19 With respect to their author, the submissions wholly ignore the inclusion in s 16A(1) of the word "all", concentrate on quantity and the simple fact of importation and fail to recognise that there is more to offending, or even the objective criminality of an offence than merely the actus reus - see R v Way (2004) 60 NSWLR 168 at [86]. The proposition quoted in the second part of the immediately preceding paragraph ignores general sentencing practice and is inconsistent with what Gaudron, Gummow and Hayne JJ said in Wong v The Queen (2007) 207 CLR 584 at [71] and with an oft cited statement by Mahoney ACJ (with the concurrence of Adams J, in R v Lattouf (Unreported, NSWCCA, 12 December 1996).
20 In Wong v The Queen, the three judges said:-
The sentencer must, therefore, "impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence" s 16A(1). Standing alone, the reference to imposing "a sentence… of a severity appropriate in all the circumstances of the offence" might be read as directing the sentencing Judge to determine a sentence proportionate to the wrong doing without regard to considerations of rehabilitation or incapacitation of the offender… or the offender's prior criminal history. But s 16A(1) does not stand alone. To the extent that the matters identified in s 16A(2) are relevant and known to the Court the sentencer must take those into account. This group of matters is very diverse. … what is noticeably absent from s 16A is any guidance about the accommodation that is to be made between these various factors or between these factors and the general requirement that the sentence be of a severity appropriate in all the circumstances of the offence. … Section 16A obliges the sentencer to take all of them into account and effect must be given to that legislative command. (Emphasis in original)
21 In R v Lattouf Mahoney ACJ, with whose reasons Adams J agreed, said:-
It is in my opinion necessary that the law allow to a sentencing judge a discretion to determine the sentence appropriate for the particular offence, for the particular offender, and for the circumstances of the particular case. General sentencing principles must be established, so that the community may know the sentences which will be imposed and so that sentencing judges will know the kind and the order of sentence which it is appropriate that they impose. But, of course, principles are necessarily framed in general terms. General principles must, of their nature, be adjusted to the individual case if justice is to be achieved. For this reason, it is in my opinion important in the public interest that the sentencing process recognise and maintain a residual discretion in the sentencing judge.
Second, it is important to recognise the nature of the interests involved in the sentencing process. There is a public interest in the adoption and articulation of sentencing principles which will deter the commission of serious crime and punish those who commit it. … But there are other interests to which the sentencing process must have regard; there are other objectives which the sentencing process must seek to achieve. Paramount amongst these is the achievement of justice in the individual case. To see the sentencing process as involving no more than stern punishment for each offender is not merely simplistic; it damages the public interest.
22 Later cases in which the second paragraph of this passage has been endorsed include R v Clark (1997) 95 A Crim R 585 at [590-1]; R v Henry (1999) 46 NSWLR 346 at [10]; R v Ridgeway [2000] NSWCCA 286 at [37] and R v Bolt (2001) 126 A Crim R at [78].
23 When one has regard to Hosking DCJ's findings as to the Respondent's state of knowledge, motivation, likely use of the drugs the subject of the charge, general character and likelihood of re-offending, his Honour was quite entitled to conclude as he did that no custodial sentence was appropriate.
24 When asked during the hearing of the appeal whether the Crown had a fall-back position against the possibility that its primary submission that there should be a full time custodial sentence was rejected, counsel appearing said at one stage that he did not, nevertheless mentioning the possibility of a sentence of imprisonment being suspended or an order for community service.
25 Given what has been said above and Hosking DCJ's views as to the impact of s 17A of the Crimes Act, the first of these alternatives must be rejected. So far as the second is concerned, while s 20AB of the Crimes Act authorises the making of a community service order, there was no evidence before Hosking DCJ or before this Court of the nature of that required before such an order can be made - c.f. Crimes (Sentencing Procedure) Act 1999 (NSW), s 86.
26 However, there still remains the question whether the penalty imposed by Hosking DCJ was manifestly inadequate. In my view it was. The recklessness implicit in the Respondent's plea means that a more substantial penalty should have been imposed than merely $500 which, compared against the statutory maximum is almost nominal. In my view an appropriate fine would be $3,000.
27 There was no discussion during the hearing of the appeal as to the Respondent's financial situation. In these circumstances, the Court should allow a reasonable, perhaps more than a reasonable time, for the fine to be paid.
28 Accordingly, I would propose the following orders:-
(i) Appeal allowed;
(ii) Quash the sentence imposed by Hosking DCJ on 20 April 2010;
(iii) Order that the Respondent pay a fine of $3,000; and
(iv) Allow the Respondent 3 months to pay.
29 McCALLUM J: I agree with RS Hulme J. As his Honour has observed, the Court was not addressed as to the respondent's capacity to pay a fine. In that context, I note that it would be open to the respondent to make an application to the Registrar of this Court under s 10 of the Fines Act 1996 for further time to pay in the event that, notwithstanding the extended period proposed by RS Hulme J, there is a real difficulty.