R v Grover; Grover v R

Court of Criminal Appeal (NSW)|2013-05-28|Before: Hoeben CJ, Fullerton J, McCallum J

arge number of offences with matters on a Form 1 - whether Form 1 matters properly dealt with - whether sentencing judge erred in approach to aggregate sentences - adequacy of sentences - whether proper effect given to finding of special circumstances - need to re-sentence. Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Drug Misuse and Trafficking Act 1985 Cases Cited: Abbas Bodiotis Taleb and Amoun v R [2013] NSWCCA 115 Attorney-General's Application under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 Everett and Phillips v R [1994] HCA 49; 181 CLR 295 Porter v R [2008] NSWCCA 145 R v Harris [2007] NSWCCA 130 R v Kalache [2011] NSWCCA 210 R v Merrin [2007] NSWCCA 255 R v Nykolyn [2012] NSWCCA 219 Attorney General's Application (No 1) Under s26 of the Criminal Appeal Act; R v Ponfield; R v Scott; R v Ryan; R v Johnson [1999] NSWCCA 435; 48 NSWLR 327 Regina v Brett Raymond Walker [2005] NSWCCA 109 Stewart v R [2012] NSWCCA 183 Van Der Baan v R [2012] NSWCCA 5 Category: Principal judgment Parties: Regina - Appellant/Respondent Crown Mark John Grover - Respondent/Appellant Representation: Counsel: Ms S Dowling - Crown Ms N Carroll - Respondent/Appellant Solicitors: S Kavanagh, Solicitor for Public Prosecutions - Crown Philip Sim & Associates - Respondent/Applicant File Number(s): 2010/401874 2011/197525 2011/244546 Decision under appeal Date of Decision: 2002-09-14 00:00:00 Before: Puckeridge ADCJ File Number(s): 2010/401874 2011/197525 2011/244546

Judgment 1HOEBEN CJ at CL: Offences and sentence Two applications were before the Court. The first in point of time was an appeal by the Director of Public Prosecutions, pursuant to s5D of the Criminal Appeal Act 1912 against the sentences imposed by his Honour Acting Judge Puckeridge in the District Court at Sydney on 14 September 2002. The second was an application for leave to appeal against sentence by the respondent on the basis of error disclosed in the sentencing process and that the overall sentence imposed was too severe in all the circumstances. 2The respondent pleaded guilty to two counts of aggravated break enter and steal and one count of attempted aggravated break enter and steal, contrary to s112(2) Crimes Act 1900 for which the maximum penalty is imprisonment for 20 years with a standard non-parole period of 5 years; four counts of break enter and steal, contrary to s112(1) Crimes Act 1900, for which the maximum penalty is imprisonment for 14 years; one deemed supply of a prohibited drug, contrary to s25(1) of the Drug Misuse and Trafficking Act 1985 for which the maximum penalty is imprisonment for 15 years; two counts of using a false document to obtain property, contrary to s254(b)(i) Crimes Act 1900, for which the maximum penalty is imprisonment for 10 years and one count of attempting to use a false document to obtain property, contrary to s254(b)(i) of the Crimes Act 1900 for which the maximum penalty is imprisonment for 10 years. Also taken into account on a Form 1, pursuant to s32 of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act), were 19 offences of a similar kind. 3The details of the offences and the sentences imposed are set out in the Table below. The respondent was sentenced to a total head sentence of 4 years 8 months with a total non-parole period of 3 years and 11 months. Offence Date Offence Committed Maximum Penalty Standard Non Parole Period Sentence Imposed Seq 1 19/2/10 20 years imprisonment 5 years (Aggregate Sentence) Agg BES HS 3 years 9 months NPP 2 years 8 months S112(2)Crimes Act 1900 (Carrs Park Chemist) Seq 2 19/2/10 20 years imprisonment 5 years (Aggregate Sentence) HS 3 years 9 months Agg BES NPP 2 years 8 months S112(2)Crimes Act 1900 (Caringbah Chemist) Seq 3 19/2/10 20 years imprisonment No (Aggregate sentence) HS 3 years 9 months NPP 2 years 8 months Attempt Agg BES S112(2)Crimes Act 1900 (Miranda) Seq 9 16/08/10 10 years No Fixed Term 12 months 16/3/12 - 15/3/13 Attempt Use False Instrument S254(b)(i)Crimes Act 1900 (Claremont Meadows) Seq 6 10/10/10 10 years No Fixed Term 15 months Use False Instrument S 254(b)(i) Crimes Act 1900 (Plumpton) Seq 7 21/10/10 14 years No (Aggregate Sentence) Break Enter and Steal HS 2 years 9 months S112(1)Crimes Act 1900 (Harbord Pharmacy) NPP 2 years Seq 13 28/10/10 14 years No (Aggregate Sentence) HS 2 years 9 months Break Enter and Steal NPP 2 years S112(1)Crimes Act 1900 (Merrylands) Seq 22 28/10/10 14 years No (Aggregate Sentence) Break Enter and Steal HS 2 years 9 months S112(1)Crimes Act 1900 NPP 2 years (Mulgoa Pharmacy) Seq 25 23/11/10 14 years No (Aggregate Sentence) HS 2 years 9 months Break Enter and Steal NPP 2 years S112(1) Crimes Act 1900 (Werrington) Seq 27 30/11/10 10 years No HS 1 year 3 months Use False Instrument NPP 11 months S 254(b)(i) Crimes Act 1900 (Plumpton) Supply Prohibited Drug 19/2/10 - 2/12/10 15 years No HS 15 months S 25 Drug Misuse & Trafficking Act NPP 11 months

4The Crown relies upon the following Grounds of Appeal.

The sentencing judge erred in failing to find as an aggravating feature on sentence that the offences were committed while the respondent was subject to conditional liberty.
The sentencing judge erred in his approach to the Form 1 offences.
The sentencing judge erred in his approach to setting the aggregate sentences.
The sentencing judge erred in his approach to the respondent's prior record of offending.
The sentencing judge erred in failing to give effect to a finding of special circumstances.
The sentences, individually and as structured, are manifestly inadequate. 5The respondent relied upon the following Grounds of Appeal.
The sentencing judge erred in not giving effect to the finding of special circumstances for the total aggregate sentence.
The sentence imposed for the deemed supply charge is in error as the objective criminality cannot be determined in the absence of any nominated quantity of the prohibited drug pseudoephedrine.
The overall sentence imposed was too severe in all the circumstances of the offences, for reasons including: The sentences for three use false instrument charges were each excessive, and The delayed commencement of the sentence on 16th January 2012. Factual Background 6On 18 February 2010 the respondent rented a Toyota Camry in the name of his de facto partner. At 1.20am on 19 February 2010 the respondent and a co-offender walked to a pharmacy in Carwar Avenue, Carrs Park. Both offenders were wearing balaclavas. CCTV recorded the offenders using the concrete lid of a Telstra pit to smash the glass of the pharmacy door. Both offenders entered and took all the cold and flu tablets containing pseudoephedrine. They then left the premises and drove away in the rented Camry (aggravated BES Seq 1). 7At about 1.40am on 19 February 2010 the two offenders drove along President Avenue, Caringbah and stopped outside the Caringbah Pharmacy. By this time the Camry's registration plates had been obscured. The offenders used a concrete Telstra pit cover to smash the glass door and stole all the cold and flu tablets containing pseudoephedrine. They then left in the Camry (aggravated BES Seq 2). 8At about 2.10am on 19 February 2010 the offenders were seen near the Miranda Pharmacy at 96 Kiora Road, Miranda. The respondent was carrying a suitcase and black gloves. He fled when a police patrol came by, but dropped a black glove which yielded his DNA. The co-offender was arrested (attempted aggravated BES Seq 3). 9The Camry was located in a nearby street. The registration plates were covered. Inside the car were 142 boxes of cold and flu tablets containing pseudoephedrine. Pseudoephedrine is a prohibited drug that is used in the manufacture of methylamphetamine. Also found in the car were 25 bottles of cough medicine stolen from the pharmacy. 10On 16 August 2010 the respondent attended the Meadows Pharmacy at Claremont Meadows and presented a false driver's licence. He asked for a packet of Claratyne 12 hour tablets (which contain pseudoephedrine). The pharmacist refused to serve him and he left (attempt to use false document to obtain property Seq 9). 11On 10 October 2010 the respondent, using another false driver's licence, attended the Terry White Pharmacy at Plumpton and bought a packet of Codral Day and Night tablets (which contain pseudoephedrine) (use false document to obtain property Seq 6). 12On 21 October 2010 the respondent rented an Audi A4 in a false name (using one of the false driver's licences). At 12.54am he attended Harbord Pharmacy, Harbord and used a block of bricks to smash in the door. He entered and removed an amount of pseudoephedrine (BES Seq 7). 13On 28 October 2010 at 11.12pm the respondent attended the Pitt Street Medical Centre, Merrylands. He smashed the glass door with a Telstra pit cover and stole 35 packets of pseudoephedrine based products (BES Seq 13). 14On 20 November 2010 the respondent drove his de facto's car to the Mulgoa Pharmacy, Mulgoa. The registration plates were covered with a pair of shorts. The respondent took a concrete Telstra pit cover from the car and smashed in the door of the pharmacy and stole all the pseudoephedrine based products on display (about 40 packets) (BES Seq 22). 15On 23 November 2010 the respondent drove his de facto's car to the Werrington County Pharmacy, Werrington. He stopped and picked up a concrete Telstra pit cover. The respondent stole approximately 70 packets of pseudoephedrine based products (BES Seq 25). 16On 30 November 2010 the respondent entered the Pulse Pharmacy, Parramatta and used a false driver's licence to purchase a packet of Chemists Own Sinus Relief tablets which contain pseudoephedrine (use false document to obtain property Seq 27). 17On 2 December 2010 a search warrant was executed on the respondent's residential premises. Police located a total of 110 packets of pseudoephedrine based products in the respondent's home. The respondent participated in a recorded interview and made full admissions to owning all the pseudoephedrine based products and certain admissions relating to the fraud offences. 18A further 19 offences were taken into account on a Form 1, pursuant to s32 of the Sentencing Act. These comprised 3 counts of break enter with intent, contrary to s113(1) Crimes Act 1900; 1 attempted break enter and steal, contrary to s113(1) Crimes Act 1900; 3 counts of intentionally damaging property, contrary to s195(1)(a) Crimes Act 1900 (the properties being the premises broken into for the break and enter with intent offences); and 12 counts of using a false document to obtain property, contrary to s254(b)(i) Crimes Act 1900. Respondent's subjective case 19The respondent was aged 32 at the date of the offences. He had a stable childhood but encountered learning difficulties at school and left in year 9. His employment has been sporadic, mainly driving courier trucks. 20The respondent started drinking alcohol at the age of 15, which later became problematic. By the age of 26 he told the Probation and Parole Service that he was drinking a case of beer everyday, along with spirits. He said that this level of drinking only ceased when he was in prison. He started using amphetamines in 2001 (aged 23) and the only time that he did not use amphetamines was when he was in prison. The respondent said that he had a chronic gambling problem and every day would gamble large amounts on poker machines, horses and greyhounds. 21The respondent had an extensive criminal history in NSW that started in 1996 when he was 17 years old. He had numerous convictions for driving offences (including 6 convictions for dangerous driving), high range PCA, break enter and steal, numerous fraud offences and stealing. He had been imprisoned on a number of occasions. 22The respondent also had numerous convictions in Victoria for possess material to manufacture a drug of dependence, burglary, theft, threaten serious injury and trafficking a drug of dependence. 23In 2009 the respondent was convicted in Queensland of fraud, stealing and break and enter type offences. The respondent has also spent periods in prison in Victoria and Queensland. 24At the date of committing all of the offences before the Court, the respondent was serving a suspended sentence for the Queensland offences. 25On 7 March 2010 the respondent was granted bail in NSW for (unrelated) driving offences, so that the offences that occurred after that date were committed while the respondent was on bail. 26The respondent was arrested and remanded in custody in relation to the subject offences on 2 December 2010. He had a number of outstanding driving charges (unrelated to these matters) and on 30 September 2011 the respondent was sentenced to a head sentence of 18 months with a non-parole period of 13 ½ months which expired on 16 January 2012. He was then remanded in custody on the subject matters. 27A psychological assessment, dated 24 July 2012, prepared by Claire Wood psychologist, reported that he had a stable childhood in Sydney but struggled at school and left in year 9. He had two brothers, both of whom were also in custody. He started consuming alcohol at the age of 15. He had three children but was separated from their mother. 28He told Ms Wood of his heavy drinking and uncontrolled gambling and an addiction to amphetamines. She confirmed that he suffered from substance abuse disorder. She noted that he had no insight into his alcohol and drug dependence and on release from his earlier imprisonments, felt no remorse and wished to resume his previous lifestyle. Although there was no previous diagnosis of mental illness, Ms Wood thought that he displayed traits consistent with "internal distortions, interpersonal difficulties contributing to maladaptive behaviours in line with Antisocial and Borderline Personality Disorders". 29Ms Wood prepared a second report, dated 2 September 2012, in which she suggested programs from which the respondent would benefit. 30A personal reference by Ms Moore, the respondent's ex-partner, was placed before the court which confirmed his drug and gambling addiction. The respondent wrote a letter to the court in which he expressed his regret for his actions and referred to his drug, alcohol and gambling addictions. 31A pre-sentence report was tendered. It described the respondent's very poor response to previous supervision by the Probation and Parole Service and noted that his periods of supervision were characterised by re-offending and a failure to address his offending behaviour. Remarks on sentence 32The respondent came before Acting Judge Puckeridge for sentence on 4 September 2012. His Honour handed down sentence on 14 September 2012. In his remarks on sentence, his Honour recited the facts of the offending and the salient aspects of the respondent's subjective case. His Honour referred to the need for a sentence to take into account general and specific deterrence. His Honour noted that there was a standard non-parole period of 5 years applicable to the aggravated BES offences (Sequences 1 and 2) and noted that the "offences are objectively serious". 33His Honour gave a discount of 25 percent to reflect the utilitarian value of the pleas of guilty. 34When sentencing for Sequences 1, 2 and 3 the sentencing judge said: "I have come to the conclusion that taking into account the Form 1 it would be appropriate that an aggregate sentence of 5 years would be appropriate. That is a sentence which would have to be reduced for the pleas of guilty and the Crown concedes that there would need or not need, but it would be appropriate that there would be a full 25 percent discount which would reduce that to 45 months. The Court is also required to indicate what the sentences would be but for the aggregate sentence in relation to those three offences." (ROS 4.9 - 5.2) 35His Honour held that a head sentence of 5 years (before the discount for the pleas of guilty) was appropriate for each of the three s112(2) offences committed on 19 February 2010. His Honour noted that there was planning involved in each offence. He also noted that as there were three discrete offences committed on that night, there "was a need for cumulative sentences or partially cumulative". His Honour then said: "I consider that the totality of the criminality would be reflected therefore in an aggregate sentence taking into account the Form 1 matters, which I take into account in relation to such aggregate sentences which I sign and date today's date once I find the Form 1." 36His Honour commenced the sentences from 16 January 2012 being the date of expiry of the non-parole period for the unrelated driving offences. His Honour then set a single non-parole period for all three s112(2) offences of 32 months or 71 percent of the head sentence. 37His Honour found special circumstances, by reason of the respondent's need for intensive support on his release to address his addictions. Notwithstanding this finding, the total non-parole period was 83 percent of the total head sentence. 38His Honour set a sentence of 12 months for Sequence 9 (attempt to use a false instrument) with a starting date of 16 March 2012. As the entire term of that sentence was subsumed within the aggregate non-parole period set for the s112(2) offences, his Honour declined to set a non-parole period. 39In relation to Sequence 6 (use false instrument to obtain property) his Honour imposed a sentence of 15 months, to date from 16 March 2012. As the entire term of that sentence was subsumed within the aggregate non-parole period set for the s112(2) offences, his Honour declined to set a non-parole period. 40In relation to the four break enter and steal offences (Sequences 7, 13, 22 and 25) his Honour imposed an aggregate sentence of 33 months after the discount for the plea of guilty was applied with an aggregate non-parole period of 2 years. The aggregate sentence was to commence on 16 July 2013 (that is 16 months accumulation on the first aggregate sentence). The individual sentences imposed (after a discount of 25 percent) were described as: Sequence 7 - 33 months; Sequence 13 - 33 months with a non-parole period of 24 months. Sequence 22 - 42 months reduced by 20 percent (his Honour did not calculate the final term but it is 31.5 months). Sequence 25 - 33 months. 41In relation to Sequence 27 (use a false document to obtain property) the sentencing judge imposed a head sentence of 15 months with a non-parole period of 11 months starting 16 October 2014. 42For the deemed supply, his Honour imposed a head sentence of 18 months. His Honour then said that in order to give effect to his finding of special circumstances and to avoid a crushing sentence, a non-parole period of 9 months was appropriate (50 percent of the head sentence) to date from 16 March 2015. His Honour noted that a period of 10 months on parole would be sufficient for the respondent to obtain a proper treatment program. THE APPEALS Crown Ground 1: The sentencing judge erred in failing to find as an aggravating feature on sentence that the offences were committed while the respondent was subject to conditional liberty. 43By way of further background, on 9 October 2009 the respondent was sentenced to a 4 year suspended sentence by the Brisbane District Court. The s112(2) offences (Sequences 1, 2 and 3) were committed on 19 February 2010 during the currency of that suspended sentence. On 7 March 2010 the respondent was granted bail for unrelated driving offences. All of the offences after that date were committed while he was on bail. This includes all of the Form 1 offences. 44In relation to the s112(2) offences, his Honour said, after having sentenced the respondent: "... In relation to the first charges in which there was a question as to whether or not, he being on conditional liberty from Queensland, whether that was an aggravating feature and in respect of which the court was given no authority, I did not make any finding in relation to whether or not it was an aggravating feature, I simply took it into account, together with the standard non-parole period in relation to certainly Sequences 2 and 1, with the standard non-parole period, and considered that was appropriate in those circumstances. I just wanted to make that clear." (ROS 16.8) 45The appellant submitted that his Honour made no reference anywhere in his remarks to the fact that the balance of the offences were committed while the respondent was on bail. The appellant submitted that s21A(2)(j) of the Sentencing Act provides that this is an aggravating feature to be taken into account in determining the appropriate sentence if the offences were committed whilst the offender was on conditional liberty. 46The appellant relied on Porter v R [2008] NSWCCA 145 at [86] where Johnson J said: "86 In Frigiani v R [2007] NSWCCA 81 at [24], it was held that the commission of an offence, whilst the offender was subject to a s10 good behaviour bond, constituted the aggravating factor listed in s21A(2)(j) of the Act regardless of the conduct in respect of which the bond was imposed. However, it was not the case in Frigiani v R that the offence for which the s10 good behaviour bond had been granted was one for which imprisonment was not an available sentence. Nevertheless, it seems to me that the purpose of s21A(2)(j) is to capture the common law principle that an offence committed whilst a person is subject to conditional liberty, whether on bail or whilst subject to a good behaviour bond or a community service order or periodic detention or parole, constitutes an aggravating factor for the purpose of sentence. The essence of the provision is that the offender commits a further offence whilst subject to an order of a court in criminal proceedings requiring, amongst other things, that the offender be of good behaviour. I do not consider that the term "conditional liberty" in the section is confined to circumstances where the foundational offence giving rise to the conditional liberty is one which itself must be punishable by imprisonment. 87 Even if this view was wrong, however, the common law principle remains applicable given that s 21A does not purport to codify the law in this area: s 21A(1). Even if the commission of the offences whilst the Applicant was subject to a s 10 good behaviour bond for trespass did not constitute the statutory aggravating factor, it would constitute an available aggravating factor at common law. ..." 47The appellant noted that in Stewart v R [2012] NSWCCA 183 at [18] and [70] this Court had recognised that s21A(2)(j) applies where the order imposing conditional liberty was imposed by a court in another Australian jurisdiction. 48The appellant submitted that this was a serious error on the part of the sentencing judge. By reference to Attorney General's Application (No 1) Under s26 of the Criminal Appeal Act; R v Ponfield; R v Scott; R v Ryan; R v Johnson [1999] NSWCCA 435; 48 NSWLR 327 (the guideline judgment on breaking and entering) at [48] the first matter identified as an important consideration was whether the offender was on conditional liberty at the time of the offence. The appellant submitted that not only had his Honour erred in the manner specified, but the error was a serious one which must have affected the sentencing process. 49The respondent submitted that during the sentencing proceedings the Crown made no objection to the way in which his Honour indicated that he would treat the fact that the s112(2) offences were committed while the respondent was on conditional liberty. He submitted that if the Crown's acquiescence led the sentencing judge into error, that should not be held against him. In that regard, the respondent referred to Everett and Phillips v R [1994] HCA 49; 181 CLR 295 at 300 where four judges of the High Court (Brennan, Deane, Dawson, Gaudron JJ) held that in an application by the Crown for leave to appeal against sentence, the Crown was bound by the stance which it had taken in the sentencing proceedings. The respondent also noted that in the passage referred to by the Crown, his Honour said that he would take that matter into account. 50It is clear that his Honour did not receive the assistance to which he was entitled in relation to the Queensland suspended sentence. As a result, I am not persuaded that his Honour gave that fact very much weight in relation to the s112(2) offences. Nevertheless, because of the stance adopted by the Crown in the sentencing proceedings, if that were the only difficulty with his Honour's approach to the sentences for those offences, I would not be prepared to intervene. 51I do, however, agree that in relation to the sentences for the balance of the offences, his Honour failed to have regard to the fact that after March 2010 the respondent was on bail. In that regard, his Honour was in error. This ground of appeal has been made out. Crown Ground 2. The sentencing judge erred in his approach to the Form 1 offences. 52The appellant submitted that his Honour failed to properly take the Form 1 offences into account as required by Attorney-General's Application under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146. It submitted that this was clear from the indicative sentences. When specifying the sentences that would have been imposed for Sequences 1, 2 and 3 had the aggregate sentence procedure not been utilised, his Honour said that he would have imposed a 5 year head sentence for each offence. The appellant submitted that this involved error since the Form 1 offences were to be taken into account when sentencing for the offence in Sequence 1. 53The appellant submitted that this was the error identified in R v Nykolyn [2012] NSWCCA 219. There McClellan CJ at CL said: "29 It will be apparent from the portions that I have related from the sentencing judge's remarks that there are a number of errors. The sentencing judge concluded that each offence was of similar seriousness and gave no indication of the impact of the matters on the Form 1 on the sentence for the relevant offences. ... 32 Section 53A(1) allows a court to impose an aggregate sentence instead of a separate sentence of imprisonment for each count. However, s 53A(2) requires the sentencing judge to indicate to the offender the sentence that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence. A sentencing judge is accordingly required to give consideration to the criminality involved in each offence and, where appropriate, have regard to any matters on a Form 1 when defining the sentence that would have been imposed for an individual offence. ..." 54In the same case RA Hulme J said: "56 McClellan CJ at CL has referred (at [31] - [32]) to the provisions of s 53A, including the requirement in s 53A(2)(b) that a court must indicate to the offender, and make a record of, the sentence that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence. In an apparent attempt to give effect to this requirement, the sentencing judge in this case said: "I am imposing an aggregate sentence. In my opinion each of these four offences is of similar seriousness and each would warrant, taking into account the discount for early plea, a sentence of four years imprisonment. There would have to be a degree of accumulation." 57 With respect to the judge, this would appear to be doing little more than paying lip service to the requirement in s 53A(2)(b). I do not understand how the same sentence for each offence can be justified. True it is that they were offences of a similar (but not identical) nature and that the maximum penalty for each was the same. However, the judge was asked to take into account further offences when he sentenced for two of the offences; a reason in itself for the individual sentences to vary. ..." 55Hall J agreed with the reasons of both McClellan CJ at CL and RA Hulme J in that case. 56In reply the respondent accepted that it did not appear that the sentencing judge had taken the Form 1 matters into account, unless he had done so without making specific reference to them when fixing the aggregate sentence. The respondent submitted, however, that even if error of this kind had occurred, it did not necessarily follow that the aggregate sentence should be significantly different if this error were corrected. 57As the respondent properly conceded, the sentencing judge clearly erred by not taking the Form 1 offences into account. There were 19 of them and some were serious. This question was recently considered by a bench of five in the matters of Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115. There the Court emphasised the observations of Spigelman CJ in the guideline judgment at [42] where his Honour said in relation to matters on the Form 1: "42 The position, in my opinion, is that although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. ..." 58In Abbas the Chief Justice, with whom Garling and Campbell JJ and I agreed, made it clear that within specified limitations a sentencing judge was to take into account the criminality associated with the Form 1 offences - [21] - [24]. See also my remarks at [102] - [106] with which Garling and Campbell JJ agreed. 59The effect of those decisions is that for the Form 1 offences in this matter to have been taken into account, the sentence for the offence in Sequence 1 would have had to be greater than those imposed for the offences in Sequences 2 and 3. By failing to properly take the Form 1 matters into account, his Honour was in error. This ground of appeal has been made out. Crown Ground 3: The sentencing judge erred in his approach to setting the aggregate sentences. 60The appellant accepted that there was some overlap between this ground and Ground 2. It submitted that his Honour's approach to the imposition of aggregate sentences involved two discrete errors: His Honour nominated the same individual sentence for each of the individual offences within the first aggregate sentence. The aggregate sentences failed to reflect considerations of totality, i.e., the aggregate sentences effectively involved the imposition of wholly concurrent sentences. 61The appellant submitted that in addition to the error of failing to take into account the Form 1 matters, the sentencing judge erred in relation to the s112(2) and s112(1) matters because he had made them almost completely concurrent in circumstances where that was not appropriate. The appellant submitted that the reasons given by his Honour for adopting that course were inadequate. It submitted that it was apparent from his reasons in respect of the s112(2) offences that his Honour misunderstood s53A of the Sentencing Act and how aggregate sentencing operated. 62The appellant submitted that the following observation by his Honour supported that submission: "Because they were different offences to reflect the totality involved or total criminality involved may well have been that there would have been a need for cumulative sentences or partially cumulative in any event. I consider that the totality of the criminality would be reflected therefore in an aggregate sentence taking into account the Form 1 matters which I take into account in relation to such aggregate sentences which I sign and date today's date, once I find the Form 1." (ROS 5.8) 63In relation to the s112(1) offences, the appellant submitted that the only explanation for almost complete concurrency in those four offences was the risk that to accumulate the sentences would have a crushing effect upon the respondent, so far as any chance of rehabilitation was concerned. The appellant submitted that his Honour appeared to think that the imposition of an aggregate sentence obviated a need to consider cumulation. If he did so, he was in error. 64The appellant relied on R v Harris [2007] NSWCCA 130 at [38] where the Court (McClellan CJ at CL, RS Hulme and Hislop JJ) emphasised that concurrent sentences were not appropriate for multiple break and enter offences even where they were committed as part of a single spree of criminal behaviour. The Court affirmed that considerations of general and personal deterrence required that offenders be punished for each of their offences (see also R v Merrin [2007] NSWCCA 255 at [38]). 65The respondent accepted that the use of s53A of the Sentencing Act might operate to allow considerations of cumulation in penalties, but submitted that it did not preclude the need to also consider matters of concurrency. The respondent accepted that even though there was a strong argument in favour of a high level of concurrency, there would have to be some cumulation to recognise that separate offences were involved. The respondent submitted that even if error had been established, it did not follow that the aggregate sentence was manifestly inadequate. 66I agree with the Crown submission. His Honour did err in the way he approached cumulation and concurrency when applying the aggregate sentence provisions. This ground of appeal has been made out. Crown Ground 4: The sentencing judge erred in his approach to the respondent's prior record of offending. 67The appellant submitted that the only reference by the sentencing judge to the respondent's criminal record was to note that it disentitled him to leniency. The appellant submitted that his Honour did not (apparently) take into account that many of the respondent's previous convictions were for similar offences to those for which he was being sentenced. The appellant submitted that his Honour did not take into account the increased need for the sentence to reflect considerations of personal deterrence and retribution because of the respondent's very lengthy history of similar offences. 68The respondent submitted that the absence of any further reference to the respondent's lengthy criminal record in three States, did not mean that the sentencing judge was unaware or absent minded as to that record. The respondent noted that in the sentencing hearing the Crown spent some time going through the detail of the respondent's criminal history (T.31.31). 69While it is not clear that the sentencing judge committed the error identified by the appellant, his treatment of the respondent's criminal record was cursory at best. The relevant principles are clear and were recently restated by Hall J (with whom Beazley JA and Harrison J agreed) in Van Der Baan v R [2012] NSWCCA 5 at [30]: "30 ... (1) The principle of proportionality as enunciated in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477 requires that a sentence should not exceed what is proportionate to the gravity of the crime, having regard to the objective circumstances: Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354; McNaughton (supra) at 572 per Spigelman CJ at [15]. (2) The proportionality principle applies so that a sentence should not be less than the objective gravity of the offence required: McNaughton (supra) per Spigelman CJ. (3) The antecedent criminal history of any offender may not be used to increase the sentence beyond what is an appropriate sentence for the particular offence: Baumer v The Queen [1988] HCA 67; (1988) 166 CLR 51 at 57. (4) Accordingly, prior convictions do not themselves play a role in determining the gravity of the offence which, as the High Court confirmed in Hoare (supra), turns on the objective circumstances of the offence: McNaughton (supra) at [24]: "... the principle of proportionality requires the upper boundary of a proportionate sentence to be set by the objective circumstances of the offence, which circumstances do not encompass prior convictions." (5) Prior convictions are pertinent in terms as to where, within the boundaries set by the objective circumstances, a sentence should lie: McNaughton (supra) per Spigelman CJ at [26] (Bell J (as her Honour then was) and Hislop J agreeing). This proposition may be seen to be reflected in references in Veen (No 2) to concepts such as an "attitude of disobedience to the law" and to the increased weight to be given to retribution, to "deterrence" (relevantly personal deterrence) and "the protection of society"." 70In Regina v Brett Raymond Walker [2005] NSWCCA 109 Johnson J observed that it was incumbent upon judges to make clear the precise manner in which an offender's record has been taken into account: "32 ... a passing reference to s21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999, without reference to the precise manner in which the sentencing judge takes that factor into account on sentence, is unsatisfactory. A failure to explain the manner in which the factor is taken into account does not enlighten the sentencing process, in a manner which s21A appears to have been designed to achieve. ..." 71While it is not clear that his Honour erred in the way asserted by the appellant I do accept that his treatment of the respondent's criminal record was not satisfactory given its extent and the similarity between prior offending and the matters for which he was being sentenced. Crown Ground 5: The sentencing judge erred in failing to give effect to a finding of special circumstances. 72This was the same as the respondent's ground 1, which was: "The sentencing judge erred in not giving effect to the finding of special circumstances for the total aggregate sentence." 73The Crown submitted that despite the emphasis which his Honour placed on rehabilitation, in the finding of special circumstances, the ratio between the non-parole period and the head sentence in relation to the total effect of the sentences was 83 percent. This ground of appeal and the respondent's Ground of Appeal 1 have been made out. 74I accept that his Honour erred in failing to give effect to his finding of special circumstances (R v Kalache [2011] NSWCCA 210 at [37].) Crown Ground 6. The sentences, individually and as structured, are manifestly inadequate. 75In view of the errors already identified, it is not necessary to further examine this ground. The respondent will have to be re-sentenced so that this Court will have to make its own assessment of what sentences are appropriate. Respondent's Ground 2: The sentence imposed for the deemed supply charge is in error as the objective criminality cannot be determined in the absence of any nominated quantity of the prohibited drug pseudoephedrine. 76The respondent submitted that although he had pleaded guilty to an offence of deemed supply, contrary to s25 of the Drug Misuse and Trafficking Act 1985 (NSW), there was no evidence of the quantity of the prohibited drug in his possession. The only evidence related to the number of packets of pseudoephedrine based products of various brands, which had been sourced from different locations. The respondent submitted that as a result, it was not possible to assess the objective criminality of this offence. This was because an important factor in this kind of offence was the quantity of the prohibited drug that is possessed or supplied. The respondent submitted that in the absence of this important information, the severity of a sentence of 18 months, after a discount of 25 percent, was excessive and not justified by those limited facts. 77The appellant's response was that s31 of the Drug Misuse and Trafficking Act concerned indictable offences, i.e. offences not involving a commercial quantity (in the case of pseudoephedrine 1.25 kg). An indictable quantity was 25g. The appellant submitted that the respondent by his plea of guilty admitted all the elements of the charge which included that the quantity of pseudoephedrine was between the minimum indictable quantity of 25g and the maximum of 1.25 kg at which point the quantity of pseudoephedrine became a commercial quantity. The appellant submitted that the Court could infer without further information that 110 packets of pseudoephedrine based tablets would produce a quantity of pseudoephedrine greater than 25g. 78In the event that the respondent was to be re-sentenced, the appellant relied on an affidavit of Ms Williams, sworn 22 May 2013, to which was annexed a statement of Detective Inspector Iorfino. This statement was to the effect that the total amount of pure pseudoephedrine that could be extracted from 110 packets of tablets was 113.06g, which could be used to manufacture approximately 791.3g of methylamphetamine. 79Since it was common ground that the respondent would have to be re-sentenced, the Crown is entitled to rely upon that affidavit. To the extent that there was any doubt on the issue, the content of the affidavit dispose of the point taken by the respondent. 80What emerges from the Agreed Facts is that the respondent was engaged in the systematic, illegal acquisition of pseudoephedrine for the purpose of supplying it to someone else to be used in the manufacture of methylamphetamine. To that extent, therefore, the respondent was an active participant in a drug supply network. In those circumstances, the low sentence imposed for this offence by reference to the maximum penalty of imprisonment for 15 years cannot be regarded as excessive. This is particularly so in the light of the respondent's poor subjective case. 81This ground of appeal has not been made out. Respondent's Ground 3: The overall sentence imposed was too severe in all the circumstances of the offences, for reasons including: The sentences for three use false instrument charges were each excessive, and The delayed commencement of the sentence on 16th January 2012. 82The respondent submitted that the head sentences for the three "use false instrument" charges were excessive. He noted that the sentencing judge had consistently referred to the Drug Misuse and Trafficking Act in relation to those offences, whereas the offences were contrary to s254(b)(i) of the Crimes Act. The respondent submitted that his Honour may well have had a different level of criminality in mind when imposing sentence. 83The respondent submitted that because these offences involved only one packet of medication containing pseudoephedrine for which the purchase price was paid, the level of criminality was low. The respondent submitted that as a result, a non-custodial sentence should have been imposed. Alternatively, the terms of imprisonment should have been no more than one - two months in length. 84In relation to the start date for the sentences, the respondent submitted that his Honour failed to have regard to the fact that he had been in custody since 2 December 2010 and that this was a relevant matter when applying the principle of totality. The respondent submitted that it was excessively harsh to totally cumulate the sentences presently under consideration on top of the pre-sentence custody relating to the driving offences. 85The respondent's submission misunderstands why his Honour referred to the Drug Misuse and Trafficking Act. His references to that Act were to explain that the property obtained by the appellant was a prohibited drug, pursuant to that Act. This was relevant because it explained why the appellant had used a false driver's licence to purchase cold and flu tablets. His Honour's references to the Drug Misuse and Trafficking Act were appropriate and not indicative of error. 86While it is true that the "use false instrument" charges related to the purchase of only one packet of medication on each occasion, the submission fails to address the purpose for which the pseudoephedrine was fraudulently obtained, i.e. to manufacture methylamphetamine. Moreover, restrictions on the sale of pseudoephedrine based products meant that the appellant could not purchase more than one packet at a time. 87These offences were planned and were part of an extended criminal purpose in that they were to be on-sold for the purpose of manufacturing a prohibited drug. The offences were committed over an extended period of time and were motivated by commercial gain. Finally, the sentences imposed for these matters were totally concurrent with the sentences for other matters. Other than their presence on the appellant's criminal record, no additional punishment was exacted for them. 88In relation to backdating the commencement date for the sentences, this is a matter very much within the discretion of the sentencing judge. His Honour was aware that when the appellant was sentenced for the driving offences, it was known by the sentencing court that he had been in custody since 2 December 2010 and that is why the commencement date for those sentences was backdated to that date. 89Accordingly, his Honour did not err in declining to backdate the commencement of the sentences which he imposed. It would have been of assistance if his Honour had given reasons why he did not do so because such imprisonment can be relevant to totality. Nevertheless, the failure to give reasons on the facts of this case did not amount to error. This ground of appeal has not been made out. Re-sentence 90Because of the errors identified, both in the Crown appeal and in the appeal by the respondent, it will be necessary to re-sentence the respondent. 91The seriousness of the errors identified in the Crown appeal is such that it is inevitable that the sentences to be imposed on the respondent should be increased. That having been said, it will also be necessary to give appropriate effect in that re-sentencing exercise to the finding of special circumstances made by the sentencing judge. The overall effect of the sentences which I propose is a head sentence of 7 years and 3 months with a non-parole period of 5 years. 92The orders which I propose are as follows: (1) Crown appeal allowed. (2) Leave to appeal is granted to the respondent but the appeal is dismissed. (3) The sentences imposed by Puckeridge ADCJ on 14 September 2012 are quashed. (4) In lieu thereof, the respondent is sentenced as follows: (i) For the offence of supply a prohibited drug contrary to s25 of the Drug Misuse and Trafficking Act 1985 (NSW) a fixed term of imprisonment of 12 months, commencing 16 July 2011 and expiring 15 July 2012. (ii) For the offence of break enter and steal, contrary to s112(1) Crimes Act 1900 (Sequence 7 Harbord Pharmacy) imprisonment with a non-parole period of 2 years, commencing 16 October 2011 and expiring 15 October 2013, with a balance of term of 1 year, expiring 15 October 2014. (iii) For the offence of break enter and steal, contrary to s112(1) Crimes Act 1900 (Sequence 13 Merrylands) imprisonment with a non-parole period of 2 years, commencing 16 January 2012 and expiring 15 January 2014, with a balance of term of 1 year expiring 15 January 2015. (iv) For the offence of break enter and steal, contrary to s112(1) Crimes Act 1900 (Sequence 22 Mulgoa Pharmacy) imprisonment with a non-parole period of 2 years, commencing 16 April 2012 and expiring 15 April 2014 with a balance of term of 1 year, expiring 15 April 2015. (v) For the offence of break enter and steal, contrary to s112(1) Crimes Act 1900 (Sequence 25 Werrington) imprisonment with a non-parole period of 2 years, commencing 16 July 2012 and expiring 15 July 2014, with a balance of term of 1 year, expiring 15 July 2015. (vi) For the offence of aggravated break enter and steal, contrary to s112(2) Crimes Act 1900 (Sequence 2 Caringbah Chemist) imprisonment with a non-parole period of 2 years and 6 months, commencing 16 January 2013 and expiring 15 July 2015, with a balance of term of 1 year and 6 months expiring 15 January 2017. (vii) For the offence of attempt aggravated break enter and steal, contrary to s112(2) Crimes Act 1900 (Sequence 3 Miranda) imprisonment with a non-parole period of 2 years and 6 months, commencing 16 April 2013 and expiring 15 October 2015, with a balance of term of 1 year and 6 months expiring 15 April 2017. (viii) For the offence of aggravated break enter and steal, contrary to s112(2) Crimes Act 1900 (Sequence 1 Carrs Park Chemist) to which the Form 1 matters are attached, imprisonment with a non-parole period of 3 years, commencing 16 July 2013 and expiring 15 July 2016, with a balance of term of 2 years and 3 months, expiring 15 October 2018. (ix) For the offence of attempt to use false instrument, contrary to s254(b)(i) Crimes Act 1900 (Sequence 9 Claremont Meadows) imprisonment for a fixed term of 12 months commencing 16 April 2012 and expiring 15 April 2013. (x) For the offence of use false instrument, contrary to s254(b)(i) Crimes Act 1900 (Sequence 6 Plumpton) imprisonment for a fixed term of 12 months, commencing 16 April 2013 and expiring 15 April 2014. (xi) For the offence of use false instrument, contrary to s254(b)(i) Crimes Act 1900 (Sequence 27 Plumpton) imprisonment for a fixed term of 12 months, commencing 16 April 2014 and expiring 15 April 2015. 93FULLERTON J: I agree with Hoeben CJ at CL. 94McCALLUM J: I agree with Hoeben CJ at CL.

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