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[2010] NSWCCA 111
appellant. Time for the conviction appeal was extended and the draft notice treated as filed and served in time; the conviction appeal was dismissed; the Crown’s sentence appeal was allowed; the District...
The Court upheld El Helou's conviction under NSW drug-supply law despite a related Commonwealth offence having different elements and penalties. The Commonwealth law expressly allowed concurrent State laws, and prosecutorial choice did not undermine the court's role. On sentence, the Court found the sentencing judge had not given sufficient weight to the 15-year standard non-parole period after finding that the offence was more serious than mid-range. The Crown's appeal succeeded, and the Court replaced the original sentence with an eight-year non-parole period and a four-year balance of term.
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1,956 words · generated 30/09/2026
In R v El Helou, El Helou v R [2010] NSWCCA 111, the NSW Court of Criminal Appeal dealt with two appeals arising from the same prosecution: Gary El Helou's challenge to his conviction and the Crown's challenge to his sentence. Allsop P gave the principal judgment, with Grove J and Hislop J agreeing ([1], [93]–[94]).
6 cited instruments linked from this judgment.
El Helou had pleaded guilty to knowingly taking part in the supply of more than a large commercial quantity of pseudoephedrine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The charged amount was 259.22 kg. The judgment records that the NSW large commercial quantity for pseudoephedrine was 5 kg, so the charged amount exceeded that threshold by more than 50 times ([1]). The District Court imposed a total term of ten years and six months, with a non-parole period of six years and six months ([2]).
El Helou sought an extension of time to appeal his conviction, arguing that the State offence was constitutionally invalid. His grounds were that it was inconsistent with the Commonwealth offence concerning pre-trafficking commercial quantities of controlled precursors, and that prosecutorial choice between the offences compromised the court's capacity to exercise judicial power ([7]–[9], [35]–[36]).
The Crown appealed the sentence, arguing that it was manifestly inadequate and that the sentencing judge had erred in findings about El Helou's involvement and remorse ([3], [67]–[70]). The Court extended time for the conviction appeal but dismissed it. It allowed the Crown appeal and substituted a sentence comprising an eight-year non-parole period and a four-year balance of term ([91]–[92]).
The constitutional argument relied on the different penalties attached to the NSW and Commonwealth offences. The Court accepted that the offences were not identical: a person could commit the NSW offence without committing the Commonwealth offence, although it was difficult to see how a person committing the relevant Commonwealth precursor offence would not also commit the NSW offence ([20]). The key question was not simply whether the laws differed, but whether they were inconsistent in the constitutional sense.
The Court noted that the laws were capable of simultaneous obedience ([21]). More importantly, Criminal Code (Cth) s 300.4 expressly provided that Part 9.1 was not intended to exclude or limit the concurrent operation of State or Territory laws. That provision applied even where a State law had a different penalty, fault element or defence ([22]). The Court treated it as a clear statement against an intention that Commonwealth law cover the field exclusively, while recognising that Commonwealth Parliament could not override an inconsistency imposed by Constitution s 109 ([23]).
The Court therefore examined whether the difference in penalties nevertheless created inconsistency. It explained that a difference in penalties can matter where Commonwealth law is intended to prescribe the exclusive rule. But the difference alone is not enough: the legislative intention about exclusivity is central ([24]–[30]). Because the offences could operate concurrently and the Commonwealth statute expressly contemplated concurrent State laws, the Court rejected the s 109 challenge ([31]–[34]).
The separate judicial-power argument also failed. The Court said that choosing which valid offence to prosecute was a matter for prosecutorial authorities. It found no allegation that choosing the State offence was improper and no allegation that the prosecution was an abuse of process ([37]–[38]). The District Court had not been given a task, restriction or characteristic that interfered with its administration of criminal law. In those circumstances, the charging choice did not compromise the court's exercise of judicial power ([37]–[40]).
On sentence, the Court upheld the sentencing judge's disputed findings. The distinction at [68] was that the judge had not found that El Helou was uninvolved in planning; rather, the judge was not satisfied on the evidence that he had participated in planning the importation or distribution. The limited period covered by the listening-device evidence supported that caution. The Court also declined to disturb the finding of remorse, which partly rested on the sentencing judge's opportunity to observe El Helou giving evidence ([68]–[69]).
The sentence appeal succeeded for a different reason. The sentencing judge had found the offence above the mid-range of seriousness but imposed a six-and-a-half-year non-parole period. Allsop P considered it difficult to see how the judge had adequately related that finding to the 15-year standard non-parole period and the maximum penalty ([71]). The judge had given no reason for departure other than the guilty plea, and the Court concluded that there had been no real regard to the statutory guidepost ([72]–[76]). It held that this produced a manifestly inadequate sentence ([77]–[79]).
The judgment did not create the NSW drug-supply offence or the standard non-parole period. It applied the existing statutory scheme and prior authority to the circumstances of this sentence. The decision's contribution lies in explaining how those rules operated together in this case.
On the constitutional issue, the Court applied established s 109 principles concerning concurrent operation, simultaneous obedience and legislative intention. It treated Criminal Code s 300.4 as a strong indication that Commonwealth law did not exclude State drug-trafficking laws, including where the State penalty differed ([22]–[34]). It did not hold that a Commonwealth statement about concurrent operation could save State law if a genuine constitutional inconsistency otherwise existed; it expressly acknowledged that s 109 would still render an inconsistent State law inoperative ([23]).
On sentencing, the Court applied the standard non-parole period as a guidepost, not as an automatic sentence. It quoted R v Way on the need to ask whether there were reasons not to impose the standard period, and to consider objective seriousness, aggravating and mitigating circumstances, the guilty plea and other subjective factors ([73]). The Court's concern was that the sentencing judge had not meaningfully explained the substantial departure in this case ([71]–[76]).
The outcome demonstrates the interaction between the standard period and a guilty plea. The Court recognised the 25 per cent utilitarian discount for the early plea, along with remorse and rehabilitation prospects, but held these matters did not explain the original non-parole period in light of the offence's above-mid-range seriousness ([76]–[79]). In resentencing, it assessed a nine-year non-parole period as appropriate before making a one-year adjustment for special circumstances ([85]–[86]).
The judgment also makes clear that its final sentence was not a general tariff for pseudoephedrine offences. The Court considered the quantity and seriousness of this offence together with the respondent's particular subjective circumstances. It also emphasised the special-circumstances adjustment and the need to avoid double counting ([81]–[86]).
At [21], the Court said the laws were “susceptible of simultaneous obedience”. In plain English, a person could comply with both laws because obeying one did not necessarily require breaking the other. That mattered to the claim that one law displaced the other.
At [22], the judgment set out Criminal Code s 300.4, which said the Commonwealth provisions were not intended to exclude concurrent State laws, even if the State penalty differed. The Court treated this as evidence that the Commonwealth offence was not meant to be the only law governing the subject ([28], [31]).
At [34], Allsop P concluded that s 25(2) was not invalid or inoperative under Constitution s 109. That resolved the statutory-inconsistency branch of the conviction appeal.
At [37]–[40], the Court rejected the contention that charging El Helou under the State provision compromised the judicial process. Its reasoning was specific to the circumstances before it: both laws were valid, no impropriety or abuse of process was alleged, and no court function had been altered.
At [73], the Court quoted Way to describe the standard non-parole period as a “reference point, or benchmark, or sounding board, or guidepost”. In plain English, the standard period is a meaningful statutory comparison point, but sentencing still requires consideration of the particular offence and offender.
At [74]–[79], the Court applied that approach. The offence was above mid-range, but the original sentence did not show real engagement with the 15-year standard period. The Court considered the resulting six-and-a-half-year non-parole period manifestly inadequate.
At [90], the Court rejected reducing the sentence by reference to the lower penalty under the Commonwealth offence. El Helou had been prosecuted under NSW law, so the sentence was assessed under the NSW regime.
The constitutional reasoning is relevant where a State criminal offence overlaps with a Commonwealth offence and a party argues that different penalties make the State law inoperative under s 109. The judgment directs attention to the offences' elements, whether both laws can be obeyed, and whether Commonwealth Parliament intended its law to be exclusive. It is particularly significant that the Commonwealth provision in this case expressly contemplated concurrent State laws ([20]–[34]).
The judicial-power reasoning concerns a claim that prosecutorial selection between valid offences compromises the court. The decision addresses a situation where the defendant alleged unequal treatment because the offences carried different penalties. The Court's conclusion depended on the absence of an alleged improper charging decision or abuse of process and on the absence of any restriction imposed on the court ([35]–[40]). It should not be read as deciding the scope of review for prosecutorial discretion, which the Court said was not debated ([38]).
The sentencing reasoning is pertinent where a sentencing judge finds an offence above mid-range but imposes a non-parole period substantially below the statutory standard period without identifying adequate reasons for departure. The case highlights the importance of explaining how the objective seriousness, plea discount and offender-specific matters relate to the statutory guidepost ([70]–[79]).
The decision also concerns sentencing for very large quantities of precursor drugs where the offender's role was not found to include planning the importation or distribution. The sentencing judge found El Helou had transported, warehoused and been expected to deliver the drugs, and that his involvement lasted two days ([58]). The appeal court nevertheless treated the quantity, value and above-mid-range objective seriousness as significant ([76], [81]).
The supplied judgment reports no later judicial treatment of El Helou. It therefore does not establish whether subsequent courts have followed, distinguished, limited or otherwise applied its reasoning. The decision itself cites earlier authorities, including Way, Knight, McWaters, Wong and Simpson, and explains how those authorities informed its reasoning ([30], [70]–[73], [81], [85]).
For research purposes, the later-treatment question remains open on the material provided. This deep dive does not infer a treatment history from the fact that the case has a reported citation or that it relied on earlier decisions.
The Court expressly left the scope of review of prosecutorial discretion undecided because it was not the subject of argument ([38]). It also referred to the possibility that the validity of a charging decision might be assessed through reviewability or, in some cases, abuse of process, without deciding the boundaries of either route.
The decision does not determine how s 109 would apply where a Commonwealth law lacked an express concurrent-operation provision, or where the two laws could not be obeyed simultaneously. It explains that concurrent-operation wording does not override the Constitution if an inconsistency exists, but those different circumstances were not before the Court ([23], [28]).
Nor does the judgment provide a formula for translating an above-mid-range seriousness finding into a precise non-parole period. It identifies the factors used here and the outcome reached, but the reasoning remains tied to this offence and offender ([78]–[91]). The extent of any later development in the law, and how later courts have applied this decision, cannot be established from the judgment supplied.
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CITATION: R v El Helou, El Helou v R [2010] NSWCCA 111 This decision has been amended. Please see the end of the judgment for a list of the amendments.
JUDGMENT OF: Allsop P at 1; Grove J at 93; Hislop J at 94
CATCHWORDS: CRIMINAL LAW - appeal against sentence - appeals by Crown - whether sentence manifestly inadequate - knowingly taking part in supply of more than large commercial quantity of pseudoephedrine - objective criminality of the offence above mid-range of seriousness - failure to give sufficient weight to standard non-parole period - CRIMINAL LAW - appeal against conviction - Constitutional validity of Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) - not inconsistent with Criminal Code (Cth), s 306.2 - not incompatible with exercise of Commonwealth judicial power
Constitution s 109 Crimes Act 1914 (Cth) s 29 Crimes (Appeal and Review) Act 2001 (NSW) s 68A LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (NSW) s 54A Criminal Code (Cth) s 300.4, 306.1, 306.2 Criminal Code (Qld) s 469 Drug Misuse and Trafficking Act 1985 (NSW) s 25(2) Judiciary Act 1903 (Cth) s 788
Ansett Transport Industries (Operations) Pty Ltd v Wardley [1980] HCA 8; 142 CLR 237 Blackley v Devondale Cream (Vict) Pty Ltd [1968] HCA 2; 117 CLR 253 Carroll v The Queen [2009] HCA 13; 83 ALJR 579 Dao v Australian Postal Commission [1987] HCA 13; 162 CLR 317 Ex parte McLean [1930] HCA 12; 43 CLR 472 Hume v Palmer [1926] HCA 50; 38 CLR 441 Kable v The Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51 Markarian v The Queen [2005] HCA 25; 228 CLR 357 McWaters v Day [1989] HCA 59; 168 CLR 289 Metal Trades Industry Association v Amalgamated Metal Workers' and Shipwrights' Union [1983] HCA 28; 152 CLR 632 Micklesson v R [2009] NSWCCA 61 Mirza v R [2007] NSWCCA 257 N v R; AP v R [2009] NSWCCA 108 Nguyen v R [2007] NSWCCA 15 Pham v R [2009] NSWCCA 25 R v Brown (1989) 17 NSWLR 472 R v Fidow [2004] NSWCCA 172 R v GDR (1994) 35 NSWLR 376 R v Gent [2005] NSWCCA 370 162 A Crim R 29 CASES CITED : R v JW [2010] NSWCCA 49 R v Knight; R v Biuvana [2007] NSWCCA 283; 176 A Crim R 338 R v Leroy [1984] 2 NSWLR 441; 13 A Crim R 469 Re Macks; Ex parte Saint [2000] HCA 62; 204 CLR 158 R v Mitchell; R v Gallagher [2007] NSWCCA 296; 177 A Crim R 94 R v Moffitt (1990) 20 NSWLR 114 R v Stevens (1991) 23 NSWLR 75 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Way [2004] NSWCCA 131; 60 NSWLR 168 R v Wong; R v Leung [1999] NSWCCA 340; 48 NSWLR 340 Rawlings v R [2006] NSWCCA 84 Telstra Corporation v Worthing [1999] HCA 12; 197 CLR 61 The Commonwealth v Western Australia [1999] HCA 5; 196 CLR 392 The Queen v Credit Tribunal: Ex parte General Motors Acceptance Corporation [1977] HCA 34; 137 CLR 545 The Queen v Loewenthal; Ex parte Blacklock [1974] HCA 36; 131 CLR 338 University of Wollongong v Metwally [1984] HCA 74; 158 CLR 447 Victoria v The Commonwealth (The 'Kakariki') [1937] HCA 82; 58 CLR 618 Viskauskas v Niland [1983] HCA 15; 153 CLR 280 Wong v The Queen [2001] HCA 64; 207 CLR 584 Woodgate v R [2009] NSWCCA 137 Vu v R [2006] NSWCCA 188
PARTIES: Regina (Appellant) Gary Mathew El Helou (Respondent)
Mr G Farmer (Appellant) COUNSEL: Mr J K Kirk with Mr H El-Hage (NSW Attorney General as intervener) Mr M Johnson (Respondent)
SOLICITORS: Commonwealth Director of Public Prosecutions (Appellant) O'Brien Lawyers (Respondent)
IN THE COURT OF CRIMINAL APPEAL 2009/4997003 2009/4997004
ALLSOP P GROVE J HISLOP J
Friday 21 May 2010 R v Gary Mathew EL HELOU Gary Mathew EL HELOU v R Judgment 1 ALLSOP P: On 25 March 2009 the respondent, Mr Gary El Helou, pleaded guilty to a charge of knowingly taking part in the supply of a prohibited drug of more than a large commercial quantity, the drug being pseudoephedrine, contrary to the Drug Misuse and Trafficking Act 1985 (NSW) (the "DM&T Act"), s 25(2). A large commercial quantity of pseudoephedrine as specified in Schedule 1 to the DM&T Act is five kilograms (kgs). The maximum penalty for the offence is imprisonment for life and/or a fine of 5,000 penalty units. The quantity of pseudoephedrine which was the subject of the charge to which Mr El Helou pleaded guilty was 259.22 kgs (over 50 times the amount in Schedule 1 for a large commercial quantity). 2 Mr El Helou was committed to the District Court for sentence. On 10 July 2009, Solomon DCJ sentenced Mr El Helou to imprisonment for a non-parole period of six years and six months commencing on 11 July 2008 and expiring on 10 January 2015 with an additional term of four years expiring on 10 January 2019, being a total term of imprisonment of ten years and six months. 3 The Crown appealed against the sentence imposed by his Honour on a number of grounds including manifest inadequacy. 4 Mr El Helou seeks to appeal against his conviction (notwithstanding his plea of guilty) on the ground that the provision of the DM&T Act under which he was convicted is constitutionally invalid. Mr El Helou does not seek leave to appeal against the sentence. 5 Mr El Helou requires leave by way of extension of time for the filing of a notice of appeal against his conviction. That application was made on 26 March 2010 and was supported by an affidavit of Mr El Helou's solicitor, Mr O'Brien. That affidavit recounts that counsel advising had originally taken the view that there was no basis to challenge the conviction. Counsel, however, in February of this year, changed his mind and gave advice that a Constitutional point in relation to the conviction was available to be taken. 6 Although I am of the view that the Constitutional arguments put on behalf of Mr El Helou should fail, they were responsibly put and raised important questions. For this reason, I would extend time for the filing and serving of a notice of appeal against conviction to 26 March 2010 and treat the draft notice of appeal provided on 23 March 2010 to the Court as the filing of a notice of appeal on or before 26 March 2010. The conviction appeal 7 The grounds of challenge to the validity of DM&T Act, s 25 are that the provision:
(a) is inconsistent with a law of the Commonwealth for the purposes of the Australian Constitution , s 109;
(b) requires a sentencing court to engage in a process which is incompatible with the court's capability to exercise the judicial power of the Commonwealth. 8 Notices under the Judiciary Act 1903 (Cth), s 78B were sent to Commonwealth, State and Territory Attorneys-General. The Attorney-General for New South Wales intervened and argued the Constitutional issues.
Asserted inconsistency with the Australian Constitution, s 109 9 The asserted inconsistency was said to be between the DM&T Act, s 25(2) and the Criminal Code Act 1995 (Cth) (the "Criminal Code"), s 306.2. The inconsistency is said to arise from the prescription of different penalties in relation to the same proscribed conduct. 10 Section 25(2) of the DM&T Act, provides as follows: "A person who supplies, or who knowingly takes part in the supply of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence." 11 The word "supply" is defined in s 3, as follows: " supply includes sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things." 12 The phrase "take part in" is defined in s 6, as follows: "For the purposes of this Act and the regulations, a person takes part in the cultivation or supply of a prohibited plant or the manufacture, production or supply of a prohibited drug if:
(a) the person takes, or participates in, any step, or causes any step to be taken, in the process of that cultivation, manufacture, production or supply,
(b) the person provides or arranges finance for any such step in that process, or
(c) the person provides the premises in which any such step in that process is taken, or suffers or permits any such step in that process to be taken in premises of which the person is the owner, lessee or occupier or in the management of which the person participates." 13 Section 306.2 of the Criminal Code provides as follows: "306.2 Pre-trafficking commercial quantities of controlled precursors
(b) the substance is a controlled precursor; and (c) the quantity pre-trafficked is a commercial quantity.
Penalty: (a) in the case of an aggravated offence - imprisonment for 28 years or 5,600 penalty units, or both; or (b) in any other case - imprisonment for 25 years or 5,000 penalty units, or both.
Note: The additional elements for an aggravated offence against this section are set out in subsection 310.4(3).
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
Note: Section 313.4 provides a partial defence in relation to the matter in paragraph (1)(c)." 14 The word "pre-traffics" is defined by s 306.1, relevantly as follows: "306.1 Meaning of pre-traffics
For the purposes of this Part, a person pre-traffics in a substance if the person:
(a) sells the substance believing that the person to whom it is sold, or another person, intends to use any of the substance to manufacture a controlled drug; or …
(d) possesses the substance: (i) with the intention of using any of it to manufacture a controlled drug; and (ii) with the intention of selling any of the drug so manufactured, or believing that another person intends to sell any of the drug so manufactured." 15 Pseudoephedrine is a prohibited drug under the DM&T Act and is a controlled precursor under the Criminal Code. 16 The offence of supplying a large commercial quantity of pseudoephedrine as a prohibited drug, under the DM&T Act, s 25(2) carries a penalty of life imprisonment or 5,000 penalty units or both: DM&T Act, s 33(1)(a) and (3)(a). A standard non-parole period of 15 years is also set by the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Crimes (S&P) Act"), s 54A and item 19 in the Table to Division 1A of Part 4 of that Act. 17 A large commercial quantity of pseudoephedrine is set by the definition of the phrase "commercial quantity" in the DM&T Act, s 3 and Schedule 1 to that Act, column 5. Section 4 of the DM&T Act also provides that a reference to a prohibited drug includes a reference to "any preparation, admixture, extract or other substance containing any proportion of the prohibited drug". 18 A "commercial quantity" of pseudoephedrine under the Criminal Code (and thus for the purposes of s 306.2 (1)(c)) is 1.2 kgs: s 314.3, of the pure form of the drug: s 312.1. 19 The quantity here, 259.22 kgs, was an admixture. Its weight in pure form was 52.34 kgs. 20 The two offences (under s 25(2) and s 306.2) are not entirely co-extensive or identical. Someone guilty of an offence under s 25(2) will not necessarily be guilty of an offence under s 306.2. The elements of the two offences are different. The submissions of the Director of Public Prosecutions (DPP) and the Attorney-General identified (in detail that it is unnecessary to traverse) how a person may commit an offence under s 25(2), but not under s 306.2. Conversely, it is difficult to see how a person who "pre-traffics" a commercial quantity of pseudoephedrine contrary to ss 306(1)(a) and 306.2 does not also commit an offence against s 25(2). 21 Whilst the elements of the two offences may be different both laws are susceptible of simultaneous obedience. 22 Importantly, the Commonwealth Parliament has considered and dealt with the question of concurrent operation of State laws. Section 300.4 of the Criminal Code provides as follows: "300.4 Concurrent operation intended
(1) This Part is not intended to exclude or limit the concurrent operation of any law of a State or Territory.
(2) Without limiting subsection (1), this Part is not intended to exclude or limit the concurrent operation of a law of a State or Territory that makes: (a) an act or omission that is an offence against a provision of this Part; or (b) a similar act or omission; an offence against the law of the State or Territory.
(3) Subsection (2) applies even if the law of the State or Territory does any one or more of the following: (a) provides for a penalty for the offence that differs from the penalty provided for in this Part; (b) provides for a fault element in relation to the offence that differs from the fault elements applicable to the offence under this Part; (c) provides for a defence in relation to the offence that differs from the defences applicable to the offence under this Part." 23 This provision amounts to an express statement of Parliamentary intention that Commonwealth law is not to "cover the field" as the only law of the Federation to deal with the subject matter: Ex parte McLean [1930] HCA 12; 43 CLR 472 at 483; Viskauskas v Niland [1983] HCA 15; 153 CLR 280 at 291-292; and Telstra Corporation v Worthing [1999] HCA 12; 197 CLR 61 at 76 [27]. By this expression of intention, the "paramount legislature" (Ex parte McLean at 483) makes it clear that the State legislature may make law in the same field. That does not mean, however, that the Commonwealth Parliament has the authority to absolve State law of the effect of what is in fact inconsistency arising from the force of the Constitution, s 109: University of Wollongong v Metwally [1984] HCA 74; 158 CLR 447 at 456. If there is, notwithstanding a statement of Parliamentary intention such as in s 300.4, an inconsistency, such as a direct and conflicting inconsistency from the terms or operations of the sections, the State law will be inoperative by force of s 109: The Queen v Credit Tribunal: Ex parte General Motors Acceptance Corporation ("GMAC") [1977] HCA 34; 137 CLR 545 at 563-564. 24 The distinction often made between "indirect" and "direct" inconsistency is a way of expressing the notion as to whether the State law, if valid, would impair or detract from the Commonwealth law or its operation, to the extent that it is valid: Victoria v The Commonwealth (The 'Kakariki') [1937] HCA 82; 58 CLR 618 at 630. Central to the existence of inconsistency (whether direct or indirect) is the intention of the Commonwealth Parliament: Ansett Transport Industries (Operations) Pty Ltd v Wardley [1980] HCA 8; 142 CLR 237 at 260 and 280; Dao v Australian Postal Commission [1987] HCA 13; 162 CLR 317 at 335; Telstra v Worthing at 76-77 [27]-[28]; Metal Trades Industry Association v Amalgamated Metal Workers' and Shipwrights' Union [1983] HCA 28; 152 CLR 632 at 642. 25 There can undoubtedly be cases where the direct inconsistency and the consequential impairment arise because State law imposes a greater obligation than Commonwealth law: eg the higher State wage compared to the lower Commonwealth award, obedience to one (the Commonwealth award) being disobedience to the other (the wage fixed by the State Board) in Blackley v Devondale Cream (Vict) Pty Ltd [1968] HCA 2; 117 CLR 253 at 258-259. 26 It is also true that the inconsistency can arise from how the laws operate and how the relevant Executives administer them: The 'Kakariki' at 631 and The Commonwealth v Western Australia [1999] HCA 5; 196 CLR 392 at 417 [61]-[62] and 439-440 [139]; and Re Macks; Ex parte Saint [2000] HCA 62; 204 CLR 158 at 186 [54]. 27 The argument here was based on the asserted direct inconsistency of ss 25(2) and 306.2 arising from the different penalties. Reliance was placed on Ex parte McLean. In that case, however, the legislative intention was that the relevant subject matter was to be dealt with by Commonwealth law only: Ex parte McLean at 479, 483-484 and 486-487. The same was the position in Hume v Palmer [1926] HCA 50; 38 CLR 441 at 447, 450-451 and 462. 28 Given the nature of the two laws here, it is simply not correct to say that it is impossible for both laws to be obeyed: cf GMAC at 563. Nor can it be said, in the light of s 300.4, that the Commonwealth legislative intention was that the subject of s 306, including penalty, be dealt with only by Commonwealth law. 29 Particular reliance was placed on what was said by Mason J in The Queen v Loewenthal; Ex parte Blacklock [1974] HCA 36; 131 CLR 338 at 346-347. In that case, Mr Blacklock was charged with maliciously damaging a plate glass door the property of a Commonwealth instrumentality (the Australian National Airlines Commission trading as Trans-Australian Airlines). Section 469 of the Queensland Criminal Code and s 29 of the Crimes Act 1914 (Cth) were to similar effect. The whole Court was of the view that s 29 was intended to be an exhaustive statement of criminal responsibility for damage to Commonwealth property. However, at 346-347 Mason J said: "Had the question arisen directly for decision I should have thought that there was an inconsistency between s 29 of the Crimes Act and s 469 of the Code to the extent to which its provisions relate to property belonging to the Commonwealth or to a public authority of the Commonwealth. Although the provisions are substantially identical in describing the conduct which gives rise to the offence, the penalties prescribed differ. A difference in the penalties prescribed for conduct which is prohibited or penalized by Commonwealth and State laws has been held to give rise to inconsistency between those laws (see Hume v. Palmer (1926) 38 CLR 441 ; Ex parte McLean (1930) 43 CLR 472), at least when it appears that the Commonwealth statute by prescribing the rule to be observed evinces an intention to cover the subject matter to the exclusion of any other law. It is not to be supposed that the Commonwealth law, when it formulated the relevant rule of conduct in relation to Commonwealth property and that of its public authorities, proceeded on the footing that other and different rules of conduct might be enacted in relation to such property or that the rule of conduct which it formulated might be subjected to a different penalty. To conclude otherwise would be to say that the Commonwealth law contemplated the concurrent application of an inconsistent State law, a result which cannot be sustained. Indeed, there is here a direct conflict (in the matter of penalty) between the Commonwealth and the State law; in such a case it is impossible to see how the existence of inconsistency in the constitutional sense can be avoided by an argument which seeks to attribute to the Commonwealth law an intention not to cover the relevant field." 30 Mason J's comments are to be understood, however, in his expression of view that the provision evinced an intention to be exclusive, and so (as in Hume and Ex parte McLean) an inconsistency arose from the different penalty. This was made clear by the reasons of the Court (including Mason CJ) in McWaters v Day [1989] HCA 59; 168 CLR 289 at 295-296, where Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ said: "As evidence of the inconsistency contended for, the respondent points to the different penalties which the respective laws stipulate and to the fact that the Commonwealth offence differs in substance by containing a requirement that the person charged be incapable of having proper control of the vehicle concerned. It is true that a difference in penalties prescribed for conduct prohibited by Commonwealth and State laws has been held to give rise to inconsistency between those laws for the purposes of s 109: Hume v Palmer …; Ex parte McLean …; Reg v Loewenthal; Ex parte Blacklock …. Equally, a difference between the rules of conduct prescribed by Commonwealth and State laws might give rise to such inconsistency. But the mere fact that such differences exist is insufficient to establish an inconsistency in the relevant sense. It is necessary to inquire whether the Commonwealth statute, in prescribing the rule to be observed, evinces an intention to cover the subject-matter to the exclusion of any other law: Ex parte McLean …at 483 ; Blacklock …at 347 ; Reg v Winneke; Ex parte Gallagher (1982) 152 CLR 211 at 218, 224, 233 ; University of Wollongong v Metwally …at 456. In the words of Dixon J in Ex parte McLean: 'The inconsistency does not lie in the mere coexistence of two laws which are susceptible of simultaneous obedience. It depends upon the intention of the paramount Legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed.'" 31 Whilst the provisions in Part 9.1 of the Criminal Code do not bear the character of laws directed to customs and import and export offences: cf R v Stevens (1991) 23 NSWLR 75, the clear intention of the Commonwealth Parliament was to lay down in Part 9.1 a non-exhaustive statement of the law with respect to drug trafficking. 32 Finally, reliance was placed on what was said by this Court in Stevens at 81, where Lee CJ at CL (Carruthers and Sharpe JJ agreeing) said: "… Of course where the Commonwealth and the State Acts both deal with the same subject matter and the purpose of both Acts is the same or the purpose of the Commonwealth Act embraces that of the State Act, inconsistency results, for example, Hume v Palmer (1926) 38 CLR 441." 33 The context of this statement was clearly the kind of intended exclusivity in Hume and Ex parte McLean and as discussed in McWaters: see Stevens at 80-81. 34 There is no invalidity or inoperativeness of s 25(2) here by reason of the Constitution, s 109.
Asserted incompatibility with the exercise of judicial power of the Commonwealth 35 It was submitted that the State and the Commonwealth laws treated Mr El Helou with "inequality" thereby compromising the capacity of the District Court to exercise the judicial power of the Commonwealth. 36 It was accepted that the choice of which charge to bring is one for the prosecutorial authorities; but it was submitted that the choice made by such authorities compromises the Court by bringing the chosen offence to it for the exercise of judicial power. This is so, it is said, because the Court is thereby seen to be drawn into a process with the appearance of arbitrariness and inequality of treatment (the choice being between two offences with different penalties). 37 I reject this argument. The two laws, s 25(2) and s 306.2, are valid laws. A member of a relevant Executive chooses to prosecute under one. There may well be consultation among the prosecutorial authorities. No suggestion of impropriety in the choice of a charge under s 25(2) is made here. The District Court in the exercise of State judicial power heard the case. There is simply no compromise of this polity's courts in any way to engage Kable v The Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51 or any other case reflective of the protection of the independence and fairness of the judicial system. No function or task or restriction or characteristic is imposed on the District Court to qualify or interfere with how it administers the criminal law. 38 The scope of the review of prosecutorial discretion (cf R v Brown (1989) 17 NSWLR 472) was not the subject of debate. The fairness or harshness of a decision to invoke the exercise of the judicial power by the bringing of charges is to be assessed as to its validity by reference to the reviewability of that decision or, perhaps in some cases, by the assessment whether the invocation and continuance of the judicial process is an abuse. There was no suggestion here that the prosecution of Mr El Helou was an abuse of process. 39 Any deficiency in the choice of charges is a criticism of the process of prosecutorial decision-making; it does not infect, at least in the present circumstances, the validity of the exercise of power by another arm of government - the courts, to quell the controversy, on this hypothesis, lawfully brought forward by the Executive by the charging of the citizen. 40 Section 25(2) of the DM&T Act is not invalid or inoperative and the exercise of judicial power in the trial was not invalid.
The Crown's Sentence Appeal 41 Between January 2008 and 2 July 2008, Constantine Anagnostopoulos arranged with others for the importation into Australia of three consignments of goods which contained the drug pseudoephedrine. The total weight of the drugs imported into Australia was 839.436 kgs. The drug was in tablet form and was hidden inside objects which formed part of the consignments. 42 The first consignment was consigned to Mr Anagnostopoulos and consisted of ten crates which contained a total of 582.8769 kgs of tablets. This consignment was addressed to a business which employed Mr Anagnostopoulos. Part of this consignment was delivered to Mr El Helou's premises. 43 The second consignment was addressed to one "Gaby Helou" who was Mr El Helou's uncle. 44 On 10 July 2008, the first consignment was delivered to an address at Prospect. A short time later, Mr Anagnostopoulos was seen to place four of the ten crates from that consignment into a trailer attached to his vehicle. He drove away and a short time later, he exchanged vehicles with another man. That man then took the four crates and left them in a garage at Kingsford. 45 On the following day, 11 July 2008, Mr Anagnostopoulos returned to the address at Prospect and placed the remaining six crates into another trailer which he had hired. He transported these six crates to his home at Cecil Hills. On that day, police observed a blue Subaru vehicle parked in the vicinity of Mr Anagnostopoulos' home. At about 8.31 am, two unidentified males were seen to enter his home. A short time after that, Mr El Helou was observed to be a passenger in a motor vehicle driven by Mr Anagnostopulos. That vehicle was towing a trailer which contained the six crates to which I have referred. The vehicle was followed by police to the premises of Mr El Helou in Chipping Norton. 46 After the trailer was reversed into Mr El Helou's driveway, the blue Subaru was observed at a nearby shopping centre. An unidentified male was seen to get out of the vehicle and look in the direction of Mr El Helou's premises. A short time later, the blue Subaru vehicle was seen to stop opposite Mr El Helou's premises for a short time, before driving away. 47 Following the departure of the blue Subaru, Mr El Helou, Mr Anagnostopoulos and an unidentified male began unloading crates from the trailer and placing them inside Mr El Helou's garage at the premises. A listening device detected banging noises in the garage consistent with hammers being used to open the wooden crates. 48 At about 9.25 am (still on the morning of 11 July 2008), Mr Anagnostopoulos and the unidentified male left the premises of Mr El Helou The listening device revealed that the banging noises continued after their departure. 49 At about 10.53 am, Mr Anagnostopoulos returned to Mr El Helou's premises. Mr El Helou and Mr Anagnostopoulos were seen to load items from the garage into the trailer. At this time, a telephone call was received by Mr Anagnostopoulos, who told the caller he was leaving. The caller asked to speak to "his brother" and the telephone was passed to Mr El Helou, who told the caller that everyone had left and Mr El Helou asked the caller to drop by. 50 At about 11.56 am, Mr Anagnostopoulos and Mr El Helou left Mr El Helou's premises and drove a short distance. A short time later three unidentified males approached them and entered a conversation. After that conversation, Mr Anagnostopoulos took Mr El Helou back to his premises and then drove to a waste facility where he discarded the contents of the trailer. 51 At about 12.09 pm, having being taken back to his premises by Mr Anagnostopoulos, Mr El Helou left his home driving a red Suzuki which was followed by a vehicle containing the three unidentified males with whom he and Mr Anagnostopoulos had been talking. Mr El Helou returned to his premises and departed again at 12.21 pm. He was away from his premises until 2 pm. 52 At about 2.35 pm, there was a conversation between Mr El Helou and another person, a Mr Earnslaw, who had arrived at his premises which conversation was picked up by the listening device. Statements made by Mr El Helou during this conversation included the following: "Yeah, $15 million dollars worth here this morning." "I had 500 kilos. Its all, its all, its all been changed … its all take … here, taste that. Is that, is that, is that pseudofed?" "We've already been approved from Lebanon. … Gaby's, Gaby's, got one in the garage. He's getting watched, his house is getting watched." "It was full … really, had 500 kilos. This, is the biggie." "… 1.2 millions worth …" "We got it from yesterday. Yesterday we got it." "Nah, its all shit. Listen, I stashed 5 kilos at my house, a 100 grand just for me by myself and then … " 53 At this point, the police entered the garage and arrested Mr El Helou. 54 The approach of the sentencing judge was as follows. 55 First, his Honour noted the seriousness of the offence with a maximum penalty of imprisonment for life and/or a fine of 5,000 penalty units. In this respect, his Honour noted that the offence attracted a standard non-parole period of 15 years. His Honour said that by virtue of Mr El Helou's plea of guilty, the standard non-parole period did not apply to the sentence, but it would be used by him as a guidepost when sentencing. 56 His Honour recognised the need to determine the objective seriousness of the offence and in doing so have regard to, in the first instance, the drug the subject of the charge, the quantity of the drug and the role played by Mr El Helou. The drug was pseudoephedrine with a value placed by the offender during conversations of millions of dollars for the whole consignment. The charge was concerned with a third of that consignment. 57 The sentencing judge recognised that the drug pseudoephedrine may be used for the purpose of producing illicit drugs and that a large commercial quantity was five kgs. 58 As to the role played by Mr El Helou the sentencing judge said the following: "As to the role played by the offender, I am satisfied on the evidence before me that he was a transporter of the drugs, that he was a warehouser of the drugs and that he was to be the deliverer of the drugs to persons within the organisation. I am not satisfied that the offender was involved in the planning of the importation or in the planning of the distribution. I am satisfied that the offender and his involvement with the drugs lasted two days."
The Crown complains about this last paragraph. I will return to these complaints in due course. 59 The sentencing judge then went on to make some comments as to the evidence of Mr El Helou's involvement. Mr El Helou gave evidence that he believed the drugs with which he was dealt were steroids and that he was to be paid the sum of $2,000 to transport, warehouse and deliver the drugs to other persons. This evidence was disbelieved. The drugs were of great value and the sentencing judge did not accept that Mr El Helou was merely to receive $2,000 for his involvement. The judge also rejected Mr El Helou's evidence that he only shortly before the conversations that were recorded became aware that the drug in question was pseudoephedrine. His Honour made the following remark about that evidence, which is important to the Crown's complaint about the earlier facts to which I have referred: "The conversations as recorded indicate a deep knowledge by the offender of the drug's importation and the value of the drugs warehoused by him." 60 The sentencing judge then came to the view on considering the drug, the quantity of the drug and the offender's role that he was satisfied that the objective criminality of the offence was "above the mid-range of seriousness for the offence." I should say at this point that counsel for Mr El Helou challenged this finding. In all the circumstances, it was not only one available on the evidence, but one which was plainly correct. 61 His Honour then turned to the personal circumstances of Mr El Helou. His Honour stated the following: "The offender was born in Australia on 6 June 1984. The offender is the second eldest of five children. The offender's parents separated when he was aged approximately five years. The offender's father and mother subsequently remarried. The offender's mother remains in her second marriage and no children have been born to the mother as a consequence of that union. The offender's father's second marriage ended after a daughter was born. The offender's father then married his third wife and is the father of two young children. The offender, following his parents' divorce, resided primarily with his father. The offender has lived independently since he was approximately twenty-two years of age. The offender at the time of the commission of the offence was in a relationship with a woman. That relationship ended when the offender went into custody. The offender comes from a close family and his parents, stepmother and acquaintances are in court today to support him. The offender was educated to school certificate level. The offender has kept himself in employment since leaving school and at the time of the commission of this offence worked in partnership with his father in a butchery. I have had the benefit of reading a report prepared by Dr Bruce Westmore, a forensic psychiatrist, dated 25 June 2009, (exhibit 1) contained in the folder. The report indicates that the offender has no drug or alcohol related issues. The offender indicated to Dr Westmore that he was aware that what he did was wrong. The offender was not totally frank with Dr Westmore. He told Dr Westmore the drugs he believed were steroids. On p 4 of the report Dr Westmore reported: 'I asked him that he had been offered any steroids in relation to the matters now before the courts. He said, 'I'm pretty sure they would have given me some.'' He did not frankly tell Dr Westmore that he had taken some of the drug, I use that word advisely, for his own financial benefit. In light of the fact that the offender had no drug or alcohol problems, I am of the view the offender was involved in the offence purely for profit. As to the profit, I cannot be satisfied on the evidence before me as to what the offender expected to receive for his involvement. The offender is well thought of in the community and in that regard I have, as part of exhibit 1, a number of references in which persons from sporting and charitable church organisations have expressed positive views about the offender. The offender has been in custody since the day of his arrest and during his period in custody has acted towards improving himself. The offender has taken it upon himself to undertake courses and that is pleasing. Insofar as the offender's record is concerned, he has nor record of relevance and in light of the references I am of the view that the offender at the time of the commission of the offence was a person of good character. Good character, however, in relation to drug offences to this type carries less weight than otherwise would be the case." 62 The sentencing judge recognised that Mr El Helou pleaded guilty at the earliest opportunity and that his early plea had a significant utilitarian benefit attracting a reduction in sentence of 25 per cent. 63 The sentencing judge then turned to the question of remorse. His Honour stated that the offender had told Dr Westmore of his remorse. The sentencing judge also said that Mr El Helou gave evidence and his remorse was evident during the course of that evidence. 64 The primary judge then dealt with the question of reoffending by reference to the forensic psychiatrist's report which stated the following: "He is fortunate to continue to have the support of his family and that is also a good long term prognostic indicator. Overall, considering his long term life history, I think his risks of reoffending in such a serious way are low to non-existent." 65 On the basis of this evidence, the sentencing judge came to the view that there was a low risk of Mr El Helou reoffending provided the family support which he now enjoys is continued in the future. His Honour summed up the question of subjective matters as follows: "The subjective matters are of moment, but I must not lose sight of the fact that this offender involved himself in a significant way in the transportation and warehousing of a very substantial quantity of pseudoephedrine and that he did so for financial reward." 66 The sentencing judge then turned to special circumstances and found them for the following reasons: the age of the offender, the fact that this was the first custodial sentence to be served and that he had good prospects for rehabilitation. 67 The learned sentencing judge then imposed the sentence to which I have referred.
Ground 1: His Honour erred in making the following factual findings:
Ground 2: His Honour erred in his application of s 54A(2) of the Crimes (S & P) Act by imposing a non-parole period that departed significantly from the standard non-parole period of 15 years despite finding that the offence fell above the mid-range of objective seriousness.
Ground 3: The sentence was manifestly inadequate 70 The argument of the Crown was that a non-parole period of six years six months betrayed a failure to give sufficient weight to the standard non-parole period. Accepting that the standard non-parole periods in the Table to Part 4 Div 1A were intended for middle-range cases where the offenders were convicted after trial: R v Way [2004] NSWCCA 131; 60 NSWLR 168 at 184-185 [68]-[71], "there must be an appropriate relationship between the standard non-parole period and the objective criminality of the offence regardless of the matters that may be taken into account by way of mitigation": R v Knight; R v Biuvana [2007] NSWCCA 283; 176 A Crim R 338 at 347 [47]. 71 The difficulty with the sentencing judge's approach is that it is difficult to see how he could have given sufficient attention to the relationship between the objective seriousness of the offence (which he correctly found to be above the mid-range of seriousness), the guidepost of the standard non-parole period (set for mid-range seriousness) and the maximum penalty (which was made relevant and of significance since the offence was above the mid-range: R v Knight; R v Biuvana at 347 [47], R v Mitchell; R v Gallagher [2007] NSWCCA 296; 177 A Crim R 94 at 103 [37] and Micklesson v R [2009] NSWCCA 61 at [15]-[16]). It can be accepted that the expressions of approach in Mitchell and Micklesson were in cases "well above the mid-range"; but the point applies to an offence above the mid-range with appropriate adaption of degree. 72 Here, the sentencing judge, having identified the objective seriousness of the offence above the mid-range, went to subjective features and nominated the sentence. The sentencing judge did not give any reasons as to departure from the standard non-parole period, other than the plea of guilty. It is apposite to repeat what Howie J said (with which McClellan CJ at CL and Hidden J agreed) in R v Knight at 347 [46]: "The Judge failed to give adequate reasons for departing from the standard non-parole period notwithstanding the requirements of s 54B(4). It is necessary to remind sentencing judges once again that the section requires the court to ' identify in the record of its reasons each factor that it took into account '. This Court has repeatedly noted that it is insufficient compliance with the section merely to state that the offender has pleaded guilty: R v Mills (2005) 154 A Crim R 40; R v Zegura [2006] NSWCCA 230. Had the Judge attempted to fulfil the task required of her, she might have found it difficult to indicate those factors that permitted her to reduce the standard non-parole period to the degree she did for an offence that was " at least within the midrange of seriousness ". 73 It is also apposite to repeat what the Court said in Way at [117]-[125]: "[117] In order to give the Division practical utility it seems to us, in the light of the foregoing analysis, that a sentencing judge must ask and answer the following question: 'are there reasons for not imposing the standard non-parole period?'
[118] That question will be answered by considering:
(i) the objective seriousness of the offence, considered in the light of the facts, which relate directly to its commission, including those which may explain why it was committed, so as to determine whether it answers the description of one that falls into the mid range of seriousness for an offence of the relevant kind; (ii) the circumstances of aggravation, and of mitigation, which are present in the subject case, or which apply to the particular offender, as listed in s 21A(2) and (3), and as incorporated by the general provisions in s 21A(1)(c) and by the concluding sentence to s 21A(1).
[119] Depending upon the considerations referred to in the first of these paragraphs, it may become immediately apparent that the case is not one for which the standard non-parole period specified in the Table was intended to apply.
[120] Whatever be the case in that regard, the considerations referred to in the second paragraph may similarly provide a reason for a departure from the standard non-parole period.
[121] If the question, which we consider should be posed, is answered in the affirmative, then it seems to us that the Court should exercise its sentencing discretion in accordance with established sentencing practice and by reference to the matters identified in sections 3A, 21A, 22, 22A and 23 of the Act. The ultimate objective remains one of imposing a sentence that is just and appropriate, having regard to all of the circumstances of the offence and of the offender, and so as to give effect to the purposes mentioned in s 3A of the Sentencing Procedure Act .
[122] In this approach the standard non-parole period can properly take its place as a reference point, or benchmark, or sounding board, or guidepost, along with the other extrinsic aids such as authorities, statistics, guideline judgments and the specified maximum penalty, as are applicable and relevant. In particular, it can have a direct relevance as a reference point to be compared with the sentence which is provisionally reached after an assessment has been made of the relative seriousness of the subject offence, and of the various aggravating and mitigating factors, as well as any other subjective factor that may be present, including in particular the fact, if it be the case, that the offender entered a plea of guilty. In that regard the sentencing judge will need to keep in mind that the standard non-parole periods were framed upon the assumption that the case was determined at trial and that s 22 of the Act contemplates that the fact of a plea will attract a discount.
[123] The reference point has, in this sense, an important role to play in ensuring consistency in sentencing. Because the standard non-parole period will be imposed, subject to s 21A, for matters within the mid range, it will act as a guide for cases that are outside the mid range.
[124] The desirability of a judge adopting the practice of standing back after reaching a provisional sentence, and of reviewing it so as to be sure that it is appropriate for the offence at hand (see the observations made in R v McGourty [2002] NSWCCA 335 at para 45), cannot be understated, and the existence of a standard non-parole period is likely to be of assistance in this respect.
[125] Sight should also not be lost of the fundamental principle noted in Hoare v The Queen (1989) 167 CLR 348 at 354: 'Secondly, a basic principle of sentencing law is that a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances.'" 74 Bearing these principles in mind, the conclusion is not only open, but tolerably clear, that the sentencing judge failed to have any real regard to the standard non-parole period. 75 At this point, the complaints as to the approach to s 54A(2), merge with the complaint that the sentence was manifestly inadequate. 76 The objective seriousness of the offence taking the matter above the mid-range, a 25 per cent discount for an early plea, the remorse shown and prospects of rehabilitation were the most significant factors available and mentioned by his Honour. In those circumstances, and taking into account the other subjective characteristics of Mr El Helou, to reach a conclusion of a non-parole period of 6½ years reveals a clear failure to give any real weight to the guidepost provided by Parliament in the form of the standard non-parole period. 77 I am satisfied that as a consequence of this error the sentence imposed in the District Court was manifestly inadequate in that it was unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25]; Carroll v The Queen [2009] HCA 13; 83 ALJR 579 at 581 [8]-[9]. 78 The inadequacy can be seen if one properly takes as a guidepost a non-parole period somewhat over 15 years as the necessary consideration from Parliament's identification of the standard non-parole period (for an offence of mid-range seriousness) and the sentencing judge's conclusion that the objective seriousness of the offence was above mid-range. Against this one must consider a 25 per cent utilitarian discount and the subjective circumstances identified by his Honour relevant to s 21A(3) in particular being the lack of relevant criminal history (s 21A(3)(a)), the low risk of reoffending (s 21A(3)(g)), the implicit good prospects of rehabilitation (s 21A(3)(h)) and remorse (s 21A(3)(i)). 79 With respect to the sentencing judge, it is not reasonable, in my view, giving real weight to the statutory guideposts and taking into account all the subjective factors mentioned by his Honour, and finding special circumstances, to come to a view of an appropriate non-parole period of 6½ years. 80 The Crown relied on R v Wong; R v Leung [1999] NSWCCA 340; 48 NSWLR 340 with the qualification recognised in N v R; AP v R [2009] NSWCCA 108 at [34]-[38]. I would prefer, given the passage of time and the change to the relevant Commonwealth legislative regime, not to rely on R v Wong; R v Leung. For the reasons given in N v R; AP v R reliance on Wong should be made cautiously. Nevertheless, nothing in Wong or in the suggested caution in N v R; AP v R assists Mr El Helou in rebutting the apparent clarity of the lack of proportion of the non-parole period with the statutory guideposts here. 81 Whilst the mere quantity of the drug may not generally be the chief factor to be taken into account, it retains significance: Wong v The Queen [2001] HCA 64; 207 CLR 584. Here, the amount of the drug (whether calculated by its admixture - over 250 kgs or by its pure form - 50 kgs) called for a sentence that "reflected that enormity": Woodgate v R [2009] NSWCCA 137 at [32]; Mirza v R [2007] NSWCCA 257. 82 It is to be recalled that in Wong, at [132] the Chief Justice said that the courts have consistently refused to treat couriers or others low in the hierarchy of organisation involved in drug importation with the leniency that is sometimes appropriate in the case of other offences. The same approach should apply to supply under s 25(2). It is also to be recognised that a clear earlier record has less significance in drug trafficking than other crimes: cf R v Leroy [1984] 2 NSWLR 441; 13 A Crim R 469 at 474; Nguyen v R [2007] NSWCCA 15 at [52]; Vu v R [2006] NSWCCA 188 at [108]; Rawlings v R [2006] NSWCCA 84 at [30] and R v Gent [2005] NSWCCA 370 162 A Crim R 29 at 42 [55]. 83 It therefore becomes necessary to resentence Mr El Helou. The principles of sentencing on Crown appeals in the light of s 68A of the Crimes (Appeal and Review) Act 2001 (NSW) were set out in R v JW [2010] NSWCCA 49 at [141]. 84 I do not repeat the personal circumstances recounted by the sentencing judge. The circumstances there set out including the remorse, lack of relevant criminal record, low risk of re-offending and implicit prospects of rehabilitation, and the plea of guilty legitimately attracting a utilitarian discount of 25 per cent must be weighed against the objective seriousness of the offence being above the mid-range and the statutory guideposts of a 15 year non-parole period for a mid-range offence and a maximum term of life imprisonment. 85 I approach the matter in accordance with the guidance of R v Simpson [2001] NSWCCA 534; 53 NSWLR 704, Way at [112]-[113] and thus R v Moffitt (1990) 20 NSWLR 114 at 117-118, 121-122 and 134-135 and R v GDR (1994) 35 NSWLR 376 at 381-382. Taking into account the objective and subjective circumstances to which I have referred and the 25 per cent discount for an early plea of guilty, the appropriate range for the head sentence would be 12 to 14 years with a range for the non-parole period being, in my view, no less than nine to ten years. I am prepared to reach the view that a head sentence of 12 years and a non-parole period of nine years is the proper sentence within the range, after giving full weight to the considerations relevant to s 23A(3) and, in particular, to the sentencing judge's findings of remorse and of a low risk of re-offending and the implicit finding of good prospects of rehabilitation therein. This is not a conclusion that Mr El Helou should receive the lowest sentence within the range because this is a Crown appeal as an aspect of double jeopardy: see now the Crimes (Appeal and Review) Act, s68A. Rather, it is a recognition of the importance in the sentencing process of the findings by the sentencing judge about risk of re-offending and rehabilitation. In coming to the view I have taken account of the matters in the affidavit of Mr El Helou's solicitor as to the efforts made by Mr El Helou to further his education in gaol. 86 There was a finding of special circumstances against which there was no appeal. The factors relevant to his Honour's findings in that regard were Mr El Helou's age, the fact that this was his first custodial sentence and his prospects for rehabilitation. It is important not to double count in any adjustment of the non-parole period for special circumstances: Simpson at [67]; and R v Fidow [2004] NSWCCA 172 at [18]. I have already given full weight to the low risk of re-offending and the consequent good prospects of rehabilitation in fixing the head sentence and non-parole period. I am prepared to conclude, however, that the other two considerations referred to by his Honour make it important that after a significant period of incarceration by way of non-parole period, Mr El Helou should have available an extended period of supervision on parole. For that reason, it would be appropriate to reduce the non-parole period by one year to reflect the special circumstances and the longer period of the balance of term contemplated by s 44(2). 87 Reliance was placed by counsel for Mr El Helou on Pham v R [2009] NSWCCA 25. That was an appeal against severity. The offender was involved in the importation of a very large quantity of pseudoephedrine: 300 kgs of 25 per cent purity. No special circumstances were found. The sentencing judge did not identify the objective seriousness of the offence. The sentence imposed (seven years six months non-parole with a balance of term of two years and six months) was described by Latham J (with whom Giles JA and Mathews J agreed) as "lenient". The subjective circumstances of the offender were different to those of Mr El Helou. These were referred to by Latham J at [11] and [12] as follows: "[11] The applicant was aged 37 years at the date of sentencing. He was born in Vietnam where he suffered hardship until he escaped by boat. The boat however broke down and the applicant spent some months in a camp in Singapore. He came to Australia under sponsorship of a cousin and attended school in this country until Year 12. He left school to obtain employment to sponsor his sister. Having achieved that result he returned to school to finish his intermediate schooling and obtained entry to university. However he did not complete his university course. He was working for Australia Post when arrested for this offence. He had financial problems because of a gambling habit that resulted in a dishonesty offence in 2002.
I am satisfied that [the applicant] was more vulnerable because of his background and his financial troubles and that he was only to receive modest remuneration for his part in this matter. It follows from the jury's verdict, and the evidence put to the jury, I am satisfied that he knew that he was dealing with illegal drugs. He is, however, and always has been, I am satisfied, a hard working and family orientated man. His history in prison and before augers well. His depression is something for which he will need treatment at some stage. His criminal history is relatively insignificant. I am satisfied that there are very good prospects of rehabilitation." 88 Latham J said the following at [27] of her reasons (Judge Morgan was the sentencing judge of Mr Pham's co-offenders and Judge Walmsley was the sentencing judge of Mr Pham): "[27] As I have already noted, the non-parole period is half of the prescribed standard non-parole period yet the offence was itself a very serious one, if for no other reason, because of the large amount of the drug involved. I would have thought that this supply offence was above midrange in seriousness, even though Judge Morgan found it to be of midrange seriousness and Judge Walmsley did not qualify it. A person committing an offence in the midrange of the hierarchy indicated by the maximum penalty is fortunate, in my opinion, to receive a non-parole period so far below the standard fixed for the offence. There was also the very generous finding made by the Judge that the applicant had good prospects of rehabilitation notwithstanding his denial of the offence and therefore the lack of any remorse. There is no merit in the complaint that the sentence is manifestly excessive." 89 Pham may have provided the guidance to the sentencing judge to reach the sentence he did (6½ years after finding special circumstances). In Pham, with no Crown appeal, there was no call for the Court to consider whether the sentence was inadequate. The Court described it as lenient. I agree. It would not necessarily have been appropriate for Latham J to say more than her Honour did in the absence of a Crown appeal. Here the offence was found by the sentencing judge to be above mid-range in seriousness. Notwithstanding, having given anxious consideration to Pham, I remain of the view that nine years is the appropriate non-parole period, before adjusting for special circumstances. 90 Finally, it was submitted that the sentence should be reduced to bring a degree of conformity with the penalty under s306.2. I disagree. The laws of New South Wales should be applied for New South Wales offences. It would be inappropriate for a lesser sentence than that warranted under New South Wales law to be imposed on Mr El Helou by reference to a possible charge under a Commonwealth law carrying a lower penalty, with which offence he was not charged. 91 In my view, the appropriate sentence that should be imposed on Mr El Helou, bearing in mind the findings of the sentencing judge, is that he be sentenced to a non-parole period of eight years commencing on 11 July 2008 and expiring on 10 July 2016, with a balance of term of four years to commence on the expiration of the non-parole period and expiring on 10 July 2020. 92 The orders that I would make are:
21/05/2010 - Typographical error - Paragraph(s) 6
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[1987] HCA 13
[1930] HCA 12
[2005] HCA 25
[1999] HCA 12
[2001] HCA 64
(1989) 17 NSWLR 472
(1994) 35 NSWLR 376
(1990) 20 NSWLR 114
(1991) 23 NSWLR 75
(1926) 38 CLR 441
(1930) 43 CLR 472
(1982) 152 CLR 211
(1989) 167 CLR 348
Time for the conviction appeal was extended and the draft notice treated as filed and served in time; the conviction appeal was dismissed; the Crown’s sentence appeal was allowed; the District Court orders were set aside and El Helou was resentenced to a non-parole period of eight years followed by a four-year balance of term.