R v KUMAR, R v FEAGAIGA

Court of Criminal Appeal (NSW)|2009-06-05|Before: McClellan CJ, Hulme J, Hidden J, Clellan CJ

Appeal Outcome: Special leave application dismissed by the High Court 5 June 2009 (S23/2009 & S84/2009)

CITATION: R v KUMAR, R v FEAGAIGA [2008] NSWCCA 328

JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 2; Hidden J at 88

Regina PARTIES: Aveen KUMAR Feagaiga FEAGAIGA

COUNSEL: Crown: D Arnott SC Respondent: D Brezniak

SOLICITORS: Crown: Solicitor for the DPP Respondent: Janice Gouder

LOWER COURT FILE NUMBER(S): 07/21/3158 07/21/3159

26 - IN THE COURT OF CRIMINAL APPEAL 2007/ 5785 2007/5784

McCLELLAN CJ AT CL HULME J HIDDEN J

Friday, 19 December 2008 R v Aveen KUMAR R v Feagaiga FEAGAIGA Aveen KUMAR v R Judgment 1 McCLELLAN CJ AT CL: I agree with Hulme J. 2 HULME J: On 22 November 2007 Sides DCJ sentenced the above named Feagaiga in respect of 10 offences. Summarised, the offences, and the penalties imposed for the principal offences were:- 1. On 9 August 2006 supply a commercial quantity viz 196.34 grams of ecstasy - imprisonment for 3 years including a non-parole period of 2 years both periods commencing on 30 August 2006. 2. On 16 August 2006 supply a commercial quantity viz 255.51 grams of ecstasy - imprisonment for 4 years and 3 months including a non - parole period of 2 years and 3 months, both periods commencing on 30 August 2007.

On 23 August 2006 supply a commercial quantity viz 252.27 grams of ecstasy - imprisonment for 4 years and 3 months including a non - parole period of 2 years and 3 months, both periods commencing on 30 August 2007.

On 30 August 2006 supply a commercial quantity viz 204.7 grams of methylamphetamine - imprisonment for 4 years and 3 months including a non - parole period of 2 years and 3 months, both periods commencing on 30 August 2008. 5. On 7 August 2006 supply 2oz of cannabis leaf.

On 14 August 2006 supply 0.2grams of amphetamine.

On 25 August 2006 supply 3 ecstasy tablets. 3 For each of offences 5-10 Feagaiga was sentenced to imprisonment for 2 months commencing on 30 August 2006. 4 (Feagaiga was in fact dealt with at the same time for an offence of driving whilst unlicensed. Pursuant to s10A of the Crimes (Sentencing Procedure) Act no punishment was imposed. However this matter pales into insignificance in the context of this appeal and may be ignored.) 5 Thus the effective sentence imposed on Feagaiga was imprisonment for 6 years and 3 months including a non-parole period of 4 years and 3 months. 6 Kumar was sentenced for knowingly taking part in the supply the subject of the first four of Feagaiga's offences though there was an insignificant difference in the specification of the methylamphetamine supplied. The sentencing judge found that on each of these occasions, Kumar passed the drugs to Feagaiga shortly before the latter sold them. The sentences imposed on Kumar were:- (i) For the offence committed on 9 August, imprisonment for 3 years including a non-parole period of 21 months both periods commencing on 30 August 2006. (ii) For the offence committed on 16 August, imprisonment for 4 years including a non-parole period of 2 years both periods commencing on 30 August 2007. (iii) For the offence committed on 23 August, imprisonment for 4 years including a non-parole period of 2 years both periods commencing on 30 August 2007. (iv) For the offence committed on 30 August, imprisonment for 4 years including a non-parole period of 2 years both periods commencing on 30 August 2008. 7 Thus the effective sentence imposed on Kumar was imprisonment for 6 years including a non-parole period of 4 years. 8 The Crown has appealed, alleging that the sentences imposed were manifestly inadequate. Kumar has appealed alleging that the sentences imposed on him were manifestly excessive and excessive by comparison with the sentences imposed on a co-offender, one Babanour. 9 So far as is presently relevant, s25(2) of the Drug Misuse and Trafficking Act prescribes as the maximum penalties for the supply of ecstasy and methylamphetamine- · 15 years imprisonment, if the quantity is less than a "commercial quantity"; · 20 years imprisonment, if the quantity is a "commercial quantity", and · Imprisonment for life, if the quantity is a "large commercial quantity". 10 Pursuant to s54A of the Crimes (Sentencing Procedure) Act, standard non-parole periods have been prescribed. In the case of a commercial quantity the period is 10 years and in the case of a large commercial quantity 15 years. 11 A commercial quantity of ecstasy is 125 grams but less than 500 grams. A commercial quantity of methylamphetamine is 250 grams but less than 1000 grams. Amounts in excess of respectively 500 grams in the case of ecstasy and 1000 grams in the case of methylamphetamine are large commercial quantities. 12 The maximum penalty for each of the offences the subject of charges 5, 6 and 8, relating as they did to cannabis, was 10 years. 13 Both offenders had been the subject of police surveillance including physical and video surveillance and extensive telephone intercepts. The supply the subject of the fifth to the tenth offences committed by Feagaiga was to various members of the public. The supply of the commercial quantities was to an undercover police officer and both offenders were arrested during the final stages of the transaction on 30 August. The numbers of tablets supplied and the amounts received by Feagaiga on those occasions were as follows:- 1. 716 tablets $12,000 2. 980 tablets $17,500 3. 960 tablets $16,450 4. 2000 tablets $32,000 14 The supply of methylamphetamine on 30 August would seem to have been, at least in part, a mistake. The agreement between Feagaiga and the undercover agent that led to the offence on that date was for the supply of ecstasy tablets. 15 Although the Crown's only ground of appeal was that the individual sentences and their aggregate were manifestly inadequate, the Crown also submitted that Sides DCJ had made a number of discrete errors which may have contributed to this result. It submitted that his Honour had erred:- 1. In finding that Kumar had assisted the authorities. 2. In finding that whatever Kumar had said in that regard had been of any value. 3. In that, even if the assistance was of value, the 10% discount allowed was excessive. 4. In that the sentences imposed did not reflect a finding that the criminality in each of Kumar's offences was "a little below mid level". 5. In assessing the criminality of each offence as "a little below mid level". 6. In making the sentences imposed on counts 2 and 3 entirely concurrent. 7. In concluding that "in terms of sentence and parity the differences between the three of them (Babanour, Kumar and Feagaiga) are relatively minor. 16 Similar points were made in the case of Feagaiga. In his case there was also complaint at the fact he received no increase in punishment for his further 6 offences. 17 There are a number of passages in his Honour's remarks on sentence relevant to these matters and to the other issues in the appeal. Thus his Honour said:- "The Court accepts that, in each case, there is remorse justifying leniency. This was indicated in a number of ways including: · … · Their early admissions, which included references to the role of the co-offender Babanour who was later arrested. In that regard the Court took into account the matters referred to in s23 and what fell from the Court of Criminal Appeal in R v R [2000] NSWCCA 163. Because of their pleas of guilty and assistance to the authorities, the Court reduced their sentences by 35%… During an ERISP interview conducted after his arrest, the offender Feagaiga made full and frank admissions about his involvement in all four transactions and set out the role of the co-offender Babanour. During his ERISP interview the offender Kumar made full and frank admissions in connection with at least three transactions but made none in connection with the supply on 9 August. As with the other man he set out the role of the co-offender Babanour. The evidence discloses that, on each of the four occasions, the offender Kumar passed the drugs to the offender Feagaiga some time before he sold them to the undercover officer. According to what this offender told Mr Smith, the offender Kumar, recognising his" (i.e. Feagaiga's) "financial difficulty, got him to introduce drug users to Mr Kumar. He claimed that he had planned to introduce the undercover officer to Mr Kumar but the latter insisted that he act as a middle man. It seems that his claims that, despite his reticence, he relented because of increased pressure from the offender Kumar and his rewards increased. There is no credible evidence that the offender Kumar overbore, threatened or intimidated this man in some way in order to get him involved in supplying the commercial quantities of drugs. It seems to the Court that he was persuaded by the prospects of increased rewards to become involved in the more serious matters. (sic) … The Court is not persuaded that those increased rewards were merely drugs for his own use. In the Court's view, some of that reward was to be financial in nature. The evidence satisfies the Court that he will probably successfully address his substance abuse problems and if he does, his prospects of rehabilitation and the likelihood of not re-offending are above average… Dealing with the four offences they have in common and considering them separately, the Court finds that they were pre-meditated and that each involved drug trafficking to a substantial degree and at a wholesale level. Neither knew who the ultimate users of the drug would be but the purchaser being an under cover officer does not entitle them to leniency because… The offender Kumar was one rung up the distribution hierarchy in comparison to the other man. His role was very important as it distance those higher up the distribution chain from the drugs. Each was involved for a financial reward. But the evidence did not allow the Court to quantify that. In the Court's view, there is no basis to distinguish between their respective criminalities, which, for each offence, is a little below mid-level." 18 His Honour then referred to a co-offender Babanour and continued:- "There are no material differences in their respective prospects of rehabilitation of the three men. Unlike these two men, the co-offender Babanour faced sentence for two offences only. The other two were on a Form 1 Schedule. Whilst he was one rung higher up the drug distribution chain, there is no basis to distinguish between the criminality of the three men. In terms of sentence and parity, the difference between the three of them are relatively minor… In the case of the offender Feagaiga although the 6 offences of agreeing to supply are separate from the other 4, the Court concluded that the proper application of principle of totality required that they be served concurrently. In each case because of the accumulation of the sentence, the need for an extended period of time on parole to address their addictions and because of parity, the Court found special circumstances." 19 His Honour's references to the offenders setting out the role of Babanour were to overstate the position. The only "evidence" of assistance by either Respondent was provided in the course of submissions. Then, in response to questions by his Honour, the Crown Prosecutor with the concurrence of Kumar's counsel, informed his Honour that at the time of his arrest and in response to a question from a police officer where he got the stuff from, Kumar said "my mate Tony, he lives in Cecil Hills" and went on to describe "whereabouts in Cecil Hills it is according to the streets. He says he does not know the street number. It is a single storey beige coloured house". 20 The Crown Prosecutor added there were references to "Tony" in the ERISP and the totality of these observations led his Honour to remark to the following effect:- That as he understood it, Babanour was not arrested until after the interview with Kumar, that without Kumar knowing the police might have knowledge about Babanour from the phone tapping, Kumar volunteered that Tony was involved and that these matters must be worth something under Section 23 of the Crimes (Sentencing Procedure) Act 1999. 21 The Crown prosecutor later added that the police officer to whom I have referred also noted that later Kumar approached her and said:- "I want to change my statement about Tony, can I change my statement. I need to change my statement about Tony." 22 Counsel appearing for Kumar was then asked if he wanted any further evidence put before the court on the topic, and in effect, said that he did not. After an adjournment, the Crown Prosecutor also informed Sides DCJ that in Feagaiga's ERISP there was some mention of a person by the name of Anthony who lives at Green Valley though there was no further description of the person or reference to him supplying Kumar with drugs. The Prosecutor went on to agree with a proposition from his Honour to the effect that Feagaiga's position was "essentially pretty much the same as Mr Kumar". 23 The Crown Statements of Facts that were before his Honour showed that in the course of the police surveillance that led to the arrest of the Respondent's the police had intercepted numerous telephone calls between Babanour and both Kumar and Feagaiga in the course of some of which meetings, some very shortly after the calls, were arranged. Also discussed in the calls were the getting of "things", the counting of "papers", whether Babanour could get "another 300", and the exchange of money. The phone calls occurred throughout the period from 9 to 30 August. 24 It is also appropriate to record that Babanour's sentence was directed to commence on 30 August 2006. 25 Against this background, I turn to consider the specific matters relied on by the Crown. Given the similarity in the situation of each offender, I shall consider them together.

Grounds 1 and 2 1. Error in finding that the offenders had assisted the authorities. 2. Error in finding that whatever the offenders had said in that regard had been of any value. 26 As assistance to the authorities is a matter going to mitigation, the onus of proving such assistance lies on an offender, albeit the Crown is under an obligation to assist in the discharge of the burden - R v Bourchas [2002] NSWCCA 373 at [65] et seq. 27 The references to the telephone calls in the Crown Statements of Facts made it clear that the police knew of Babanour and of his substantial involvement in the drug related activities. Given the duration of the police surveillance activities, the fact that there was some physical and video surveillance, and that the telephone intercepts provided police with advance notice of meetings with Babanour, it is in the highest degree unlikely that the police did not know, prior to the arrest of the Respondents who Babanour was and where he could be found. The fact that his sentence commenced on 30 August, the day upon which the Respondents were arrested, leads strongly to the inference he was arrested on the same day. 28 In these circumstances, it is impossible to infer that the information that the Respondents had provided to the police was of assistance either in connection with Babanour's arrest or otherwise. As Dixon CJ said in Holloway v McFeeters (1956) 94 CLR 470 at 477 "(An) inference may be made only as the most probable deduction from the established facts, but it must at least be a deduction which may reasonably be drawn from them." 29 Nor does the decision of this Court in R v R [2000] NSWCCA 163 provide support for the course his Honour adopted. That that is so is apparent from what the Court said when dealing with the relevant topic, at [16]: "In my view, the naming of a co-offender or co-offenders, particularly when the names or identity of those persons are not otherwise known to the authorities, cannot but be described as assistance to law enforcement authorities in the detection or investigation of offences." 30 In this case there was no basis for concluding that the name or identity (and whereabouts) of Babanour were not otherwise known to the authorities.

Ground 3 Error in finding that, even if the assistance was of value, the 10% discount allowed was excessive. 31 Having regard to the conclusion at which I have arrived in dealing with what I have referred to as Grounds 1 and 2, His Honour should have allowed no discount for assistance. However, even if it was open to his Honour to conclude that there had been some, the discount allowed was grossly excessive. 32 In R v Sukkar [2006] NSWCCA 92 at [5], Howie J, with the concurrence of McClellan CJ at CL said:- "It seems to me that the courts should now acknowledge the reality of the situation and reduce the range of discount to reflect the fact that one of the bases of the discount is no longer generally applicable. In my opinion discounts for a plea and assistance of more than 40 per cent should be very exceptionally, if at all, granted in a case where there is no evidence that the offender will spend the sentence, or a substantial part of it, in more onerous conditions than the general prison population. It should now be accepted that an offender who has provided assistance will not necessarily be disadvantaged in the prison system and, if the offender wishes to assert otherwise, he or she should lead evidence of that fact." 33 His Honour's remarks have been accepted or followed with approval in a number of cases since - Baldini v R [2007] NSWCCA 327 at [36]; Rutkowsky v R [2008] NSWCCA 10 at 11; R v SC [2008] NSWCCA 29 at [52]. 34 Once recognition is given to the fact that discounts of 25% are not uncommonly awarded for pleas of guilty alone, it is apparent that, except in the exceptional cases to which Howie J referred, the available scope for a discount for assistance is, or is of the order of, 15%. Given Sides DCJ's remarks that each of the offenders had pleaded guilty at the earliest opportunity, it is to be inferred that they received a discount of 25% on that account and that the discount for assistance was the balance of the total 35% discount his Honour awarded. 10% is a high proportion of the 15% generally available and could not come close to being justified by the mere identification of the name and address of a co-offender.

Ground 4 Error in that the sentences imposed did not reflect a finding that the criminality in each of the offences was "a little below mid level". 35 It is convenient to deal with this ground when addressing the issue of manifest inadequacy.

Ground 5 Error in assessing the criminality of each offence as "a little below mid level". 36 His Honour provided no reasons for this conclusion. It certainly could not have been based on the role or motivation of the Respondents both of whom were clearly engaged in a substantial commercial operation for the rewards it brought. As Price J said, with the concurrence of the other members of the Court, in Nguyen v R [2007] NSWCCA 15 at [46]:- The supply of heroin out of greed placed the applicant in the worst category of suppliers: R v Liang (unrep, 2/6/95, NSWCCA); R v Ramos (2000) 112 A Crim R 339, R v Kalache (2000) 111 A Crim R 152. 37 Subject to the dictates of the legislation, there is no difference in principle between dealing in heroin and dealing in other prohibited drugs - Adams v R [2008] HCA 15; (2008) 82 ALJR 718 at [10]; R v Nai Poon (2003) NSWLR 284 38 On the other hand the quantities involved were appreciably closer to the bottom of the ranges of commercial quantities than to the top of those ranges. Given the importance of quantity apparent on the face of the legislation, this is a very relevant factor and, given the reticence the authorities say this Court should exhibit before setting aside a finding as to where in the range of objective seriousness an offence falls, I am not persuaded that his Honour erred in his conclusion - see R v Dang [2005] NSWCCA 430 at [22]; Mulato v Regina [2006] NSWCCA 282 at [37]; R v Deng [2007] NSWCCA 216 at [69]..

Ground 6 Error in making the sentences imposed on counts 2 and 3 entirely concurrent. 39 Remarks of this Court in R v Harris [2007] NSWCCA 130 at [44] - [46] demonstrate the validity of this complaint:- "Implementation of the principle of totality is perhaps the most common circumstance where concurrency of sentences is justified. However it is important that that principle be properly understood and applied. Perhaps the leading statement of it is an extract from D A Thomas, "Principles of Sentencing" endorsed in Mill v R (1988) 166 CLR at 59 at 63:- "The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences to review the aggregate sentence and consider whether the aggregate sentence is 'just and appropriate'." Two points may be made. Firstly, the principle is expressed in terms of coming back from the result of a simple aggregation. Secondly, if each individual sentence is appropriate for the criminality of the offence to which it relates, prima facie additional criminality requires an increase in sentence. Obviously the totality principle imposes limits to that last proposition but those limits will rarely if ever go so far as to justify wholly concurrent sentences for all of a series of offences such as those here. Subject to those limits, in general, sentences significantly cumulative should be imposed for separate serious offences of which those here are all examples. In this connection the Court endorses the remarks of Sully J, though as a member of a two judge bench, in R v Wheeler [2000] NSWCCA 34. At [36] - [37] his Honour said:- "... (There) is the need to ensure public confidence in the administration of criminal justice; and, in particular, to ensure that there does not emerge in the community at large a perception that there is not all that much to choose between the person who commits one or two offences, and the person who commits six or seven offences, for the reason that somehow or other they all manage to finish up with effective sentences between or among which there is hardly anything in practical terms to choose. It needs to be clearly understood by all concerned that a person who commits a deliberate series of discrete offences, - and the present applicant's case, is a good example of the kind, - he must not be left with the idea that by intoning references to the principle of totality as though it were some magic mantra, he can escape effective punishment for the offences which follow successively one upon another throughout the whole course of a studied and deliberate course of criminal behaviour." 40 Sides DCJ gave no reason for making the sentences on the second and third offences concurrent. Given that the offences were separate and each was premeditated for the commercial rewards it brought, each merited punishment. Had his Honour effected a substantial degree of accumulation of a number of the sentences, entire concurrency of 2 of the sentences might well have been justified but there was so little accumulation that this provides no ground for his Honour making the sentences on 2 and 3 concurrent. 41 On a similar basis, his Honour erred in making the sentences he imposed on Feagaiga on counts 5 to 10 concurrent with each other and with the sentence imposed on one of the principal offences.

Ground 7 Error in concluding that, "in terms of sentence and parity the differences between the three of them (Babanour, Kumar and Feagaiga) are relatively minor". 42 Babanour was charged with knowingly taking part in the supply of 196.34 grams of ecstasy on 9 August 2006 and the supply of 504.7 grams of methylamphetamine on 30 August 2006. Placed on a Form 1 were offences of knowingly take part in the supply of 255.51 grams of ecstasy on 16 August and of 252.27 grams of ecstasy on 23 August and these were taken into account in relation to the first charge. The similarity if not identity with the 4 principal offences of the Respondents is apparent. 43 Babanour pleaded guilty. As has been said, when sentencing the Respondents Sides DCJ found that while Babanour was one rung higher up the drug distribution chain, there was no basis to distinguish between the criminality of the three men. However there was a difference in their motivation. 44 In imposing sentence on Babanour, which he did on 13 November 2007, Sides DCJ found that prior to August 2006 Babanour had an entrenched multi-drug habit costing between $500 and $2000 a week. Babanour was indebted to Kumar for some thousands of dollars and conscious that Kumar was having difficulty with some of his purchasers because of the quality of the ecstasy that he sold, Babanour introduced Kumar to his own supplier "Steve" in the hope that Kumar would clear the outstanding indebtedness. Thereafter Babanour seems to have acted as a go-between between "Steve" and Kumar and the tablets the subject of the 4 principal charges, and the purchase prices of them, passed through Babanour's hands in the course of their way to "Steve" from Kumar. 45 Babanour was about 6 months younger than Kumar. Sides DCJ remarked the Babanour's criminal history was slightly worse than that of Feagaiga. It included driving whilst suspended and (twice) whilst disqualified and for driving in a manner dangerous. He had been convicted twice for possession of drugs and had imposed upon him a sentence of 12 months including 9 months non-parole. 46 Feagaiga had convictions for driving whilst suspended and 4 months later for driving whilst disqualified. A month later he was fined for assault and malicious damage. Kumar had no prior convictions. 47 Like the Respondents, Babanour was regarded as remorseful and Sides DCJ concluded that his prospects of rehabilitation were good and, if he could successfully address his drug and gambling addiction - his Honour recording that Babanour had taken steps in that direction - that that it was unlikely he would re-offend. 48 Sides DCJ allowed Babanour a discount of approximately 35% for his plea and some assistance and, although that allowance was unduly generous, that assistance was greater than any possible view of the Respondents'. 49 The sentences imposed on Babanour were:- 1. On the first charge, imprisonment for a period of 3 years and 9 months including a non-parole period of 2½ years, both periods commencing on 30 August 2006, and 2. On the second charge, imprisonment for a period of 4 years and 8 months (including a non-parole period of 2 years and 8 months) commencing on 30 August 2007. 50 Thus the effective sentence on Babanour was imprisonment for 5½ years including a non-parole period of 3 years 8 months, not much less than the effective sentences imposed on Kumar of imprisonment for 6 years including a non-parole period of 4 years and Feagaiga of imprisonment for 6 years and 3 months including a non-parole period of 4 years and 3 months. Indeed, once the 10% discount for assistance that was granted to Babanour and to which the Respondents were not entitled is taken into account, the sentence on Babanour was heavier than that imposed on Kumar. 51 But there is another factor of greater significance. Babanour was sentenced for 2 offences. Although others were taken into account, the law is that there are limits to the weight that can be given to those and use of the Form 1 procedure "will generally result in a lower effective sentence than would have been imposed in the case of a conviction followed by a separate sentence". 52 Insofar as Sides DCJ was seeking to give effect to considerations of parity, the effective sentences on the Respondents for the charges involving commercial quantities, because there were 4 charges, not 2, should have been appreciably greater than the effective sentence on Babanour. 53 In so concluding, I acknowledge that the result may be unfair. However, many factors influence the decision of the prosecuting authorities as to which charges to bring and the Courts have refused to intrude into that area.

Subjective Factors 54 Reference must be made to the Respondents' subjective circumstances. Kumar had been employed as manager of a fast food outlet and told the author of a pre-sentence report that about a month prior to his arrest he resigned from that position because of the greater remuneration available from the offences for which he was ultimately arrested and that at the time of his arrest he was well entrenched in drug supply activities. 55 Kumar was born in January 1982. He presented in his Honour's opinion "a very strong subjective case of a young man with no prior convictions, of good character and reputation as well as an established work ethic." Nevertheless, his Honour recorded that there was evidence that Kumar abused amphetamines from about 19 years of age and cannabis from early 2006 and his habit had developed to a point where he was spending a significant quantity of money on drugs. His Honour went on to say that he thought it likely Kumar would address his problems successfully and this would mean his prospects of rehabilitation were good. 56 Feagaiga was born in December 1979. He lived with his grandmother in Samoa from the time he was one until age 10 when he resumed living with his parents. His relationship with his mother was strained but he had a good relationship with his father. His schooling was scant and he is illiterate and innumerate. He has some work history but has suffered injuries firstly in a car and then a motor-cycle accident. He came to Australia in 1990 and married about a year later and has 4 children. The motor-cycle accident left him unable to work and provide for his family. This in turn, together with abuse by him of cannabis and alcohol imposed strains and he and his wife separated some months prior to his arrest. He was also using ecstasy. 57 As I have indicated above, in January 2003 Feagaiga was fined for driving whilst suspended and in May 2003 for driving whilst disqualified. In June 2003 he was fined for assault and malicious damage. 58 There was also evidence that since being arrested Feagaiga had the support of his wife and, in a finding that the Crown contended was generous but has not challenged, his Honour concluded:- "The evidence satisfies the court that he will probably successfully address his substance abuse problems and if he does, his prospects of rehabilitation and the likelihood of not re-offending are above average."

Were the Sentences manifestly inadequate? 59 The conclusions at which I have arrived above indicate that his Honour erred in a number of respects favourable to the Respondents in arriving at the sentences he imposed and thus suggest that the sentences were inadequate. A comparison of the sentences with the statutory provisions leads in the same direction. 60 As I have indicated above the Respondents fell into the worst category of suppliers. The only aspect of the objective circumstances of the offences that argues in any substantial way for any departure from the statutory maximum of 20 years was the fact that the amounts supplied, in one case was about 40% and in the other 3 cases was about 50%, of the top of the range of quantity falling within the offence charged. 61 With a discount of 25% for their pleas added back, the head sentences of 3 years on the first offence and 4 years and 3 months on the second to fourth represent but 20% and 28% of the 20 years maximum. 62 Inter alia because the Respondents pleaded guilty, the standard non-parole period of 10 years for an offence in the mid-range of objective seriousness did not apply except as a guide, but the disparity between such a period and the 21 months and 2 years non-parole periods imposed on the first charge and the 2 years and 2 years and 3 months non-parole periods imposed on the other 3 charges is again stark and impossible to account for by reason of the offences being judged to be "a little below mid-level" and a 25% discount for the pleas. 63 Of course, one does not have regard to one of these statutory provisions to the exclusion of the second and other matters, particularly the subjective circumstances of the Respondents, have also to be taken into account. Nevertheless, the authorities are clear that subjective factors must not be allowed such weight that the objective seriousness of an offence is not adequately reflected in the sentence imposed - Dodd (1991) 57 A Crim R 349 and the cases there cited. "If a Court is weakly merciful, and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences" - R v Rushby (1977) 1 NSWLR 594 at 598. 64 It is impossible to believe in the case of commercial drug dealing such as occurred here, that there was not some weighing up of the risks and benefits and advantages and disadvantages of the enterprise embarked upon. It behoves the courts to ensure that the disadvantages are substantial. As Wood J remarked in Schaal (unreported, NSWSC, 8 September 1989), "just as those stakes (in the drug trade) are high, so, however, must be the risks if caught". 65 Reference to 2 cases to which the Crown referred also demonstrate that the sentences were manifestly inadequate. In R v Deng [2005] NSWCCA 430 the offender, adjudged to be a middleman in contact with both the buyer and seller, was found in possession of 983 grams with a purity of 82.5%. He was said to have some psychological vulnerability and was motivated by his own addiction, At the time of the offence the offender was on conditional liberty and was found to have good prospects of rehabilitation. The Court regarded the offence to be below but not far below the mid-range. Following a plea of guilty to one count of supplying not less than the commercial quantity of cocaine, the offender was sentenced to 6½ years including a non-parole period of 4 years. On appeal, this Court held that a sentence of 9 years including a non-parole period of 5½ years was the minimum that should have been imposed albeit for reasons arising since the original sentence and in the exercise of its discretion limited, the non-parole period to 5 years. 66 In R v Burgess [2006] NSWCCA 319 the offender was found in possession of some 739 grams of methylamphetamine at the time of arrest. He was regarded variously as the principal of his own wholesale commercial operation or as on the middle rung of another organisation engaged in the supply of methylamphetamine. Supply of the drug was in part a means to fund the offender's own addiction, found to be derived by reason of a mental disorder. The offender had a minor record and was regarded as having good prospects of rehabilitation. At first instance he was sentenced to imprisonment for 4 years including a non-parole period of 3 years. This Court took the view that, but for the offender's disordered mental state the offence would have been in the mid-range, set aside the sentence and imposed one of imprisonment for 9 years including a non-parole period of 5½ years. That sentence was described as the lowest that could be imposed. 67 It is appropriate to bear in mind that the severity of sentences is not simply proportional to length. Given the impact on an offender's life, actual imprisonment for a lengthy period is liable to be more than twice as severe as imprisonment for half that time - see R v Nguyen [2007] NSWCCA 94 at [22]; R v Sciberras [2006] NSWCCA 268 at [50]; R v Amurao [2005] NSWCCA 32 at [65]. 68 In my view the lowest head or total sentences that could reasonably have been imposed on the Respondents for each of the offences committed on 16, 23 and 30 August involved imprisonment for 6 years and, subject to matters that might arise in connection with a finding of special circumstances, a non-parole period of 4½ years. Six years equates to 8 years absent a plea, and makes adequate allowance for the fact that the quantities the subject of those offences were was but half the top of the range, Sides DCJ's conclusion that the Respondents' criminality was a little below mid-level, and for the relevant subjective factors. 69 Although of course sentences are also not simply proportional to quantity - R v Georgiou [2005] NSWCCA 237 at [40] and the cases cited, the smaller quantity involved in the offence of 9 August would lead me to reduce the 6 year period by 6 months and the non-parole period roughly proportionately. 70 So far I have considered the matter without regard to an argument advanced by Mr Dhanji who appeared in the appeal on behalf of Feagaiga. The argument was to the effect that Sides DCJ had a discretion to impose a sentence on the Respondents that achieved parity with the sentence imposed on Babanour, even if that sentence was otherwise inadequate, or to impose an adequate sentence and that it was not open to this Court to review that exercise of discretion unless it could be shown that the exercise of discretion was not open to Sides DCJ. 71 The argument is not attractive. However, I do not need to consider it in this case because his Honour's attempt to achieve parity was not a course open to him and did miscarry. The reasons for this include the matters to which I have referred in considering Ground 7 above, including the difference in the number of charges. 72 There remains of course a question whether the decision of this Court, particularly on individual sentences should be affected by considerations of parity. Although in sentencing Babanour for the first of the charges against him, Sides DCJ took into account offences that corresponded with those the subject of the second and third charges against the Respondents, otherwise the charges against Babanour corresponded with the first and fourth of the charges against the Respondents and there was substantial similarity between all the offences. 73 And the sentences imposed on Babanour do argue that, on parity grounds, the Crown appeals should be dismissed. Summarised, the length of the sentences imposed on the 3 co-offenders in respect of the offences committed on 9 and 30 August, the were:- 9 August Babanour 3 years 9 months including a non-parole period of 2½ years. Feagaiga 3 years including a non-parole period of 2 years. Kumar 3 years including a non-parole period of 21 months.

30 August Babanour 4 years and 8 months including a non-parole period of 2 years and 8 months. Feagaiga 4 years and 3 months including a non-parole period of 2 years and 3 months. Kumar 4 years including a non-parole period of 2 years. 74 Any attempt to simply bring the sentences imposed on the Respondents up to, or closer to, the sentences imposed on Babanour would simply be tinkering. 75 Reinforcing the claim that on parity grounds this Court should not interfere is the fact that the Crown has chosen not to seek to appeal against the sentences imposed on Babanour. Although this Court has been criticising for years now the apparent inability of the Office of the Director of Public Prosecutions to co-ordinate its approach to the sentencing of co-offenders - see for example R v Harmouche [2005] NSWCCA 398, [2005] 158 A Crim R 357 at [74]; R v Harris [2007] NSWCCA 130 at [78] - that Office seems incapable of remedying the problem. 76 It is unnecessary for the purposes of this appeal to re-canvass the authorities dictating that where the criminality of, and other relevant considerations affecting the sentencing of, co-offenders is equal, they should receive the same or similar sentences - see e.g. Lowe v R (1984) 154 CLR 606 or those cases that lay down that where adhering to parity would result in a, of a second, sentence which is manifestly inadequate, the Court is entitled to take a different course - see R v Harris [2007] NSWCCA 130 at R v Harmouche [2005] NSWCCA 398; 158 A Crim R 357 at [68] and the cases there cited. 77 In my view the Court here should take that different course. The principal reasons leading me to that conclusion is the extent of the inadequacy of the sentences imposed and the vast disparity between what Parliament has indicated is an appropriate non-parole period for the offences of the nature of those committed by the Respondents and the sentences imposed. I do not forget that the standard non-parole period is, in the circumstances here, but a guide and that there are additional factors to which regard must be had, but compared with the 10 year period that was Parliament's indication of the seriousness of the Respondent's offending, the non-parole periods of about 2 years fixed by Sides DCJ do not come close to being justified. 78 The principle of totality requires that the periods to which I have referred be not simply accumulated. However the seriousness of the re-offending means that there should be a substantial increase in the sentence and in particular in the effective non-parole period in consequence of each other of the offences and I take the view that at first instance the increases in the non-parole period could not reasonably have been no less than 1½ years for each further offence. In this connection the remarks of Sully J that I have quoted are particularly apt. 79 Four and a half years plus 3 times one and a half years total 9 years. It is not inappropriate as a check of the overall sentence proposed to aggregate the quantities supplied. There was over 700 grams of ecstasy, a quantity well above the top of the commercial quantity range and, given the Respondents' roles and motivation, would take the objective seriousness of their offences to a level not below a worst case of the supply of a commercial quantity. A non-parole period of 9 years is by no means excessive in that comparison even after allowance is made for the Respondent's pleas and subjective factors. The matter is a fortiori once one takes into account the methylamphetamine charge. 80 Sides DCJ found special circumstances and I would propose to follow that finding although I see no need for the balance of term to exceed 3 years. Combined with the periods the Respondents will be in custody, 3 years will afford them plenty of time, if they are so disposed, to deal with their tendency for drug abuse. The need to provide a period of 3 years after the non-parole periods expire has also caused me to reduce the non-parole period of the sentence on the fourth count to achieve that result. 81 There are some other matters to which I should refer. Even when error is shown this Court has a discretion in Crown appeals. The error in the court below, the fact of the appeal, and the time that has been required to deal with it has meant that the Respondents have been left in uncertainty as to their fate for longer than should desirably have occurred. Furthermore, the result of the appeal will be to create disparity with the sentence imposed on Babanour and will very substantially increase their time in custody. In these circumstances, I would propose that the sentence imposed be somewhat less than the minimum of 12 years with a non-parole period of 9 years that it should have been at first instance. 82 In the case of Feagaiga, I have indicated that I agree with the Crown submission that Sides DCJ erred in making the sentences he imposed on counts 5 to 10 concurrent with each other and with the sentence on one of the principal offences. However, having regard to the increase in sentence I propose in respect of the 4 principal offences, in the exercise of this Court's discretion I would not interfere with the sentence imposed on the lesser charges. 83 It follows from what I have said as to the inadequacy of the sentences imposed, that Kumar's appeal upon the ground that his sentence was manifestly excessive must be dismissed. 84 Section 54B requires that I state the reasons for departing from the standard non-parole period. In the case of each offence, they are:- (i) the quantity of drug; (ii) Sides DCJ's finding that each offence fell below the mid-range of objective seriousness; (iii) Each Respondent pleaded guilty in the Local Court (iv) The Respondents were found by Sides DCJ to have good prospects of rehabilitation; (v) The Respondents are serving their first time in custody; (vi) The sentences are being imposed in the course of a Crown appeal; and (vii) In the case of Kumar, her has no prior convictions and in the case of Feagaiga, his record is not extensive. 85 Before I conclude these reasons, there is one further matter to which I should refer. Sides DCJ directed the release of the Respondents to parole, in the case of Kumar on 29 August 2010, and in the case of Feagaiga, on 20 November 2010. As the sentences were for more than 3 years, his Honour had no power to give such a direction and should not have done so - see Crimes (Sentencing Procedure) Act s48 and s50. These orders also should be quashed. 86 In my view the orders that the Court should make are:- (i) Grant leave to Kumar to appeal. (ii) Dismiss the appeal by Kumar. (iii) Allow the Crown appeal against the sentences imposed on Kumar by Sides DCJ on 22 November 2007 in respect of 4 charges of the supply of a commercial quantity of drugs. (iv) Quash those sentences. (v) Allow the Crown appeal against the sentences imposed on Feagaiga by Sides DCJ on 22 November 2007 in respect of 4 charges of the supply of a commercial quantity of drugs. (vii) Quash those sentences. (viii) Confirm the sentences imposed on the remaining 6 charges. (ix) Quash the orders of Sides DCJ directing the release of the Respondents to parole. (x) Sentence each of Kumar and Feagaiga as follows:- (a) In respect of the charge of supply of a commercial quantity of ecstasy on 9 August 2006 each is sentenced to imprisonment for a non-parole of 4 years and 3 months and a total term of 5 years and 6 months both such periods commencing on 30 August 2006. (b) In respect of the charge of supply of a commercial quantity of ecstasy on 16 August 2006 each is sentenced to imprisonment for a non-parole of 4 years and 6 months and a total term of 6 years both such periods commencing on 29 February 2008. (c) In respect of the charge of supply of a commercial quantity of ecstasy on 23 August 2006 each is sentenced to imprisonment for a non-parole of 4 years and 6 months and a total term of 6 years both such periods commencing on 30 August 2009. (d) In respect of the charge of supply of a commercial quantity of methylamphetamine on 30 August 2006 each is sentenced to imprisonment for a non-parole of 3 years and a total term of 6 years both such periods commencing on 28 August 2011 87 These orders lead to an effective sentence of imprisonment for almost 11 years from 30 August 2006 to 27 August 2017 including non-parole periods totalling almost 8 years from 30 August 2006 to 27 August 2014. I record as the date upon which it appears to the Court that the Respondents will become eligible for parole, 28 August 2014. 88 HIDDEN J: I agree with Hulme J that Kumar's appeal against sentence must be dismissed. 89 I also agree that the Crown appeal in each case should be allowed. Judge Sides faced a difficult sentencing task, but I am persuaded that the sentences which he passed are manifestly inadequate. However, I am unable to agree with the orders which Hulme J proposes. Judge Sides was entitled to give considerable weight to the subjective cases of the respondents and their prospects of rehabilitation. Moreover, while acknowledging the obvious differences between their cases and that of Babanour, the sentence his Honour passed upon Babanour did constrain to some extent the way in which he dealt with the respondents. In my view, that same consideration is an additional reason for this Court to exercise restraint. 90 I agree with the sentences which Hulme J proposes but not the measure of accumulation. I would accumulate each sentence upon that which precedes it by 1 year. The result would be an aggregate sentence of imprisonment for 9 years with an effective non-parole period of 6 years.

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