29 Another point, which I have made on prior occasions, including in R v Shepherd 2003 NSWCCA 9, is that the statistics relied on strongly suggest systemic undue leniency in sentencing and that inadequate attention is being paid by sentencing judges to what Parliament has prescribed. The offences the subject of the first, third and fourth counts and those the subject of the statistics supplied relating to the supply of less than a commercial quantity arose pursuant to s25(1) of the Drug (Misuse and Trafficking) Act and rendered an offender liable to imprisonment for a period of 15 years. The relevant ranges of quantity within which these offences fell were each 5 to 250 grams. Offences involving the supply of a commercial quantity, i.e. between 250 grams and I kilogram, render an offender liable to imprisonment for 20 years.
30 It is extraordinary that of over 370 offenders represented in the statistics, not one has been sentenced to as much as half of the maximum prescribed by Parliament for the offences. It is difficult to believe that all of the offences including cocaine were, taking account of subjective circumstances also, no worse than in the bottom half of seriousness of those involving less than commercial quantities. That said, I adhere to the view that I expressed in R v Derbas that the statistics are useful as a check but it is preferable in this Court to approach a consideration of the Appellant's sentences from first principles.
31 I should perhaps add that I have also considered more up to date statistics than those supplied by the Appellant. They show a similar picture and do not cause me to change the views at which I have otherwise arrived. Thus:-
Those from October 2001 to September 2004 for the supply, including deemed supply, of less than a commercial quantity of amphetamines show that of 128 offenders sentenced to non-consecutive terms of imprisonment, the total sentences ranged from 6 months to 8 years, only one person receiving that sentence, none receiving 7 years and only 2 receiving 6 years. The fixed or non-parole periods varied between 6 months and 6 years with only 3 offenders receiving more than 3 years.
The statistics from October 1997 to September 2004 for the supply, including deemed supply, of a commercial quantity of amphetamines show that of 50 offenders sentenced to non-consecutive terms of imprisonment, the total sentences ranged from 18 months to 9 years with only 5 offenders receiving sentences in excess of 6 years. The fixed or non-parole periods varied between 6 months and 7 years with only 3 offenders receiving more than 4½ years.
The statistics from October 1997 to September 2004 for the supply, including deemed supply, of less than a commercial quantity of cocaine show that of 61 offenders sentenced to non-consecutive terms of imprisonment, the total sentences ranged from 6 months to 5 years with 8 offenders receiving sentences of 4 years or more. The fixed or non-parole periods varied between 6 months and 4 years with only 4 offenders receiving more than 3 years.
The statistics from October 1997 to September 2004 for the supply, including deemed supply, of a commercial quantity of cocaine show that of 13 offenders sentenced to non-consecutive terms of imprisonment, the total sentences ranged from 3 years to 9 years with only 1 offender receiving a sentence in excess of 6 years. The fixed or non-parole periods varied between 1 year and 6 years with only 1 offender receiving more than 4 years.
32 The commencing point in any consideration of an appropriate sentence for a statutory offence is the statute itself, recognising that "the maximum penalty prescribed for an offence is intended for the worst category of case for which that penalty is prescribed" - Veen v R (No 2) (1987-1988) 164 CLR 465 at 478. "In determining the proper penalty… the fundamental consideration is rather the degree by which, having regard to the maximum penalties provided by the Act in question, the respondent's conduct would offend against the legislative objective of suppressing the illicit traffic in the prohibited drug" - R v Peel (1971) 1 NSWLR 247 at 262. The offence in that case involved importing drugs. Earlier at 261-2, the Court had said,
"… the primary objectives of the legislation must be recognised and upon the detection of offenders penalties must be imposed which are calculated to secure those objectives. We agree, therefore, with his Honour that the objectives cannot effectively be secured unless, as he said, one is prepared to resort to a sentence sufficiently heavy to act as a real deterrent against intending importers."
33 This passage was quoted with approval by Wood J in R v Schall (unreported, 8 September 1989) - see also R v Bimahendali [1999] NSWCCA 409 at [17] although, given the extent of drug dealing which still occurs, and the statistics above, I doubt that sufficient effect has been given to it.
34 The terms of the legislation reflect what the courts see day after day, that usage of the drugs the subject of the charges against the Appellant commonly results in very substantial harm to those who use them and to the rest of the community who have to suffer the depredations of the users in an attempt to obtain the funds with which to reward persons such as the Appellant for the supply of the drugs and to provide many of such users with social services, and food and the like which, due to their drug-taking, they are unable to provide for themselves. Judge Shillington's conclusion that the Appellant had dealt over a period on a large scale in methylamphetamine and cocaine indicates, as does the evidence, that the offending the subject of counts 1, 3 and 4 were not isolated events but mere incidents of a business operation, conducted presumably for profit, and calculated to contribute to the harm to which reference has just been made. He is, of course, not to be punished for other drug dealing not the subject of charges but the finding to which reference has been made makes it clear that he is entitled to none of the leniency which might be extended to someone whose offending may have been something of an aberration.
35 So far as the Appellant's role in supply is concerned, his offending was at close to the top of the criminality against which Parliament has legislated.
36 On the other hand the quantities involved in the offences charged were not. The quantity the subject of the first count was something above 40% of the 250 gram maximum encompassed by the less than commercial range, while the quantities the subject of counts 3 and 4 were substantially less than this. However, it must also be recognised that the charges reflected his choice to offend on more than one occasion and to do so in relation to more than one drug. And this offending was against a background of prior convictions associated with the using and, in 2 cases, selling of prohibited drugs, even though the penalties imposed on those earlier occasions were not high.
37 In any consideration of the sentences imposed on the Appellant, consideration of his subjective circumstances is also required. There is little which operates in his favour. Having pleaded not guilty, the Appellant was not entitled to the discount awarded to persons who do. Judge Shillington found that the Appellant showed no contrition. His Honour also observed:-
"It is said that he now avoids all drugs, although he gave evidence at the trial that at the time of his arrest he was addicted to cocaine."
38 However, his Honour made no findings in this regard and it is not possible for this Court, not having heard the totality of the evidence in this regard to do so. But even if his own addiction contributed to his offending, remarks of this Court in R v Henry (1999) 46 NSWLR 346 indicate that it is entitled to, at most, limited weight - see the discussion at [171 - 202, 212] per Spigelman CJ, [215 - 259] per Wood CJ at CL, [ 278] per Newman J, [331] per Hulme J, [335 - 349] per Simpson J.
39 Judge Shillington declined to find special circumstances. Leaving aside the issue of parity, against the statutory criteria it does not seem to me possible to say that the sentence imposed on the first count is excessive. In his role, "the degree by which … the (Appellant's) conduct (offended) against the legislative objective of suppressing the illicit traffic in the prohibited drug" was gross. The quantity of 105 grams, as has been said, was less than half the upper limit of a trafficable quantity and in that regard his offence fell substantially short of a worst case. However, as I said in R v Spiteri [1999] NSWCCA 3
"I take the view that actual imprisonment for, say, 10 years is more than twice as severe as one of imprisonment for 5 years. Having regard to the sorts of terms under consideration for drug dealing a sentence of one of the longer periods is likely to have an impact on an offender's life in terms of wife, children, job prospects and the like from which he may well never recover and these sorts of considerations also have to be borne in mind."
40 Furthermore, while quantity is an important consideration, sentences are not simply proportional to quantity. A consideration of the legislation demonstrates that Parliament has eschewed such an approach and so have the courts - see e.g. R v Doan (unreported, CCA, 27 September 1996); Postiglione (1991) 57 A Crim R 301. The sentence of 8 years imposed in respect of the first count was little more than half of that to which his offending rendered him liable and given the major extent of his role, and the other matters to which I have referred particularly the existence of prior offending in this area and the relative absence of mitigating circumstances, I do not regard 8 years imprisonment as excessive for that offence.
41 Section 6(3) of the Criminal Appeal Act provides that:
"On an appeal … against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefore, and in any other case shall dismiss the appeal."
42 Subject to the issue of parity, I do not regard some other sentence less severe as warranted and one which should have been passed in respect of the first count.
43 Having regard to the appreciably lesser quantities involved, the sentences imposed in respect of the third and fourth counts should have been less but, involving criminality additional to that properly considered under the first count - on a different day and in the case of one charge a different drug - there should have been at least some accumulation of these sentences with the sentence imposed in respect of the first count.
44 I take the same view in relation to the sentences imposed in respect of counts 5 to 8. Firstly, they each related to different weapons and, subject to issues of totality (and, given the number of offences, convenience), there should have been some accumulation of these counts one on another. Secondly, even if the Appellant's possession of the items the subject of these counts was in consequence of his drug dealing business, it does not follow that the sentences for these 4 counts should have been made wholly concurrent. The possession of the items added to the Appellant's criminality and the final sentence otherwise appropriate should have been increased to reflect this fact.
45 The maximum penalty provided for the offences the subject of counts 5 to 7 is, pursuant to s5(1)(a) of the Prohibited Weapons Act, 14 years imprisonment and for the offence the subject of count 8, 7 years - see s6 of that Act. In these circumstances, I see no error unfavourable to the Appellant in the length of the sentences his Honour imposed on counts 5 to 8, and this even though the offences could have been prosecuted summarily and the maximum period of imprisonment available in that case was, under the sections mentioned, 2 years.
46 That said, it is appropriate to recognise that, although the Notice of Appeal was general and in that respect indicated that the Appellant was appealing against the sentence on counts 5 to 8 in addition to counts 1, 3 and 4, his written submissions made no complaint about the sentences imposed on counts 5 to 8.
47 I turn to the issue of parity and to the sentences imposed on those referred to in the grounds of appeal as the "Appellant's co-accused". They are identified as Bill Mouhalos and Philip Putland.
48 They were dealt with in South Australia for the offence under the laws of that state of possessing methylamphetamine for sale, the former having been found guilty after a trial and the latter having pleaded guilty. Both had travelled to Sydney and purchased the amphetamine from the Appellant. Mouhalos was regarded as the principal and was found to have made arrangements for the travel, for money to be sent and for future transactions. His offending was regarded as part of an ongoing enterprise. Putland was found to have played very much a secondary role. Both were arrested in South Australia during their return journey from Sydney.
49 Each had a long criminal history since his teens. Mouhalos was sentenced to imprisonment for 4 years and 3 months including a non-parole period of 3 years. Putland would have been sentenced to imprisonment for 3 years but, because of his plea, this was discounted to 2 years including a non-parole period of 1 year. He had not previously served a term of imprisonment.
50 The first and most obvious point to make is that, although the drugs the subject of the charges against Mouhalos and Putland would seem to have been acquired by them in the transaction which was the subject of the first count against the Appellant, they were sentenced in South Australia for offences against the law of that state. Both the statute law and the law which is represented by sentencing practice, is liable to differ state to state and there is no principle of parity which requires sentences in this state to reflect sentences imposed under such different regimes.
51 Secondly, the offence for which Messrs Mouhalos and Putland were sentenced was possession for sale. The Appellant's offence the subject of the first count was an instance of actual sale, an offence which, because it lies in action rather than, to an appreciable degree intention, reflects greater criminality. On account both of this, and of the matters referred to in the immediately preceding paragraph, Messrs Mouhalos and Putland were not co-accused of the Appellant.
52 But even if it were correct to regard Messrs Mouhalos and Putland as co-accused of the Appellant, I would not be influenced to adjust the Appellant's sentence on account of the sentence imposed on either of them. Disparity between the sentences imposed on co-accused gives rise to a discretion, not an obligation, to reduce a higher sentence to one which is comparable to a lower one - see R v Diamond (Unreported, CCA, 18 February 1993); R v Doan (2000) 50 NSWLR 115 at 120, R v Steele (Unreported, CCA, 17 April 1997) and R v Ismunandar and Siregar [2002] NSWCCA 477 at [23]. To reduce the Appellant's sentence on the first count to one which approximated that imposed on either of Messrs Mouhalos and Putland would be to impose a sentence which was so inadequate to his offending when judged by the statutory provisions and sentencing principles that such a reduction should not occur.
53 As I have said, the Appellant raised the condition of his health. This seems first to have occurred when his appeal was before the Court on 3 September 2004. The matter was left with advice to the Appellant to the effect that if he wished to rely on the topic he should arrange for the gaol to forward his records to the Court.
54 Subsequently, one of the judges who heard the matter on that occasion resigned. It is unnecessary to record all that happened in the interim but the matter came before the Court again on 17 November last. Some documents had been provided but Wood CJ at CL then requested the Corrections Health Service to provide an up to date report. The point was also made that the Appellant had not then made any submissions directed to the topic. Subsequently a letter dated 2 December was received from the Goulburn Correctional Centre to the effect that the Appellant had refused to sign a "Release of Information" form apparently regarded as necessary for the information to be provided. A letter from the Appellant confirmed this, provided some reasons for this approach and referred to a number of health problems.
55 Despite this refusal, when his appeal came on for hearing on 8 December, the Appellant indicated that he still wished to rely on his medical condition. The Court heard the balance of the appeal and made directions for the supply of further evidence and written submissions. Following those directions the Appellant apparently consented to the provision of his records and a report by a Dr Jill Roberts was prepared and provided to the Respondent and the Court. By written submissions dated 24 February 2005 the Crown responded to the report but the Appellant has not done so. In the last paragraph Dr Roberts expressed her conclusions:-
"Mr Georgiou's notes reflect regular medical and nursing review has occurred since he has been placed in HRMU. There have been instances of mild to moderate elevation in his blood pressure at times of negative interaction with Department of Corrective Services Officers however his blood pressure has mostly been stable. His notes do not reflect any significant recent deterioration in health."
56 The report contains no new evidence or anything else which would justify this Court in interfering with the sentences imposed by Judge Shillington.
57 Giving effect to the conclusions at which I have arrived would have the effect of adding, to the eight year's imprisonment ordered by Judge Shillington, something on account of counts 3 to 8. Even had I taken a different view on the topic of the appropriateness of his Honour's sentence on the first count, the overall sentence would not have been reduced. Furthermore of course, any increases consequent on counts 3 to 8 would not be subject to the parity argument.
58 As it is, there is no appeal by the Crown and in that situation, it would not be appropriate to increase the Appellant's sentence. For reasons indicated above, I would not interfere with the sentence imposed on count 1. The sentences imposed on counts 3 and 4 were excessive and should be reduced but, in order not to increase the Appellant's total sentence I would leave the commencing points as the same as that for count 1. For a similar reason, I would not alter the commencing dates of the sentences on counts 5 to 8. Having regard to the fact that in his submissions the Appellant made no complaint about those sentences and I regard them as not excessive, I would not interfere with the length of those sentences.
59 I should add that, although no attention was given to the matter during the hearing of the appeal, I have considered the terms of s21A of the Crimes (Sentencing Procedure) Act. Apart from the matters to which I have referred, none of the matters referred to in that section requires reference here.
60 Accordingly I propose the following orders:-
1. Dismiss the appeal against conviction.
2. Grant leave to appeal against sentence.
3. Dismiss the appeal against the sentences imposed in respect of counts 1, 5, 6, 7 and 8.
4. Allow the appeal against the sentences imposed in respect of counts 3 and 4 and quash those sentences.
5. In respect of count 3, sentence the Appellant to imprisonment for a term of 5 years including a non-parole period of 3 years and 9 months, both such periods commencing on 3 February 1998.
6. In respect of count 4, sentence the Appellant to imprisonment for a term of 4 years including a non-parole period of 3 years, both such periods commencing on 3 February 1998.
61 HIDDEN J: I have had the benefit of reading in draft the judgment of Hulme J. I agree, for the reasons his Honour has expressed, that the appeal against conviction should be dismissed.
62 However, I would approach the application for leave to appeal against sentence differently from his Honour, although the practical result would be the same. I agree that the applicant's arguments based upon the interpretation of the Judicial Commission statistics, parity with the two offenders' sentences in South Australia, and the state of his health must fail.
63 That said, I cannot agree with Hulme J that the statistics "strongly suggest" a pattern of undue leniency - certainly in the absence of full argument about the matter. To draw such an inference from the bare figures, it seems to me, is itself bedevilled by the limitations on the use of the statistics identified in cases such as Bloomfield and AEM, to which his Honour has referred. As to parity, I would place primary emphasis upon the fact that, while the criminality of the other two men is clearly related to that of the applicant, those other men were sentenced in another jurisdiction for offences different from those of the applicant.
64 It is clear from his remarks that the learned sentencing judge saw the sentence of eight years with a non-parole period of six years as appropriate to reflect the criminality disclosed by all of the applicant's offences. I agree with Hulme J that, in failing to distinguish between the criminality of the three offences of supplying drugs, his Honour fell into the error identified by the High Court in Pearce. However, I find it unnecessary to consider what might have been the appropriate sentence for each of those offences, viewed in isolation. A global sentence of eight years with a non-parole period of six years could not be said to be manifestly excessive and, if that had been the result of the partial accumulation of sentences, the applicant would have had no legitimate complaint.
65 Generally speaking, in cases such as this no purpose would be served by recasting the sentences for particular offences when the global sentence is an appropriate measure of the overall criminality. For the purposes of s6(3) of the Criminal Appeal Act, the focus should be upon that global sentence and, unless it is more severe than is warranted in law, this Court normally should not intervene at all. I would hesitate to say that intervention would never be called for in this situation but, in my view, this is not such a case.
66 I would grant leave to appeal against sentence but dismiss the appeal.