Ground 4
The sentences when considered as a whole are manifestly excessive.
48 Section 7(1A) of the Criminal Appeal Act provides:-
"If on any appeal against a sentence under s5(1)… the court quashes or varies the sentence passed at trial on any count or part of an indictment, the court may quash or vary any other sentence passed at the trial:
(a) In relation to any offence charged in any other count or part of the same indictment, or
(b) In relation to any offence charged in any other count or part of any indictment, or
(c) In relation to any offence dealt with under s105 of the Criminal Procedure Act 1986, or
(d) In relation to any back up offence or related offence dealt with under s167 of the Criminal Procedure Act 1986
and pass such sentence, whether more or less severe, in substitution for the other sentence as the court thinks proper, and as may be warranted in law, in respect of the offence."
49 The conclusion that his Honour reflected in the sentence for count 6 the Applicant's criminality in relation to all, or at least others, of the counts for which he stood to be sentenced casts doubt on the validity of the other custodial sentences, if indeed it does not inevitably lead to the conclusion that they are affected by error. Certainly the case is one where the Court should examine all of the sentences imposed and, if appropriate, exercise its powers under s7(1A).
50 In that connection, it should be acknowledged that the Crown did not argue that the Court should do so but the possibility, and the reasons for re-examination of the sentences on the counts other than count 6, were expressly raised with counsel for the Applicant and, in light of the first ground advanced for setting aside the sentence on count 6, it would be a travesty of justice to look merely at count 6 or counts 5 and 6. Also, although again the Crown did not make any submissions on the topic, there was raised with counsel for the Applicant the issue of the seriousness of the offences the subject of counts 1 and 2 and the question of penalties for them.
51 Counsel for the Applicant drew the Court's attention to the Judicial Commission statistics dealing with the supply of amphetamines, observing:-
"A nine year sentence is of the magnitude that would be expected to be imposed for the supply of a commercial quantity or large commercial quantity of methylamphetamine. The Judicial Commission's statistics demonstrate that only 38% of all offenders charged with supply of less than the commercial quantity of amphetamines receive any form of full time imprisonment. Of those who do receive full time imprisonment, none has ever received a sentence of 9 years imprisonment. Only one offender has received more than 6 years head sentence. That offender, like the Applicant, was charged with multiple counts. The non-parole period of 5 years and 9 months is also completely outside the range. Again only one offender received a longer non-parole period namely 6 years."
52 Indeed the statistics do tend to bear out the submission that the sentence in respect of count 6 was high and, as I have said, too high. However some further attention to the statistics is warranted. I shall not repeat reservations as to them to be found in R v Derbas [2003] NSWCCA 44 and in cases cited therein but direct attention to those in this area. In doing so, I shall use statistics more recent than those current at the hearing of the appeal, but the pattern is similar.
53 The statistics for "Higher Courts - as at October 2004, sentences from April 1997 to March 2004" for offences committed before 1 February 2003 (when the legislation providing for standard non-parole periods came into force), being the supply of a large commercial quantity of amphetamines, show:-
(i) Of 22 offenders, 21 were imprisoned.
(ii) Of the 21 imprisoned, 8 only were imprisoned for terms greater than 7 years. (These include "consecutive and non-consecutive" terms, i.e. single or cumulative sentences).
(iii) Of these 8, a sentence or sentences totalling-
8 years were imposed on 3,
9 years were imposed on 2, and
10 years were imposed on 3.
(iv) Of the 21, 17 had non-consecutive terms, and of these 17, only 6 were imprisoned for terms greater than 7 years. The number of offenders in each category in the immediately preceding sub-paragraph was 2.
54 The maximum penalty for the supply of a large commercial quantity of amphetamines, i.e. 1 kilogram or more is life imprisonment.
55 The statistics for "Higher Courts - as at October 2004, sentences from April 1997 to March 2004" for offences committed before 1 February 2003 (when the legislation providing for standard non-parole periods came into force), being the supply of a commercial quantity of amphetamines, show:-
(i) Of 61 offenders, 56 were imprisoned.
(ii) Of the 56 imprisoned, 12 only were imprisoned for terms greater than 5 years. (These include "consecutive and non-consecutive" terms, i.e. single or cumulative sentences).
(iii) Of these 12, a sentence or sentences totalling-
6 years were imposed on 8,
7 years were imposed on 1,
8 years were imposed on 2, and
9 years were imposed on 1.
(iv) Of the 56, 49 had non-consecutive terms, and of these 49, only 8 were imprisoned for terms greater than 5 years. The figures in the immediately preceding sub-paragraph varied only in that the number of offenders suffering sentences of 6 years was 4.
56 The maximum penalty for the supply of a commercial quantity of amphetamines, i.e. 250 grams or more but less than 1 kilogram is 20 years imprisonment.
57 For the supply of less than a commercial quantity of amphetamines, the statistics available cover a lesser period. The legislation providing for standard non-parole periods has no application to offences involving these quantities. The statistics for "Higher Courts - as at October 2004, sentences from April 2001 to March 2004" for offences being the supply of a commercial quantity of amphetamines, show:-
(i) Of 374 offenders, 142 were imprisoned.
(ii) Of the 142 imprisoned, 4 only were imprisoned for terms greater than 5 years. (These include "consecutive and non-consecutive" terms, i.e. single or cumulative sentences).
(iii) Of these 4, a sentence or sentences totalling-
6 years were imposed on 3, and
8 years were imposed on 1,
(iv) Of the 142, 126 had non-consecutive terms, and of these 126, only 3 were imprisoned for terms greater than 5 years. The figures in the immediately preceding sub-paragraph varied only in that the number of offenders suffering sentences of 6 years was 2.
58 The maximum penalty for the supply of less than a commercial quantity of amphetamines, i.e. less than 250 grams and, in the "Higher Courts", more than 5 grams is 15 years imprisonment.
59 Thus,
(i) In the less than commercial quantity category, where the maximum penalty is 15 years imprisonment, only 1 of 374 offenders received a sentence of more than half the maximum and only 4 received sentences of more than one-third of the maximum. ( I repeat that these statistics are from cases in the "Higher Courts" only.)
(ii) In the commercial quantity category, where the maximum penalty is 20 years imprisonment, none of 61 offenders received a sentence equal to or greater than half the maximum and only 1 received a sentence of more than one-third of the maximum.
(iii) In the large commercial quantity category, where the maximum penalty is life imprisonment, 3 of 22 offenders received a sentence of 10 years - equal to half the 20 years maximum sentence for a commercial quantity - and none received a sentence higher than that.
60 A pattern along the lines of that apparent in the preceding paragraphs might be understandable if on only few occasions were the quantities high in the respective ranges or the offenders low in the relevant range of those involved in drug supply. Experience shows that this is not so. While I appreciate that the statistics are said to reflect the collective wisdom of judges as a large group, I remain to be persuaded that the statistics do not reflect systemic leniency and insufficient attention to the statutory provisions. My reservations in this regard are strengthened by the fact that in virtually all cases, including this one, counsel for offenders eschew like the plague any attempt to argue from, or deal with, first principles of sentencing, preferring almost invariably to emphasise the statistics.
61 Counsel for the Appellant also referred the Court to the sentences imposed on some 17 other offenders in support of the claim that the sentences imposed on counts 5 and 6 were manifestly excessive. The Crown responded by pointing out distinctions between the circumstances of those cases and the facts here, distinctions which, I might say, made comparison between many of those cases and that here, pointless. A number were decisions of 2 judge benches. I have considered all of the cases cited but I do not regard it as necessary to deal with them seriatim. I accept that some, including in this Court, have followed the statistics. However in none of the cases was there examination of principle or whether the statistics properly reflected the statutory provisions.
62 Be that as it may, I prefer to base my conclusions as to the proper sentences on the application of first principles such as the terms of the statute, an assessment of where within the criminality envisaged by the relevant provision the particular offence falls - R v Peel (1971) 1 NSWLR 247 at 262 and considerations of the purposes of punishment - see Veen v R [No.2] (1987-1988) 164 CLR 465 at 476.
63 With the concurrence of Heydon JA and Carruthers AJ, I referred at greater length to these and other relevant factors in R v Markarian [2003] NSWCCA 8 at [19-22], quoting at length from some of the authorities wherein the principles have been emphasised and it is unnecessary to repeat what I there said. (The decision in that case is subject to appeal, but I do not understand there to have been any challenge to the propositions in the paragraphs just mentioned.)
64 It is sufficient for present purposes to observe that Parliament has enacted the Drug (Misuse and Trafficking) Act in the belief that the drugs to which it refers are harmful. Experience in the courts indicated that Parliament was not mistaken in that view. Parliament has imposed penalties and to some degree linked those penalties to quantities. The profits to be made from drug dealing are substantial and accordingly there is an attraction to some persons to participate in that activity, whatever Parliament may have said and whatever the deleterious impact the drugs may have on those who use them. As Wood J said in R v Schaal (unreported, 8 September 1989), "Just as those stakes are high, so, however, must be the risks if caught". While it is too much to hope that drug dealing could be eliminated completely, the extent to which it continues despite the penalties imposed to this time provides a fair indication that they have not been sufficient to achieve Parliament's aim.
65 The Applicant's offence the subject of count 6 was not a worst case of the offence with which he was charged. As has been said, the Applicant was not a principal. Furthermore, the quantity was only about half of that at the top of the range (though penalty is not simply proportional to quantity). On the other hand his criminality was deliberate and because of greed and a desire to make money. He was well up in the scheme of operations. Such persons are not easy to detect and, when they are caught, it is important that the punishment reflect fully their role. There is a further matter which seems to me also relevant here. As I said in R v Spiteri (1999) NSWCCA 3 at [39]:-
I take the view that actual imprisonment for, say 10 years, is more than twice as severe as one of imprisonment for 5 years. Having regard to the sorts of terms under consideration for drug dealing a sentence of one of the longer periods is likely to have an impact on an offender's life in terms of wife, children, job prospects and the like from which he may well never recover and these sorts of considerations also have to be borne in mind.
66 To these matters must be added the Applicant's subjective factors to most of which, or at least those of any importance, I have referred. In my view, measured against the statutory maximum of 15 years an appropriate sentence for the offence the subject of count 6, before discounts for assistance and plea, is one which involves imprisonment for 8 years. In the case of the offences the subject of counts 5 and 4, the periods should be 4 years and 2½ years respectively.
67 I would afford the Applicant a discount of 25% for the utilitarian value of his plea. Adding the approximate 5% discount for assistance to which I have referred, the result is a total discount of approximately 30%. With some rounding the appropriate terms of imprisonment for these offences become 5.5, 2.75 and 1.75 years with non-parole periods of 4 years, 2 years and 1.25 years.
68 Acting Judge Gibson said of the firearm the subject of the first and second counts:-
"When a person in the position of the prisoner was, and engaging in the business that he was, the possession of a pistol denotes only one thing, and intention to use it if he thinks it necessary. (sic)"
69 With the tenor of this passage, I agree, particularly when, as here, the firearm was found by the police in a loaded state. It behoves the Courts to discourage any tendency for such objects to become just tools of trade for those whose activities are outside the law.
70 Section 7A(1) prohibits the possession or use of a firearm unless the person is authorised to do so by a licence or permit. Given that use in the commission of some offence will, inevitably I think, render the user liable to some higher penalty, it does not seem to me that, in the context of s7A(1), use rather than possession is calculated to be more serious. Indeed, unaccompanied by possession, it is likely to be less so.
71 More dangerous firearms are likely to be the subject of offences under other sections of the Firearms Act and I have the greatest difficulty in seeing what more the Applicant could have done to bring the offence the subject of count 2 into a worst case category. Certainly it was at least close to an offence meriting the statutory maximum.
72 However, for reasons which will become apparent, I need not pursue the question of whether the sentence for count 2 should be increased.
73 I see no ground for interfering with the sentence imposed on the first count save and except that the sentences for the first and second counts should not have been entirely concurrent. To so make them, except insofar as totality may demand, is to fail to recognise the increase in criminality which arises from the commission of both offences as distinct from merely one.
74 Returning to the global picture, the effective sentence imposed by Acting Judge Gibson, was one of imprisonment for 10 years including a non-parole period of 6 years and 9 months, and a fine of $3000. The Applicant was entitled, in addition to a discount for the utilitarian value of his plea, to a further discount which I have assessed at approximately 5% for assistance. This leads me to the view that, in order to demonstrate that the Applicant is receiving some benefit from his assistance, the maximum effective sentence which should be imposed on the Applicant is one of 9 years and 6 months including a non-parole period of 6 years and 4 months.
75 Accumulated, the individual sentences passed by Acting Judge Gibson on counts 1 and 2 and those for counts 4, 5 and 6 which I regard as proper, substantially exceed these figures. In summary these are:-
Count 1 2 years fixed term
Count 2 2 years fixed term.
Count 4 1.75 years with a non-parole period of 1.25 years.
Count 5 2.75 years with a non-parole period of 2 years.
Count 6 5.5 years with a non-parole period of 4 years.
76 Of course totality has to be taken into account and if the result of that is that the effective sentence should be less than the 9 years and 6 months including a non-parole period of 6 years and 4 months to which I have referred, the Applicant should have the benefit of the lesser result. However given the magnitude of the Applicant's offending and the 2 different areas - firearms and drugs - in which it occurred, no appropriate application of the totality principle leads to that result. However, totality and the need to ensure that the Applicant is not sentenced to imprisonment for longer than the 9 years and 6 months including a non-parole period of 6 years and 4 months will require some adjustment of the sentences indicated above.
77 It was also urged that this Court should find special circumstances and adjust the prima facie proportion between the non-parole and parole portions of the sentence. Reliance was place on the fact that this is the Applicant's first time in prison and on a suggested need for supervision in relation to his drug addiction when released. The latter aspect is sufficiently answered by reference to Acting Judge Gibson's findings on the topic and some evidence from the Applicant to the effect that he had overcome his addiction before being sentenced. Not uncommonly the first of these matters is regarded as constituting special circumstances. However, the effective non-parole period is, in my view, already low for the Applicant's offending and, subject to the matters referred to in the next paragraph, I would not reduce it any lower.
78 "Special circumstances" do exist in the need to structure one of the sentences to effect a parole period which recognises the length of the Applicant's sentence arising from the accumulation of sentences. Given the existence of 5 sentences, the desirability of dealing in figures which represent whole years and months also justifies a finding of special circumstances.
79 Accordingly, I propose the following orders:-
1, Grant leave to appeal.
2. Allow the appeal.
3. Quash the sentences imposed by Acting Judge Gibson in respect of counts 1, 4, 5 and 6.
4. Confirm the sentence imposed by Acting Judge Gibson in respect of count 3, viz a fine of $3,000.
5. Confirm the sentence imposed by Acting Judge Gibson in respect of count 2, viz. imprisonment for a fixed term of 2 years commencing on 25 July 2002.
6. In respect of count 1, sentence the Applicant to imprisonment for a fixed term of 2 years, commencing on 25 July 2003.
7. In respect of count 4, sentence the Applicant to imprisonment for a fixed term of 1 year and 3 months, commencing on 25 July 2004.
8. In respect of count 5, sentence the Applicant to imprisonment for a fixed term of 2 years, commencing on 25 July 2005.
9. In respect of count 6, sentence the Applicant to imprisonment for a term of 5 years and 6 months, including a non-parole period of 2 years and 4 months years both such periods commencing on 25 July 2006.
10. Record my view that the Applicant will become eligible for parole on 25 November 2008.