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[2012] NSWCCA 38
respondent. The Crown appeal was dismissed by majority. Basten JA agreed with Adams J's conclusion, and Adams J would dismiss the appeal. Johnson J dissented, proposing that the sentence be quashed and...
The court dismissed the Crown's appeal by majority. The majority did not accept that assistance discounts were capped at 15% simply because a case had also received a guilty-plea discount. It also found that the legislation did not dictate one mathematical method for combining discounts, while emphasising that the same consideration must not be counted twice. Adams J considered the sentence not shown to be manifestly inadequate and took account of the co-offenders' different roles and offences. Johnson J disagreed on the overall sentence and would have increased it, although he also found no established error in the 10% assistance discount.
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2,143 words · generated 02/10/2026
The Court of Criminal Appeal considered a Crown appeal against the sentence imposed on Damon Ehrlich for supplying 1.615 kilograms of methylamphetamine over about three months. The supply was part of a syndicate operating between Sydney, Perth and Kalgoorlie. The sentencing judge found Ehrlich was at least a principal in the syndicate, important to its continuing operation, and engaged in the offending for financial gain ([17]-[22]).
5 cited instruments linked from this judgment.
The sentence imposed on 16 June 2011 was six years and six months' imprisonment, with a non-parole period of four years and ten months. It included a 25% guilty-plea discount and a further 10% discount for assistance to authorities under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ([16], [28], [60]). The plea discount arose under the Criminal Case Conferencing Trial Act 2008 (NSW), which applied to Ehrlich's case ([13], [78]).
The Crown first appealed on the basis that the sentence was manifestly inadequate. It later added a ground that the 10% assistance discount was excessive ([2], [16]). The appeal was dismissed by majority. Basten JA agreed with Adams J's conclusion. Johnson J would have allowed the appeal and imposed a longer sentence ([1]-[3], [111]-[115]).
The judges agreed that the challenge to the 10% discount did not establish error. Their reasoning on how multiple discounts should be analysed was not identical. Basten JA considered that the legislation did not prescribe one method of combining them. Adams J favoured identifying separate discounts and then considering whether the resulting sentence was disproportionate. Johnson J endorsed a practical ceiling on combined discounts drawn from earlier authority. On the overall sentence, Adams J and Johnson J reached different conclusions.
The Crown argued that the assistance discount was excessive because, after a 25% plea discount, only about 15% was generally available for assistance. It relied on R v Kumar & Feagaiga. Basten JA rejected that proposed limit. A figure from another case could not be converted into a general tariff without considering what assistance is generally provided and the matters listed in s 23(2). He also warned against taking an observation in one case out of context ([5]-[7]).
The sentencing judge had assessed the assistance as having some value, although not significant. The Crown had not challenged the suggested level of discount during the sentence hearing ([58]-[60]). Johnson J considered the 10% allowance to be at the top of the reasonable range, but concluded that the Crown had not shown error under House v The King ([63]-[64]). Adams J likewise considered the discount well within the sentencing judge's discretion ([28]).
The judgments also addressed how plea and assistance discounts can be combined. Basten JA noted that earlier decisions had applied discounts consecutively, but said no statutory provision or cited authority required that method to the exclusion of a cumulative calculation. In his view, the method of arithmetic was not itself the decisive issue; the court had to comply with s 23 and explain the relevant penalty reduction ([10]-[12]). Section 23(4), which had commenced on 14 March 2011, required the sentencing court to identify the assistance-related reduction and state the penalty it would otherwise have imposed ([8]-[9]).
A safeguard was avoiding double counting. Under the guilty-plea provision identified in the judgment, contrition could be one of the matters reflected in the plea discount. Because contrition might also be relevant to assistance, the sentencing court had to take care not to count the same element twice. The Crown did not allege that this had happened in Ehrlich's case ([13]-[14]).
The judges divided on whether the overall sentence was manifestly inadequate. Adams J assessed the offending as serious, but was not persuaded that the sentence disclosed latent error. He considered the respondent's circumstances and the sentences imposed on co-offenders whose offences and roles were less serious. In his view, even if an increase were warranted, parity considerations meant the increase would amount to “tinkering” ([51]-[53]).
Johnson J considered the sentence too low. He emphasised the quantity supplied, Ehrlich's directing role, the extended commercial activity, and the need for general and specific deterrence. He also considered that the respondent's subjective case was limited and that the standard non-parole period and maximum penalty required appropriate weight ([89]-[99], [111]-[114]). He rejected parity as a barrier to resentencing because Ehrlich had been sentenced for a more serious offence and had played a more active role than the other syndicate members ([102]-[109]).
The judgment dealt with two significant statutory and doctrinal contexts. First, s 23 of the Sentencing Procedure Act allowed a court to impose a lesser penalty having regard to assistance provided, or promised, to law enforcement authorities. The 2010 amendment added s 23(4), requiring the court to record that the penalty was reduced for assistance, state the penalty otherwise imposed, and state the amount attributable to each reason where assistance had been given and undertaken ([8]). The provision did not specify whether a plea discount and assistance discount had to be applied consecutively or cumulatively, according to Basten JA ([11]-[12]).
Second, the court considered the effect of Muldrock v The Queen on sentencing for offences carrying a standard non-parole period. Adams J observed that earlier drug-supply decisions had been made against the background of R v Way, whose approach to the standard non-parole period had been held wrong by the High Court. He cautioned that those earlier sentences therefore required “more than usual caution”, while noting they could still shed some light on sentencing in similar cases ([49]-[50]).
Johnson J stated that the maximum penalty and standard non-parole period were legislative guideposts, not determinative figures, and referred to the process of instinctive synthesis ([85]-[88]). He also said Muldrock did not rule out a conventional assessment of objective seriousness ([87]). His judgment applied that approach to conclude that the sentence was manifestly inadequate, but that conclusion was dissenting.
On assistance discounts, the judgment did not establish a universal percentage or a definitive formula for calculating multiple discounts. Basten JA rejected the Crown's proposed fixed 15% ceiling and said the statute did not require one calculation method. Johnson J, by contrast, agreed with earlier decisions that a practical ceiling on the combined effect of discounts remained relevant ([69]-[72]). The majority disposition did not resolve every theoretical difference between those approaches.
The Criminal Case Conferencing Trial Act 2008 applied to Ehrlich because he fell within the category specified in the judgment. Johnson J noted that the trial scheme had ended on 8 October 2011 and that the Repeal Act commenced on 14 March 2012 ([78]).
At [6], Basten JA warned against treating sentencing discounts as fixed tariffs drawn from different cases. In plain English, the amount awarded for assistance depends on the circumstances and the statutory criteria. A percentage used in one case does not, by itself, set a general limit for another.
At [8], s 23(4) required the court to record the assistance-related reduction and the penalty that would otherwise have been imposed. In plain English, the sentencing reasons had to make the assistance discount transparent enough to identify. The provision did not, in Basten JA's view, dictate a particular mathematical sequence ([9]-[12]).
At [13]-[14], Basten JA identified double counting as the real concern where a plea and assistance both attract discounts. In plain English, a feature such as contrition should not be rewarded twice if it has already been included in the plea discount. The Crown did not identify that problem in this case.
At [63], Johnson J said the 10% assistance discount was at the top of the reasonable range but that the Crown had not established error. This captures the distinction between a generous sentencing choice and an appealable error: the fact that a different judge might have awarded less does not, by itself, prove the sentencing judge acted outside the permissible discretion.
At [51], Adams J concluded that the resulting sentence was not unreasonably disproportionate, and that he was not persuaded it was manifestly inadequate. This was part of the majority's basis for dismissing the appeal. At [111]-[115], Johnson J explained why he reached the opposite conclusion and set out the sentence he would have imposed.
The case is relevant to sentencing matters where an offender has received both a guilty-plea discount and an assistance discount, and the prosecution argues that the assistance component is too high because of an assumed general ceiling. It indicates that the amount of assistance, its practical value, the statutory considerations, and the sentencing record matter more than a supposed percentage tariff drawn from another case ([5]-[9], [58]-[64]).
It is also relevant where a party disputes whether separate discounts may be added or must be applied one after another. Basten JA's reasoning cautions against assuming that a calculation method is prohibited when neither the statute nor the authorities cited establish that restriction ([10]-[12]). The decision does not mean arithmetic is irrelevant in every case: the court still has to comply with statutory recording requirements and consider whether the final sentence is proportionate.
The double-counting discussion is engaged where the same personal or behavioural factor could be relied on for more than one discount. Here, contrition could be relevant both to a guilty plea and to assistance, so the court identified a need to avoid counting it twice ([13]-[14]).
Finally, the case concerns a Crown appeal challenging a sentence for serious, organised drug supply. It demonstrates that manifest inadequacy and parity can be contested by reference to the offender's role, quantity, commercial activity, statutory sentencing markers, personal circumstances, and the different charges and roles of co-offenders ([51]-[53], [83]-[109]). The result turned on the majority's assessment of this record, not on a general conclusion about all sentences for comparable quantities.
The judgment itself does not contain decisions by courts after 28 March 2012, so it cannot establish how later courts treated R v Ehrlich. The following points describe only the treatment of earlier authorities recorded in this judgment.
Basten JA discussed R v Kumar & Feagaiga as the source of the Crown's proposed 15% limit, but rejected using that case to create a general ceiling ([5]-[7]). He also discussed R v NP and R v El Hani on consecutive discounting, recognising that those cases had adopted that approach in contexts where separate discounts were specified. He did not consider their reasoning sufficient to exclude a cumulative method ([11]-[12]).
Johnson J gave a different account of the authorities. He said the approach in R v Sukkar had been accepted or followed in several cases, and approved the reasoning in SZ v R concerning a practical ceiling on combined discounts ([67]-[72]). He expressly noted that s 23(4) should be considered alongside those decisions, but concluded it did not affect their reasoning on a practical ceiling ([72]). These are the judges' competing treatments of existing authority in this appeal; they should not be recast as a later-court history.
The judgment also records that the approach in Way to standard non-parole periods had been held wrong in Muldrock, and that earlier sentences made under the former approach should be treated cautiously ([49]-[50]). That discussion concerns the treatment of earlier sentencing decisions, not later treatment of Ehrlich.
The judgment leaves open how a court should resolve every case involving the interaction between s 23(4), separate discounts, and the overall proportionality safeguard in s 23(3). Basten JA considered that s 23 did not mandate a single method of combining discounts. Adams J favoured separate identification followed by consideration of any required adjustment. Johnson J considered that earlier authority continued to support a practical ceiling on the total effective discount ([11]-[12], [32]-[40], [69]-[77]).
The exact reach of a “practical ceiling” was not necessary to resolve the assistance ground, because the Crown failed to establish error in the 10% discount. Nor did the majority formulate a universal maximum percentage for assistance. The case therefore supports caution about fixed arithmetic rules, but does not supply a single comprehensive formula for all sentencing circumstances.
The judgment also leaves fact-sensitive questions about how to identify and avoid double counting when a factor such as contrition relates to both a guilty plea and assistance. It identifies the risk, but the Crown did not allege it had occurred here ([13]-[14]).
Finally, the judges disagreed on the application of manifest inadequacy and parity to the sentence. The majority dismissed the appeal; Johnson J would have allowed it. The decision therefore demonstrates the importance of the case-specific assessment, rather than a settled single view within the Court on the ultimate sentence in this factual setting.
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(Applicant) J Stratton SC (Respondent) S Kavanagh, Solicitor for Public Prosecutions (Applicant) B Duchen, Solicitor (Respondent) File Number(s): 2010/19582 Decision under appeal Date of Decision: 2011-06-16 00:00:00 Before: Tupman DCJ File Number(s): 2010/19582
Judgment 1BASTEN JA: The respondent, Mr Ehrlich, was sentenced by Tupman DCJ in the District Court for an offence involving the supply of 1.615 kilograms of methylamphetamine. The offending took place over a period of three months. After allowing a discount of 25% for the plea of guilty and a further 10% for assistance to authorities, her Honour sentenced the respondent to a non-parole period of four years and 10 months, with a balance of term of one year, eight months. The sentence was handed down on 16 June 2011. 2By notice of appeal filed on 29 June 2011, the Director of Public Prosecutions appealed against the sentence on the basis of its manifest inadequacy. On 30 September 2011 a further ground was added, namely that the sentencing judge had erred by awarding a discount of 10% for assistance provided to the authorities, under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act"). 3The factual background, including the nature of the offending, the respondent's role and his personal circumstances, have been set out by Adams J and need not be repeated. I agree with his conclusion that the appeal should be dismissed and, subject to what follows, with his reasons. 4Under the heading "Discounts", Adams J refers to a number of cases dealing with the manner in which to approach multiple discounts, which raise the following issues: (a) whether there is some restraint to be imposed on the amount of a discount for assistance to authorities; (b) whether the arithmetical assessment of individual discounts is necessary or appropriate, and (c) whether, where two separate discounts are applied, they should operate consecutively. 5The submissions for the Director directly raised for consideration only the first matter identified above. Thus, he contended that, in principle, a discount of only 15% is available for assistance to authorities and hence 10% (being two-thirds of the generally available discount) could not be justified in the circumstances of this case. The Director placed reliance on the reasoning of RS Hulme J (McClellan CJ at CL and Hidden J agreeing) in R v Kumar & Feagaiga [2008] NSWCCA 328 at [34]. 6The short answer to the Director's submission is that it was misconceived. To speak of a level of discount as "generally available" is to invite questions as to the kind of assistance which is "generally provided". It is also to make assumptions about the matters to which the Court must have regard, as set out in s 23(2) of the Sentencing Procedure Act. Further, taking reasoning in a particular case out of context and applying it as a general principle is an exercise fraught with dangers, particularly in relation to the broad discretionary exercise of sentencing offenders. Such a course also runs the risk of selective reliance on particular "authorities", to the exclusion of others. It is a straightforward matter to find other decisions in this Court which have allowed discounts for assistance to the authorities of up to 50%: R v NP [2003] NSWCCA 195; R v El Hani [2004] NSWCCA 162 at [71] Howie J (Simpson and Bell JJ agreeing). As stated by Gleeson CJ in R v Gallagher (1991) 23 NSWLR 220 at 230 (Meagher JA agreeing): "Even in cases where, as a matter of legitimate discretionary decision, a judge decides to give a specified discount it is essential to bear in mind that what is involved is not a rigid or mathematical exercise, to be governed by 'tariffs' derived from other and different cases but, rather, one of a number of matters to be taken into account in a discretionary exercise that must display due sensitivity towards all the considerations of policy which govern sentencing as an aspect of the administration of justice." 7Those remarks must, of course, be qualified by the statutory scheme now found in s 23 of the Sentencing Procedure Act, but their tenor is not diminished. 8The second matter, namely the supposed need for arithmetical precision, gives rise to no significantly different question to that raised above. What might have been said in Gallagher as to the ability of a sentencing judge not to specify specific elements of a discount now requires qualification by reference to s 23(4), introduced by the Crimes (Sentencing Procedure) Amendment Act 2010 (NSW), which commenced on 14 March 2011: "23 Power to reduce penalties for assistance provided to law enforcement authorities (1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence. ... (4) A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must: (a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and (b) state the penalty that it would otherwise have imposed, and (c) where the lesser penalty is being imposed for both reasons - state the amount by which the penalty has been reduced for each reason." 9Compliance with this provision will generally, if not invariably, permit the discount to be identified, even if not expressly stated, by calculating the proportion of the sentence imposed of that which would otherwise have been imposed, each of which are to be stated. 10In relation to the third matter, the sentencing judge assessed the respective discounts for the guilty plea and for assistance to authorities and combined them to identify the appropriate sentence. No error of law was asserted in undertaking this course, nor is any error manifest. 11Adams J refers to authority which appears to support the proposition that discounts should be applied consecutively. That approach was adopted by the Court in R v NP [2003] NSWCCA 195 at [30] (Hodgson JA) and [47] (Simpson J). In R v El Hani the Court accepted this approach "in a case where it is appropriate to specify individual discounts": at [70]. There is no reason to doubt that conclusion: however, the inference (implicit though not expressed) that it is incorrect to add the discounts, so as to achieve a single global figure applied to the sentence which would otherwise have been imposed, should not be assumed without demonstration. No authority or statutory support for the adoption of one approach rather than another was relied on in the cases noted above. Nor does s 23 necessarily require either process to the exclusion of the other. For example, for the Court to state the penalty which it would "otherwise have imposed" no doubt refers to the appropriate penalty disregarding only the assistance to authorities. It says nothing as to the manner in which the discounting is to be achieved. Indeed, on one view, the manner in which it is achieved is irrelevant: the selected reduction can be expressed in a number of different ways, none of which is prohibited. 12The fact that no objection was taken to the cumulative discount approach in this case supports the view that it is commonplace to adopt such an approach, regardless of what was said in R v NP and El Hani. Indeed members of the Court in those cases have, in other cases, accepted or applied the cumulative approach. 13The real issue with respect to the allowance of a discount on two bases is to avoid double counting of a particular element. In the present case, the discount for the guilty plea was required by the Criminal Case Conferencing Trial Act 2008 (NSW). It is thus necessary to have regard to the factors relevant to that discount, as identified in s 16: "16 Sentencing for certain indictable offences taking into account guilty plea ... (2) A discount for a guilty plea, in relation to an offence, means a discount for: (a) the saving in resources and time that would otherwise be expended in a trial for the offence but for the guilty plea, and (b) the avoidance of the additional trauma to the victim that might be caused by a trial for the offence, and (c) the contrition that the sentencing court considers that the offender demonstrates by pleading guilty, and (d) any other benefit associated with or demonstrated by the guilty plea." 14Assistance to authorities may also reflect contrition: R v Cartwright (1989) 17 NSWLR 243 at 256 (Hunt and Badgery-Parker JJ). To the extent that such contrition is, by statute, included within the discount for the plea, care must be taken by the Court to avoid double counting in respect of the discount for assistance. However, a range of other factors are also relevant in respect of the latter discount (see Cartwright at 253) and there was no suggestion in the Director's submissions that in this case the sentencing judge engaged in illegitimate double counting of that consideration. 15ADAMS J: Introduction 16This is an appeal by the Director of Public Prosecutions from a sentence passed in the District Court on the respondent upon a charge of supplying not less than the large commercial quantity of methylamphetamine between 4 September and 11 November 2009, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty prescribed for this offence is life imprisonment and/or a fine of $550,000 with a standard non-parole period of 15 years. The respondent was sentenced to an overall term of six years and six months imprisonment with a non-parole period of four years and ten months commencing on 2 March 2010, which was the date of his arrest. A discount of 25% was allowed, the plea having been entered at the Central Local Court, together with a further 10% discount under s 23 of the Crimes (Sentencing Procedure) Act 1999. The sentence was imposed on 16 June 2011. On 29 June 2011 notice of appeal was filed by the DPP upon the ground that the sentence was manifestly inadequate. On 30 September 2011 a further ground was added that the discount of 10% under s 23 of the Crimes (Sentencing Procedure) Act 1999 was excessive. The facts 17Although there was some dispute at the sentence proceedings in relation to certain quantities of drug allegedly supplied by the respondent, her Honour's factual findings (which were adverse to the respondent) were not in dispute on the appeal. The following account is largely taken from the learned sentencing judge's reasons for sentence. In about September 2009 an investigation identified a drug syndicate operating between Sydney, Perth and Kalgoorlie, the members of which included the respondent and six others, Brent Taylor, Nigel Martin, Lasalo Paeu, Thi Pham, Andrew Teakaraanga and Leah Anderson. The six offenders pleaded guilty to offences of supplying drugs as part of the syndicate. The first four have been sentenced and the last two are awaiting sentence. The offence for which the respondent was sentenced was committed over a period of about three months and involved his supplying a total amount of 1.615 kilograms of methylamphetamine. 18At the sentence proceedings, the respondent conceded the supply of 1.389 kilograms but disputed the balance. However, this controversy was decided against him. The charge involved rolling up nine supplies over the three month period. No objection was taken to proceeding in this way. The Crown alleged that the total amount of drugs supplied was 1.165 kilograms. Apart from an amount of 261.6 grams of methylamphetamine actually located and confiscated on the last of the nine occasions, namely 10 November 2009, no other drugs were seized by the authorities and the nature and quantity of the supply on the other occasions was inferred from the content of intercepted telephone conversations involving the offender and other members of the syndicate and other events such as the transfer of funds. 19The respondent was based in Sydney as were Thi Pham, Teakaraanga, Paeu and Martin whilst Taylor was based in Perth and Anderson in Kalgoorlie. Its operations were demonstrated from the various instances comprising the respondent's rolled up offence. The first instance involved Anderson in Kalgoorlie communicating with the respondent in Sydney seeking the supply of 340 grams of methylamphetamine to on-sell. The respondent organised an unknown male to deliver the drug to her on 5 September 2009. On 9 September 2009 Thi Pham supplied 220 grams of methylamphetamine to the respondent which he intended to on-supply. As it happened, this was a smaller quantity than had been agreed but it was, at all events, found to be of inferior quality so the respondent returned it to Thi Pham on 10 September 2009. Between 22 and 24 September 2009 Thi Pham provided the offender with 113 grams of methylamphetamine which he had agreed to supply to Taylor in Perth as part of the syndicate's operations. For this purpose, the respondent himself travelled to Perth and gave the drugs to Taylor on 25 September 2009. Between 26 September and 4 October 2009 (he then being back in Sydney), the respondent arranged to supply 113 grams of methylamphetamine to Taylor in Perth and 85 grams to Anderson in Kalgoorlie. He obtained the drug from Thi Pham and gave it to Martin to take to Western Australia to complete the agreement. Between 10 and 12 October 2009 the respondent obtained a further 226 grams of methylamphetamine and agreed to supply part to Anderson in Kalgoorlie and part to Taylor in Perth. He obtained possession of the drug and delivered it on 11 October 2009. On 13 October 2009 the respondent supplied Taylor with a further 113 grams of methylamphetamine, the latter flying from Perth to Sydney, where the respondent gave it to him. On 16 October 2009 the respondent arranged to supply Taylor with a further 5 ounces of methylamphetamine and flew to Perth on that day to supply it to him. The last occasion of the overall supply charged against the respondent occurred between 27 October 2009 and 10 November 2009. Arrangements were made for Thi Pham to provide 261.6 grams of methylamphetamine to the respondent. On 10 November 2009 Taylor flew to Sydney and the respondent arranged for Teakaraanga to collect the methylamphetamine from the respondent's premises, the respondent then being in Melbourne. The drug was collected and being transported back to Perth, largely by Paeu but also with the assistance of Taylor when they were arrested at Sydney Airport. The 261.6 grams of methylamphetamine were found in Paeu's clothing. The respondent had obtained the drug from Thi Pham to supply to Taylor as part of the syndicate. 20The respondent was arrested on 15 November 2009 and declined an interview. As it happened, he was initially charged only in relation to the methylamphetamine found in Paeu's possession on the occasion of the latter's arrest and the respondent was given conditional bail. It soon became apparent that the respondent was involved in a large scale drug syndicate and he was later arrested in Brisbane on 2 March 2010, as it happened on unrelated matters. He was then charged with the offence for which he was ultimately sentenced. The respondent's role 21The learned sentencing judge concluded that the respondent was "at least a principal in this drug supply syndicate" even though it could not be said that he was at its head. Others played a significant role as well, for example Thi Pham was the person from whom the drug was sourced. Taylor and Anderson were described by her Honour as "middlemen", taking large quantities of the drug and on-supplying them in Western Australia, whilst the others identified in the facts acted more in the role of couriers, further down the chain. Her Honour summarised the role of the respondent as follows - "I accept from the evidence that this offender undertook the following roles in this syndicate. He obtained drugs from Thi Pham. He arranged the transportation of them from New South Wales to Western Australia, either taking them himself or arranging for others to take them. He organised for others in the syndicate to transfer money to various bank accounts and in various ways at his direction.... so that he could source more methylamphetamine to continue the supply chain to Western Australia as part of the syndicate. On an occasion he gave some instructions to Anderson on how to mix the methylamphetamine for on supply. On occasions he collected cash from the purpose of paying for the drugs and on an occasion he appears to have set the price for those drugs in a conversation with other members of the syndicate. The total sum of money which he directed to be transferred from the sale of these drugs during the relevant period, which is able to be ascertained was $455,000. There is no evidence from which I can ascertain how much of this he received himself, but there is no doubt that he was engaged in this offence for financial reward. Clearly he did not get all this money himself. Some, perhaps most, was used to buy more methylamphetamine to supply on again in addition to these traceable transfers to institutions, there was also cash transferred between co-offenders, members of the syndicate, when they met in person, the amounts of which are not in evidence." 22The sentencing judge concluded that the respondent was "a principal" and "pivotal to the ongoing success of the syndicate". Her Honour noted that others played very important roles and might also be seen as pivotal, including those, for example, who actually organised the supply in Western Australia so that money could be obtained and sent back but the offender was "the common thread" amongst the persons whose identity was disclosed in the material before the judge. Her Honour noted that, from the telephone calls tendered to her, acting as part of the syndicate was his full-time job and he was doing this for financial gain. Objective Seriousness 23The sentencing judge characterised the respondent's offence as "very serious" and pointed to the maximum penalty as demonstrating how seriously the offence is regarded. Her Honour said the sentence must contain a significant element of general deterrence. Although her Honour noted that the "standard non-parole period does not apply because this is a plea of guilty", it seems that she did not mean this literally, since she decided it was necessary to "assess where the offence lies in terms of objective seriousness because it is an offence to which a standard parole period applies" and went on to conclude that the offence "lies in the middle of the range in terms of objective seriousness but very much towards the bottom of the middle of that range." This approach has been disapproved by the High Court of Australia in Muldrock v R [2001] HCA 39. Be this as it may, this Court must consider whether the sentence was relevantly in error by reference to the principles enunciated in Muldrock and, it is not useful I think to analyse the sentencing judge's approach to the standard non-parole period. 24The sentencing judge noted the following additional objective circumstances. The quantity of methylamphetamine was just over 1.6 kilograms which, although a large quantity, is close to the commencement point of one kilogram for large commercial quantities. The last supply involved methylamphetamine having a purity of about 30% (significantly more pure than found in street deals) and one transaction was of such poor quality that it was returned as unsaleable, but nothing further is known about the purity of the drugs supplied. The single charge comprised a series of criminal acts committed over the relatively lengthy period of three months as part of an organised criminal activity involving very large sums. On the other hand, her Honour found that the syndicate's operations were not particularly well organised or sophisticated; the telephone calls were easily intercepted and used the respondent's phone or phones that could easily be traced to him; it was quite clear what the participants were talking about although there were some unsophisticated attempts at using a code. Her Honour thought that the secretion of the last quantity found in the clothing of a person about to board a plane also indicated a lack of sophistication. 25If I may say so with respect it seems to me that her Honour's characterisation of the nature of the offence and the role of the respondent were not only open to her but entirely just. The subjective features 26There was no dispute either below or in this Court as to the correctness of the sentencing judge's findings in this regard. The respondent was 35 at the time he committed the offences, having been raised as one of three siblings in a happy and comfortable environment, though he had a bad reaction to his parents' divorce when he was 13. He suffered learning difficulties at school and left after completing year 10, working as a plumber's apprentice for a year and then becoming a fishmonger, managing two fish retail businesses for some 12 years. It appears that he was well regarded by those with whom he came into contact when he was undertaking this work. The respondent started to use illicit drugs when he was 32 years of age and became addicted to them, as also to gambling. Gambling debts accrued over some years, amounting to about $400,000 around the time he committed the offence. Her Honour accepted that he became involved in the offence to pay for his gambling and drug addictions. The applicant was in a relationship for a number of years, from which he has a nine years' old son. Although that relationship ended in 2006 he continued and continues to have regular contact with his son and his former partner, his son's mother. Whilst in custody he had received regular visits from his mother, step-father, his son and other close family members. Their ongoing support will assist in his prospects of rehabilitation. 27The applicant's criminal record commenced with an offence of robbery in company committed in 1991 when he was 17 years of age for which he was placed on probation of 18 months and required to pay compensation of $1,220. Convictions for dishonesty followed in 1993, all resulting in a fine except for one fixed term of three months imprisonment. In 1995 he was imprisoned for six months for supplying a prohibited drug and was also convicted of some thirteen charges of receiving to which he was sentenced to the rising of the court. In 2000 he was convicted of assault occasioning actual bodily harm and placed on a three year bond. He committed two summary matters of relatively minor significance in Queensland, resulting in fines. The sentencing judge (with respect rightly) thought it noteworthy that there was a very significant gap in ongoing offending from 1995 when he was released from custody except for the assault for which he received a bond. At this time it appears that he was working hard in the community and well regarded by his employers and others with whom he associated. It was during this period that he commenced his relationship with his former partner and his son was born. There is convincing evidence of the applicant's remorse. The judge accepted that the respondent's prospects of rehabilitation were reasonably good but, not surprisingly, entirely dependent on his being able to control his gambling and drug addictions. Discounts 28The applicant was entitled to a 25% discount on the sentence otherwise applicable by virtue of his plea at the Local Court. Material was tendered to her Honour which gave rise to a further 10% discount. The extent of this discount was a ground of appeal. Quite apart from the significance of the Crown prosecutor's concession at first instance that it was reasonable, I have read the material for myself and have concluded that the discount was well within her Honour's discretion. 29It was submitted in this Court that the discount of 10% given under s 23 of the Crimes (Sentencing Procedure) Act 1999 discount, which resulted in a combined discount of 35%, was excessive relying on the view expressed by Howie J (with whom McClellan CJ at CL agreed) in R v Sukkar [2006] NSWCCA 92 at [5] that "discounts for a plea in assistance of more than 40% should be very exceptionally, if at all, granted in a case where there is no evidence that the offender will spend the sentence, or a substantial part of it, it more onerous conditions than the general prison population". These remarks have been accepted or followed with approval in, for example, Baldini v R [2007] NSWCCA 327 at [36]; Rutkowski v R [2008] NSWCCA 10 at [11] and R v SC [2008] NSWCCA 29 at [52]. In R v Kumar & Feagaiga [2008] NSWCCA 328 RS Hulme J (McClellan CJ at CL and Hidden J agreeing with this aspect) said - "[34] [citing the above authorities] Once recognition is given to the fact that discounts of 25% are not uncommonly awarded for pleas of guilty alone, it is apparent that, except in the exceptional cases to which Howie J referred, the available scope for a discount for assistance is or is of the order of 15%. Given Sides DCJ's remarks that each of the offenders had pleaded guilty at the earliest opportunity, it is to be inferred that they received a discount of 25% on that account and that the discount for assistance was the balance of the total 35% discount his Honour awarded. 10% is a high proportion of the 15% generally available and could not come close to being justified by the mere identification of the name and address of a co-offender." 30Nevertheless, I wish with great respect to express my disagreement with this approach, which gives mere arithmetic an inappropriately decisive role capable of undermining the fundamental public interest for which a discount given for assistance to the authorities is allowed. I would respectfully adopt what Simpson J said in R v NP [2003] NSWCCA 195 at [49]-[50] - [49] The result of the rigorous application of what have become relatively standardised discounts (especially where a considerable discount for a plea of guilty is added to an even more considerable discount for significant assistance) can, on occasion, cause a sharp intake of breath, but that is the result of the application of correct and established legal principle. The result can appear to be disproportionate to the offence(s). Sentencing judges (as in this case) have to balance the need to impose proper punishment with the need to recognise the benefits to the criminal justice system gained by pleas of guilty and assistance to authorities. The correct balance is not always easy to achieve. [50] This is where s23(3) of the Crimes (Sentencing Procedure) Act 1999 demands consideration, and, sometimes, application. By that subsection, a sentencing judge allowing a discount for assistance to authorities, is required, notwithstanding, to ensure that the resulting sentence is not unreasonably disproportionate to the nature and circumstances of the offence(s). 31In R v Z [2006] NSWCCA 342; 167 A Crim R 436 I discussed the approach of giving a global discount rather than distinct discounts followed by an adjustment under s23(3) where necessary if the resulting sentence was disproportionate to the objective seriousness of the offence. I concede that this was to no avail. I said - [113] I now move to the discounts. The respondent was given a discount of 25% for the utilitarian value of his plea and an additional 35% for assistance to the authorities, which was (properly) regarded as significant and included preparedness to give evidence and the likelihood that this will be necessary. It was submitted by the Crown in this Court that the reduction was excessive. The first criticism of the discount is that the learned sentencing judge added together two discounts. In my view this criticism is without merit. In R v Thomson and Houlton (2000) 49 NSWLR 383 at [160 (iii)] the guideline noted - "Where other matters are regarded as appropriate to be quantified in a particular case, a single combined quantification will often be appropriate." This does not suggest a global quantification that does not indicate separate discounts is either necessary or, for that matter, desirable. The combined quantification appropriately occurs where other quantified discounts are to be given. In my view the reason for the combining of two discounts is to simplify the mathematics and assist with transparency by applying the total discount once. [114] In R v NP [2003] NSWCCA 195, having determined that the discount for assistance should be increased from 30% to 50%, Hodgson JA (with whom Simpson J agreed on this matter) said - "[30] In my opinion this 50% should not be simply added to the other 20% to result in an overall discount of 70%. The 50% is meant as a discount to what the sentence would otherwise have been, but for this particular factor. By reason of the 20% utilitarian discount for the plea of guilty, the sentence is only 80% of the starting point, and the 50% discount for assistance results in the halving of this 80%, giving 40%. The total discount is 60%. In R v El Hani [2004] NSWCCA 162, Howie J (with whom the other members of the Court agreed) adopted this approach as correct. I accept that this Court should follow this approach. [115] However, I would with the greatest respect, express my doubts about its correctness. Firstly, I think it is inconsistent with the passage from the guideline judgment which I have set out above. Secondly, I think, with respect, it introduces a nicety of calculation that is both arbitrary, as being based on arithmetical accident rather than principle, and capricious as the example set out below demonstrates. If the real problem and matter of principle is that the ultimate sentence is inappropriately lenient, then there should be a frank acknowledgment that this is so and the sentence adjusted to the minimum necessary to comply with the provisions of s23(3) of the Crimes (Sentencing Procedure) Act 1999 (an adjustment which does not require and should not reflect any formula of calculation). I note that this point was made by Simpson J in NP at [50]. [116] The very purpose of quantified discounts is to encourage offenders to plead guilty and to assist the authorities to the extent that they are able. It is obvious that the knowledge that to do so will result in a distinct and significant benefit is a powerful incentive. Take the situation where an offender both pleads guilty and gives significant assistance. Assume the correct discounts are 25% for the plea and 50% for the assistance - the same as in NP. He gets an ultimate discount of 50%. Take his co-offender. He decides to go to trial and is convicted. He gives other and just as valuable assistance. He also gets a 50% discount. They both have the same discount, although one pleaded guilty. This does not strike me either rational or just. Of course, situations will rarely be as neat as this. Nevertheless, the problem and the capricious effect of the calculation is evident. [117] For these reasons, I would respectfully suggest that the appropriate rule should be that, where two discounts are given, they should not be applied successively so that one applies to the sentence reduced by the other. If the result is inappropriately lenient, then an adjustment should be made and the reason for it clearly stated. This is simpler, more transparent and leads to more consistent and coherent results. [118] In El Hani, Howie J said - "[68] A situation where it might not be appropriate or possible to specify the discount is a case where the assistance cannot be identified as a discrete matter, distinguishable and quantifiable, without regard to other mitigating subjective factors. This will generally be so where the assistance follows a plea of guilty and is part of the process of remorse, reform and rehabilitation." It seems to me that, accepting that double counting should be avoided, it is in the public interest that a more or less identifiable "reward" should be able to be proffered to offenders who assist the authorities. In the reality of things, lawyers must be able to give some real indication to their clients of the advantage to them of taking this course of action. Considering the risks that are frequently associated with helping police and, especially, giving evidence, a vague promise of some unspecified reduction in sentence will rarely suffice. In my respectful view, judges should attempt to indicate the degree to which the sentence has been discounted because of assistance (R v Gallagher (1991) 23 NSWLR 220 per Hunt J at 234), though not where to do so would be unduly artificial or contrived: Gallagher (1991) 23 NSWLR per Gleeson CJ at 228. I believe (with respect, differing from Howie J in the passage above quoted) that most cases - of which the present is an example - fairly readily permit the separate identification of assistance to the authorities from the other subjective features that might be present and that it is desirable that this should be done where it is possible. 119 Where quantification of the separate factors of an early plea and assistance to the authorities is practicable, there is a strong argument for separately indicating each factor. This will have the effect of maintaining the purpose of identifying the "reward" which offenders obtain for pleading guilty on the one hand and, on the other, assisting the authorities with information and, in some cases, giving evidence. It also has the advantage of transparency. I think that in most cases it will be relatively simple to separate these factors. 32We now have in the Crown prosecutor's submission in this Court, apparently supported by the approach of this Court in Kumar & Feagaiga set out in the passage quoted above, a process in which, so far from the distinct discount being specified, the global discount is dissected on the assumption that, if it be 40%, that part applicable to the assistance to the authorities is only 15%, whereas that number is really a contraction from the actual discount. If we now to proceed on the basis that, in the unexceptional case, assistance to the authorities will only obtain a utilitarian discount of 15% where an offender has gone to trial this will seriously to undermine the important public policy which is here involved. 33Moreover, it is difficult to reconcile the approach with s 23(4) of the Act - (4) A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must: (a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and (b) state the penalty that it would otherwise have imposed, and (c) where the lesser penalty is being imposed for both reasons - state the amount by which the penalty has been reduced for each reason. The "penalty that it would otherwise have imposed" must mean "the penalty that it would otherwise have imposed but for the assistance". Furthermore, where a discount is given for both past and future assistance, the specific discount for each aspect must be satisfied. It is difficult to see how this can be done if the total discount is the contracted figure. Of course the presence of s23(3) must indicate that there are cases in which the full discount cannot be given. However, the extent to which the full allowance is reduced will vary in each case according to many matters, both subjective and objective. Dealing with this by percentage as distinct from actual terms may well and probably will be inappropriate. To my mind, the interests of transparency require that the starting sentence be specified together with the particular discounts, the resulting sentence be considered against the test in s23(3) and, if the sentence is unreasonably disproportionate to the circumstances of the case, it must be adjusted accordingly. 34It follows that, in this case, the appropriateness of the 10% discount for assistance should not be contrasted with the contracted 15% that is said to be the maximum where there is a 25% discount for the plea, but with an appropriate discount for assistance absent any need to take into account the latter factor. As I said, in my respectful view, the sentencing judge's figure is appropriate and I would reject the Crown appeal to the extent that it depends upon the contention that it was too generous. 35It will be necessary to consider whether applying the combined discount has resulted or will result in an excessively lenient sentence. 36Since writing the above concerning the calculation of discounts, I have had the advantage of reading the discussion of this issue in the judgments of my colleagues. I would not, with respect, take any issue with what Basten JA has written. However, I wish to add some further remarks in response to the judgment of Johnson J. 37I would respectfully point out that the question as to whether a "rolled up" approach that does not at any stage identify the quantum of the separate discounts that can be applied to the assistance and the plea (for ease of reference I call this the "analytical approach") has not been the subject of discussion in the cases to which Johnson J refers. This is scarcely surprising, since the analytical approach does not suggest, let alone require, a different ultimate outcome. The mere repetitive adoption of the rolled up approach does not lay down any principle of law. 38At the end, the crucial question is whether the reduced sentence will require adjustment by reference to s23(3) of the Crimes (Sentencing Procedure) Act 1999. That can only sensibly be considered by comparing the sentence that would result but for the assistance and the plea with the sentence that would result from applying quantified discounts and then making an upward adjustment to the sentence if it be decided that the "lesser penalty ... [is] unreasonably disproportionate to the nature and circumstances of the offence". I do not understand how this can be done simply by looking alone at the percentage awarded for the plea and assistance. 39This is not to suggest, of course, that the scale of percentage discounts that has been adopted by this Court should be disregarded. Quite the opposite. But that is directed, in point of principle, to assessing the benefit that should be given to reward the assistance in the instant case and encourage assistance in other cases. Whether the resulting sentence falls foul of s 23(3) is a fundamentally different question. It is simply not possible to move logically from setting the discount directly to concluding the sentence is unreasonably lenient, though it is obvious that, the higher the discount, the greater the possibility that the resulting sentence will be too low. 40SZ v R [2007] NSWCCA 19; 168 A Crim R 249 deals with the inappropriateness of simply adding the discounts together and applying the sum to the sentence because this would lead to an inappropriately lenient sentence and proposes that the solution is to roll up the discounts and apply the resulting contraction. With respect, merely applying the contraction cannot of itself resolve the s 23(3) issue, since obviously the outcome might still be unreasonably lenient. I would accept, however, that the rolled up discount could inform the question whether the extent of disproportion was "unreasonable". At all events, I am not suggesting that the sum of the discounts should be used. I am suggesting simply that each relevant discount be identified and quantified by reference to the extent to which the administration of justice is served and the public policy interest of encouraging other offenders to likewise assist. Transparency is extremely important in the administration of criminal justice and an approach that enhances transparency is, as it seems to me unarguably, to one that does not. The analytical approach also makes it possible more readily to compare cases - as important for the legal advisors as it is for the Court - and avoids the problem that arose here from the Crown submission that the maximum discount for assistance should be regarded, in an unexceptional case, as 15%. Other cases 41The Court was referred to a number of other cases involving the supply of not less than a large commercial quantity of methylamphetamine where the standard non-parole period of 15 years was applicable. In Naime v R [2006] NSWCCA 289 the offender pleaded guilty to two charges of supplying methylamphetamine two weeks apart. The second supply involved 1.244 kilograms. The quantity involved in the first supply is not mentioned in the judgment. On the first charge the supply of an undisclosed quantity of ketamine was taken into account on a Form 1. The offender was sentenced to a fixed term of two years for the first charge and on the second charge for nine years with a non-parole period of six years, both sentences wholly concurrent. The offender was aged 26 years at the time of the offence and was on a bond. He had prior convictions for possession of prohibited drugs, driving offences and goods in custody but had not previously served a sentence. The sentencing judge was satisfied that the offence was a "one-off deal" and that the applicant stood to gain about $5,000 which was a relatively small amount in the context of such offences. The applicant received an unspecified discount for his guilty pleas. Sully J (with whom the other members of the Court agreed), described the sentences imposed as "severe" but dismissed the appeal. 42In Hamieh v R [2007] NSWCCA 277 the offender supplied just over two kilograms of methylamphetamine and, following his plea of guilty, was sentenced to 11 years with a non-parole period of seven years. The drugs had a purity of 12% and a potential value between $450,000 and $610,000. He appealed on the ground of parity, pointing to the lesser sentences imposed on his co-accused. There was also a dispute as to the characterisation of his role. Although he had negotiated the price, obtained the initial supply and calculated the profits so that he was not (as submitted on his behalf) in a minor role and did not merely act as a commission agent, he was not, as mistakenly found by the sentencing judge, "supplying drugs on his own behalf", acting as a principal. Although the sentencing judge did not expressly say so, the Court concluded that the offence fell within the mid-range of objective seriousness. The Court accepted that considerations of parity required re-sentencing. Subjectively, the offender suffered from clinical depression with repeated episodes of dissociative disorder, sometimes associated with self-injury. The parity argument was upheld on the basis of the different subjective elements between the offender and his co-offender. The appeal was allowed and the offender sentenced to a term of seven years and 11 months with a non-parole period of five years and two months. 43In R v Kazzi [2008] NSWCCA 77 the offender pleaded guilty to a charge of supplying 196 grams of cocaine for between $3500 and $4200 (count 1), supplying 338 grams of methylamphetamine (count 2) (of which 198 grams was returned). Later the offender supplied a total of 196 grams of cocaine to a single purchaser in three lots (count 3). During the same period, the offender agreed to supply another person with two kilograms of cocaine, although the supply was not effected (count 4). A month or so later, police entered a unit used as a safe house by the offender and the co-offender, finding 2.892 kilograms of methylamphetamine (count 5) and 139.7 grams of cocaine (count 6). The offender had also purchased 990 grams of cocaine and sold for a profit of $20,000 which he split with the co-offender (count 7). The offender pleaded guilty and gave assistance to authorities, leading to a total discount of 30%. The sentencing judge did not find it necessary to determine the offender's "precise standing in the drug milieu" but concluded that he "is clearly nearer the top (of the drug hierarchy) than the bottom". The offender had a significant drug addiction. In respect of counts 1, 3 and 6 the offender was sentenced to a fixed term of one year and six months imprisonment, for counts 2 and 7 terms of five years with non-parole periods of three years and for counts 4 and 5 a term of six years imprisonment with a non-parole period of four years, resulting in an overall sentence of eight years imprisonment with a non-parole period of six years. On appeal by the Crown the sentences for counts 1, 3 and 6 were unchanged, that for count 2 was increased to a fixed term of four years, for count 4 to a term of 10 years with non-parole period of seven years and six months, for count 5 a term of 10 years with a non-parole period of six years and six months and count 7 a fixed term of five years imprisonment, resulting overall to imprisonment for 14 years with a non-parole period of 10 years and six months. The sentencing judge (correctly) categorised the offences generally as being "just below" the middle of the range of objective seriousness but the Court found that he failed to take into account the standard non-parole periods "to the extent which is required by Way." The Court also held that the sentences suggested that his Honour "did not pay careful attention to the maximum penalties". The ultimate sentence reflected the then approach to re-sentencing on Crown appeals. 44In Ly v R [2008] NSWCCA 262 the offender appealed from his sentence of 12 years with a non-parole period of eight years upon a charge of supplying methylamphetamine in the amount of 1.101 grams, three offences of goods in custody, being cash totalling $331,150 were being taken into account. The charges followed the applicant's being stopped and searched by police. He had $34,550 in cash and nine active mobile phones in his possession. A search of his home found four plastic bags containing methylamphetamine, a further 19 active mobile phones, two sets of scales and further cash totalling $296,600. The bulk of the drug was about 50% pure but 28.2 grams had a purity of 74%. The offender was 40 years of age having been born in Vietnam and arrived in Australia with his family as a refugee. He had a major drug addiction. His criminal history was relatively minor. His sentence reflected a discount of 25%. The Court accepted the appropriateness of the sentencing judge's characterisation as the offence as falling within the mid range of seriousness. It was submitted that a significant quantity of the drugs were not actually supplied but the court said that, since this is not an isolated occasion of the possession of drugs for the possession of supply, little, if any weight, could be attached to this fact. So far as the quantity of drugs is concerned, even though the weight did not significantly exceed the threshold, the Court pointed out that this "is not the sole, or even the principal determinant of the offence [but that the] role of the offender is more important, as is the level of his or her participation in the offence", citing R v MacDonnell [2002] 128 A Crim R 44: ibid at [23]. The offender's appeal was dismissed. 45In R v XX [2009] NSWCCA 115; (2009) 196 A Crim R 38, the offender pleaded guilty to a charge of supplying 3.165 kilograms of methylamphetamine and 7.4945 kilograms of ecstasy and asked for eight offences to be taken into account on a Form 1. The drugs were found in a garage used by the offender. They were packaged in a variety of weights clearly for supply and valued at about $600,000. $159,600 was also found, together with parts of a pill press machine, 20 kilograms of an unknown cutting agent, a self-loading rifle (charge 3), a revolver (charge 4) and a pistol (together with a Tazer, ammunition and anabolic steroids) (Form 1). In respect of the first charge the offender was sentenced to a term of seven years with a non-parole period of five years, the second charge (taking into account the Form 1) seven years with a non-parole period of five years, the third charge a fixed term of 15 months and the fourth charge a fixed term of 18 months imprisonment, the last three sentences being entirely subsumed in the first. The offender was also entitled to a discount for assistance, which was (correctly) characterised "truly exceptional" leading to a combined discount of 60%. The Court accepted the sentencing judge's assessment of the offence in count 1 as mid range and the offence in count 2 as just above the mid range of seriousness (saying, in the latter case, that it was "very generous"). The Crown appealed against the sentence imposed on count 2, on the ground that it should not have been concurrent with that imposed on count 1, was itself manifestly inadequate and failed to adequately punish for the offences disclosed on the Form 1. The offender was a supplier "at a mid level in the hierarchy". The Court imposed a term of eight years and nine months with a non-parole period of six years and seven months in respect of count 2 (taking into account the Form 1 offences), in respect of count 3 a sentence of two years with a non-parole period of one year and six months, in respect of count 4 a sentence of two years and five months with a non-parole period of one year and eight months, resulting in a total sentence of nine years and six months with a non-parole period of seven years and four months. 46In Efstathiadis v R [2009] NSWCCA 317 the offender pleaded guilty to one count of supplying 1.9 kilograms of methylamphetamine for which (after a 10% discount for delayed plea) he was sentenced to 14 years imprisonment with a non-parole period of 10 years. The offender was 27 years of age at the time of the offence and had previously been convicted for ongoing supply of a prohibited drug. There was no evidence of regret expressed by the offender. The offender's appeal was dismissed. 47In R v Mahmud [2010] NSWCCA 219 the applicant pleaded guilty to the deemed supply of 1.78 kilograms of methylamphetamine having a purity of around 2%. In respect of this offence the offender was sentenced to six years and six months imprisonment with a non-parole period of three years and six months. He was also charged with possession of two prohibited pistols and two prohibited fire arms for which he was sentenced to imprisonment for three years and six months with a non-parole period of two years and six months, with a culmination resulting in an effective sentence of seven years and six months with a non-parole period of four years and six months. Three counts of possessing a prohibited weapon, three counts of not keeping a firearm safely and two counts of possessing ammunition without a license were taken into account in respect of the sentence for the first offence. The drugs were found wrapped in plastic in a freezer in the offender's residence. The offender had a serious drug addiction. He was 26 years old as at the date of the offences. The Court rejected the Crown's challenge to the sentencing judge's finding that the offender was merely "a convenient repository for someone else's drugs for a "modest return"" and accepted also the sentencing judge's finding that the offence was "substantially below mid range". Nevertheless the court concluded that the Crown's appeal should be upheld in respect of both the firearms and the drug offences as being manifestly inadequate. Accordingly, the offender was sentenced, in respect of count 1, to imprisonment for nine years with a non-parole period of six years and six months and, in respect of count 2 five years with a non-parole period of three years and nine months, resulting in an effective sentence of 10 years with a non-parole period of seven years and six months. 48In Briggs v R [2010] NSWCCA 250 the offender pleaded guilty in the Local Court to one count of supplying 4.284 kilograms of methylamphetamine found in his residence having a potential value of between about $250,000 and $640,000. Electronic scales, a smoking pipe, plastic resealable bags, pill press and 23 rounds of 0.22 calibre ammunition were also found. In his vehicle a briefcase containing $295,100 and a suitcase containing plastic resealable bags, electronic scales, rubber gloves, an empty packet of glucoden, scissors with powder residue on the blades and a diary with a list of 34 names and numerals written beside them. $8,000 was found in the applicant's trouser pocket. Also found was a toiletries bag containing various implements for drug use and a small quantity of powder. Not surprisingly, the sentencing judge was satisfied that the offender was involved in trafficking in drugs to a very substantial degree. He was 30 years old at the time of sentence, with an unremarkable background. He was a chronically addicted to cocaine and was suffering from a mild drug induced psychosis at the time of offending. The sentencing judge concluded that the offender was genuinely remorseful and contrite with good prospects of rehabilitation. He accepted a causal link between the offender's psychiatric state at the time of the commission of offences and his offending by reason of his drug addiction, concluding that the level of objective seriousness was below mid range, although close to it. The sentencing judge discounted the sentence by 35% to take into account not only the utilitarian value of the plea of guilty but also the subjective features including prospects of rehabilitation and the like. The ratio of the non-parole period to the total term was 82%. The offender's appeal was dismissed except that the non-parole period was corrected to comply with the statutory ratio. 49In R v Achurch [2011] NSWCCA 186 the offender was convicted following a trial of one count of supplying MDMA, one count of supplying a commercial quantity of MDMA and one count of supplying a large commercial quantity of methylamphetamine (2.6 kilograms). The Crown appealed against the inadequacy of the sentence of 14 years imprisonment with a non-parole period of six years. The first count arose from the supply of 400 pills by the offender to co-offenders who on-supplied them to an undercover police officer for $4,600. A further seven pills were given to the officer as a sample of an available much larger quantity. The offender was implicated in the large commercial supply of prohibited drugs in subsequently intercepted telephone conversations with one of his runners. Ultimately search warrants were executed at a number of relevant addresses including that of the offender which disclosed amongst other things a notebook recording amounts of moneys (amounts up to $130,000) and drugs, naming two runners. In the premises previously occupied by the offender and then by one of his runners, plastic bags containing 2.6 kg of methylamphetamine was found. The offender was 47 years of age at the time of the offences with a prior criminal history for stealing, assault occasioning actual bodily harm, receiving, armed robbery, goods in custody, possession of a prohibited weapon and possession of a prohibited drug. The offender suffered from insulin dependent diabetes with serious medical complications including chronic kidney disease, congestive heart failure and other associated illnesses. In a medical report of June 2010 it was anticipated that "within the next few years the offender would require dialysis treatment for his chronic kidney condition". The report concluded that it was "therefore reasonably likely that prolonged incarceration will significantly reduce his life expectancy although due to the number of variables it is not possible to quantify this." The offender was found to be a principal in the drug supplies. In upholding the Crown appeal, the Court stated that, because the offender had been convicted after trial the standard non-parole period "had direct application by force of statute, and not merely as a guidepost upon sentence following a plea of guilty" citing R v Way [2004] NSWCCA 131; 60 NSWLR 168. (This proposition must now be regarded as incorrect having regard to Muldrock v R [2011] HCA 39.) The Court added that it was necessary "to specify where the offences lie on the range of objective seriousness for those crimes", citing R v Sellars [2010] NSWCCA 133 and R v McEvoy [1997] Crim LR 887. (Again, this must be regarded as an incorrect view in light of Muldrock.) The Court also held that the sentencing judge gave excessive weight to the offender's medical condition. So far as the fourth count is concerned the Court held that it was properly characterised as lying in the middle of the range of objective seriousness but that the offender's subjective factors, principally his medical condition, should be "taken into account to mitigate penalty" and a sentence of 16 years with a non-parole period of 12 years was imposed. Although this was adjusted having regard to accumulation of the sentences for the other offences resulting in a total effective term of 18 years imprisonment with a non-parole period of 13 years. 50These cases were decided (though not all expressly so) in light of the principles expressed in Way, which, in Muldrock, the High Court held to be wrong (in particular) with respect to giving the standard non-parole period an inappropriate significance. The resulting sentences must therefore be treated with more than usual caution. That is not to say, however, that they do not shed some light on the assessment of a sentence in cases of this kind. Conclusion 51The respondent was a principal in a syndicate of drug supply, supplying on nine different occasions over a three month period significant quantities of methylamphetamine amounting in all to 1.615 kilograms. The purity of the 261.6 grams of methylamphetamine actually confiscated on the last of these occasions is much higher than that found in the street supplies so that the ultimate ongoing distribution would certainly have involved a much larger number of criminal transactions. At the same time, as the sentencing judge found, this was not a particularly sophisticated operation. It is not possible to do more than speculate on the financial return either obtained or expected by the respondent, but it must have been substantial involving at least, in total something over $450,000 although plainly the respondent did not receive all of this money, most of which was no doubt used to buy more methylamphetamine for on-supply. Although the respondent was a drug addict whose gambling addiction had given rise to debts which he was unable to satisfy by lawful means, these considerations cannot be regarded as mitigating. He was otherwise a hard worker, well regarded by his employers and others and a good father to his son. His remorse and contrition should be regarded as genuine and the conclusion of the sentencing judge that his prospects for rehabilitation are reasonably good, depending on his being able to control his gambling and drug addiction, should be accepted. The starting point for the respondent's sentence before applying the discount of 35% was 10 years with a non-parole period of seven years and six months. Taking into account the maximum term prescribed and the standard non-parole period, it seems to me, that whilst the circumstances, both objective and subjective, would justify a starting point significantly higher than that selected by the sentencing judge, I am unpersuaded that the sentence was manifestly inadequate and reflective of latent error. Nor, to my mind, does the sentence which results from the application of the discount of 35% amount to an unreasonably disproportionate sentence having regard to all the relevant facts and circumstances. 52It should be noted that the respondent's co-offender's Paeu and Martin were sentenced to only three years with a non-parole period of two years following a 25% discount for their pleas but they were charged with significantly less serious offences, the former with supplying not less than the commercial quantity, namely 261.6 grams of methylamphetamine and the latter of supplying an indictable quantity on the namely 194.8 grams of the drugs and both were couriers although Martin not merely so. Taylor was charged with supplying not less than the commercial quantity, 765.4 grams of methylamphetamine and was sentenced to four years and six months with a non-parole period of three years having played the role of the middle man but again his offence was less serious and his role somewhat less than the respondent. Pham's role was held to be both significant and pivotal since she supplied the drugs but, so far as the syndicate was concerned, her role was somewhat less than the respondent's. She was sentenced for supplying not less than a commercial quantity (849.9 grams) of methylamphetamine (a lesser offence than that for which the respondent was convicted) to a total term of six years with a non-parole period of three years (this substantial adjustment to the statutory ratio resulted from "very special circumstances") following a 25% discount for her plea of guilty. The starting points respectively for these co-offenders were sentences of imprisonment for four years for Paeu and Martina, six years for Taylor and eight years for Pham. Accepting their involvement in the syndicate's operation was significantly less than that of the respondent and that they were charged with offences of less seriousness, it seems to me nevertheless, that considerations of parity would prevent a substantial increase in the respondent's sentence. Accordingly, even if the sentence imposed on the respondent were manifestly inadequate, the extent of increase in his sentence which would avoid inappropriate disparity with the sentences passed on his co-offenders would amount, in my view, to tinkering. Accordingly, I would dismiss the appeal. 53Taking up the discussion by Johnson J of the question of parity, if I may respectfully do so, I would point out that I do not suggest that the sentences passed on the respondent's accomplices prevent his being resentenced. I merely indicated that parity is a material factor to be taken into account if he were to be resentenced and, accepting of course the need to take account of differentiating factors, would have some limiting effect on any substituted sentence: see, for example, Green v The Queen; Quinn v The Queen [2011] HCA 49 per French CJ, Crennan and Kiefel JJ at [2], where their Honours refer to the relevance to the exercise of the "residual discretion" to dismiss a Crown appeal against sentence of "consequential disparity relative to an unchallenged sentence imposed on a co-offender". 54JOHNSON J: I have had the advantage of reading, in draft, the judgments of Basten JA and Adams J. 55This judgment expresses my own conclusions on the appeal. 56The facts of the Respondent's offence appear in the judgment of Adams J. I will refer to certain additional features in this judgment.
Ground 1 - Suggested Error in Awarding a 10% Discount for Assistance to Authorities 57This ground of appeal raised a short point which was argued concisely by counsel before this Court. In my view, no issue of principle falls to be determined in the resolution of the ground. 58At the sentencing hearing in the District Court, the Respondent sought to rely upon certain confidential evidence (Exhibit B) in support of an argument that he should receive a discount for assistance to the authorities under s.23 Crimes (Sentencing Procedure) Act 1999. In the course of submissions in the District Court, counsel for the Respondent submitted that a "discount in the order of about 10% would be appropriate" for his assistance to authorities, in addition to the 25% discount to which the Respondent was entitled for his plea of guilty in accordance with the Criminal Case Conferencing Trial Act 2008 (T37, 27 May 2011). The sentencing Judge observed immediately "That seems about right. I don't imagine that the Crown will gainsay that, it's about as low as you possibly can get really in the circumstances" (T37.34). 59In response to this submission, the Crown representative said "I don't wish to cavil with the suggestion in relation to the quantity of discount for either the plea or assistance ..." (T40.21). 60In passing sentence on 16 June 2011, Tupman DCJ said with respect to this issue (ROS, page 15): "The next issue I must determine is pursuant to s 23 of the Crimes (Sentencing Procedure) Act and to do that I have read and taken into account the material contained in exhibit B. I do not propose to refer to any of that in these remarks on sentence. It seems to me, taking into account the content of that exhibit that there is some value in the material that relates both to the offence with which the offender has been charged and also to a somewhat limited extent, an unrelated matter. There would appear to be nothing however, that was either unknown to authorities, or incapable of being ascertained with a little investigation, but nonetheless I accept that it has been of some value. There is no future component on my understanding of the content of that exhibit. The value is present but not significant. None of the other issues which I need to address pursuant to s 23 have been addressed by either counsel and therefore it seems to me are not matters of any great moment. I propose to add a further 10% discount for the matters arising pursuant to s 23. That gives rise to a total discount which I will apply of 35%." 61In this Court, the Crown submitted that the 10% discount was excessive given the limited utility which her Honour found that the assistance provided. The Crown submission included an over-interpretation of statements in authorities referred to in R v Kumar and Feagaiga [2008] NSWCCA 328 at [32]-[34], in support of the proposition that a 10% discount for assistance was excessive in this case. Mr Stratton SC, for the Respondent, distinguished R v Kumar and Feagaiga on the facts, submitting that a discount of 10% was clearly excessive in the circumstances of that case. However, Mr Stratton SC submitted that was not so in this case. He submitted that the extent of a discount for assistance was very much a discretionary matter, and that this Court would not uphold this ground unless error was established in the sense referred to in House v The King [1936] HCA 40; 55 CLR 499 at 504-505. Reliance was placed, as well, upon the acquiescence of the Crown at first instance on this issue. 62I have examined the confidential material with respect to the Respondent's assistance to authorities. 63As senior counsel for the Respondent submitted, the question for this Court is whether error has been demonstrated in accordance with the principles in House v The King. I regard the 10% discount allowed in this case as being at the top of the range of the reasonable exercise of discretion for the Respondent's assistance to authorities. However, I am not persuaded that the Crown has established error in the House v The King sense in this case. 64This conclusion is sufficient to resolve the first ground of appeal adversely to the Crown. However, even if there was merit in the ground, the exercise of discretion on a Crown appeal would have required consideration whether the Crown's acquiescence in the District Court would operate against the appeal being allowed on this ground, in any event: R v JW [2010] NSWCCA 49; 77 NSWLR 7 at 33 [150]. This would have posed a problem for the Crown in the circumstances of this case. 65For my part, determination of this ground of appeal requires no more to be said than has been said so far. However, I will make some further observations in view of the judgments of the other members of the Court. I do so against the possibility that, despite the narrow compass of the first ground, the decision in this case is referred to in other appeals to this Court concerning discounts for assistance to authorities. 66Adams J has expressed his disagreement with statements in decisions of this Court which refer to discounts for assistance. The statements with which his Honour has expressed disagreement have been applied repeatedly by this Court. 67As Adams J observes (at [14]), Howie J's remarks (with which McClellan CJ at CL agreed) in R v Sukkar [2006] NSWCCA 92; 172 A Crim R 151 at 154 [5], have been accepted or followed with approval in Baldini v R [2007] NSWCCA 327 at [36] (Price J, McClellan CJ at CL and Hall J agreeing); Rutkowskyj v R [2008] NSWCCA 10 at [11] (Barr J, McClellan CJ at CL and James J agreeing); R v SC [2008] NSWCCA 29 at [52] (Price J, McClellan CJ at CL and Hall J agreeing) and R v Kumar and Feagaiga at [32]-[34]. The remarks in R v Sukkar have been accepted or followed with approval as well in other decisions, including R v Choi [2010] NSWCCA 318 at [86] (RA Hulme J, Giles JA and Hislop J agreeing) and NLR v R [2011] NSWCCA 246 at [40] (James J, Bathurst CJ and myself agreeing). 68There is other important authority which was not mentioned by counsel on this appeal, and is not referred to in the judgments of the other members of the Court. The decision is SZ v R [2007] NSWCCA 19; 168 A Crim R 249. 69There, Howie J returned to the topic of discounts for assistance. At 250-252 [3]-[11], with the agreement of Simpson J, his Honour explained why a combined discount for pleas of guilty and assistance should not normally exceed 50%. His Honour said that the application of common law and statutory principles meant that there is "a bottom line beneath which a sentence cannot legitimately be set" (at 251 [4]). Howie J referred, amongst other things, to the need to impose a sentence which bears a reasonable relationship to the objective seriousness of the offence, and the fact that "the application of one discount for one purpose will inevitably impact upon the extent to which another discount can be applied to achieve a different purpose" (at 251 [6]). Howie J said at 252 [9]-[11]: "9 I will assume for present argument that before Thomson the discount for assistance was given in addition to any reduction in the sentence for a plea and could extend up to 50 per cent. But in my opinion after that decision, when the discount for the utilitarian value of the plea could be as high as 25 per cent, the courts generally had less scope to give a discount for assistance where there had been an early plea of guilty. This is simply because, as I have pointed out, there is a limit to the amount to which a sentence can be discounted and yet not fall beneath the bottom line. Similarly if an Ellis discount is allowed for disclosing unknown criminality in addition to a discount for an early plea, the ability to give any further discount for whatever purpose is reduced. 10 There is in my opinion nothing unfair about this result nor is the public policy in encouraging assistance necessarily reduced. There is still on offer, even after an early plea, a discount of somewhere in the vicinity of 25 per cent, or more in an exceptional case. The simple fact is that it is more important to the administration of justice to encourage and reward early pleas of guilty. If the pursuit of that policy diminishes the ability to encourage and reward assistance, so be it. There is a greater public policy at stake and that is public confidence in the courts to impose sentences that are just and reasonable to all concerned. 11 In my opinion the application of two discrete discounts, as was done in the present case, is liable to lead to error unless the court is conscious of the overall discount being given and considers whether a discount of that degree can result in a sentence that does not infringe s 23(3). An overall discount of more than 60 per cent, however derived, will rarely, if ever, result in a sentence that is not manifestly inadequate. If then special circumstances are found and the non-parole period is reduced to say 50 per cent of the overall sentence, the unreasonableness of the sentence is magnified. It should be borne in mind that a discount in the overall sentence will inevitably result in a discount of the non-parole period. This is why it is important to avoid doubt counting in cases of assistance by finding special circumstances for the very same reasons that the sentence was reduced: R v S (2000) 111 A Crim R 225; R v PG (2001) 122 A Crim R 529." 70Howie J's approach in SZ v R has been applied or cited with approval in a number of decisions, including NP v R [2008] NSWCCA 205 at [70] (Hoeben J, McClellan CJ at CL and Hislop J agreeing); R v Urriola [2010] NSWSC 367 at [48] (Fullerton J); Brown v R [2010] NSWCCA 73 at [38]-[40] (Howie J, Macfarlan JA and Hislop J agreeing); AAT v R [2011] NSWCCA 17 at [31]-[33] (Buddin J, McClellan CJ at CL and Schmidt J agreeing); R v AZ [2011] NSWCCA 43; 205 A Crim R 222 at 236 [94] (McClellan CJ at CL and McCallum J agreeing with myself) and R v Holland [2011] NSWCCA 65; 205 A Crim R 429 at 437-438 [42]-[43] (Schmidt J, McClellan CJ at CL and Buddin J agreeing). 71I express my agreement with Howie J's statements in SZ v R, which were not challenged at the hearing of this appeal. They represent a principled approach which has been applied regularly by this Court, and by first instance Judges, in determining sentence where there are several discounts under consideration, including a discount for assistance. 72Of course, it is necessary to consider these various decisions in conjunction with s.23(4) Crimes (Sentencing Procedure) Act 1999. However, that provision does not affect the reasoning in these cases concerning a practical ceiling for a total effective discount for a plea of guilty and assistance. 73I wish to make some short observations concerning s.23(4) Crimes (Sentencing Procedure) Act 1999 and the Criminal Case Conferencing Trial Act 2008, to which reference has been made by the other members of the Court. Submissions made in this Court did not touch upon these provisions, or their impact upon earlier decisions of this Court. 74Basten JA and Adams J refer to s.23(4) Crimes (Sentencing Procedure) Act 1999. This provision was inserted by the Crimes (Sentencing Procedure) Amendment Act 2010, which commenced on 14 March 2011. The second reading speech in support of the Bill indicated that it gave effect to recommendations made by the Sentencing Council in its report of August 2009 entitled "Reduction in Penalties at Sentence". The Parliamentary Secretary, the Hon Michael Veitch, indicated that the Government had agreed to implement all the recommendations of the Council in the Bill (Legislative Council, Hansard, 23 November 2010). With respect to the enactment of s.23(4)-(6), the Parliamentary Secretary said: "Item [6] of schedule 1.2 also relates to the consideration of imposing a lesser penalty as a result of assistance provided by the offender. Frequently an offender may promise assistance that will be given after sentencing takes place - for example by giving evidence at a later trial. This promise is appropriately considered when setting the sentence. However, where the offender reneges on the promise, appeal courts need to be able to deprive the person of the discount given for the future assistance when the person is to be re-sentenced. To facilitate this process the amendment will require the court to outline the extent to which the sentence has been reduced both for any assistance already given and separately for any assistance promised. This will significantly assist courts in revisiting the sentence should the promised assistance not be forthcoming." 75It appears from the second reading speech and the Sentencing Council's Report (paragraphs 8.48-8.50) that the amendment was intended to require a sentencing Judge to indicate the reduction in sentence flowing from assistance so as to facilitate later attention to be given to the subject, in the event of a Crown appeal under s.5DA Criminal Appeal Act 1912 against a reduced sentence, if the offender fails wholly or partly to fulfil an undertaking to assist law enforcement authorities. The enactment of s.23(4) appears to have been intended to bring the New South Wales provision into closer alignment with s.21E Crimes Act 1914 (Cth). 76The discount in the present case was identified separately, and not as part of a rolled-up discount incorporating the discount for the plea of guilty. Accordingly, the sentencing Judge complied with s.23(4) in this case. 77Should a question arise in a future appeal to this Court as to the significance of s.23(4) to the process of determining a discount for assistance to authorities, then the origin of the provision, as explained in the second reading speech and the Report of the Sentencing Council, should be kept in mind. 78Basten JA made reference (at [13]) to the Criminal Case Conferencing Trial Act 2008 in the context of discounts for assistance. That Act applied to the Respondent as he fell within the closed category of persons in relation to whom a Court Attendance Notice was filed on or after 1 May 2008 but before 8 October 2011, the latter date marking the termination of the trial scheme: s.5, Criminal Case Conferencing Trial Act 2008; Clause 6, Criminal Case Conferencing Trial Regulation 2008. The Criminal Case Conferencing Trial Repeal Act 2012 commenced on 14 March 2012 so that the Criminal Case Conferencing Trial Act 2008 has passed into history. 79I have made these observations so that these additional features are available to this Court in any future case where these issues require consideration and determination. 80I return to this case. The Respondent's assistance involved the provision of limited information only. He did not offer to give evidence against any other person, let alone undertake to do so. He received a generous, but not erroneous, discount. 81I reject the first ground of appeal.
Ground 2 - The Claim of Manifest Inadequacy 82The Crown submits that the sentence imposed upon the Respondent is manifestly inadequate. It is submitted that a manifestly inadequate starting point was adopted by the sentencing Judge before application of the relevant discounts. 83A claim of manifest inadequacy requires the Crown to demonstrate that the sentencing Judge's orders were unreasonable or plainly unjust: Hili v The Queen [2010] HCA 45; 242 CLR 520 at 538 [58]. 84The Respondent was sentenced in the District Court for this offence, which bears a standard non-parole period, before the decision of the High Court of Australia in October 2011 in Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154. Accordingly, it is necessary to consider the present ground of appeal applying that decision to the circumstances of this case. 85The maximum penalty and the standard non-parole period are "two legislative guideposts" which a sentencing Judge must take into account: Muldrock v The Queen at 1162 [27]. The maximum penalty for the Respondent's offence was life imprisonment and the standard non-parole period was 15 years. 86The process of instinctive synthesis to be undertaken by a sentencing court involves the sentencing judge identifying all the factors that are relevant to the sentence and then making a value judgment as to the appropriate sentence in all the circumstances of the case: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 377-378 [51]; Muldrock v The Queen at 1162 [26]. Assessment of the objective gravity of an offence has traditionally been an essential element of the sentencing process: R v Dodd (1991) 57 A Crim R 349 at 354; Khoury v R [2011] NSWCCA 118 at [71]. It is an essential element of the process of instinctive synthesis, a purpose of which is the imposition of a proportionate sentence, which adequately punishes an offender: s.3A(a) Crimes (Sentencing Procedure) Act 1999. 87As this Court observed in R v Koloamatangi [2011] NSWCCA 288 at [18]-[19], the High Court did not suggest in Muldrock v The Queen that a conventional assessment of objective offending, according to a scale of seriousness, was to be avoided. The sentencing Judge in the present case concluded that the Respondent's offence lay in the middle of the range of objective seriousness "but very much towards the bottom of the middle of that range". 88It is the case that, in light of the decision in Muldrock v The Queen, the standard non-parole period cannot have "determinative significance". In R v Koloamatangi at [21], it was observed as well that the standard non-parole period may not carry much weight at all in circumstances such as those which arose in Muldrock v The Queen itself. This rider or observation does not apply to the present appeal. There is no particular feature of this case which would lead to the standard non-parole period not being given appropriate weight in sentencing the Respondent. 89The Respondent was sentenced to a head sentence of imprisonment of six-and-a-half years with a non-parole period of four years and 10 months. No finding of special circumstances was made so that the non-parole period constituted about 75% of the head sentence. Before application of the combined 35% discount for the plea of guilty and assistance, the head sentence was one of imprisonment for 10 years with a non-parole period of seven years and six months. 90This was a crime of considerable seriousness. The Respondent was engaged in drug trafficking on a substantial scale over a significant period of time. His crime involved a quantity (1.615 kg) that was significantly above the large commercial quantity (1 kg). The sentencing Judge concluded that the Respondent was "at least a principal in this drug supply syndicate" and that he was "the common thread" amongst the various other offenders who had been apprehended. This was not an isolated transaction and the drugs were supplied in the course of an established commercial activity: R v Achurch [2011] NSWCCA 186 at [98]. 91The Respondent obtained the drugs and arranged their transportation from New South Wales to Western Australia. At times, he carried them himself and, at other times, he arranged for others to transport them. He organised to transfer money to bank accounts in various ways, at his direction. Several of the money transfers were to source more methylamphetamine to continue the syndicate's supply chain to Western Australia. On one occasion, he gave instructions to a fellow syndicate member as to how to mix the drug for on-supply. On occasions, he collected cash to pay for the drugs and, on an occasion, he appears to have set the price for the drugs. 92All of this displayed a multi-faceted role in which the Respondent directed syndicate activities. As the sentencing Judge found, this was the Respondent's "full time job" over a three-month period "for financial gain" (ROS, page 11). 93A sentence for an offender who chooses to undertake the business of large commercial drug supply for profit must actually reflect a significant element by way of general deterrence. 94The Respondent was aged 35 years at the time of the offence. He had a prior criminal history including, importantly, an offence of supplying a prohibited drug, for which he was sentenced in 1995 to a fixed term of six months' imprisonment. There were earlier offences of dishonesty, and a conviction in 2000 for assault occasioning actual bodily harm, for which he received a three-year good behaviour bond and a $2,000.00 fine. 95The sentencing Judge observed that the Respondent could not claim prior good character as a mitigating factor and that his criminal history did not assist him with the exercise of any leniency, although noting that there was a very significant gap between his 1995 drug supply offence and the present offence, with the exception of the assault occasioning actual bodily harm offence in 2000. 96The Respondent cannot claim the immaturity of youth as being a factor which bears upon his criminal conduct: R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106 at 127 . Although having a prior offence (at the age of 20 years) for supplying a prohibited drug which was of sufficient seriousness to warrant a full-time sentence of imprisonment, the Respondent chose to engage in the sustained supply of a large commercial quantity of methylamphetamine for profit. In these circumstances, it was necessary for the sentence to actually reflect an element of specific deterrence as well. 97The Respondent's subjective case was not very strong. It involved a very limited body of evidence. The Respondent did not give evidence at the sentencing hearing. A submission was made by the Crown that less weight should be attached to his personal account to the author of the presentence report (AB102-104), given the absence of evidence from the Respondent (R v Palu [2002] NSWCCA 381; 134 A Crim R 174 at 184-185 [39]-[41]). Both the Respondent's counsel and the sentencing Judge appeared to accept that this was the approach to be taken in this case (T10, 14, 27 May 2011). Two references were tendered (AB132-133), neither of which referred to any drug use by the Respondent. Reference was made to his gambling addiction, but that had been a long-standing feature of the Respondent. The Respondent's former partner, from whom he separated in 2006, gave evidence (T11-14, 27 May 2011). She said that he was gambling when she was with him, but she did not know to what extent (T13, 27 May 2011). There was a nine-year old child of the relationship, and she said that the Respondent had been a good father and a good worker. No medical evidence was tendered for the Respondent. Nor was there a psychiatric or psychological report of the type frequently seen in sentencing proceedings. 98The fact that the offence may have been committed in the context of a long-standing gambling problem, and what was said to be more recent drug use, does not assist the Respondent on sentence. The Respondent elected to carry on a business, over an extended period of time, involving interstate travel, as a principal of a drug supply syndicate. He determined, at a mature age, to engage in conduct punishable by the highest penalty available in this State under the Drug Misuse and Trafficking Act 1985. 99The sentencing Judge referred to Judicial Commission sentencing statistics, noting that the statistics did not indicate whether s.23 discounts for assistance had been applied in those cases (ROS, page 20). The statistics could provide no real assistance in this case. 100I have had regard to the various sentencing decisions in unrelated cases to which this Court's attention was drawn, keeping in mind the limited approach referred to by the High Court in Hili v The Queen at 536-537 [53]-[54]. There is no case that is especially close to the circumstances of this offence and this offender. In my view, an examination of these cases provides support for the Crown's submission of manifest inadequacy in this case. I have kept in mind that the decisions in question predated the High Court's judgment in Muldrock v The Queen. 101Submissions were made by the Crown and Mr Stratton SC concerning parity issues. I have taken into account the principles in Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540 and Green v The Queen [2011] HCA 49; 86 ALJR 36. 102I bear in mind that the present Respondent was the only person amongst those involved in this drug syndicate who was sentenced for supplying a large commercial quantity of methylamphetamine, an offence for which the maximum penalty is life imprisonment with a standard non-parole period of 15 years. 103Of the other offenders, Mr Paeu, Mr Taylor and Ms Pham were sentenced for supply of a commercial quantity of methylamphetamine, an offence punishable by a maximum penalty of imprisonment for 20 years with a standard non-parole period of 10 years. There were markedly different "legislative guideposts" (Muldrock v The Queen at 1162 [27]) to be considered in their cases. Another offender, Mr Martin, was sentenced for an offence of supplying an indictable quantity of methylamphetamine, an offence punishable by a maximum penalty of imprisonment for 15 years, with no standard non-parole period. 104As the decision in Jimmy v R makes clear (at 589 [203], 596 [246]-[247], 599-600 [267]), the parity principle cannot overcome differences in sentence that arose from a prosecutorial decision about what crimes to charge against different offenders as well as differences in the roles of those offenders. 105In the present case, I do not consider that any legitimate sense of grievance can arise for the Respondent as a result of him being resentenced in this Court, in view of the significantly more serious offence for which he was to be sentenced, compared to the other offenders. Further, the Respondent played a far more active role in that he was, in the words of the sentencing Judge, "the common thread" amongst the other offenders. The sentencing Judge recognised the difference in the Respondent's role and concluded that the other offenders sentenced up to that time (Mr Paeu and Mr Martin) both represented "very different propositions, much less serious offences and less criminality" (ROS, page 20). 106Mr Stratton SC referred, in particular, to Ms Pham's sentence in the parity context. The sentencing Judge observed that Ms Pham's criminality was substantial in that she played a significant role in sourcing the drugs. However, when Tupman DCJ came to sentence Ms Pham on 5 September 2011, her Honour found that "she played a somewhat more minor role than Damon Ehrlich" and that she was acting at the request of the Respondent (Pham, ROS, page 11). Ms Pham's offence involved the supply of 849.9 grams, about half the quantity for which the Respondent was to be sentenced. Ms Pham received a 25% discount for her plea of guilty in accordance with the Criminal Case Conferencing Trial Act 2008. Further, Ms Pham (who was 27 years' old) had no prior convictions. She had what Tupman DCJ described as a "very strong subjective case" (Pham, ROS, page 16). Ms Pham has three children, including one born in custody in June 2011. 107Her Honour had regard to Ms Pham's "very special circumstances" in fixing a non-parole period of three years and a head sentence of six years (Pham, ROS, page 22). 108Mr Stratton SC pointed to a Form 1 offence of dealing with the proceeds of crime ($15,000.00) which was taken into account on sentence for Ms Pham. He submitted that this was a point of distinction as between her case and that of the Respondent. The sentencing Judge observed that Ms Pham's Form 1 offence did "not to any large extent, if at all, elevate the appropriate sentence" as it was "an integral part of the offending behaviour of Ms Pham, namely being in possession of the proceeds of crime, the very crime which represents the substantive offence" (Pham, ROS, page 22-23). I do not think that Ms Pham's Form 1 offence provides any real assistance to the Respondent in the parity context. 109There is no objective foundation for grievance, and thus no legitimate sense of grievance, which the Respondent may entertain as a result of him being resentenced in this Court, by reference to sentences passed on his co-offenders. I do not think that parity considerations should stand in the way of the imposition of an appropriate sentence in this case. 110There is no other discretionary consideration to be taken into account in the exercise of the Court's residual discretion on Crown appeals. 111In my view, the sentence imposed upon the Respondent was manifestly inadequate. I have reached this conclusion after consideration of the objective circumstances of the offence, and the subjective circumstances of the Respondent, and giving appropriate weight to the standard non-parole period and maximum penalty as "legislative guideposts" together with principles of general and specific deterrence which were to be applied in this case. 112Manifest inadequacy is a conclusion which may be demonstrated by comparing the circumstances of the case with the sentencing outcome. The error is implied from the discordance between those two features: Hili v The Queen at 538-539 [58]-[60]. In this case, the error has resulted from inadequate weight being given to the objective gravity of the offence and the standard non-parole period, and the requirement for the sentence to appropriately reflect general and specific deterrence, with excessive weight being given to the Respondent's limited subjective case. 113In my view, before application of the 35% total discount, a sentence of imprisonment for 14 years is appropriate. I agree with the sentencing Judge's conclusion that "special circumstances" are not made out in this case, so that the statutory formula in s.44 Crimes (Sentencing Procedure) Act 1999 should operate, giving rise to a non-parole period of 10 years and six months. 114After applying the 35% discount, an appropriate sentence in this case comprises a head sentence of nine years and three months, with a non-parole period of six years and nine months. 115I propose the following orders: (a) Crown appeal allowed; (b) sentence imposed on 16 June 2011 quashed; (c) in its place, the Respondent is sentenced to imprisonment comprising a non-parole period of six years and nine months commencing on 2 March 2010 and expiring on 1 December 2016, with an additional term of two years and six months, commencing on 2 December 2016 and expiring on 1 June 2019.
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: 28 March 2012
R
Ehrlich
[2009] NSWCCA 317
[2005] HCA 25
[2001] HCA 39
(1991) 23 NSWLR 220
(1989) 17 NSWLR 243
(2000) 49 NSWLR 383
[1936] HCA 40
The Crown appeal was dismissed by majority. Basten JA agreed with Adams J's conclusion, and Adams J would dismiss the appeal. Johnson J dissented, proposing that the sentence be quashed and replaced with a non-parole period of six years and nine months and an additional term of two years and six months, commencing on 2 March 2010 ([1]-[3], [51]-[53], [111]-[115]).