1 was $159,678. The circumstances surrounding the offence the subject of Count 1, were a serious example of a serious offence.
28 In the course of the plea before the sentencing judge, relatives and others who knew the appellant gave evidence. A number of medical and psychological reports relating to the issue of rehabilitation were tendered before the sentencing judge.
29 In summary the material put before the Court was that although the appellant had been a heroin user from approximately 1992, it was not until he suffered serious injuries in a motor car accident in early 1998 that he became addicted to heroin. Between 1999 and 2000 he decided to undergo rapid detoxification which failed. At the time of the commission of the offences the appellant was actively seeking treatment by means of a naltraxone implant which was put in place on 11 October 2002. After his arrest on 20 November 2002 he was bailed on 24 February 2003. However, by reason of a positive urine test his bail was revoked on 17 April 2003. The appellant was re-bailed on 27 June 2003 on condition that he undertake a residential rehabilitation program at Raymond Hayden Clinic. Unfortunately, whilst attending that clinic in July 2003 he was a passenger in a motor car involved in an accident whereby the driver was killed and he, the appellant, suffered further serious injuries. The evidence before the Court was that thereafter the appellant had not used illicit substances.
30 In his comprehensive reasons for sentence his Honour took into account the fact that he was making a pecuniary penalty order on sentence as well as the facts relevant to the appellant's age and background. He observed that the appellant had been engaged in full time employment in a family business until 1998 when he had had a motor car accident in New South Wales and had sustained serious injuries. He noted that although he had used heroin periodically prior to the accident the appellant thereafter found that heroin helped to relieve the pain associated with his injuries and that thereafter he became involved in heavy heroin use. He referred to the attempt of the appellant to detoxify in 1999-2000. He observed that early in 2001 the appellant commenced using amphetamines to help with his reduction in the use of heroin but instead he developed a severe amphetamine addiction. His Honour remarked upon the fact that it was asserted that in the period leading up to October 2002 the appellant's heroin use was "rampant". He accepted that at the time of the trafficking offence, the subject of Count 1, the appellant was addicted to both heroin and amphetamine. However, taking into account the scale of the trafficking by the appellant, he concluded that his addiction had little bearing upon his moral culpability.
31 It should be observed that by reason of the appellant's challenge to the prosecution contention that many of the transactions of trafficking on Count 1 were in quantities of one ounce of amphetamine rather than one gram thereof, his Honour carefully analysed the evidence relating to the precise nature of many of the transactions. It is apparent from that evidence that the trafficking by the appellant was conducted at a high level of culpability, both in the number and nature of transactions, and in the fact that the appellant was a central figure in distributing the drug to others.
32 Mr Holdenson in his submissions this morning referred to his Honour's consideration of the issues relevant to rehabilitation, but submits that notwithstanding the fact that such issues were referred to in his Honour's sentencing remarks, insufficient weight was taken of those matters in handing down the final sentence.
33 In my opinion it is clear that particular attention was paid by his Honour to the possibility of the appellant's rehabilitation. He observed that the appellant had had a close family and that that family would be supportive of the appellant whilst he was in custody. He referred to testimonials which had been provided to him and which spoke positively about efforts of the appellant to get his "life back together". He noted that the strong family support of the appellant was a "positive indicator for rehabilitation" although he noted that the appellant had also had strong family support at the time of the commission of the offences. He paid careful attention to the pleas of guilt and noted the entitlement of the appellant to a reduction in the sentence which would otherwise have been imposed. He gave careful and appropriate consideration to the issues of parity.
34 Each of these matters to which the learned sentencing judge referred is relevant to our consideration of the appropriate sentence.
35 In my opinion, his Honour's cumulation upon Count 1 of three months of the sentence imposed on Count 2 which related to a significant sum exceeding $84,000 which was laundered and of three months on the sentence imposed on Count 3 being a count of trafficking in heroin on at least two occasions and involving one and a half ounces of heroin, was both reasonable and modest in all the circumstances.
36 Notwithstanding all that might be said in mitigation in this matter, general deterrence in particular is an issue of importance. As I have said the maximum
penalty for trafficking in a commercial quantity of amphetamine is imprisonment for 25 years. The quantity trafficked by the appellant was at the upper limit of the range of 1.5 kilograms to 2.5 kilograms, a commercial quantity as defined by the Drugs, Poisons and Controlled Substances Act.
37 Taking into account that matter and the number of actual transactions established by the evidence, and notwithstanding the mitigatory evidence put before the Court, a head sentence of six years' imprisonment for Count 1 strikes me as an entirely appropriate sentence which balances fairly the requirements of general and specific deterrence with the particular personal circumstances of the appellant.
38 I do not understand Mr Holdenson to argue otherwise in relation to the head sentence, but he contends that the non parole period inadequately reflects the matters put before the sentencing judge. Likewise, I consider that the sentences imposed previously on Counts 2, 3 and 4 are appropriate in all of the circumstances. In my opinion a cumulation upon Count 1 of three months of the sentence imposed on Count 2, which related to a significant sum exceeding $84,000 which was laundered, and of three months on the sentence imposed on Count 3, being a count of trafficking in heroin on at least two occasions and involving one and a half ounces of heroin, is both reasonable and modest in all the circumstances.
39 Notwithstanding the fact that there is the evidence of rehabilitation from drug abuse by the appellant during the period between arrest and sentence and that there are indeed reasonable prospects for his rehabilitation, I do not consider that an appropriate non parole period is other than that fixed by the sentencing judge. I conclude that the sentence should be re-imposed in accordance with the sentence imposed originally by his Honour.
VINCENT JA:
40 I agree.
REDLICH JA:
41 I also agree.
VINCENT JA:
42 The orders of the court are that the appeal is allowed.
The sentences imposed in the court below are quashed and re-imposed, that is:
On Count 1 - six years' imprisonment;
On Count 2 - two years and six months' imprisonment;
On Count 3 - six months' imprisonment;
On Count 4 - one months' imprisonment.
The Court directs that three months of the sentence imposed on each of Counts 2 and 3 be served cumulatively upon each other and upon the sentence imposed on Count 1, making a total effective sentence of six years and six months' imprisonment, in respect of which the court fixes a non parole period of four years and four months.
It is declared that the period of 568 days is to be reckoned as already served under the sentence hereby imposed and it is ordered that there be noted in the records of the court the fact that this declaration was made and its details.
43 The court otherwise confirms the orders made pursuant to the Confiscation Act 1997 and s.464ZF(2) of the Crimes Act 1958 on 20 January 2006.