R v Kazzi

Crimes (Sentencing Procedure) Act LEGISLATION CITED: Criminal Appeal Act Drug Misuse and Trafficking Act

Markarian v R (2005) 79 ALJR 1048 CASES CITED : Pearce v The Queen (1998) 194 CLR 610 R v Wall (2002) NSWCCA 42 R v Way (2004) 60 NSWLR 168

COUNSEL: LK Wells (Crown) DG Dalton SC (Respondent)

SOLICITORS: S Kavanagh - Solicitor for Public Prosecutions S O'Connor - Legal Aid Commission

IN THE COURT OF CRIMINAL APPEAL 2007/5250

MASON P JAMES J HOEBEN J

MONDAY 21 APRIL 2008 R v KAZZI, John Judgment 1 MASON P: I agree with James J. 2 JAMES J: The Crown appealed pursuant to s 5D of the Criminal Appeal Act against sentences imposed on the respondent John Kazzi in the District Court on 19 October 2007 by his Honour Judge Williams for offences to which the respondent had pleaded guilty. 3 The offences for which the respondent was sentenced and the sentences which were imposed were as follows:- Description of offence Sentence 1 Supply prohibited drug - cocaine - 196 gms Fixed term of imprisonment of 18 months to date from 23 February 2006 2 Supply commercial quantity of prohibited drug - methylamphetamine 338 gms Head sentence 5 years non-parole period 3 years to date from 23 February 2007 3 Supply prohibited drug - cocaine - 196 gms Fixed term of imprisonment of 18 months to date from 23 February 2006 4 Supply large commercial quantity of prohibited drug - cocaine - 2 kgs Head sentence 6 years non-parole period 4 years to date from 23 February 2008 5 Supply large commercial quantity of prohibited drug - methylamphetamine 2.892 kgs Head sentence 6 years non-parole period 4 years to date from 23 February 2008 6 Supply prohibited drug - cocaine - 139.7 gms Fixed term of imprisonment of 18 months to date from 23 February 2006 7 Supply commercial quantity of prohibited drug - cocaine - 990 gms Head sentence 5 years non-parole period 3 years to date from 23 February 2007

4 The general effect of the sentences can be summarised as follows:-

For three offences of supplying a prohibited drug (offences 1, 3 and 6) the respondent was sentenced to fully concurrent fixed terms of imprisonment of 18 months commencing on 23 February 2006.

For two offences of supplying not less than a commercial quantity of a prohibited drug (offences 2 and 7) the respondent was sentenced to fully concurrent terms of imprisonment consisting of a head sentence of five years and a non-parole period of three years commencing on 23 February 2007.

For two offences of supplying not less than a large commercial quantity of a prohibited drug (offences 4 and 5) the respondent was sentenced to fully concurrent terms of imprisonment consisting of a head sentence of six years and a non-parole period of four years commencing on 23 February 2008.

Accordingly, the head sentences imposed on the respondent totalled eight years and the fixed terms and non-parole periods totalled six years. 5 Under Sch 1 of the Drug Misuse and Trafficking Act the commercial quantity for both cocaine and methylamphetamine is 250 grams and the large commercial quantity for both drugs is 1 kilogram. 6 Under s 32 of the Drug Misuse and Trafficking Act the maximum penalty for an offence under s 25(1) of the Act of supplying a prohibited drug (other than cannabis) is imprisonment for 15 years or a fine of 2000 penalty units or both. There is no standard non-parole period for an offence under s 25(1) of the Act. 7 Under s 33 of the Drug Misuse and Trafficking Act the maximum penalty for an offence under s 25(2) of the Act of supplying not less than a commercial quantity of a prohibited drug (other than cannabis) is imprisonment for 20 years or a fine of 3500 penalty units or both. There is a standard non-parole period for the offence of 10 years. 8 Under s 33 of the Drug Misuse and Trafficking Act the maximum penalty for an offence under s 25(2) of the Act of supplying not less than a large commercial quantity of a prohibited drug (other than cannabis) is imprisonment for life or a fine of 5000 penalty units or both. There is a standard non-parole period for the offence of 15 years.

Facts of the offences 9 The sentencing judge sentenced the respondent on the basis of a statement of agreed facts, which was fairly lengthy. In his remarks on sentence the sentencing judge summarised the agreed facts. In summarising the agreed facts the sentencing judge referred to persons named Postlewaight, Messina and Cruikshank and a further person identified simply as OP, all of whom were described as "co-offenders". 10 I set out hereunder the sentencing judge's summary of the facts of the offences, together with some comments by me.

"Mr Kazzi supplied a person by the name of S Ball, who is not being charged, with 196 grams of cocaine at a price between $3500 and $4200 per ounce, between 5 October and 17 October 2006".

I comment that the statement of the dates between which the offence was committed is not correct. According to the agreed facts, the supplies were made between October 2005 and 17 February 2006. According to the agreed facts, the respondent sometimes arranged for deliveries of drugs to Ball to be made by Postlewaight.

"Mr Kazzi had 338 grams of methylamphetamine from which he supplied Messina with 140 grams at $2100 per ounce".

According to the agreed facts, the respondent arranged for 338 grams of methylamphetamine to be delivered to Messina. Messina returned 198 grams to the respondent and on-supplied the other 140 grams. When Messina was sentenced he was sentenced for supplying 140 grams of methylamphetamine, that is a quantity less than the commercial quantity of the drug, whereas the respondent was sentenced for supplying 338 grams, that is a quantity not less than the commercial quantity.

"Mr Kazzi supplied 196 grams of cocaine to Messina for $18,000, that is $6000 per ounce".

According to the agreed facts, the 196 grams was supplied in three lots, 84 grams between 11 and 16 January 2006, 56 grams on 17 January 2006 and 56 grams on 22 January 2006, that is a total of 7 ounces, not 3 ounces, at a price of $6,000 per ounce.

"Mr Kazzi agreed to supply Mr Vera with 2 kilograms of cocaine for $187,500 per kilogram, however the deal did not go through".

According to the agreed facts, there were intercepted telephone conversations between the respondent and Vera about this transaction on 14 January 2006, 16 January 2006 and 19 January 2006 and subsequently. An agreement was made between the respondent and Vera, as stated by the sentencing judge. The statement of agreed facts continued:- "Despite further calls the supply did not take place because Vera or his purchasers were unable or unwilling to continue to a completed supply of cocaine".

"(This count) relates to 2.892 kilograms of methylamphetamine that was stored by Mr Kazzi and Mr Cruikshank at their safe house".

According to the agreed facts, the respondent introduced Cruikshank to a man named Redwan, so that Cruikshank could obtain methylamphetamine from Redwan. Redwan supplied methylamphetamine to Cruikshank. Cruikshank and the respondent agreed that Cruikshank would sell the methylamphetamine and Cruikshank would pay the respondent the sum of $3000 for each pound sold.

The methylamphetamine which was supplied by Redwan was stored in a home unit. On 21 February 2006 police entered the unit and found a total of 2.892 kilograms of methylamphetamine.

"Count 6 relates to the fact that also at the safe house was a further 139.7 grams of cocaine. As well, twelve 500 gram containers of a powder called Broncopulmin, which is used as a cutting agent for cocaine, were also found. It is somewhat similar in effect to Ventolin".

"Count 7 relates to OP and Mr Kazzi deciding to buy a quantity of cocaine for $155,000 and sell it for $175,000 and share the profit. Mr Kazzi obtained approximately 990 grams of cocaine through OP and later sold it for a profit of $20,000 and shared that equally with OP".

Remarks on Sentence 11 As already noted, the sentencing judge in his remarks on sentence summarised the agreed facts of the offences. 12 The sentencing judge said in his remarks on sentence that "the two significant areas of argument" in the proceedings on sentence had been "the role of the offender and the question of parity with the other offenders". 13 As to the role of the respondent, the sentencing judge said that "it is unnecessary to determine accurately where someone falls within the drug hierarchy" or "to determine Mr Kazzi's precise standing in the drug milieu". The sentencing judge did, however, make a finding that the respondent "is clearly nearer the top (of the drug hierarchy) than the bottom". 14 As to parity or proportionality in sentencing, the sentencing judge noted that Postlewaight and Cruikshank had already been sentenced by himself and that Messina and OP had already been sentenced by other judges. His Honour said that the Crown had agreed in the proceedings on sentence that Cruikshank and the respondent had performed similar roles. However, his Honour said that, apart from Cruikshank, there was "not much value" in comparing the respondent with the other offenders. His Honour did note a concession by counsel for the respondent that the respondent's criminality was higher than that of Messina and that the judge who had sentenced OP had found that OP had extraordinary subjective circumstances. Generally, his Honour found that the number and nature of the offences by the respondent "significantly elevated the degree of his criminality over the other offenders". 15 In his remarks on sentence the sentencing judge made specific findings about the level of objective seriousness of offences 4 and 7. 16 In the case of offence 4 there had not been any actual supply of cocaine. However, his Honour said:- "Applying the criteria referred to in R v Vu [2006] NSWCCA 188, I note the following: a) the agreement involved a substantial quantity of cocaine for a substantial price; b) the deal occurred within Mr Kazzi's other supply activities; c) there can be little doubt that commercial gain was involved; and d) there was nothing to indicate that Mr Kazzi did not want to and would not have been able to carry out his side of the bargain. The deal fell through because the purchasers pulled out, not because of unwillingness on the part of Mr Kazzi or because of some unexpected intervening cause."

Although his Honour did not expressly say so in his remarks on sentence, I infer from his Honour's finding that a number of criteria in Vu were satisfied that his Honour concluded that the agreement to supply charged in count 4 was as objectively serious as an actual supply. His Honour did not err in reaching such a conclusion. 17 As to offence 6, the sentencing judge rejected a submission by the Crown, which was based on the finding of broncopulmin, that the aggravating factor in s 21A(2)(i) of the Crimes (Sentencing Procedure) Act had been present, namely that the offence had been committed without regard for public safety. 18 As to the offences generally (or at least offences 2, 4, 5 and 7) the sentencing judge declined to find that the aggravating factor in s 21A(2)(n) of the Act, that the offences had been part of planned criminal activity, had been present, on the ground that planning was inherent in offences involving the supply of commercial or large commercial quantities of drugs. 19 There was admitted into the proceedings on sentence a report by a psychologist in which the psychologist expressed the opinion that the respondent had a severe substance abuse disorder. However, his Honour commented:- "Whether or not he offended to support a drug habit is, in my view, immaterial in the scale of the offending, reflected by the charges before me. A street dealer supplying drugs to fund his or her own use might engender a degree of consideration of such a fact, but such a circumstance has little value in the consideration of substantial offending over a long period of time. Whatever his drug use was, it did not prevent him from organising the supply of large quantities of drugs and living an elevated lifestyle, albeit it was significantly the subject of debt."

Apart from his drug dealing activities, the respondent also carried on a legitimate business and owned some restaurants.

His Honour was entitled to find that the respondent's own substance abuse disorder did not mitigate his criminality. 20 In his remarks on sentence the sentencing judge referred to the fact that there were standard non-parole periods for the offences of supplying a commercial quantity and supplying a large commercial quantity of a prohibited drug. His Honour said:- "Whilst the Crown has submitted otherwise in regard to the standard non-parole period offences, it would probably be unfair to classify them as being in the mid-range of objective seriousness when other judges have not done so for similar offending by co-offenders."

His Honour added:- "In any event, R v Way (2004) 60 NSWLR 168 in holding that the standard non-parole periods really apply to those cases where there has been a finding of guilt after trial allows the court to depart from the standard non-parole period where there are other sentencing factors, both statutory and at common law that have to be taken into account, in particular where there has been a plea of guilty."

His Honour did, however, categorise the offences as being "just below" the mid-range of objective seriousness. 21 His Honour found that the respondent's pleas of guilty had not been made at the earliest opportunity but had saved the expense of a trial estimated to last about eight weeks. 22 His Honour found that the respondent had provided assistance to the authorities and considered the application of s 23 of the Crimes (Sentencing Procedure) Act. As regards par (b) of s 23(2) of the Act, that is "the significance and usefulness of the offender's assistance…taking into consideration any evaluation by the authorities…of the assistance", his Honour commented:- "As to (b), the authority in question has not really meaningfully evaluated the assistance provided. However, the information provided by Mr Kazzi was correct. Further, Mr Kazzi persuaded another person to speak to the authority about an unrelated matter, providing useful and detailed information that is still under investigation. Confirmatory information, if it is the truth, should in my view be treated the same as previously unknown information because when evaluating the s 23 material, one needs to look at it prospectively from the point of view of the offender rather than retrospectively in the light of what an authority might already know. Of course, there is a significant distinction between the provision of intelligence to an authority and the offer to supplement that intelligence by giving evidence." 23 His Honour concluded that he should allow a combined discount of 30 per cent for the pleas of guilty and the assistance. 24 Further matters referred to in the remarks on sentence included that the respondent had only a minor criminal history, which his Honour regarded as insignificant, and that for part of the period he had spent in custody awaiting trial he had been in some form of protective custody, although at the time of sentencing he was in the general prison population. His Honour said that he was prepared to find special circumstances partly on the basis that it was likely that the respondent would serve part of his sentences in protective custody. However, although his Honour departed from the usual ratio between the non-parole period and the balance of the term in setting sentences for offences 2, 4, 5, and 7, the overall fixed terms and non-parole periods set by his Honour were three-quarters of the total head sentences. 25 It is apparent from the remarks on sentence and from the written submissions for the respondent in the proceedings on sentence, to which this Court was referred on the present appeal, that counsel for the respondent formulated "a sentencing approach" in which counsel suggested specific periods for the sentences for the various offences, reaching a total head sentence of about 7¼ years with total non-parole periods of 4½ years. In the proceedings on sentence the Crown submitted that the sentences suggested by counsel for the respondent were too low but did not suggest any alternative specific figures for the sentences. His Honour would appear to have arrived at the sentences he set by making fairly modest increases to some of the figures suggested by counsel for the respondent, thereby arriving at total head sentences of eight years and total non-parole periods of six years.

Sentences passed on "co-offenders" 26 I have already noted that his Honour said in his remarks on sentence that, apart from Cruikshank, there was "not much value" in comparing the respondent with the other offenders. Notwithstanding this general statement, his Honour in sentencing the respondent would appear to have relied, to some extent, on the sentences already passed on the other offenders, for example in holding that it would be unfair to find that the respondent's offences of supplying a commercial quantity and a large commercial quantity of a prohibited drug were offences in the middle of the range of objective seriousness, "when other judges have not done so for similar offending by co-offenders". 27 In my opinion, the differences between the respondent and the other offenders were such that no meaningful comparison could be made between the respondent and any of the other offenders. 28 In his remarks on sentencing the respondent the sentencing judge said that it was necessary to sentence the respondent on the agreed facts in his case and not on the basis of the facts which had been agreed or found in the sentencing of the other offenders. This is correct, but, if any regard was to be had in the sentencing of the respondent to the sentencing of the other offenders, the offences for which the other offenders were sentenced and the facts on which those other offenders were sentenced would have to be taken into account. 29 The sentencing judge said in his remarks on sentence that Postlewaight was involved in offences 1, 4 and 6 committed by the respondent. This may have been true but the only drug offence for which Postlewaight was sentenced was an offence of supplying a large commercial quantity of cocaine between 14 January 2006 and 22 February 2006, which was quite distinct from the offences of supplying a large commercial quantity of a prohibited drug for which the respondent was sentenced. 30 Significantly, Judge Williams in sentencing Postlewaight found that he was not the principal offender and that the principal offender was the present respondent. His Honour also found that Postlewaight had pleaded guilty at the earliest opportunity and had provided assistance and his Honour allowed Postlewaight a combined discount of 45 per cent for his plea of guilty and assistance. 31 Messina was a co-offender with the respondent in the respondent's offences 2 and 3 but Messina was sentenced only for two offences of supplying a quantity of a prohibited drug which was less than a commercial quantity. 32 Cruikshank was a co-offender with the respondent in the commission of the respondent's offence 5. Cruikshank was sentenced for one offence of being knowingly concerned in the supply of a large commercial quantity of a prohibited drug. In sentencing Cruikshank Judge Williams found that the criminal organisation of which Cruikshank had been a member had been headed by the present respondent, that Cruikshank had acted on instructions from the present respondent and that Cruikshank's criminality was less than that of the respondent and Postlewaight. Cruikshank had pleaded guilty at the earliest opportunity and had also provided assistance. He was a first offender, who was otherwise of good character. 33 OP was sentenced by a judge other than Judge Williams on the basis that OP's criminal act, although serious, had been an isolated event and had consisted merely in facilitating a drug deal by putting a potential seller and a potential buyer in contact with each other. As previously indicated, OP had extraordinary subjective circumstances.

The submissions of the parties 34 The only ground of appeal in the Crown's notice of appeal was that the sentences were manifestly inadequate. 35 Particular submissions made by the Crown in support of the ground of appeal were that the sentencing judge had not sentenced the respondent in accordance with the sentencing principles stated in the joint judgment of McHugh, Hayne and Callinan JJ in Pearce v The Queen (1998) 194 CLR 610 at 624 (45); that the sentencing judge had not determined the objective seriousness of the individual offences; that the sentencing judge had paid insufficient regard to the statutory non-parole periods for the offences of supplying a commercial quantity and a large commercial quantity of a prohibited drug; that the combined discount allowed for the pleas of guilty and assistance was excessive; that the sentencing judge had erred in not finding the aggravating factors urged by the Crown; that the sentencing judge had erred in having regard, to the extent to which he did, to the sentences passed on the other offenders; and that the sentencing judge had erred in finding special circumstances in setting the individual sentences for offences 2, 4 5, and 7. 36 Counsel for the respondent disputed that the sentences imposed by the sentencing judge were manifestly inadequate and also disputed each of the submissions made by the Crown which I have just summarised. 37 Counsel for the respondent submitted that the sentencing judge had had the advantage of having sentenced two of the other offenders and of having received extensive written submissions. It was pointed out that no appeal, whether by an offender or by the Crown, had been brought against any of the sentences imposed on the other offenders. It was submitted that in the proceedings for the sentencing of the respondent the Crown had referred to the sentences passed on the other offenders and had suggested that they gave "some indication" of the sentences which should be passed on the respondent. 38 It was said that in the proceedings on sentence the Crown had not suggested figures for sentences, in opposition to the figures which had been suggested by counsel for the respondent. I comment that the Crown did submit in the proceedings on sentence that the specific figures suggested by counsel for the respondent were too low. It was not incumbent on the Crown, and indeed it would have been inappropriate for the Crown, to suggest specific figures of its own. 39 Counsel submitted that it was apparent from the remarks on sentence that the sentencing judge had been mindful of the standard non-parole periods, that a standard non-parole period is not directly applicable if there has been a plea of guilty by the offender and that the only complaint which could be made in the present case would be that the sentencing judge had not used the standard non-parole periods as "a bench mark" and that such a complaint would be unwarranted. 40 Counsel for the respondent relied on the general principles requiring this Court to exercise restraint in the determination of Crown appeals against sentence.

Decision 41 The general principles governing the determination of Crown appeals against sentence were stated by Wood CJ at CL in the frequently quoted passage in his Honour's judgment in R v Wall (2002) NSWCCA 42 at (70) and I apply those principles. 42 It is convenient to deal first with some of the more specific submissions by the Crown.

The combined discount for pleas of guilty and assistance 43 The combined discount of 30 per cent allowed by the sentencing judge for the pleas of guilty and assistance would appear to me to have been generous. The pleas of guilty were late pleas of guilty. It was first indicated that the respondent might plead guilty when the respondent's trial was imminent. 44 The sentencing judge found that the assistance which had been offered by the respondent had not been evaluated by the authorities for its significance and usefulness and that the information provided by the respondent was merely confirmatory of information already known to the authorities. I would not agree with his Honour's assertion that, as a general proposition, information which is confirmatory should be treated as having the same value as information which was previously unknown to the authorities. 45 Notwithstanding the criticisms I have made and notwithstanding that the discount allowed by the sentencing judge would appear to me to be generous, I do not consider that this Court could hold that it was outside his Honour's sentencing discretion to allow a combined discount of 30 per cent.

Aggravating factors 46 I do not consider that this Court should hold that it was not open to his Honour to decline to find the aggravating factors urged by the Crown. I accept that it would generally be the case that supplies of commercial and large commercial quantities of prohibited drugs occur as part of planned or organised criminal activity. In my opinion, it was open to his Honour to consider that the degree of planning in the offences committed by the respondent was not so unusual as to amount to an aggravating factor.

Sentences on the other offenders 47 I have already expressed my view earlier in this judgment that the differences between the respondent and the other offenders were such that no meaningful comparison could be made between the respondent and any of the other offenders. I do not consider that the Crown was prevented on this appeal from making a submission to this effect or that this Court is prevented from reaching such a view, by any conduct of the Crown in the proceedings on sentence.

48 The sentencing judge's position regarding the sentences passed on the other offenders fluctuated in the course of his remarks on sentence. I have already noted that in one place in his remarks the sentencing judge said that there was "not much value" in comparing the respondent with the other offenders, apart from Cruikshank. This conclusion by his Honour was correct, except that, as I have endeavoured to show earlier in this judgment, the facts on which Cruikshank was sentenced were so different from the facts on which the respondent was sentenced that there is "not much value" in comparing the respondent even with Cruikshank. 49 In other places in his remarks on sentence the sentencing judge put some reliance on the sentences passed on the other offenders. To the extent that the sentencing judge relied on the sentences passed on the other offenders, I consider that his Honour was in error. In particular, I consider that his Honour erred in giving, as a reason for not finding that the respondent's offences were in the middle of the range of objective seriousness, that "other judges have not done so for similar offending by co-offenders". The offences for which the other offenders were being sentenced were often different from the respondent's offences and the facts on which the other offenders were sentenced were significantly different from the facts on which the respondent was sentenced. 50 Because of the differences between the respondent and the other offenders there is no significance in the fact that no appeals have been brought against any of the sentences imposed on the other offenders.

Special circumstances 51 I do not consider it would have been outside his Honour's sentencing discretion to find special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act. 52 Whether or not the sentencing judge erred in finding special circumstances in setting the individual sentences for offences 2, 4, 5 and 7 is of little practical importance, because the ratio of the overall fixed terms of imprisonment and non-parole periods to the overall head sentences was in accordance with s 44(2) of the Crimes (Sentencing Procedure) Act.

The Crown's more general submissions and determination of the appeal

53 The sentencing judge was obliged to sentence the respondent in accordance with the well-known statement of principles in the joint judgment in Pearce. I consider that there was some failure by the sentencing judge to comply with Pearce, even though I recognise that when a judge is sentencing for as many as seven offences it is almost inevitable that the judge will have to adopt some grouping of the offences, will impose the same sentences for offences which are broadly similar, even though fine distinctions might be drawn between them, and will make some sentences fully concurrent with some other sentences. 54 With regard to offences 2, 4, 5, and 7 there are statutory non-parole periods. Although the Court of Criminal Appeal held in Way at 184 (68) that statutory non-parole periods are to be taken as intended for a middle range case where the offender was convicted after a trial, the Court said at 192 (122) that, even where there are reasons for not imposing a standard non-parole period for an offence such as that there was a plea of guilty, "the standard non-parole period can properly take its place as a reference point or benchmark or sounding board or guide post". 55 In the present case the sentencing judge did not assess the level of objective seriousness of the offences, taken individually. However, his Honour did categorise the offences generally as being "just below" the middle of the range of objective seriousness. Having regard to this assessment by the sentencing judge of the objective seriousness of the offences, I consider that his Honour did fail to take into account the standard non-parole periods to the extent which is required by Way even where there has been a plea of guilty. 56 In sentencing the respondent the sentencing judge also had to pay "careful attention" to the maximum penalties set by the legislature for the offences. Markarian v R (2005) 79 ALJR 1048 at 1056 (31). In the present case the maximum penalty for offences 4 and 5 was imprisonment for life and the maximum penalty for the other offences was imprisonment for 15 years or imprisonment for 20 years. The sentencing judge did correctly state the maximum penalties for the various offences in his remarks on sentence but the sentences set by his Honour suggest that he did not pay careful attention to the maximum penalties for the offences. 57 After taking into account the objective facts of the offences, including the role of the respondent and the quantities of prohibited drugs involved, my assessment of the level of objective seriousness of the offences which would not be below the level found by the sentencing judge, the maximum penalties for the offences and the standard non-parole periods for offences 2, 4, 5 and 7 and even after allowing the respondent a combined discount for his pleas of guilty and assistance of the same order as that allowed by the sentencing judge, I have concluded, after paying due regard to the principles stated in Wall, that this Court should hold that some of the sentences imposed by the sentencing judge were manifestly inadequate and that the overall sentences were manifestly inadequate to punish the respondent for the totality of his criminality. 58 I do not consider that there is any reason why this Court in the exercise of its discretion should decline to allow the Crown appeal. In particular, I do not consider that this Court should decline to allow the appeal by reason of any conduct of the Crown in the proceedings before the sentencing judge. 59 Accordingly, I would allow the Crown appeal against sentence and proceed to re-sentence the respondent. 60 In re-sentencing the respondent it is necessary to apply the principles stated by Wood CJ at CL in sub-par (e) of par 70 of his Honour's judgment in Wall, namely that "a sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court…and will generally be towards the lower end of the available range of sentence". I would regard the sentences I am about propose as lenient and less than should have been imposed at first instance. I propose some fixed terms of imprisonment because if sentences with non-parole periods and balances of terms were imposed, the parole periods would be subsumed in other sentences. 61 In my opinion, the following sentences should be imposed. 62 I would retain the sentences of fixed terms of imprisonment of 18 months commencing on 23 February 2006 for each of offences 1, 3, and 6 of supplying a prohibited drug, these sentences being fully concurrent with each other. 63 For offence 2 of supplying a commercial quantity of a prohibited drug I would impose a sentence of a fixed term of imprisonment of four years commencing on 23 February 2007 and expiring on 22 February 2011. 64 For offence 7 of supplying a commercial quantity of a prohibited drug, where the quantity supplied fell only just short of a large commercial quantity, I would impose a sentence of a fixed term of imprisonment of five years commencing on 23 February 2008 and expiring on 22 February 2013. 65 For offence 4 of supplying not less than a large commercial quantity of a prohibited drug I would set a non-parole period of 7½ years and a balance of the term of 2½ years, the non-parole period commencing on 23 February 2009 and expiring on 22 August 2016, the balance of the term commencing on 23 August 2016 and expiring on 22 February 2019. 66 For offence 5 of supplying not less than a large commercial quantity of a prohibited drug I would set a non-parole period of 6½ years and a balance of the term of 3½ years, the non-parole period commencing on 23 February 2010 and expiring on 22 August 2016, the balance of the term commencing on 23 August 2016 and expiring on 22 February 2020. 67 The general effect of the sentences would be head sentences totalling 14 years commencing on 23 February 2006 and expiring on 22 February 2020 and non-parole periods and fixed terms of imprisonment totalling 10½ years commencing on 23 February 2006 and expiring on 22 August 2016. 68 The earliest date on which the respondent would be eligible for release on parole would be 22 August 2016. 69 HOEBEN J: I agree with James J. **********

01/05/2008 - Changes to pars 14 and 33 - Paragraph(s) 14 and 33 01/05/2008 - Changes to pars 14 and 33 - Paragraph(s) 14 and 33

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