"I am aware that he has other offences charged before me and I will come to them later. Nevertheless, I have to deal with this matter at the present and consider what is the appropriate penalty."
27 In my opinion this was an erroneous way of carrying out the task of sentencing the respondent. I do not believe that, in a case where the one offender is being sentenced for a number of offences, it can ever be appropriate to determine the sentence for each offence as if it were the only matter before the court. True it is that the court must decide the appropriate sentence for each offence independently and that the sentence for one offence cannot be increased simply because there happens to be other offences committed by the offender for which he or she is to be sentenced. But it does not follow that it is irrelevant to the determination of the sentence for one offence that the offender is before the court for sentence on other offences.
28 The principle of proportionality prevents a court from increasing a sentence by reason of past offending: McNaughton v R [2006] NSWCCA 242. It also prevents a court from increasing the sentence for one offence simply because the offender has committed other offences for which sentence is to be passed, whether the other offences were committed before or after the offence under consideration. But it is uncontroversial that the fact that an offender has committed offences in the past is relevant to a determination of the sentence to be imposed for the offence before the court: see s 21A(2)(d) of the Crimes (Sentencing Procedure) Act and McNaughton. So too it may be relevant that an offender has committed offences for which he or she has been sentenced at a time after the offence for which sentence is being imposed: R v MAK and MSK [2006] NSWCCA 381. Therefore, it would be illogical that the court could not take into account other offences for which the offender is before the court for sentence.
29 But it is obviously relevant that the offender is before the court for sentence for more than one offence when the penalty for any individual offence is being determined. Clearly it may be a fact or circumstances relevant to the commission of a particular offence that, at or about the time when that offence was committed, the offender committed other offences. It would be relevant, for example, to a finding whether the particular offence was an isolated "fall from grace" or whether it was merely an instance of a course of criminal conduct in which the offender was involved at the relevant time.
30 So in sentencing the respondent for any one offence it was highly relevant that all of the offences and the matters on the Form 1 were committed in a period of about four months and that each offence represented a different aspect of the respondent's overall criminality in that period. Not only was he engaged in a drug trafficking organisation, but he was also acting as a receiver for certain thieves and further he was also acting dishonestly on his own behalf. The fraud offence was clearly relevant to his claim in respect of all of the offences that he was easily led and imposed upon by others because of his low intellect.
31 The fact that an offender is to be sentenced for more than one offence must also have implications for the sentence for any one offence simply because there are statutory and other limitations upon sentencing orders that can be made. For example, there is a limit upon the amount of periodic detention that can be served by way of accumulation of sentences; see s 67 of the Crimes (Sentencing Procedure) Act. The court must before imposing sentence for any one offence have some understanding of what the final sentence will be for all offences simply so that individual sentences can be imposed within available sentencing options. For example, a suspended sentence cannot be imposed where an offender is serving a sentence of imprisonment that has not been suspended: see s 12(2) of the Crimes (Sentencing Procedure) Act. Some limitations will be imposed upon available options simply by reason of the utility of making orders which are on their face contradictory, for example by imposing a sentence of periodic detention on one offence and a sentence of full-time imprisonment on another.
32 It is obvious that, before a court commences to pass sentence for a particular offence, it must have determined the ultimate sentencing outcome for that offence. Neither statute nor case law requires a judge to determine, or pass, a sentence in discrete stages without a decision having been reached as to the final sentencing order. For example R v Zamagias [2002] NSWCCA 17, which requires a judge to consider the appropriate sentence before determining how the sentence is to be served, obviously does not require a judge to commence the sentencing remarks without knowing what the final outcome of the sentence will be. It simply requires that, when a court is determining the sentence to be imposed for any offence, it must follow a process of reasoning that is structured consistently with the objects and provisions of the Crimes (Sentencing Procedure) Act. Similarly s 44 of that Act does not require a court to determine the length of the non-parole period without having decided what the balance of the term will be: R v Perez [2004] NSWCCA 218.
33 So when a court is sentencing for multiple offences and before it imposes the sentence for any one offence, it will have considered the outcome for all offences. It will have done so for at least two reasons: firstly, in order to ensure that the court imposes sentences that fall within statutory limitations, that are consistent with sentencing principles and that do not conflict with one another. Secondly it will ensure that the overall sentence imposed reflects the overall criminality of the offences before the court.
34 It is unnecessary in the present case to consider the applicability of the principle set out in Pearce to a situation where a court is imposing suspended sentences. There are obvious cases where the principle cannot literally apply, for example in relation to the imposition of fines because they cannot be accumulated. Nor can suspended sentences be accumulated, at least when they are pronounced, although it might be different if the bonds were revoked: see s 99(c)(ii) of the Crimes (Sentencing Procedure) Act that applies the whole of Part 4 of the Act as if the sentence was being then imposed.
35 Therefore, I have reached the conclusion that the sentencing discretion miscarried by reason of the approach adopted by the Judge in considering the appropriate sentence for each offence in isolation. There can be no argument that at least the supply and the receiving offences each warranted the imposition of a custodial sentence notwithstanding the respondent's subjective case. The respondent was not so discomforted by his physical condition or so inhibited by his mental disabilities that he could not be an active participant in a number of criminal offences of significant seriousness. Claims that he made to the psychologist and the probation officer about the extent of his physical and intellectual disabilities are simply not borne out by the objective facts of the offences. With respect, the Judge's finding that the respondent fell within s 21A(3)(j) of the Crimes (Sentencing Procedure) Act, in that he was not fully aware of the consequences of his actions, was not open given the offences committed by him and the recorded conversations of his participation in those crimes.
36 Despite his claim of reform since he had met his wife, the simple fact is that the respondent was participating in the business of a receiver and a drug supplier at the time he was being investigated by police. It is clear from the facts that neither the supply offence nor the fraud offence was an isolated aberration. This is not to suggest that the respondent was to be sentenced other than for the offences to which he had pleaded guilty, but the particular offences have to be seen in the context of each other and of what inferences can be drawn from what the respondent said and did. By considering each offence separately and sentencing as if each stood in isolation one from the other, the Judge failed to consider the offences as a course of criminal conduct in which the respondent was involved for a not insignificant period of time.
37 I have no doubt of the correctness of the Crown's submission that in each case the Judge erred by deciding to impose a suspended sentence before determining what sentence was appropriate for the particular offence. The sentencing remarks for each offence suggest that is so. In each case the Judge merely recited the facts of each offence verbatim from the statement of facts tendered and there was little, or no, attempt to analyse the criminality of the respondent for any of the offences either considered individually or in combination. Yet the Judge could not determine the appropriate sentence without undertaking such a task. However, in my view, it is obvious from the sentence imposed for the fraud offence that the Judge could not have decided the appropriate sentence for that offence before deciding to suspend the sentence: R v Zamagias [2002] NSWCCA 17 at [26]. The Judge imposed the maximum penalty prescribed for an offence under s 178C yet he could not have concluded that the conduct fell within the worst category of offending even before taking into account the subjective features of the respondent and the appropriate discounts for the plea and assistance.
38 Further the Judge determined that the same sentence was appropriate for the receiving offence as for the supply offence. This was notwithstanding the substantial difference in the maximum penalties for the two offences, the existence of a standard non-parole period for the supply offence, and the very great seriousness with which courts regard offences of supplying drugs. Without any explanation as to how the Judge derived each of the sentences appearing in the sentencing remarks, I can only conclude that he chose to impose in each case the longest sentence that would permit him to suspend the sentence and that was consistent with the maximum penalty prescribed for the offence.
39 It is clear also from what the Judge said about the discount for assistance that he could not have been approaching his task in the appropriate way. The Judge stated that a discount of "60 to 70 per cent" could be granted for assistance without actually deciding what the discount would be. The only explanation is that it did not matter what the precise discount was because the sentences had been predetermined by the decision to suspend them.
40 So far as the specific sentence for the supply offence was concerned it was inadequate even without the order suspending the sentence. As has already been noted, from what was said in the recorded conversations proving the offence it is clear that this was not an isolated incident and the only available inference is that the respondent was in the business of supplying drugs for profit as the middleman between the supplier and the purchaser. I would reject the submission made on his behalf that his criminality was at the "low end of the scale". In any event there is ample authority that persons at any position in the hierarchy of the supply of drugs should receive significant sentences in recognition of their criminality in performing any role in such a serious criminal enterprise.
41 A non-parole period of 18 months as against a standard non-parole period of 10 years was on its face manifestly inadequate. The Judge did not attempt to apply the authorities of this Court as to how to approach the task of sentencing after a plea of guilty in respect of a standard non-parole period case. This Court has stated on numerous occasions that a judge is not to ignore the standard non-parole provisions just because the offender pleaded guilty, but is to give reasons in accordance with s 54B(3) for departing from the standard non-parole period. This is not to suggest that the standard non-parole period or anything like it was appropriate in the respondent's case, but there was no attempt to assess the respondent's criminality with that benchmark in mind.
42 The only reference made to any aspect of the objective circumstances of the supply offence that would have been relevant in determining where in the range of offending the respondent's conduct lay was a passing reference to the amount of drug involved. The Judge said that one of the factors he could consider in determining not to impose a full-time custodial sentence was the amount of the drug, remarking that it was not at, or close to, the maximum commercial quantity. With respect, if the amount of the drug had been at the level, it would be a case of imposing a sentence of, or above, the standard non-parole period of 10 years. The simple fact is that the amount of drug supplied by the respondent was twice the commercial quantity, which should have indicated that a suspended sentence was inappropriate rather than the converse.
43 With respect, the Judge seems to have accepted assessments of the respondent's personality without having any regard to the facts of the offences before him. For example, it is impossible to conclude that the respondent was easily led into the commission of the offences. How was this finding consistent with him having arranged to obtain the drug from Anderson and the conversations that followed the finding that the amount supplied was short? How was it consistent with the respondent organising the truck for the receiving of the stolen electrical goods? Where in the fraud offence is there the slightest suggestion that others led the respondent into committing the crime that he initiated for his own benefit? Although this Court generally should give paramountcy to decisions of facts made by sentencing judges, it should not accept them where they are not borne out by the objective facts of the offences committed. As has already been noted, whatever might have been the intellectual and physical disabilities of the respondent, they did not impede him conducting himself as a drug supplier, as a receiver of stolen goods or as a fraudster.
44 I have already commented on the fact that it is impossible to know what discount the respondent received for his plea of guilty and the assistance given because the Judge did not determine what it was. It was apparently somewhere between 85 per cent and 95 per cent, depending upon what discount was given for assistance in addition to the 25 per cent for the pleas. It is obvious that such a combined discount must result in a sentence that is in breach of s 23(3) of the Crimes (Sentencing Procedure) Act, because it must result in a sentence that is "unreasonably disproportionate to the nature and circumstances of the offence". In any event this Court has recently confirmed that a combined discount for the plea and assistance in excess of 50 per cent will be unusual: SZ v R [2007] NSWCCA 19. In this case a combined discount in excess of 55 per cent is unjustified.
45 There is nothing in the subjective circumstances of the respondent, including his assistance to the authorities, that could justify anything but a full-time custodial sentence, and that includes his fears and any risk of reprisals as a result of the assistance he has given or that he is prepared to give in the future. It must be understood that the discount for assistance acknowledges that the offender may be put at risk by the assistance given. In the present case there appears to have been no consideration by the Judge as to why the safety of the respondent required other than a full-time custodial sentence in order to provide him with adequate protection. There was no evidence that the respondent's life would be any more endangered in prison than outside of it or that reasonable safeguards for the respondent were not, or could not be, put in place within the correctional institutions: cf York v The Queen (2005) 79 ALJR 1919.
46 There is nothing in the affidavit of the respondent or otherwise that in my view justifies this Court in exercising its discretion to refrain from intervening so inadequate were the sentences imposed upon the respondent.
47 The sentencing discretion having miscarried this Court must re-sentence the respondent afresh. In determining the orders I propose I have taken into account that the respondent has been subject to the sentences for a period of about 4 months and the double jeopardy involved in the fact that the respondent now faces full-time custody after being given the benefit of suspended sentences. For that reason I propose that the sentences be backdated by 2 months. There are in my view no special circumstances as the respondent cannot be assisted by the parole service and there is no other reason to reduce the non-parole period except by reason of the accumulation of sentences.
48 I have indicated my view that the sentence for the supply offence was manifestly inadequate even disregarding the order suspending the sentence. I have also noted that the co-offender was given a sentence that was also at least arguably inadequate having regard to the standard non-parole period. The issue of parity arises and is relied upon by the respondent. As this is a Crown appeal and because the co-offender's sentence was not the subject of a Crown appeal, it seems to me as a matter of discretion that the Court is constrained not to increase the sentence if the order of suspension is quashed. Although this Court is not bound by an inadequate sentence imposed upon a co-offender, I believe that the Court should moderate its response in the present case, in light of the fact that the respondent initially received a sentence that allowed him at liberty in the community.
49 I have departed from the standard non-parole period for the supply offence by reason of the plea of guilty, the role of the respondent in the offence, the assistance given to the authorities in the past and in the future, and to achieve parity with the co-offender. Because this is a Crown appeal the length of the sentences are limited by considerations of double jeopardy. It should be taken however that the respondent has received the benefit of discount for his plea and assistance of about 55 per cent and 15 per cent of that is for future assistance. I have proposed a fixed term for the receiving offence because of the lack of utility in specifying a non-parole period in light of the sentence for the supply offence. The fixed term is the equivalent of the non-parole period and has been reduced by reasons of totality: see Johnson v The Queen (2004) 78 ALJR 616.
50 I propose that the following orders be made:
1. The sentences imposed by Judge Donovan are quashed;
2. In respect of the offence under s 178C the respondent is sentenced to a fixed term of 2½ months to commence from 5 January 2007 and to expire on 19 March 2007;
3. In respect of the offence of receiving and taking into account the matters on the Form 1 the respondent is sentenced to imprisonment for a fixed term of 10 months to commence on 20 March 2007 and to expire on 19 January 2008;
4. In respect of the offence of supply the respondent is sentenced to a non-parole period of 16 months to date from 20 January 2008 and to expire on 19 May 2009 with a balance of term of 8 months to expire on 19 January 2010.