R v AZ

Court of Criminal Appeal (NSW)|2011-02-14|Before: McClellan CJ, Johnson J, McCallum J, Mr J, Clellan CJ

ore: Neilson DCJ File Number(s): 2008/219683

Grounds of Appeal 6Notice of Appeal was filed by the Crown on 7 October 2010 upon the ground that the sentences were manifestly inadequate. In accordance with usual practice ( R v JW [2010] NSWCCA 49; 199 A Crim R 486 at 496-497 [33]-[38]) the Crown filed a document on 13 December 2010 giving notice of additional grounds of appeal. The Crown relies upon the following grounds of appeal: (a) Ground 1 - his Honour erred in failing to determine at all where the offence of possess prohibited firearm lay in the range of objective seriousness. (b) Ground 2 - his Honour erred in failing to adequately determine where the offence of supply prohibited drug (large commercial quantity) lay in the range of objective seriousness for offences of that type. (c) Ground 3 - his Honour failed to have adequate regard to the standard non-parole period for the supply prohibited drug (large commercial quantity) offence. (d) Ground 4 - his Honour failed to have adequate regard to the standard non-parole period for the possess prohibited firearm offence. (e) Ground 5 - his Honour erred by not accumulating the sentence for the possess prohibited firearm offence. (f) Ground 6 - both the individual sentences and the total effective sentence are manifestly inadequate.

Facts of Offences 7A Statement of Facts tendered in the District Court was signed by the Respondent, his legal representative and the Crown representative. The facts were all agreed, except for one paragraph which was marked "Disputed Facts" . That paragraph related to items located in a locked box found in the Respondent's premises during the execution of a search warrant, and the dispute concerned the Respondent's knowledge of its contents. I will refer to this topic later in the judgment. 8The facts were as follows. On Wednesday, 26 November 2008, police applied for and were granted a search warrant for the Respondent's home in western Sydney. Detectives attended the address at 4.40 pm that day and entered the unlocked premises. The Respondent was located in the bedroom of the house. He resided at the premises alone. 9Detectives identified themselves to the Respondent and explained the procedures of the warrant. The Respondent was handed the occupier's notice and was asked to declare any items listed on the warrant. He stated that none of the listed items were present in his house. 10Police commenced to search the Respondent's house. Located on the top of a bookshelf in the lounge room were two large plastic resealable bags that contained a number of small green-coloured tablets with a kangaroo imprint stamped into each tablet. These tablets were subsequently tested by the Division of Analytical Laboratories and found to contain 44.9 grams of 3-4 methylenedioxymethylamphetamine (MDMA), commonly known as ecstasy, with a purity of 23%. 11The Respondent was cautioned and placed under arrest. Detectives questioned the Respondent in relation to these tablets. He stated that he did not own them, nor did he know who did. 12Police then continued searching the residence. Located in a small green environmental bag on the floor of the wardrobe in the Respondent's bedroom was a package wrapped in red gaffer tape. The Respondent was questioned about the item and denied knowledge of it. He was asked if the item was dangerous or an explosive, and he told police that it was not dangerous. Police peeled an amount of the red gaffer tape away and sighted a yellow/brown coloured wet powder substance inside that was contained in a clear plastic bag. Also contained in the package were four whole tablets and one broken heart-shaped tablet. These items were subsequently tested by the Division of Analytic Laboratories, and the package was found to contain 989.8 grams of MDMA with a purity of 76.5%. The tablets were found to contain 0.8 grams of MDMA. 13Police continued searching the Respondent's bedroom. At this point, the Respondent approached investigators and said that he would show them where all the other items were in the house that he believed to be illegal. 14The Respondent led investigators to the garage of his residence and pointed to a large safe. The Respondent opened the safe which had a combination lock attached. He informed police that he was the only person with access to the safe. 15Inside the safe, police observed a large amount of money and prohibited drugs. The money was counted and totalled $23,500.00. The Respondent stated that some of the money was not his (he was minding it for a friend) but admitted ownership of the balance of money totalling approximately $18,000.00. He said that the money was from a business he used to run. Police subsequently discovered a $50.00 note amongst the $23,500.00 that had the same serial number as a $50.00 note handed to an undercover police officer in November 2008 during an operation where police purchased prohibited drugs from a named person (the proceeds of crime offence on the Form 1). 16Also located inside the safe was a small resealable plastic bag containing a white powder substance. This powder was subsequently tested by the Division of Analytical Laboratories and was found to contain 29.2 grams of cocaine with a purity of 31% (the deemed supply cocaine offence on the Form 1). 17The safe also contained a clear plastic vacuum-sealed bag containing cannabis leaf. This item was subsequently tested by the Division of Analytical Laboratories and was found to contain 429.4 grams of cannabis leaf. Three other bags of cannabis were also located in the premises (one on a shelf in the Respondent's bedroom, one in the safe and another in the ensuite of the Respondent's bedroom). The total amount of cannabis leaf located at the premises was 480.9 grams (the deemed supply cannabis offence on the Form 1). 18A further plastic resealable bag containing a number of pink coloured tablets was also located inside the safe. These tablets were subsequently tested by the Division of Analytical Laboratories and found to contain 45.5 grams of MDMA with a purity of 23%. 19The total amount of MDMA was 1,081 grams, more than double the large commercial quantity for that drug (500 grams). 20Investigators continued searching the safe and located .25 calibre ammunition and a small .25 calibre keyring pistol in working order. That item is a prohibited firearm under the Firearms Act 1996 . The .25 calibre ammunition was suitable for use in the keyring pistol. Whilst the Respondent had an AB class firearms licence and an ammunition permit, the keyring pistol is prohibited. 21During the search, police located a set of scales on a shelf in the garage, an Avita food preserver and sealer, and a number of empty vacuum-sealed plastic bags in the dining room. The police also seized two resealable bags containing magnesium sulphate (epsom salts) and a rectangular plastic container containing glucose. 22Police returned to the garage and located a large box labelled "30 kg spray dried lactose" containing a white powder substance, as well as a box containing three large bags labelled "palm stearic acid" with a white powder substance inside. 23Police also located in the garage a black metal trunk locked with a padlock. It was this item which gave rise to a dispute on the facts which was resolved adversely to the Respondent. His Honour was satisfied beyond reasonable doubt that the Respondent was aware of the locked box and its significance, and was allowing it to remain in his premises. Police forced open the lock and discovered: (a) two pairs of overalls; (b) two safety facemasks; (c) a pair of protective goggles; (d) a large-scale three-kilogram set of electronic scales; (e) a white mixer with silver mixing bowl; (f) three brass sieves that contained residue of a green powder; (g) nine barbeque sauce type bottles that were filled with different coloured chalk powder; (h) a brief case containing several tools including ratchets, mixing spoons and Allen keys; and (i) resealable storage bags. 24There was evidence before the District Court, in the form of a statement of Inspector Daniel Doherty, that the MDMA, together with lactose, palm stearic acid and the contents of the black metal trunk, are items used in the manufacture or cutting of ecstasy tablets. 25The Respondent was taken to a police station where he made contact with a solicitor before participating in an electronic record of interview. During this interview, the Respondent claimed ownership of the money in the safe, the drugs located in the safe and the keyring pistol inside the safe. The Respondent denied using drugs in recent times. He denied that the tablets located on the bookshelf in the lounge room, and the large amount of MDMA located in the bedroom wardrobe, were his. He admitted seeing the two bags containing the tablets on the bookshelf earlier in the day, but declined to say who put them there. 26The Respondent was charged and bail was refused. He has remained in continuous custody since 26 November 2008. 27The sentencing hearing proceeded before the District Court on 27 August 2010. Sentence was passed on 30 August 2010.

The Respondent's Subjective Circumstances 28The Respondent was 41 at the time of the offences and 43 years' old at the time of sentence. He has no prior convictions. 29A range of evidence concerning the Respondent's subjective circumstances was before the sentencing court in the form of a pre-sentence report dated 24 September 2009, a report dated 25 September 2009 of Mr Taylor, psychologist, and a number of character references. In addition, there was material before the District Court concerning certain health issues affecting the Respondent. For the purpose of determining the Crown appeal, it is not necessary to recite the contents of those documents.

The Respondent's Assistance to Authorities 30In addition to the Agreed Statement of Facts and other Crown material, the Crown tendered in the District Court three affidavits and reports relating to the Respondent's assistance to authorities. In accordance with usual practice, those affidavits were placed in a sealed envelope with an order they were not to be opened without Court approval. 31The sentencing Judge allowed a combined 50% discount for the Respondent's plea of guilty and assistance to authorities, which included a 25% discount for his pleas of guilty in the Local Court. On appeal to this Court, the Crown does not challenge the 25% discount for the early pleas of guilty, nor does it contend that a total discount of 50% allowing, as well, for assistance to authorities was not reasonably open to the sentencing Judge. As will be seen, the Crown's challenge concerns his Honour's approach to the objective seriousness of the offences, with the Crown contending that the sentences imposed were unreasonably disproportionate to the nature and circumstances of the offences contrary to s.23(3) Crimes (Sentencing Procedure) Act 1999 and were manifestly inadequate. 32The material before the District Court with respect to the Respondent's assistance to authorities has been examined for the purpose of this appeal, together with a recent document which confirms the Respondent's continuing assistance. Subject to an argument to be considered later (at [94]), the totality of that material warrants this Court proceeding upon the basis that a combined 50% discount ought continue to be applied to the Respondent's sentences. The issues for determination in the appeal concern the adequacy of the sentences to which that discount ought be applied.

Remarks on Sentence 33It is appropriate to set out those parts of his Honour's remarks on sentence which bear upon the grounds of appeal and their resolution. 34At the commencement of his remarks, the sentencing Judge referred to the maximum penalty and the applicable standard non-parole period for each offence (ROS, paragraph 1). Thereafter, his Honour did not refer again to the standard non-parole period for either crime. 35Having recited the facts by reference to the Agreed Statement of Facts, his Honour made a finding adverse to the Respondent with respect to the locked metal trunk and its contents (ROS, paragraphs 17-18). His Honour inferred that the contents of the trunk, together with the lactose and the palm stearic acid, were being used for the manufacture of ecstasy tablets and that the Respondent knew that they were there. His Honour said that the Respondent "may have not been aware of the significance of the contents of the trunk and the significance of the lactose and the palm stearic acid, but he at least knew it had something to do with drug trafficking" and that there was "almost an element of wilful blindness" in the Respondent's attitude to this material (ROS, paragraph 18). 36The sentencing Judge continued (ROS, paragraph 19): "I am persuaded that the [Respondent] was at least co-operating with others at a middle level in the drug trade. He was not a street dealer as such. He was somebody higher up the chain. That is the only inference to be drawn from the fact that a $50.00 note handed over by an undercover police officer in November 2008 in the purchase of prohibited drugs from [X] found its way into the [Respondent's] safe. Somebody such as [X] was taking drugs from the [Respondent] or an associate or someone with whom the [Respondent] was complicit and selling those drugs on the street and then returning monies obtained from the sale of goods on the street to the supplier to that street dealer, a person at the level of the [Respondent] ." 37His Honour found that the Respondent was in the category of persons "who deal in drugs, but do not use" (ROS, paragraph 21). 38In summarising the Respondent's criminality, his Honour said that "He was complicit in the supply of drugs by permitting his home, what he described as a 'safe house' to be used as the base for the distribution of illegal drugs and perhaps for its use in the process of converting powdered MDMA of high purity into ecstasy tablets" and that he "did so for profit" (ROS, paragraph 23). His Honour concluded that the sum of $18,000.00 in the Respondent's safe were his earnings from the illegal drug trade (ROS, paragraph 23). 39The sentencing Judge then moved to consider what the drug supply offence warranted by way of head sentence. His Honour approached this task by examining the facts and circumstances arising from a decision of this Court in Wang v R [2009] NSWCCA 223 (ROS, paragraphs 24-32). This decision had been referred to by the Crown during sentencing submissions in the District Court. However, the Crown submits in this Court that the way in which his Honour utilised that decision in determining sentence was contrary to sentencing principles. For reasons given later in this judgment (at [57]), that submission is correct. 40His Honour noted a Crown submission that the Court should find with respect to the drug supply matter that it fell "somewhat below the mid range" (AB272.27; ROS, paragraph 30). His Honour found that the Respondent's "objective criminality was below the mid range of criminality for an offence of this nature" (ROS, paragraph 30). His Honour did not elaborate upon or further explain that finding. 41His Honour returned to compare other aspects of Wang v R , including the subjective circumstances of that offender with the present Respondent (ROS, paragraphs 37, 39-40). Having done so, his Honour continued (ROS, paragraph 40): "Based on the cases reviewed in Wang and the result in Wang itself, a lesser head sentence is called for. That to me indicates a sentence of about 10 years imprisonment. However, the Form 1 matters must be borne in mind. The Form 1 matters call for a higher penalty to be imposed. The Form 1 matters are in themselves serious and in particular the deemed supply of cocaine would have itself called for a substantial custodial sentence. Doing the best I can, it appears to me that I should start at an opening head sentence of 11 years imprisonment." 42His Honour then observed that a 25% discount for the early pleas of guilty was appropriate, and moved to consider the discount to be given for assistance to authorities (ROS, paragraphs 40-48). Having done so, his Honour determined to allow a total discount of 50% so that the appropriate head sentence for the drug supply offence was one of five years and six months (ROS, paragraph 48). 43His Honour then turned to the appropriate non-parole period to set for that offence. Special circumstances were found by reference to this being the Respondent's first period of imprisonment, his general health and the health of his elderly mother (ROS, paragraphs 49-52). Having done so, his Honour fixed a non-parole period of two years and nine months, being 50% of the head sentence. His Honour expressed the view that "The periods of time I have determined are in accordance with the authorities as my reference to Wang v R sought to show" and also sentencing statistics (ROS, paragraph 53). 44His Honour then turned to the firearm offence. Reference was made to decisions upon which the Crown relied, Luu v R [2008] NSWCCA 285 and Hristovski v R [2010] NSWCCA 129. His Honour observed that the Respondent "had a keyring pistol in two parts, unloaded, in his safe" and "was not going about with it armed whilst actually supplying drugs" (ROS, paragraph 56). 45No finding was made as to the objective seriousness of the firearm offence, nor was any reference made to the standard non-parole period for this purpose. Rather, his Honour expressed the following conclusions (ROS, paragraphs 58-59): "I, at one stage formed the view that it could be that the [Respondent] had the firearm in the safe as a defence of last resort, in the event that malefactors persuaded him to open the safe and give the contents of it to them, that he could reach in the safe and pull out the keyring firearm and shoot at the malefactors or threaten the malefactors with his firearm. However, that argument collapses when one realises that the firearm was in two pieces and was unloaded. In the circumstance, I could hardly categorise the firearm as a 'tool of trade of a drug dealer'. In the grand scheme of things the firearm offence is small. There are firearms and there are firearms. A keyring firearm which may discharge two bullets cannot be put on the same plane as a machine gun or an assault rifle, especially when it is in parts and locked in a safe where it cannot be accessed by members of the public and where even though it is in parts it remains unloaded. In my view, the firearm offence is of little moment. I will visit upon it a two year head sentence with a one year non parole period which will run concurrently with the primary sentence." 46It should be observed that the sentence for the firearm offence was not discounted by 50% to reflect the Respondent's plea of guilty and assistance to authorities. 47Soon after, his Honour proceeded to pass sentence upon the Respondent. There was no reference to the issues of concurrency, accumulation and totality beyond the bare statement that the sentence for the firearm offence was to be entirely concurrent with the drug supply offence.

Grounds 2 and 3 - The Large Commercial Quantity Drug Supply Count 48It is convenient to consider Grounds 2 and 3 together. Both grounds relate to suggested errors by his Honour in the approach to the standard non-parole period for the offence of supplying a large commercial quantity of a prohibited drug. Submissions 49The Crown submitted that the sentencing Judge made a finding that the offence was "somewhat below the mid range" , but provided no reasons for that finding as to where the matter fell in the range of objective seriousness. Reliance was placed upon a number of decisions of this Court, including R v McEvoy [2010] NSWCCA 110 and R v Sellars [2010] NSWCCA 133. 50The Crown submitted that a further problem was that a finding that the offence was "somewhat below the mid range" was difficult to reconcile with the sentence imposed, which suggested that the offence was close to the bottom of the range of objective seriousness. 51The Crown submitted that his Honour failed to use the standard non-parole period as a benchmark or guidepost, but rather seemed to utilise the decision in Wang v R as if that decision was a type of guidepost. The course adopted by the sentencing Judge involved comparison of facts and sentences imposed in unrelated cases and this was contrary to authority: R v Morgan (1993) 70 A Crim R 368 at 371; R v George [2004] NSWCCA 247; 149 A Crim R 38 at 47 [48]. 52Whilst accepting that it may be difficult to challenge his Honour's discretionary finding that the offence was "somewhat below mid range" , the Crown submitted that, on the facts of this case, it could not be far below the mid-range. Accordingly, the Crown submitted there was an error of process through a failure to make appropriate findings (Ground 2) and a failure to have adequate regard to the standard non-parole period with respect to this serious offence (Ground 3). 53Mr Lowe, counsel for the Respondent, submitted that a finding that the offence was "somewhat below the mid range" was that sought by the Crown at first instance, and that it was the Crown representative who made submissions to his Honour by reference to Wang v R . Even if an error of process had occurred as alleged in Ground 2, the Respondent submitted that it did not necessarily follow that there was error in the imposition of the sentence passed. In effect, it was submitted that it was sufficiently clear from his Honour's remarks on sentence what conclusions had been reached with respect to the objective seriousness of the drug supply matter. Decision 54The offence of suppling a large commercial quantity of a prohibited drug attracts a maximum penalty of life imprisonment and a standard non-parole period of 15 years. Although the standard non-parole period operated as a benchmark or guidepost only, given the Respondent's plea of guilty, it remained a most significant factor to be taken into account on sentence for a very serious crime. 55The requirements of making a finding as to where on the scale of objective seriousness an offence falls, and stating the reasons why a non-parole period less than the standard non-parole period is to be fixed, are not idle formalities: R v Green; R v Quinn [2010] NSWCCA 313 at [73]. 56In R v Sellars , McClellan CJ at CL (Grove J and myself agreeing) said at [11]-[13]: "11 It is apparent that although his Honour found that the offence fell below the middle of the range he did not explain the basis of his finding and accordingly there is an error. As Simpson J said in R v McEvoy [2010] NSWCCA 110 at [89] the error is an error of process. Furthermore, this Court has said on a number of occasions that when sentencing for offences for which the Parliament has provided a standard non-parole period it is necessary for judges to specify the extent or degree to which an offence departs from a notional offence in the mid range of objective seriousness: see McEvoy [87] and the discussion of R v Cheh [2009] NSWCCA 134; R v Knight; Biuvanua [2007] NSWCCA 283; [2007] 176 A Crim R 338. 12 In McEvoy Simpson J suggested that there may be a difference in approach to this issue between that taken by Howie J and myself in these decisions. If so it was not intended. When I said in Cheh that a sentencing judge must identify 'with precision' where an offence falls in the scale of objective seriousness (see [22]) I was endeavouring to emphasise that if an offence falls outside the mid range a sentencing judge should identify where it falls rather than merely state that it falls above or below the range. 13 In the present case because the sentencing judge failed to identify the extent to which the offence fell below the mid range the obligation required of him was not discharged. It is then necessary to consider whether that failure has led to an error in the ultimate sentence. When a judge does not identify where an offence falls upon the range of objective seriousness the possibility that the sentencing discretion will miscarry increases. This will be so both when an offender is being sentenced after trial or has pleaded guilty and the standard non-parole period confined to being used as a 'guide post'." 57In my view, a fair reading of the sentencing Judge's remarks on sentence in this case does not reveal an explanation of the basis of the finding that the drug supply offence lay "somewhat below the mid range" . That conclusion was not to be reached by the bare acceptance of a Crown submission to that effect. Nor was an assessment of the objective seriousness of the Respondent's offence to be made by reference to comparing and contrasting the facts and sentence in Wang v R : R v Morgan at 371; R v George at 47; R v Araya [2005] NSWCCA 283; 155 A Crim R 555 at 566-568 [67]-[72]. 58The sentencing Judge accepted the Crown submission that this offence was somewhat below the mid-range. A fundamental problem with this finding is the absence of reasons for the finding. In this Court, the Crown did not urge a different finding, although it was submitted that the offence, at its lowest, was just below the mid-range. 59The undisputed facts before the District Court included the following. The Respondent was the sole occupant of the house searched by the police on 26 November 2008. Quantities of drugs were found in different parts of the house. They included the substantial quantity (989.8 grams) of MDMA, with a purity of 76.5%, found in a wardrobe in the Respondent's bedroom. Elsewhere in the house and the garage were found other drugs and paraphernalia of the drug supplier, including scales, resealable plastic bags and other items which the evidence revealed were used to cut and create ecstasy tablets. In addition, there was in a locked safe to which the Respondent had exclusive access, other drugs, a substantial sum of money and a prohibited firearm. The safe was located in the garage, as was the box containing lactose and palm stearic acid and the black metal trunk containing the tools of trade of an ecstasy tablet manufacturer. 60The Respondent did not give evidence at the sentencing hearing. Further, it is apparent that he made a number of false denials initially to police, before providing explanations concerning some of the things located in his house. Whether other persons may have also been involved in the conduct of the Respondent's drug supply business, which was demonstrated by the variety of items located in his house, fell to be considered by reference to the evidence. It appears that the sentencing Judge had regard, at some point, to statements made by the Respondent to the psychologist, Mr Taylor, which were not the subject of any evidence from the Respondent. These were untested self-serving statements which ought to have carried little or no weight in the absence of evidence from the Respondent: R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 at 377 [58]-[59], 380 [79]. 61In the result, some generous findings were made in favour of the Respondent. In the absence of evidence from him, he ought reasonably to have been found to be a large commercial quantity drug supplier with all necessary paraphernalia of a drug supplier being located knowingly under his control in various parts of his house. If the Respondent wished to urge a more favourable finding to him, such as a finding that his house was being used by others to store these things, then it might be thought that this was a matter upon which the Respondent bore the onus on the civil standard, in accordance with the principles in The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at 281 [27]. 62An assessment of the objective seriousness of the large commercial drug supply charge involved consideration of the quantity of MDMA in the Respondent's house (twice the large commercial quantity), its purity (the great bulk of the quantity possessed by the Respondent being 76% pure), the location of money in the safe supporting the otherwise irresistible inference of substantial drug supply for profit, the location of scales, resealable plastic bags and the presence in the Respondent's house of other items used in ecstasy tablet cutting, manufacture and distribution. In my view, evidence of this type pointed to a substantial involvement by the Respondent so as to place his drug supply offence, at its lowest, as being just below the mid-range of objective seriousness. 63It is impossible to reconcile a notional starting point of 11 years by way of head sentence for the drug supply offence with the finding that the offence lay somewhat below mid-range. This conclusion supports the view that no real regard was had to the standard non-parole period of 15 years as a benchmark or guidepost on sentence. The fact that his Honour did not refer to the standard non-parole period again after his introductory reference to the maximum penalty and the standard non-parole period fortifies a conclusion that no proper regard was had to it in the imposition of sentence. 64This is no bare error of process. That error directly infected the determination of sentence for this offence. 65I am satisfied that the Crown has made good each of Grounds 2 and 3.

Grounds 1 and 4 - The Possess Firearm Offence 66It is convenient to consider Grounds 1 and 4 together, both of which relate to the firearm offence. Submissions 67The Crown submits that his Honour erred in failing to state where the firearm offence fell in the range of objective seriousness and to provide reasons for that conclusion, in circumstances where a standard non-parole period of three years was a benchmark or guidepost on sentence. 68The Crown submits that the error is even clearer with respect to the firearm offence because no finding at all is made as to where the offence lies in the range of objective seriousness. Rather, his Honour found that the firearm offence was "of little moment" and that the firearm was not a "tool of the trade of a drug dealer" . In the end, his Honour imposed a concurrent sentence absorbed completely by the sentence for the large commercial quantity drug supply offence. 69The Crown submits that both errors (Grounds 1 and 4) involved errors of substance, and that his Honour paid no regard to the standard non-parole period for this offence. 70Mr Lowe accepted that the failure of the sentencing Judge to make an assessment concerning the objective seriousness of the offence constituted error in accordance with the principles in R v Sellars at [12]-[13]. He submitted, however, that the issue remained whether that failure had led to an error in the ultimate sentence. Mr Lowe submitted that the nature of his Honour's findings with respect to the firearm would have led to a finding that the offence fell well below the mid-range of objective seriousness for such an offence, and that no error had otherwise been demonstrated with respect to the sentence for that offence. Decision 71It is common ground that there is error, in accordance with Ground 1, in the failure by the sentencing Judge to determine where the firearm offence lay in the range of objective seriousness. However, I am satisfied that the Crown has made good Ground 4 as well as Ground 1. 72The firearm in question was a prohibited firearm within the terms of Clause 14 of Schedule 1 of the Firearms Act 1996 . It was a firearm that substantially duplicated in appearance a keyring and disguised or concealed the fact that it was a firearm. 73The legislature views possession of such an item seriously. The policy of the legislature evinced by the enactment of the offence in s.7(1) is to deter and punish possession of firearms per se: R v Krstic [2005] NSWCCA 391 at [14]. The courts must seek to implement the legislative policy to control the possession of firearms in the community "by honest citizens and not simply to disarm the criminally minded" : R v Tolley [2004] NSWCCA 165 at [53]. As it happens, the Respondent was amongst the ranks of "the criminally minded" through his drug supply activities. 74The Crown submitted, correctly, that the firearm could never have a legitimate purpose within our society. It is not a firearm capable of legitimate use, such as a rifle or pistol. It is a type of concealed weapon capable of firing ammunition and inflicting injury or death. The fact that the firearm was in two parts did not greatly assist the Respondent. It was capable of being put together to operate as a functioning firearm. It was accompanied by ammunition which could be used for that purpose. 75The firearm was located in the Respondent's safe, accompanied by a substantial quantity of money being the proceeds of the Respondent's drug supply activities and some other drugs also possessed by him. The location of the firearm with drugs and money gave rise to an inference damaging to the Respondent which bore upon the objective seriousness of the firearm offence. 76There was no evidence from the Respondent with respect to the firearm. The focus of the sentencing Judge appeared to be upon whether it was a "tool of trade of a drug dealer" . The fact that the firearm was not loaded nor being carried by the Respondent whilst in the act of drug supply was relevant to the objective seriousness of the offence: R v Thalari [2009] NSWCCA 170; 75 NSWLR 307 at 320-321 [84]-[89]. However, the location of the firearm with ammunition, drugs and money in the Respondent's safe itself pointed to a link between the firearm and those other items. The fact that the Respondent possessed the firearm in a context where he was involved in the supply of drugs bore on the objective seriousness of this offence: Luu v R at [32]; R v Thalari at 321 [89]. 77His Honour's observation that "in the grand scheme of things the firearm offence is small" sheds no light upon the matter. To conclude that the firearm offence was "of little moment" was, in my view, erroneous. Possession of a concealed weapon such as this, which is not capable of lawful use, is a significant offence under s.7(1) Firearms Act 1996 . 78For the reasons set out above at [72]-[77], I accept the Crown submission that this offence lay at the middle of the range of objective seriousness for offences of this type. 79The Crown has demonstrated error as contended in Grounds 1 and 4.

Grounds 5 and 6 - Accumulation and Manifest Inadequacy 80Once again, it is appropriate to consider these grounds of appeal together. Submissions 81The Crown submits that the sentencing Judge erred in not accumulating the sentence for the firearm offence and that both of the individual sentences, and the total effective sentence, are manifestly inadequate. It is submitted that the firearm offence involved separate criminality to the drug supply offence so as to call for at least a partly cumulative sentence in accordance with the principles in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at 47 [27]. In addition, the Crown submits that the sentence imposed for the drug supply offence itself was manifestly inadequate and further, could not encompass as well the criminality contained in the firearm offence. 82Mr Lowe submits that it has not been demonstrated that the sentences imposed were manifestly inadequate. He emphasised the provisions of s.23(3) Crimes (Sentencing Procedure) Act 1999 , in the context of the Respondent's assistance to authorities, and submitted that the sentences imposed were not unreasonably disproportionate to the nature and circumstances of the offences and were not manifestly inadequate. Decision 83The sentencing Judge expressed the view, without elaboration, that the sentence for the firearm offence should be entirely concurrent with the sentence for the large commercial drug supply offence. For reasons already given, I am satisfied that error has been demonstrated concerning his Honour's characterisation of the firearm offence. 84Error is also demonstrated through his Honour's failure to articulate the principles concerning concurrency, accumulation and totality, and to apply them to the case at hand. The relevant principles were summarised by Howie J in Cahyadi v R at 47 [27] as follows: "In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both." 85In my view, proper consideration of the above principles required at least a partly cumulative sentence for the firearm offence. The sentence on the drug supply offence could not comprehend and reflect the criminality for the firearms offence. The failure to impose at least a partly cumulative sentence contributed to the fact that the total sentence failed to reflect the Respondent's total criminality for these offences. The offences involved discrete and independent criminal acts. 86The Crown contention that the sentences imposed in the District Court were manifestly inadequate involves the need to demonstrate that the sentences were unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25]. 87Error has been demonstrated in his Honour's determination of the objective seriousness of each of the offences for which sentence was to be passed. Of course, there was a significant element to be factored in on sentence by way of discount for the Respondent's assistance to authorities. However, the sentences to be imposed, after taking into account the Respondent's assistance to authorities, must not be unreasonably disproportionate to the nature and circumstances of his offences: s.23(3) Crimes (Sentencing Procedure) Act 1999 . 88The fundamental problem in this case is that clear error has been demonstrated, leading to manifestly inadequate sentences being selected by his Honour, before application of the total 50% discount. There is a further problem with the sentence for the firearm offence. His Honour did not purport to apply a 50% discount to that sentence. It appears that the sentence selected by his Honour, in its length and entirely concurrent operation, was the result of the view that the offence was minor and "of little moment" . This view was wrong. 89I am well satisfied that Grounds 5 and 6 have been made good in this case.

Resentencing the Respondent 90Mr Lowe submitted that, if the Crown succeeded in establishing error, that the Court should, in the exercise of discretion, decline to interfere with the sentences imposed at first instance. 91The Crown submitted that no basis existed for the Court to decline to interfere on discretionary grounds. 92It is clear that this Court retains a discretion whether to resentence a respondent on a Crown appeal: R v JW at 515 [150]. However, no discretionary basis has been demonstrated for the Court to decline to resentence in this case. 93Clear error has been demonstrated leading to the imposition of manifestly inadequate sentences. The Respondent's assistance to authorities, which has continued, is not a basis for this Court to decline to resentence him when sentences have been imposed in the District Court which are manifestly unreasonable or plainly unjust. The interests of justice require the imposition of appropriate sentences for these crimes: R v Dinh [2010] NSWCCA 74; 199 A Crim R 573 at 587 [79]. 94Mr Lowe submitted that the Court could, in resentencing the Respondent, allow a combined total discount of 60% for his pleas of guilty and assistance to authorities. I do not consider that a discount of this order is consistent with decisions of this Court, nor is it appropriate in the circumstances of this case. In my view, the combined total discount of 50% allowed by the sentencing Judge was the appropriate upper limit by way of discount in this case: SZ v R [2007] NSWCCA 19; 168 A Crim R 248 at 251-252 [4]-[11]. There is no additional exceptional feature which ought lead to the possible allowance of a greater discount. 95As both offences attract a standard non-parole period, it is not open to the Court to impose a fixed term of imprisonment for either offence: s.45(1) Crimes (Sentencing Procedure) Act 1999 : Hristovski at [7]. 96I approach the determination of sentence on the large commercial quantity drug supply charge upon the basis that the Respondent's offence lay just below the middle of the range of objective seriousness for such an offence. The standard non-parole period of 15 years should be taken into account as a benchmark or guidepost, together with other relevant factors on sentence, with this assessment in mind. The reasons for this assessment of objective seriousness appear sufficiently at [59]-[62] above. The Respondent has no prior convictions. His prospects of rehabilitation are good. 97Having regard to the objective seriousness of the drug supply offence and the Respondent's subjective factors, but before applying the total 50% discount for his plea and assistance, a non-parole period of 12 years with a balance of term of four years (applying the statutory formula) is the appropriate starting point. 98The Form 1 offences, which are themselves relatively serious, are to be taken into account in the determination of sentence on the first count, and I have done so. 99I approach the determination of sentence on the firearm offence upon the basis that the offence lay at the middle of the range of objective seriousness for such an offence. The standard non-parole period of three years should be taken into account as a benchmark or guidepost, together with other relevant factors on sentence, with this assessment in mind. The reasons for this assessment of objective seriousness appear sufficiently at [72]-[77] above. Having regard to the objective seriousness of the offence and the Respondent's subjective factors, but before applying the total 50% discount for his plea and assistance, a non-parole period of two years and eight months with a balance of term of 10 months and two weeks (applying the statutory formula) is the appropriate starting point. 100I turn to the issues of accumulation, concurrency and totality. It is necessary for the Court to ensure that aggregation of sentences leads to a just and appropriate measure of the total criminality involved: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at 164-165 [18]. I am satisfied that a partly cumulative sentence is required in the circumstances of the case so that the Respondent should effectively serve an additional eight months by reference solely to the firearm offence. 101I accept that a finding of special circumstances is appropriate, in particular by reference to the Respondent's own health issues. The accumulation of sentences also contributes to a finding of special circumstances. Of course, there should be no double counting of factors which will otherwise be taken into account in the Respondent's favour on sentence. In my view, a variation of the statutory ratio to non-parole periods of 50% of the head sentence is not warranted in this case. A variation of the statutory ratio to 65% is appropriate. 102Applying the 65% formula (with some rounding) to the sentence for the large commercial quantity drug supply offence, the non-parole period would be 10 years and four months, with a balance of term of five years and eight months. 103Applying the 65% formula (with some rounding) to the sentence for the firearm offence, the non-parole period would be two years and three months with a balance of term of one year and three months. 104Applying the 50% total discount for the Respondent's pleas and assistance: (a) the sentence on the drug supply offence will comprise a non-parole period of five years and two months, with a balance of term of two years and 10 months; (b) the sentence on the firearm offence will comprise a non-parole period of one year, one month and two weeks, with a balance of term of seven months and two weeks. 105The total effective term of imprisonment for both offences will comprise a non-parole period of five years and 10 months commencing on 26 November 2008 and expiring on 25 September 2014, with a balance of term of two years and two months commencing on 26 September 2014 and expiring on 25 November 2016. 106I am conscious that the total effective non-parole period is about 73% of the total effective head sentence. This is the least period which the Respondent ought be required to serve for his crimes before being eligible for parole, having regard to all the purposes of punishment and not simply his rehabilitation: Hejazi v R [2009] NSWCCA 282 at [36]. In my view, it constitutes the irreducible minimum sentence and the bottom line beneath which these sentences cannot legitimately be set: SZ v R at 251 [4]-[5]; s.23(3) Crimes (Sentencing Procedure) Act 1999 .

Orders 107I propose the following orders: (a) Crown appeal allowed; (b) sentences imposed upon the Respondent in the District Court on 30 August 2010 are quashed; (c) in their place: (i) upon the charge of supplying a large commercial quantity of a prohibited drug, taking into account the offences on the Form 1, the Respondent is sentenced to imprisonment comprising a non-parole period of five years and two months commencing on 26 November 2008 and expiring on 25 January 2014, with a balance of term of two years and 10 months commencing on 26 January 2014 and expiring on 25 November 2016; (ii) upon the charge of possession of a prohibited firearm, the Respondent is sentenced to imprisonment comprising a non-parole period of one year, one month and two weeks commencing on 12 August 2013 and expiring on 25 September 2014, with a balance of term of seven months and two weeks commencing on 26 September 2014 and expiring on 9 May 2015. 108The earliest date upon which the Respondent will be entitled to release on parole is 25 September 2014. 109McCALLUM J : I agree with Johnson J.

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: 20 September 2011

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