R v Calcutt

Judgment 1WHEALY JA: I have had the advantage and assistance of considering both the first and second draft judgments of Adams J and the decision of Latham J issued in response to that draft. The issue to be resolved in the present concurrent application and appeal is whether a lesser sentence than that imposed by the sentencing judge is warranted in law. In the end, upon reflection and after careful deliberation, I have come to the view, on this re-sentencing exercise, that no lesser sentence is warranted. 2In view of the areas of difference revealed in the respective positions taken by their Honours, I wish to add a few brief comments of my own. 3I rather gather that there are essentially three points of difference between their Honours, although each point has a collective impact upon the ultimate question as to the appropriateness of the sentence imposed. 4The first relates to the weight to be given to the applicant's subjective case in the overall imposition of penalty. Secondly, there is the important question of the assessment of the objective gravity of the offence, particularly having regard to the applicant's involvement and the quantity of drug material seized. The third relates to the fourth of the Form 1 offences. Each of these matters has to be weighed in the ultimate synthesis required for the selection of a sentence that correctly addresses overall the complex of relevant sentencing principles applicable to the case. 5It is my strong view that Adams J, with his customary compassion, has been driven to place more weight on the applicant's subjective circumstances than do I. It is true that the applicant was able to point to a subjective case of relatively considerable dimension. Adams J has analysed this with considerable care at [45]-[47] of his draft decision. I would not take issue with his Honour in relation to any of the matters to which he has made reference. However, in a case as serious as this one, the subjective circumstances of an offender (no matter how much they call for sympathetic response) cannot, at least in my opinion, outweigh the objective seriousness of the principal offence. 6In this respect, I agree with Latham J that 59 kg of MDMA is obviously a very large amount of the prohibited drug. And, as Adams J pointed out in his draft, there is no reason to suppose that the actual amount manufactured was not considerably larger than the amount seized. This had been an operation that had been ongoing for some four months when the police intervention took place. Be that as it may, the applicant's involvement in the manufacture of drugs of the quantity seized reveals, having regard to the quantity itself, very significant criminality. The amount of the drug involved in a manufacture must be seen as a highly relevant factor in determining the objective seriousness of the offence, even though, of course, it is not the only factor to be considered: Paxton v R [2011] NSWCCA 242 at [127][132]. 7A further consideration in the present matter is the applicant's role in the manufacturing process. On the one hand, the applicant's involvement in the manufacture was found by the sentencing judge to be at a "relatively low level". On the other hand, he did allow his premises to be used for the process over a four month period. Secondly, he helped in a number of ways with the setting up of the premises before he went overseas. Thirdly, and more importantly, he actively assisted in the manufacture after he had returned from his trip. Fourthly, his involvement was for reward in a number of respects. It included the forgiveness of his drug debt and extended to his receiving indeterminate sums of money from time to time when he needed funds after his return from overseas. There was the hope, it is clear, of a future albeit unspecified gain. 8Although the applicant's personal circumstances indicated there was good reason to be optimistic about his prospects of rehabilitation, there nevertheless remained the need for the sentence to mark out a high level of personal deterrence. In addition, given the dreadful level of harm that this drug inflicts upon the fabric of our community, there was, and is, as Latham J correctly observes, a very substantial element of general deterrence to be reflected in the sentence. 9Mr Hamill SC (who appeared for the applicant on the appeal) submitted that "the favourable subjective features of the applicant provided significant mitigation and justified a sentence substantially less than that which was imposed". Adams J, it is clear, has been persuaded that this submission should be accepted. Regrettably, I have concluded that, although the applicant has a favourable subjective case of some dimension, the objective gravity of the offence, particularly having regard to the quantity of the drugs and his role in the operation, warrants a sentence of the level that was imposed by her Honour. 10The final matter where there is an apparent difference relates to the fourth of the offences on the Form 1. This was the supply cocaine offence. 11The amount of cocaine located at the applicant's house was 102.7 grams. As to this, the sentencing judge said that this was "the most serious matter to be dealt with on the Form 1". Later in her reasons she said (referring to the impact of the Form 1 offences on the sentence to be imposed for the principal offence): "As to the matters on the Form 1, in my view, the first three offences, that is, possession of the pill presses, are really part and parcel of the charge for which the offender is to be sentenced. However, the supply cocaine is a separate and serious matter, the amount being more than twenty times the indictable quantity of 5 grams. This must lead to an increase in the sentence." 12At the sentencing hearing, the applicant was represented by Mr Phillip Boulten SC, a very experienced counsel. With the approval of Mr Boulten, the following exchange took place between the sentencing judge and the applicant (AB 115-116): "Mr Boulten, I will need to check that your client adheres to the plea entered in the Local Court and also that he admits his guilt in respect of the Form 1 matters and asks me to take them into account. Do you want to speak to him before I do that? Boulten: Yes, thank you, your Honour. Her Honour: Mr Calcutt you have pleaded guilty before a magistrate that you knowingly took part in the manufacture of an amount of a prohibited drug, namely, 59.471 kilograms of MDMA commonly known as ecstasy, that being not less than a large commercial quantity applicable to that drug. Do you maintain your plea of guilty in this Court? Offender: Yes. Her Honour: And there are four further matters on a Form 1, three of possess tablet press and one of supply a prohibited drug greater than an indictable quantity. Do you admit your guilt in respect of those matters? Offender: Yes, your Honour. Her Honour: And do you ask that I take those matters into account when I sentence you for the manufacture charge? Offender: Yes." 13It is to be noted that the applicant maintained this position throughout the sentencing hearing. There was no suggestion either from his most experienced senior counsel or from himself that the Form 1 matters should not be taken into account. 14It is important to note that the same position was maintained on appeal to this Court. There were no submissions made by Mr Hamill SC (who also, it must be said, is an able and experienced counsel) that there was any error in her Honour's sentencing decision related to the supply cocaine offence on the Form 1 document. 15It is also significant to note that, at the sentencing hearing, the applicant gave evidence. He addressed the supply cocaine offence. He was asked by Mr Boulten SC (AB 127-128): "Q. You talked also about wanting cocaine? A. Yes. Q. Did you have to pay for any of the cocaine you received? A. No. Q. So the quantity of cocaine which is the offence on the schedule here, that was given to you? A. In little bits. Q. At different times? A. Yes. Q. Have you sold any of that cocaine? A. (No verbal reply.) Q. Did you sell any of the ecstasy? A. No. Her Honour: Sorry. You're shaking your head are you? Witness. Sorry." This, so far as I can ascertain, was the only evidence given by the applicant in relation to the supply cocaine charge. 16In connection with this evidence, it is necessary to refer to s 29 of the Drug Misuse and Trafficking Act 1985 (NSW). This section provides that a person who has in his or her possession an amount of a prohibited drug which is not less than a trafficable quantity of a prohibited drug shall, for the purposes of this division, be deemed to have the prohibited drug in his or her possession for supply. Section 29 does not create an offence. It is an evidentiary provision designed to facilitate proof of the offence of supplying a prohibited drug under s 25 of the Act. A person accused of supply, faced with this evidential provision, may establish that he or she had the prohibited drug in his or her possession otherwise than for supply. This circumstance has to be established on the balance of probabilities: R v Carey (1990) 20 NSWLR 292; 50 A Crim R 163. 17It is also significant to note that s 3 of the Act provides for an extended meaning of "supply". This includes "having in possession for supply". 18Adams J made three points concerning this matter. First, he was "troubled" by the Form 1 procedure in the circumstance. This was because, as his Honour saw it, the applicant gave evidence that the cocaine was for his personal use. Secondly, on the basis that the "supply" was based upon the evidential provision to which I have referred, i.e. deemed supply, the applicant's evidence was inconsistent with any admission he had made in relation to the Form 1 and consequently this offence "should have been excluded". Thirdly, Adams J considered that, in any event, the Form 1 offences did not add significantly to the criminality of the principal offence and accordingly ought not to increase the sentence otherwise appropriate for the principal offence. He has discussed this point at greater length in the additional reasons in his second draft. 19Latham J, however, did not agree that the supply cocaine offence in the Form 1 did not add to the criminality of the principal offence. Her Honour agreed with the sentencing judge's finding that the amount involved in the supply cocaine meant that it should be regarded seriously and "must lead to an increase in the sentence" for the principal offence. Latham J also assessed, correctly, that no issue had been taken by the applicant on the hearing of this appeal in relation to the Form 1 matter (nor, might it be observed, had any issue been taken at the sentencing hearing). Finally, Latham J thought that the supply cocaine offence ought to have an impact on the sentence otherwise appropriate for the principal charge. In that regard, her Honour noted that the cocaine the subject of that charge was 80% pure. 20The jurisprudence in relation to Form 1 matters is now well settled. Where a person is before the Court for sentencing, it may take into account further offences for which the offender has charged but not convicted, being offences which the offender "wants the Court to take into account when dealing with the offender for the principal offence": s 32 Crimes (Sentencing Procedure) Act 1999. The admitted offences will be taken into account with the principal offence, but only if the Court considers it appropriate to do so: s 33(2)(b). This is commonly described as the Form 1 procedure. 21It is necessary for the offender to indicate that he or she wants the Court to take these additional offences into account when dealing with the principal offence: s 32(1). Section 33(1) provides that the Court must ask the offender "whether the offender wants the Court to take any further offences into account in dealing with the offender for the principal offence". This requirement (to ask the appellant whether he or she wants the Court to take into account the Form 1 offences) is a formality which should not be dispensed with because it is an important "to ensure that the offender is aware of what is taking place and consents to procedures that may have a significant impact upon his freedom or the period during which he will remain in custody": R v Felton [2002] NSWCCA 443, 135 A Crim R 328 per Howie J at [3], approved in R v Brandt [2004] NSWCCA 3 at [8]. 22In 2002 the Attorney General applied for a guideline judgment in Re Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146. The application was made on the basis that there was a need for a guideline setting out the proper approach to be taken by sentencing courts when the Form 1 procedure was invoked. Spigelman CJ delivered the judgment of the Court, with Wood CJ at CL, Grove, Sully and James JJ concurring. At [39]-[42] the Chief Justice stated: "[39] The sentencing court is sentencing only for the 'principal offence'. It is no part of the task of the sentencing court to determine appropriate sentences for offences listed on a Form 1 or to determine the overall sentence that would be appropriate for all the offences and then apply a 'discount' for the use of the procedure. This is not sentencing for the principal offence. [40] In my opinion, it is pertinent to identify the elements to be considered in determining the sentence for the primary offence upon which the commission of other offences, for which no conviction is being recorded, may impinge. The case law has identified a number of distinct and sometimes overlapping purposes to be served by sentencing. In my opinion, not all these purposes are relevant to the process of taking other offences into account, when sentencing for a particular offence, that is, the primary offence. [41] In R v Barton (at 195 [64]), in a passage subsequently referred to in R v AEM Snr (at [81]) and R v Perese (at 522 [81]), I made some observations which I repeat. [42] The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s 33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another." 23It will be apparent from the Chief Justice's remarks that taking into account Form 1 offences should generally result in a lengthier sentence than dealing with the principal offence alone. In R v Barton [2001] NSWCCA 63; 121 A Crim R 185, Spigelman CJ had explained (at 64): "... although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence." 24In R v Grube [2005] NSWCCA 140, this Court rejected an argument that where matters are taken into account on a Form 1, the penalty for the principal offence is limited by the appropriate range for that offence. Hall J (with whom Grove and Howie JJ agreed) observed: "Thus in the hypothetical example posed by Howie J in argument, taking into account matters on a Form 1 may well put the appropriate penalty above the range of 3 to 5 years that would otherwise apply to the principal offence. An appeal to notions of proportionality or relativity is then neither supported by the terms of Div 3 of Pt 3 nor by the principles as stated by the Chief Justice in the guideline judgment." 25In Dionys v R [2011] NSWCCA 272, Hoeben J (with whom McClellan CJ at CL agreed) said: "65. What is clear from the above paragraphs [a reference to the observations of Spigelman CJ at [39]-[42] in the guideline case] is that while the Court is sentencing only for the principal offence and not for the Form 1 offences, the entire point of the process is to impose a longer sentence and that the additional component may not be small. While not excluding other considerations, the Chief Justice referred specifically to greater weight being given to personal deterrence and to 'the community's entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed'. 66. The common factor in those elements which the Chief Justice emphasised is that the principal offence was not an isolated instance but was part of a course of offending conduct. On the facts of this case, that course of offending conduct was substantial and serious thereby justifying a significantly longer sentence for the primary offence." 26I note that in Dionys, Adams J took a somewhat different view from the majority in relation to the meaning to be given to the Chief Justice's remarks in the guideline judgment. The matters to which his Honour has drawn attention are not without substance. His view, at this stage, however, is one which is not supported elsewhere in the decisions of this Court. I take his Honour's additional reasons in his second draft to be an elaboration of the opinions he expressed in Dionysus. 27I have gone to some trouble to set out these principles merely to reinforce that I can detect no error in the sentencing judge's decision in relation to the manner in which the Form 1 matters were taken into account. This is not the occasion to consider whether there is any doubt as to the correct approach to be taken to the Form 1 procedure. Essentially this is because the particular point was not raised in this appeal and there has been no argument concerning it. 28As I said earlier, neither during the sentencing process nor during the hearing of this appeal has any point been raised to suggest that, on re-sentence, the Court should do otherwise than take the Form 1 matters into account, including the matter relating to the supply cocaine offence. It was not suggested during argument that we should do otherwise than to regard the supply cocaine offence as serious, and likely, therefore, when taken into account, to increase the penalty for the principal offence. Quite apart from anything else, it would be unfair to the Crown for the Court to examine these matters as issues when they were not in contest before us. 29In any event, the plain fact is that the applicant asked that each of the Form 1 matters be taken into account in relation to the imposition of a sentence for the principal offence. There was not, nor ever has been, any attempt by the applicant to resile from that position. Moreover, the evidence given by the applicant before the sentencing judge did not, strictly speaking, establish that he had possession of the cocaine solely for his own use. The somewhat equivocal question asked of him by Mr Boulton SC and his negative response merely established that he had not, at the stage the drugs were seized, sold any of the cocaine. I doubt whether the evidence would have been sufficient to displace the evidential situation brought about by s 29 of the Act. Nor do I consider that it would have dispelled the notion that he possessed this very large quantity of cocaine, with its high level of purity, for the purposes of supply. 30I have reached the conclusion that we should take it into account as the applicant asks and the sentencing judge did. Further, I agree with Latham J that, taking this matter into account must, in all the circumstances, lead to an increase in the sentence. The circumstances to which I have made reference require that sentence for the principal offence be increased. Consistently with the authorities, this does not mean that a separate punishment will have been imposed for the supply cocaine offence. 31For all these reasons, it is my ultimate view that, notwithstanding the strong subjective case advanced by the applicant, no lesser sentence than that imposed by the sentencing judge is warranted in law. In view of that conclusion, I must state my agreement with the orders proposed by Latham J and respectfully differ from the careful conclusions reached by my brother, Adams J. Introduction 32ADAMS J: The applicant seeks to appeal from a sentence imposed in the District Court upon a charge of knowingly taking part in the manufacture of not less than a large commercial quantity of a prohibited drug, namely, 3, 4 methylenedioxymethylamphetamine (MDMA), commonly known as ecstasy. The offence carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years. The applicant was sentenced to imprisonment for 13 years with a non-parole period of 9 years and 9 months commencing on 19 December 2008. Taken into account, at the applicant's request on a Form 1 were three additional charges of possessing a tablet press and one offence of supplying a greater than the indictable quantity of cocaine. The applicant pleaded guilty in the Local Court and adhered to that plea on sentence. It is not controversial that, in the circumstances, it was appropriate to allow a discount on the sentence otherwise applicable of 25%. 33By virtue of an administrative oversight, the appeal was lodged out of time. Leave to extend time was not opposed by the Crown. Accordingly, time to appeal was extended at the hearing of the application for leave to appeal. 34The original grounds of appeal focused on the approach of the learned sentencing judge to the application of Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999, which provided for standard non-parole periods. Those grounds of appeal claimed that the judge gave too much weight to the standard non-parole period, in effect "oscillating" downwards by reference to the mitigating factors, and that her honour erred in asking whether it was appropriate to impose the standard non-parole period and in placing the offence in the mid-range of objective seriousness. In addition, the applicant submitted that insufficient allowance was made for his favourable subjective features and, overall, that the sentence was manifestly excessive. The Crown conceded that, in light of the decision of Muldrock v R [2001] HCA 39 the approach of the sentencing judge was in error but submitted that the appeal should be dismissed upon the basis that no lesser sentence was warranted in law, vide s 6(3) of the Criminal Appeal Act 1912. Facts 35On 12 December 2008, police officers executed a search warrant on the applicant's premises, which were at that time unattended. Inside the house was found an MDMA manufacturing operation. In the ground floor garage and kitchen were large storage containers containing multi-coloured tablets and powder. Chemicals such as acetone were located in the kitchen. A black carry bag with a large number of tablets was on the kitchen counter. Tablets were found on the floor of the bedroom. The ground floor rooms were heavily contaminated with powder residue. A large number of multi-coloured tablets and powder was also found. On the first floor the surfaces were covered with powder residue and more gloves and protective clothing was found. In total, 220,000 tablets were found. The tablets and the powder were MDMA and weighed 59.471 kilograms. 102.7 grams of cocaine were also found. 36The applicant, accompanied by a solicitor, attended at Waverly Police Station on 19 December 2008 and was then arrested. He declined to take part in an interview. 37The applicant had been using illicit drugs for some time and this had escalated into a very serious problem by mid 2008. He used ecstasy and smoked ice. He borrowed well over $100,000 for the purpose of a restaurant business in which he was involved and also, by August 2008, had a drug debt of about $12,000. Unidentified persons suggested to the applicant that, to repay this debt, he permit his house to be used for the manufacture of illegal drugs. He accepted this offer and travelled overseas between August and October 2008, expecting (as the sentencing judge accepted) that the manufacture of the drugs would be completed by the time he returned. Before he left, he helped bring the three pill presses and the containers into the house. Following his return, however, manufacturing at a significant level was still taking place. The learned sentencing judge summed up the objective circumstances as follows - "Clearly, this was a large scale commercial drug manufacturing enterprise. The quantity of the drugs found in the house is such that the principals must have expected enormous profits. The offender received money and expected to be given more money. There is no precise evidence as to how much but it must have been in the thousands of dollars range. He also received drugs for his own use. On his own evidence, in addition to providing the premises, on his return from overseas the offender assisted in the manufacturing process by blending, sifting and using the pill press machines and also by placing the manufactured pills into the plastic containers." The judge concluded that the applicant was not a principal participant in the offence. Her Honour said, that, "while he provided the premises and also some fairly limited assistance with the manufacturing, his role could be described at a relatively low level". 38It is unclear what amount the applicant hoped to obtain from his making his house available and later assisting in the manufacture of the drugs. He said that the debt of $12,000 to the drug dealer led to the suggestion that making his house available would in effect be repayment. He said that he was not actually offered any money except to the extent that his debt was repaid and there was a general indication that he might get some additional cash later in the piece. He said that he was paid money when he asked for it of the order of $300 or $500 in order to pay the rent or for food. It may be that he hoped that other money would eventually be given to him but the evidence does not support the inference, adverse to him, that it was remotely of an order sufficient to pay anything like his outstanding other indebtedness. 39It is important to note that the applicant was charged with taking part in the manufacture of only the 59.471 kilograms of MDMA which was found by police in his premises. It seems certain that this did not represent by any means the total quantity of drugs manufactured in those premises after he had made them available to the other offenders or, indeed, after he returned. However, given the form of the charge against him, he cannot be sentenced, as it seems to me, upon the basis that he was knowingly involved in manufacturing any larger quantity than that with which he was charged. That quantity, though, must be considered in the context of a continuing operation which he permitted for some two months or so. It is fair to note also that the information about the use of his premises whilst the applicant was absent was candidly disclosed by him in his evidence during the sentence proceedings and no doubt this was a factor which led the sentencing judge to accept the truthfulness of his evidence. The Form 1 charges 40The charge on the Form 1 concerning the supply of cocaine is somewhat troubling. Although the applicant certainly admitted this offence and asked for it to be taken into account, he also gave evidence to the effect that the cocaine was for his personal use. He was not cross-examined as to this matter and it appears that the allegation of supply (and I think its acceptance) was based upon the possession of not less than the trafficable quantity (3 grams) as provided by s 29 of the Drug Misuse and Trafficking Act 1985 and Schedule 1 to the Act, i.e. deemed supply. Strictly, his evidence was inconsistent with any admission made in the Form 1 and this offence should have been excluded. It seems to me that the applicant should be dealt with upon the basis, not that he intended to sell this drug, but that he intended to use it. At all events, the Form 1 offences did not add significantly to the criminality of the principal offence and, accordingly, ought not to increase the sentence otherwise appropriate for that offence. 41I have had the advantage of reading the judgment of Latham J in draft. As I understand her Honour, she regards the cocaine charge on the Form 1 as significantly increasing the applicant's criminality and thus as one of the features of the case leading to the conclusion that no lesser sentence is warranted. In Dionys v R [2011] NSWCCA 272 I discussed Re Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146. It is unnecessary to repeat here what I there said but I wish to make some additional comments about this issue. 42Firstly, it is not in issue, of course, that the Form 1 offence must be taken into account. The crucial question concerns the way in which this is to be done. In my respectful view, the sentence for the primary offence can only be increased to take account of a Form 1 offence to the extent that the commission of that offence indicates that "the need for personal deterrence ... ought to be given greater weight by reason of the course of conduct in which the accused has engaged ... [and] the community's entitlement to exact retribution for serious offences when there are other offences for which no punishment has in fact been imposed": Re Attorney General's Application No 1 of 2002 per Spigelman CJ at [42]. The first consideration is easily appreciated; so far as the second is concerned it must be understood as subject to the fundamental principle that "the focus throughout must be on sentencing for the primary offence" (ibid at [43]) and the approach that "in some senses [semble, in any sense] sentences were being imposed for the Form 1 offences ...[must be] rejected" (ibid at [45]). The extent to which the second consideration is "always material in the sentencing process" gives some guidance as to the way in which it is to be understood. It is, with respect, clear that his Honour was not suggesting that the offender can be punished for uncharged (though admitted) crimes. Rather, the criminality of the primary crime is to be assessed in light of those other offences. The significance of the other offences will vary from case to case but committing an offence in the course of other criminality is, to a greater or lesser degree, more inherently serious than committing that offence in isolation and the measure of retribution is accordingly greater. The other offences may well also be material to the offender's subjective case. Thus, the Form 1 procedure is no more than a convenient and transparent process that allows the uncharged offences to be taken into account to the extent that they reflect on the seriousness of the primary offence and the other factors relevant to assessing the appropriate sentence for that offence and also giving the offender the certainty that he or she will not be further or separately punished for them. 43Put somewhat differently, I do not accept that the Court intended in Re Attorney General's Application No 1 of 2002 to qualify in the slightest degree the fundamental principle that a person cannot be punished for offences for which he or she has not been convicted, as the passages to which I have referred demonstrate. Thus, the significance of the Form 1 offences can never be considered in isolation but always and only by assessing their impact on the relevant issues which fall to be considered in sentencing for the primary offence and for that offence alone. Those issues are not expanded, though of course they might well be informed, by the commission of the Form 1 offence. I therefore respectfully disagree with interpretations of Re Attorney General's Application No 1 of 2002 that give to the reference to retribution the effect, in substance if not in form, that directly or indirectly subverts the fundamental principle to which I have referred. 44In the present case, therefore, I formed the view that, although the cocaine offence is a serious one, it does not significantly increase the need for personal deterrence to a greater degree that otherwise is the case considering the criminality involved in the primary offence. Nor does it seem to me to add any significant weight to the measure of criminality involved in that offence. The subjective features 45So far as the applicant's subjective case is concerned, at the time of sentence he was almost 32 years old with no prior convictions of any kind. He is the youngest of three brothers and, although his parents separated when he was five years old his mother appears to have provided a stable background for the family. The applicant attended high school until year 11 when he left to take up a job in a smash repair business. He completed his apprenticeship, winning trophies for his performance at TAFE and continued to work in this trade for about six or seven years as a spray painter. However, he began to experience severe headaches and lethargy from paint fumes and left, working first in a petrol station and, eventually, he set up a restaurant business in Parramatta. He began to use illicit drugs more frequently and the restaurant business became increasingly insolvent. His relationship with his girlfriend became fraught and eventually broke down. In the 12 months before August 2008 the applicant's lifestyle was essentially to take drugs, recover over two to three days and then take drugs again. 46Tendered on the sentencing proceedings was the report of a clinical psychologist, which did not suggest any significant psychological problem that needs to be taken into account for present purposes. Overall, it supported the sentencing judge's optimistic view of the applicant's prospects of rehabilitation providing, of course, that the applicant refrains from drug abuse. A number of testimonials were also tendered on the applicant's behalf, again not calling for discussion but certainly supporting of his positive subjective case and the sentencing judge's conclusion that the applicant had strong community and family support which would be of benefit to him, particularly upon his release. 47The applicant had expressed remorse and shame and the sentencing judge accepted this as genuine. She noted that he now seemed to have some insight into the damage the drugs he was assisting to manufacture did to members of the community, especially the young. Her Honour concluded that the applicant had good prospects for rehabilitation, based upon his community and family support, his commitment to abstain from illegal drugs on his release and what she accepted was a mature response to imprisonment and the productive use of his time. Submissions 48The submissions of Mr Hamill SC for the applicant focused on the contention that, although the quantity of drugs involved in the applicant's charge was very high, this was not the sole or even principal determinant for sentencing drug offenders and other factors such as the knowledge of the offender as to the quantity of drugs and his role were important. He conceded (as was inevitable) that there is a gradation of seriousness relating to quantity which is reflected by the increased statutory penalties for commercial or large commercial quantities. Dealing with the subjective features, Mr Hamill emphasised the drug dependent life which the applicant was living at the time and the motivation to take part in the offence in the hope that his substantial drug debt would be expunged. He pointed to the applicant's long history of employment and good character and submitted that his criminality can be directly related to his severe addiction to drugs; he had handed himself into police, shown genuine remorse and acceptance of responsibility and had taken such steps as were available to him towards rehabilitation. It was submitted that the favourable subjective features provided significant mitigation and justified a sentence substantially less than that which was imposed. 49Mr Hamill SC cited a number of sentences dealing with large commercial quantities of prohibited drugs. He relied in particular on Cvitan v R [2009] NSWCCA 156, which involved 27.5 kilograms of MDMA and precursors capable of making much more than that. In that case the drugs were manufactured on a rural property which Cvitan owned and on part of which he lived. He made structural changes to a shed to convert it to a drug laboratory, purchased a number of items used in the construction of the laboratory and ingredients to be used in the manufacturing process. He also met the offender who was recruited for the purpose of providing technical expertise, provided transport for him to accommodation in Sydney and ultimately to the property and was in frequent telephone communication with the other participants as well as taking part in the manufacturing process under another offender's technical direction. Cvitan had prior offences of cultivating a prohibited plant and supplying a prohibited drug for which he was sentenced to lengthy terms of imprisonment. Cvitan had some management role in the manufacture and an interest in increased yield. He was likely to obtain a substantial profit. His head sentence was 14 years and three months with a non-parole period of nine years and three months. The Crown appealed, submitting that there was no proper basis for departing from the standard non-parole period and that the sentencing judge was mistaken in respect of a material fact used by his Honour to find special circumstances. Both of these contentions were accepted and it was found that the sentence imposed was manifestly inadequate. In the result, however, the Crown appeal was dismissed having regard to considerations of parity. Given that the Court's analysis was influenced very substantially, if not entirely controlled by, the significance of the standard non-parole period by way of reasoning which was rejected in Muldrock v R [2001] HCA 39, it does not seem to me that this decision sheds much light on the appropriate sentence in the present case. 50Reliance was also placed on Kalemusic v R [2009] NSWCCA 178 in which the court held that a sentence of 16 years and three months with a non-parole period of 12 years and six months (following a discount of 16.66% for the plea) was not manifestly excessive. Kalemusic was one of Cvitan's co-offenders. He had a previous conviction for knowingly taking part in the manufacture of methylamphetamine. This offender occupied a position of some authority and had some role in the gathering of necessary personnel and the construction of the drug laboratory. 51In Caristo v R [2011] NSWCCA 7 the applicant was involved in preparing ecstasy and cocaine for distribution. He was essentially an employee within the organisation whose job was to mix the cocaine with other substances in order to bulk it up and have it available for supply. The amount of ecstasy involved was something less than 13 kilograms and the amount of cocaine was six kilograms. His role was very much towards the bottom of the scale and had been limited to activity on two days. He had a very lengthy criminal history including one drug supply offence. The court dismissed an appeal against the severity of the sentence of eight years and six months with a non-parole period of six years. It is obvious that this offender's criminality was significantly less than that of the applicant's. 52In R v Stankovic [2006] NSWCCA 229 the offender's sentence of seven years and nine months with a non-parole period of five years and two months was increased on a Crown appeal to 11 years and eight months with a non-parole of eight years and nine months. The amount of drugs involved was 44 kilograms. It appears that most of the blending for and pressing of the tablets was done by the offender. The sentence was discounted by a factor of 20% in respect of the plea and a further discount of 15% for other assistance. There were also "very serious matters on the Form 1, which included an offence of cultivating 54 cannabis plants". It is necessary, again, to deal with this decision with care having regard to the dominant role that the standard non-parole period played in the Court's reasoning. 53Latham J also considers the use to be made of Stankovic. Grove J deals with the standard non-parole period as follows - [19] The prescribed maximum penalty for the offence to which the respondent pleaded guilty was, as I have said, imprisonment for life. There is also specified in Part 4 Division 1A of the legislation a standard non parole period of fifteen years imprisonment. This is not directly applicable unless the offence is in the middle of the range of objective seriousness for the offence and the conviction follows trial. The plea of guilty by the respondent avoided the necessity of trial. His Honour does not appear to have made a finding in terms of range but he did state that "there is no doubt on an objective basis, that the offence is extremely serious". I consider that the respondent's blatant criminal activity would be placed at least in the middle of the range of objective seriousness for this offence. [20] His Honour recognized that, although the standard non parole period did not apply, it was a guideline to be "borne in mind" when sentencing. [21] He expressed his ultimate conclusions in these terms - Bearing in mind the guideline of a standard non-parole period of fifteen years and, for the moment, not considering the guilty plea or the co-operation offered by the offender, and considering especially the quantity of the drugs involved, the role of the offender in the joint enterprise and the duress factor, a starting point for a total sentence in my estimation is twelve years. This period of a total sentence reflects the objective seriousness of the offence, the aggravating factors to which I have referred, as well as the mitigating factors, except the factor of the plea of guilty. [22] A non parole period (standard or otherwise) must represent the minimum period of imprisonment to be served because the crime committed calls for such detention: Power v The Queen 1974 131 CLR 623; R v Simpson 2001 53 NSWLR 704. To the extent that a standard non parole period offers guidance it must guide in respect of that minimum term. It appears from his Honour's remarks that he used the specified standard non parole period as a guide to his assessment of a total sentence. ... [45] Although the current provision of the sentencing legislation requires that the non parole period be set first, that does not mean that the total effect of the sentence is to be ignored. It is desirable in this instance to approach assessment using the same procedure adopted in the District Court so that it will make patent any needed comparison. [46] In my view, giving full weight to the matters of objective seriousness of the offence, the respondent's role and the very serious matters on the Form 1 of which account must be given, and the matters of mitigation with particular emphasis on the element of duress as well as the restraint which I previously mentioned, I would consider an appropriate starting point for total sentence would be eighteen years imprisonment. In that estimation I necessarily have regard to guidance offered by the statutory prescription of available maximum penalty of life imprisonment and the standard non parole period of fifteen years, both of which guides stand independently of the need to reflect the Form 1 matters. 54It seems to me, with respect, that it is inescapable that the standard non-parole period dominated the sentencing process -- as was thought to be appropriate in accordance with Way - and, thus the need for caution. At all events, Stankovic sets no precedent and should not be used as though it did. We accept a range applies. 55Overall, it seems to me that the cases relied on by Mr Hamill SC, although instructive to some degree, do not yield much useful guidance in relation to sentencing this applicant. 56The Crown prosecutor pointed to the very substantial quantity of drugs involved in the applicant's offence compared to the minimum of 0.5 kilogram qualifying in Schedule 1 to the Drugs Misuse and Trafficking Act 1985 as a large commercial quantity. It was contended that it cannot be demonstrated that the sentencing judge impermissibly inflated the sentence by giving too much weight to the standard non-parole period, erred in her characterisation of the objective seriousness of the applicant's offence or gave insufficient allowance for the subjective features of the case. It was submitted that the sentence did not exceed the range of an appropriate sentencing discretion so as to manifest error and that no lesser sentence is warranted in law. 57Firstly, as to her Honour's approach, after discussing the objective and subjective features of the case her Honour stated, "I come now to consider whether it is appropriate to impose the standard non-parole period of 15 years", mentioned "the enormous quantity of the drug" but noting the "relatively low level" of the applicant's involvement in the manufacture, and concluded that "the offence was at the mid range of objective seriousness". Due to the applicant's plea of guilty, his prior good character, his acceptance of responsibility and genuine remorse and the finding that he had good prospects of rehabilitation, her Honour decided not to impose the standard non-parole period. It seems clear that her Honour was applying the law as articulated in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168, commencing by assessing the objective circumstances as falling in the mid-range of seriousness and then whether there were reasons for not applying the standard non-parole period, as required by that authority. This is an error: Muldrock v The Queen [2011] HCA 39 at [25]. However, her Honour did not state what significance, if any, the standard non-parole period played in the assessment of the sentence. After stating that her Honour would not impose it, no further reference to the matter appears and her Honour simply imposed the sentence after making a brief reference to special circumstances. Having regard to the characterisation of the objective seriousness of the offence as being in the middle of the range, it seems most probable that her Honour treated the standard non-parole period as the starting point from which the sentence was reduced by virtue of the specified mitigatory factors. In this sense, the standard non-parole period dominated the determination of the appropriate term of imprisonment and was in error: Muldrock at [26]ff. 58Secondly, whether the applicant's sentence, applying general principles including those enunciated in Muldrock is manifestly excessive is not the question. As the sentence was significantly affected by error, it is for this Court to determine what the appropriate sentence should be and impose that sentence unless, in the result, no lesser sentence than that imposed by the primary judge is warranted. The question is not whether the sentence under appeal was outside the discretionary range. Of course, it was not. However, the duty of this Court is to sentence afresh, although on the basis of the primary judge's findings of fact unless some error is demonstrated in this respect. Here, no such error is proposed. Resentencing 59So far as objective circumstances are concerned, it is clear that the two major considerations are the volume of drugs manufactured and the role of the applicant. There is no doubt that the quantity of drugs was very substantial indeed but, it is not disputed, the applicant's role was correctly described by the sentencing judge as "relatively low level". For myself, I do not find it helpful to characterise the quantity by the arithmetical calculation of dividing the quantity manufactured by that which constitutes the minimum quantity stipulated in the definition of the offence. It is certainly a large quantity and the offence would have been somewhat less serious had it been significantly less and somewhat more serious had it been significantly more. Clearly there is some relationship between the quantity of drug involved in the offence and the relative importance of the standard non-parole period and, for that matter, the maximum sentence but, plainly enough, it is not possible to specify except in the most general terms what quantity would bring a particular offence within the orbit, as it were, of either of these reference points both as a matter of principle (see Wong v R (2001) 207 CLR 584) or, indeed, as a matter of logic, especially in the case of the standard non-parole period given that it "represents the non-parole period for a hypothetical offence in the middle of the range of objective seriousness without regard to the range of factors, both aggravating and mitigating, that bear relevantly on sentencing in an individual case "without regard to the range of factors, both aggravating and mitigating , that bear relevantly on sentencing in an individual case" (Muldrock at [31], emphasis added). 60An additional logical difficulty in proposing a quantity - even in part - in an attempt to give content to the standard non-parole period is that the trigger which makes the non-parole period and, for that matter, the maximum sentence reference points is an already a substantial quantity of the drug. 61The maximum penalty of life imprisonment and the non-parole period of fifteen years certainly marks this offence as grave. At the same time, of course, the applicant's offending did not, by a very large margin, approach a case falling within the most serious category; nor, in my view, does it approach the middle of the range of objective seriousness. Taking into account all the objective matters and the applicant's subjective features I consider that an appropriate starting point for the head sentence is 12 years' imprisonment. Applying the discount for the early plea of 25% results in a term of eight years. The statutory calculus specified in s 44 of the Crimes (Sentencing Procedure) Act 1999 results in a non-parole period of six years. I consider that the applicant's prospects of rehabilitation and the desirability of providing a substantial period of supervision to ensure to the extent that it is possible his continuing resolve to remain drug free and refrain from crime constitute special circumstances justifying a variation in this period to five years' imprisonment. Conclusion 62I would propose that leave to appeal against sentence be granted, that the sentence imposed be quashed and in place thereof the appellant be sentenced to a non-parole period of five years commencing on 19 December 2008 and ending on 18 December 2013 and a balance of term of three years commencing on 19 December 2013 and ending on 18 December 2016. 63LATHAM J: I have had the considerable advantage of reading the judgment of Adams J in draft. I am unable to agree that a lesser sentence is warranted in law. 64I would note at the outset that the primary judge mistakenly sentenced the applicant on the basis that he had pleaded guilty in the Local Court to a charge of knowingly take part in the manufacture of not less than the large commercial quantity of MDMA. In fact, the Court Attendance Notice, the committal document and the Form 1 all refer to an offence of manufacture. That is confirmed by the Law Part Code on the Court Attendance Notice (63587), which is different from that which signifies a charge of knowingly take part in manufacture (68384). Both forms of the offence are charged under s 24(2) of the Drug Misuse and Trafficking Act and carry the same maximum penalty and standard non parole period. To that extent, very little turns on the error. However, it has some relevance in my view to the assessment of the objective gravity of the offence. 65In his judgment, his Honour has dealt with the facts of the offence. There is no need to repeat them here, save that it is relevant to note that the three pill press machines which were the subject of charges on the Form 1 were located in the first floor living room and were switched on at the time of the search. 66The persons who suggested to the applicant that he discharge his drug debt by allowing the use of his premises for manufacture were known to the applicant. He indicated in his evidence that he would not disclose their names because of fears he held for his family. 67According to the applicant's evidence, the manufacturing process only ceased because of police intervention. He could not explain why he took no steps to remove the pill presses, sifters and other manufacturing paraphernalia, let alone the extremely large quantity of the drug, between his return from overseas on 6 October 2008 and the execution of the search warrant. He actively participated in the manufacturing process over that time. In that context, it is more accurate to say that the applicant permitted the operation for about two months while he was overseas, and then actively participated in it for a further two months. 68I do not agree that the supply cocaine offence on the Form 1 did not add to the applicant's criminality. The primary judge found that the possession of the pill presses were "part and parcel" of the manufacturing offence, but her Honour went on to say that "the supply cocaine is a separate and serious matter, the amount being more than twenty times the indictable quantity of five grams. This must lead to an increase in the sentence." No issue was taken by the applicant on the hearing of the appeal with this aspect of the remarks on sentence. That is not surprising, given that the applicant is recorded in the transcript of 16 April 2010 at p.3.1 acknowledging his guilt of the supply cocaine offence. 69Accepting that the quantity of the drug is not the sole or necessarily dominant determinant of objective gravity, it is nonetheless a significant factor. In so far as Adams J draws attention to the High Court's comments in Wong v R with respect to the relevance of the weight of an imported drug, the following discussion by Johnson J (Tobias AJA and Hall J agreeing) in Paxton v R [2011] NSWCCA 242 at [127] - [132] is instructive :- 127. The DMT Act adopts a type of quantity-based penalty regime by fixing quantities (including commercial and large commercial quantities) of certain drugs, distinguishing between those drugs in setting such quantities, but otherwise making no distinction between them in terms of maximum penalties. The position is broadly analogous to that taken with importation and possession offences contained in the Criminal Code 1995 (Cth) : Adams v The Queen [2008] HCA 15, 234 CLR 143 at 146 [2]. 128. However, there are at least two significant distinguishing features as between the Commonwealth and New South Wales statutory schemes. Firstly, the New South Wales statutory scheme incorporates standard non-parole periods for offences of supplying a commercial or large commercial quantity of a prohibited drug. There is no corresponding provision in Commonwealth law. 129. Secondly, Division 314 of the Criminal Code 1995 (Cth) lists the applicable trafficable, marketable and commercial quantities for each type of drug, with the specified quantities based on the pure amount of the drug. However, s.4 DMT Act provides that "a reference to a prohibited drug includes a reference to any preparation, admixture, extract or other substance containing any proportion of the prohibited drug" . Accordingly, under New South Wales law, it is the total quantity of the substance (containing any proportion of a prohibited drug) which is pertinent for the purpose of classification of the offence. Nevertheless, purity of the drug is one of the factors to be considered when determining where an offence falls in the range of objective seriousness: R v Blair [2005] NSWCCA 78; 152 A Crim R 462 at 472 [56]. 130. In relation to Commonwealth drug importation offences, it has been said that, although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported: Wong v The Queen at 607-608 [64]; R v Lee [2007] NSWCCA 234 at [23]-[24]. 131. Further, the statements by the High Court in Wong v The Queen do not suggest that, in an appropriate case, the amount of the drug involved in an importation is not a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type. In many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved, where otherwise the circumstances of the importation were the same or very similar: R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80 at 102 [110]; R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R at 237 . 132. Although the propositions referred to at [130] and [131] relate to Commonwealth importation offences, the reasoning is readily applicable to New South Wales drug supply offences as well. Where the structure of the Act involves a quantity-based penalty regime, with maximum penalties and standard non-parole periods escalating as the quantity of the relevant drug crosses from one quantum-based category into another, it is understandable that the quantity of drugs remains a very material consideration in assessing the objective seriousness of an offence. The decisions of this Court in R v MacDonnell , R v Stanbouli and Melikian v R are consistent with these propositions. See also Woodgate v R [2009] NSWCCA 137 per Grove J (Buddin and RA Hulme JJ agreeing) at [32]. 70I am not persuaded that the reasoning of the Court in Stankovic was dominated by the standard non parole period. The following passage from Grove J's judgment (Giles JA and Hidden J agreeing) does not appear to me to depart from Muldrock, in that the standard non parole period remains as a relevant consideration :- 22 A non parole period (standard or otherwise) must represent the minimum period of imprisonment to be served because the crime committed calls for such detention: Power v The Queen 1974 131 CLR 623; R v Simpson 2001 53 NSWLR 704. To the extent that a standard non parole period offers guidance it must guide in respect of that minimum term. 71Furthermore, when allowing the Crown appeal and proceeding to re-sentence in Stankovic, Grove J embarked on a synthesis of all relevant matters :- 46 In my view, giving full weight to the matters of objective seriousness of the offence, the respondent's role and the very serious matters on the Form 1 of which account must be given, and the matters of mitigation with particular emphasis on the element of duress as well as the restraint which I previously mentioned, I would consider an appropriate starting point for total sentence would be eighteen years imprisonment. In that estimation I necessarily have regard to guidance offered by the statutory prescription of available maximum penalty of life imprisonment and the standard non parole period of fifteen years, both of which guides stand independently of the need to reflect the Form 1 matters. 72Stankovic involved the discovery of 44 kgs of MDMA, together with the accoutrement of a manufacturing process, in premises in Sydney. The offender pleaded guilty to supplying more than the large commercial quantity, although his offending was equally consistent with manufacture. There were four further offences on the Form 1. The offender was sentenced on the basis that he was a labourer in the enterprise, although, relevantly, it was noted by Grove J at [29] that the fact that "the respondent's activity might have been more serious had he been a principal does not constitute an element of mitigation." 73On any view, 59 kgs of MDMA is a very large amount of that particular prohibited drug, being almost 120 times the large commercial quantity. It should not be overlooked that the dissemination of such a volume into the wider community had the potential to cause a great deal of harm, both individually and socially. With respect to Adams J, a non parole period of 5 years for this offence (which does not take account of the Form 1 offences) appears to me to almost wholly discount the quantity of the drug as a consideration in assessing the objective gravity of the offence, in favour of what is said to be the applicant's low-level role. 74It is at this point that I return to the basis of the applicant's plea. Whilst it may be correct to say, for the purposes of a charge of knowingly take part in the manufacture, that the applicant did no more than provide his premises, it is not correct to ignore the applicant's active participation in the manufacture itself when assessing the objective gravity of his offending on the charge to which he pleaded guilty. 75The apparent readiness with which the applicant agreed to participate in the enterprise, by providing the premises where the manufacture was to take place and actively assisting in that manufacture, for a comparatively minor part of the applicant's overall indebtedness ($12,000), reveals a significant level of moral culpability. The fact that the applicant's judgment may have been impaired by his own drug use cannot mitigate the offence to any appreciable degree. Accepting the applicant's favourable subjective circumstances, there is a very substantial element of general deterrence to be reflected in the sentence. 76Finally, having regard to the supply cocaine offence on the Form 1, there is no basis upon which I would consider that a lesser sentence is warranted in law. The cocaine the subject of that charge was 80% pure. It warranted an increase in the sentence otherwise appropriate to the principal charge: R v Barton [2001] NSWCCA 63; 121 A Crim R 185; R v Grube [2005] NSWCCA 140. 77The orders I propose are: - (1)Leave to appeal against sentence allowed. (2)Appeal dismissed.