R v MARKARIAN [2003] NSWCCA 8 | Case summary

Judgment 1 HEYDON JA: I agree with Hulme J 2 HULME J: On 3 May 2002 the Respondent to this Crown appeal pleaded guilty to a charge that between 18 April and 10 October 2000 he did knowingly take part in the supply of a prohibited drug, namely heroin, in an amount not less than the commercial quantity for that drug. He asked that four matters on a Form 1 be also taken into account. On 18 July 2002 Judge Hosking sentenced the Respondent to imprisonment for 2½ years from 18 July 2002, such period to include a non-parole period of 15 months. His Honour directed the Respondent's release to parole at the end of the non-parole period on condition that he place himself under the supervision of the Probation and Parole Service and obey all reasonable directions of that service. On 20 August 2002, the Crown served a Notice of Appeal. 3 The Respondent's principal offence consisted of acting throughout the period mentioned as a chauffeur for one Vincent Caccamo in connection with a substantial business Mr Caccamo carried on of buying and distributing heroin. There were over 50 return trips by the Respondent from the northern beaches to Croydon and other journeys. From time to time the Respondent remained with Mr Caccamo at meetings where heroin was purchased, he made up deals for Mr Caccamo and on occasion personally distributed heroin and collected money from Mr Caccamo's runners. On occasions the Respondent also lent Mr Caccamo money for the purpose of purchasing heroin. The quantity of heroin in the supply of which the Respondent was knowingly concerned was 415gms. 4 The first offence on the Form 1 was of supplying in excess of 5gms of heroin contrary to s25(1) of the Drug Misuse and Trafficking Act between 25 September and 1 October 2001. The offender was receiving 2-3gms of heroin daily from Mr Caccamo, using a portion himself and selling the balance to drug users in the Chatswood area. 5 The second offence was of supplying 232.5gms of cannabis on 29 September 2000. The cannabis was exchanged in return for $2,700 and the Respondent's participation included at least counting the money and apprising the purchaser of the strength of the cannabis. Mr Caccamo was present but the relative roles of Mr Caccamo and the Respondent are not revealed. 6 The Respondent was arrested on 2 October 2001 while driving a vehicle. At the time of arrest he was in possession of 1.31gms of heroin and the third offence on the Form 1 is for possession of this. The fourth offence is for a charge of goods in custody in respect of $160 in cash found on the Respondent at the same time. 7 The Respondent gave evidence. He said he commenced using heroin shortly after his mother's death in August 1996. Then or soon after he was using with Mr Caccamo. Sometime after that he started purchasing from Mr Caccamo. In April 1998, the Respondent went to prison, being released in October 1999 by which time he had weaned himself off heroin and methadone. He resumed contact with Mr Caccamo in about January 2000 and then started to take drugs again. Mr Caccamo, who did not have a valid driver's licence, supplied these in return for the Respondent driving him. It should be said that at the time the Respondent had no need of money, having received some $200,000 on the death of his father in January 1999. By the time of sentence, and perhaps well before then, the $200,000 had been expended, largely in buying drugs. 8 The Respondent said that his own supplying of drugs had been done out of desperation. 9 The Respondent was born in December 1963. In August 1991 he was placed on a 3 year recognisance for cultivating a prohibited plant and fined for possessing a prohibited imported drug. In May 1998 he was sentenced to imprisonment for a minimum term of 3 years and an additional term of 1 year for supplying a prohibited drug and a concurrent sentence of 2 years on another similar charge. On appeal to this court the sentences were reduced to, in the first case, minimum and additional terms of 18 months and, in respect of the second, a fixed term of 18 months imprisonment. One of the charges, which was of deemed supply, related to the possession of 5.4gms of heroin. 10 The sentence to which I have just referred concluded on 16 April 2001. Thus the Respondent was on parole at the time of the commission of the offence with which he was charged and of the second offence on the Form 1. 11 Tendered before Judge Hosking was a pre-sentence report. It would seem that the Respondent had a good record of employment up until about 1990 but there has been only intermittent casual employment since. Both in the report and in the Respondent's evidence it was said that a factor leading to his assistance to Mr Caccamo was that the latter had exhibited kindness and assistance to the Respondent's father while the Respondent was in prison. His Honour seems to have accepted this. 12 According to the pre-sentence report the Respondent said he was feeling more and more uncomfortable being a heroin user and again initiated participation in a methadone program in July 2001. It was recorded that the prescribing doctor said that the Respondent had been producing clean urine screening in recent months, i.e. before July 2002 and the author observed:- "To his credit however, Mr Markarian has made genuine progress towards drug rehabilitation with his self-initiated involvement in a methadone maintenance program and weekly counselling." 13 In light of these remarks his Honour recorded his view that there were "some prospects of rehabilitation" and that the Respondent would require supervision after his release to try to ensure he did not lapse back into heroin use and found that there were special circumstances. No attention seems to have been given to the fact that the suggested participation in the methadone program was at the time the Respondent was in fact using himself and drug dealing out of desperation in Chatswood in late September 2001. 14 His Honour made some remarks concerning the Respondent's plea. They were:- "I take into account his plea of guilty. That plea, in my view, had considerable utilitarian value. It was a plea, in my view, made at an early opportunity and it is evidence of what I regard as real contrition on this offender's part. In my view, he is entitled to a discount of 25 percent for his plea of guilty." 15 There was some evidence to support the reference to "real contrition" but nothing to support the conclusion that its utilitarian value was "considerable". The Agreed Statement of Facts showed that the police investigation into Mr Caccamo's activities had included intercepted telephone calls, listening device material and police surveillance. A listening device had been installed in the Respondent's car. Furthermore the plea was entered on indictment, not at committal. 16 Mr Caccamo had another driver beside the Respondent, a Mr Chung. His participation had been less than the Respondent's, the offences on a Form 1 were not as serious, and he did not have the Respondent's prior record. His Honour observed that the differences meant that no question of parity arose but because he thought that Mr Chung had been dealt with very leniently - a 2 year non-parole period of periodic detention was imposed - his Honour decided to impose on the Respondent a lesser sentence that he would otherwise have done. His Honour said that the starting point for the Respondent was a sentence of 3½ years. In recognition of the discount for the plea his Honour reduced this to 2½ years. 17 The Drug (Misuse and Trafficking) Act provides for a variety of maximum periods of imprisonment, depending on the quantity and type of drug involved. In the case of the supply, or knowingly take part in the supply, of heroin, the periods are: (i) where the quantity is not more than 1 gram (a :small quantity"), and the matter is dealt with summarily, 2 years imprisonment - s30; (ii) where the quantity is not more than 5 grams (an indictable quantity), and the matter is dealt with summarily, 2 years imprisonment - s31; (iii) where the quantity is less than 250 grams and the matter is dealt with on indictment, 15 years imprisonment - s32; (iv) where the quantity is not less than 250 grams but not as much as 1000 grams (a "commercial quantity"), 20 years imprisonment - s33(2); and (v) where the quantity is not less than 1000 grams (a "large commercial quantity"), life imprisonment - s33(3). 18 Although this summary makes it clear that the maximum sentences prescribed are not proportional to quantities, it is clear that, all other things being equal, Parliament intended that the greater the quantity, the higher the sentence should be. Of course, that is not to say that all other matters relevant to sentence should not also have their proper weight - see Wong v R [2001] 207 CLR 584. 19 It is appropriate to repeat yet again some of the basic principles of sentencing. The commencing point in any consideration of an appropriate sentence for a statutory offence is the statute itself, recognising that "the maximum penalty prescribed for an offence is intended for the worst category of case for which that penalty is prescribed" - Veen v R (No 2) (1987-1988) 164 CLR 465 at 478. "In determining the proper penalty… the fundamental consideration is rather the degree by which, having regard to the maximum penalties provided by the Act in question, the Respondent's conduct would offend against the legislative objective of suppressing the illicit traffic in the prohibited drug" - R v Peel (1971) 1 NSWLR 247 at 262. Earlier at 261-2, the Court had said, "… the primary objectives of the legislation must be recognised and upon the detection of offenders penalties must be imposed which are calculated to secure those objectives. We agree, therefore, with his Honour that the objectives cannot effectively be secured unless, as he said, one is prepared to resort to a sentence sufficiently heavy to act as a real deterrent against intending importers." 20 This passage was quoted with approval by Wood J in R v Schall (unreported, 8 September 1989) - see also R v Bimahendali [1999] NSWCCA 409 at [17]. 21 In R v Radich (1954) NZLR 86 at 87, in a passage quoted with approval in R v Rushby (1977) 1 NSWLR 594 at 597-8 and in numerous other cases, it was said:- "… one of the main purposes of punishment, … is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment. In all civilised countries, in all ages, that has been the main purpose of punishment and it still continues so. The fact that punishment does not entirely prevent all similar crimes should not obscure the cogent fact that the fear of severe punishment does, and will, prevent the commission of many that would have been committed if it was thought that the offender could escape without punishment, or with only a light punishment. 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." 22 In R v Dodd (1991) 57 A Crim R 349, in a passage quoted with approval in, inter alia, R v Whyte [2002] NSWCCA 343 at [157] this Court made it clear that:- "There ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at a proper sentence to be imposed cannot properly be given their place. Each crime, as Veen (No 2) (1988) 164 CLR 465 at 472 stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity." 23 The judgment under appeal gives no weight to these principles. Parliament has enacted the Drug (Misuse and Trafficking) Act in the belief that possession, use and supply of the drugs referred to in it is harmful and, other things being equal, the greater the quantity of a particular drug, the greater the harm. Much, if not most of the work of the courts is taken up with the consequences of the ravages drugs, particularly heroin, inflict on those who take it and, by them, on society. The survey of imprisoned burglars reported in "The Stolen Goods Market in New South Wales" conducted by the New South Wales Bureau of Crime Statistics and Research indicated a median expenditure by heroin users of $1,500 per week and the need to steal goods worth a number of times this amount to feed their habit. On average each such offender is thus costing the community through property losses and the like $200,000 per year. And that says nothing about the violence other offenders resort to, or the waste of life and degradation heroin inflicts on the lives of the tens of thousands of persons it comes to dominate. To punish those who help to perpetuate such consequences by sentences such as was imposed in this case is to fail to adhere to the dictates of Parliament, to fail to adhere to basic principles of sentencing, to fail to provide much disincentive to others tempted to offend in the same way, and to fail the community's entitlement to retribution or, as I think is encompassed within that expression, to feel justice has been done. 24 "The degree by which, having regard to the maximum penalties provided by the Act in question, the Respondent's conduct ... offend(ed) against the legislative objective of suppressing the illicit traffic in the prohibited drug" was substantial. Albeit it was a long way short of the 999.9 gram maximum for a commercial quantity, the 415 grams the distribution of which he assisted well exceeded the 250 grams upper limit for an indictable quantity for the supply of which Parliament had seen fit to prescribe a maximum penalty of 15 years. The Respondent's activities extended over a period of almost 6 months. They amounted to conscious deliberate criminality, day after day, for reward, even if that reward was in the form of drugs. At the time he was on parole - a seriously aggravating feature - and had previously been convicted of supplying prohibited drugs and imprisoned. By his repeated offending the Respondent "manifested … a continuing attitude of disobedience to the law" - Veen v R (No 2) (1987-1988) 164 CLR 465 at 477. 25 Recognition must be given to the fact that the Respondent was not a principal in Mr Caccamo's operation but, while that reduces his objective criminality, it does not minimise it. Businesses such as Mr Caccamo's cannot operate without the assistance of others such as the Respondent. This fact inspired Wells J in Le Cerf (1976) 8 ALR 349, at 351 to say:- "It is only because persons like him are ready, able and willing to do such a thing that the entrepreneur is able to ply his nefarious trade on a large scale. If there were not middlemen and underlings, there would be no top men in an organisation. If an organisation is starved of recruits it must collapse. … The simple truth, that a man who participates in such an organisation at any level - I repeat at any level - must expect, and will receive, a heavy penalty. I do not, in saying that, mean to imply that no distinction at all will be drawn between the upper and lower echelons of organised crime. But I wish it clearly to be understood that, given that a particular range of penalties is considered appropriate for those in the upper echelons, there is no inevitable correlation between the standing of an offender who is in the lower echelons and the severity of the punishment that he can expect and will receive." 26 That passage has received endorsement in this Court on numerous occasions - see e.g. Muanchukingkan (1990) 52 A Crim R 354 at 356; R v Laurentiu and Becheru (1992) 63 A Crim R 402; Fabian (1992) 64 A Crim R 365 at 376; R v Budiman (1998) 102 A Crim R 411 at 413-4; R v Behar (unreported, CCA, 14 October 1998); See also Klein (2000) A Crim R 90 at 95. 27 There were also the offences on the Form 1. The second, involving cannabis, carried a penalty of 2 or 10 years also depending on whether it was prosecuted summarily or on indictment. In that this offence may have been part of the Respondent's active assistance to Mr Caccamo in the latter's drug dealing activities, it is proper to regard it as part of the same criminal activity. However, in that a different drug was involved, the criminal activity covered a broader spectrum and merited an increase in punishment. 28 It seems likely that the third of the offences in the Form 1 - which being of possession rather than supply, carried a maximum period of imprisonment of 2 years - was associated with either the operation which was the subject of the first Form 1 offence or the Respondent's own heroin addiction. It seems very likely that the fourth of these offences, which, under s527C of the Crimes Act carried a maximum period of imprisonment of 6 months - was also an incident of the Respondent's own commercial dealing. It does not disadvantage the Respondent to so regard both of these offences. 29 On the other hand in his activities the subject of the first entry on the Form 1 the Respondent would seem to have been acting as principal in his own commercial operation, reaping what profit there was to make. In terms of its objective circumstances, this offence was not less heinous than one in a worst category of offences of supply involving small quantities and, in that the quantity was 5 times as great as a small quantity which would have rendered the Respondent liable to 2 years imprisonment, significantly more serious than such an offence. As it was, this first offence in the Form 1 carried a maximum penalty of 15 or 2 years, depending on whether it was dealt with on indictment or - a possibility that would be relevant in any event - summarily. 30 Of course, contained as they were in the Form 1, no separate penalty for these 4 offences could be imposed and the maximum available remained at 20 years. Furthermore, albeit for reasons I find unpersuasive - see R v Perese [2001] NSWCCA 478 at [30]-[53], see also [84] - this Court has taken the view that because the piece of paper on which those charges appear is a Form 1 rather than an indictment, the "offender … is entitled to expect that the additional penalty will be significantly less than would have been imposed had separate charges been prosecuted" - R v AEM [2002] NSWCCA 58 at [82]; R v Kay [2002] NSWCCA 286. Nevertheless, it is clear from authority cited in R v AEM that where serious offences are included in a Form 1, the ultimate sentence must still reflect the totality of criminal involvement and it is still the law that "it is wrong in principle that there should only ever be little by way of addition to the penalty charged when another offence is taken into account pursuant to" the Form 1 procedure - Morgan (1993) 70 A Crim R 368. 31 When one then turns to consider the subjective circumstances, there are some which stand out. One is the Respondent's plea. A second is the finding his Honour made of contrition. A third is that the Respondent's offences were, in part at least, in order to feed his own addiction albeit it would not seem that he had a need to resort to crime to do this until after his inheritance was exhausted. In drug supply cases involving small quantities, a need to support an offender's own addiction has not infrequently been regarded as a mitigating circumstance although the consideration given to that factor in R v Henry (1999) 46 NSWLR 346 indicates that it is entitled to, at most, limited weight - see the discussion at [171 - 202, 212] per Spigelmann CJ, [215 - 259] per Wood CJ at CL, [ 278] per Newman J, [331] per Hulme J, [335 - 349] per Simpson J. While an offender in that situation is at least one who does not have the aggravating circumstance that he is preying on others just out of greed, he is one who, unless or until his addiction is cured, almost certainly imposes on the community a substantial need for protection. A fourth feature the Respondent can pray in aid of leniency is the prospect of rehabilitation to which reference has been made. Despite my reservations whether he took steps as early as the Pre-Sentence Report suggests, he had clearly taken some steps in that regard and his prior efforts, though he allowed his rehabilitation to lapse, also operate in his favour. A fifth feature, operating strongly in the opposite direction is the fact that the Respondent had previously been convicted of 2 offences of supplying heroin. 32 A consideration of the first offence on the Form 1 in the light of these subjective features shows how lenient the sentence imposed on the Respondent was. Given it was the Respondent's third offence of supply it is by no means clear that it would or should have been prosecuted summarily but, making the assumption that it would have been, the objective features argued for the maximum of 2 years imprisonment. The subjective features and the fact it was on a Form 1 argue for some reduction from this but as a third offence of supply, it is difficult to see how, if that offence stood on its own, a sentence of less than 18 months in total could have been justified. That is more than half the sentence Judge Hosking imposed for all of the Respondent's criminality, including the much worse offence charged and the supply cannabis offence on the Form 1. 33 There is some weight of authority in favour of sentences being determined by instinctive synthesis - see R v Whyte [2002] NSWCCA 343 and the cases therein cited. However, as one who has had to carry out the sentencing task both in this Court and at first instance, and to examine innumerable sentences imposed by others, my experience is that there are far more advantages in reasoning to a conclusion. I confess that in a significant number of the cases which come to this Court, the instinctive synthesis approach adopted in the cases under appeal have made me wonder whether figures have not just been plucked out of the air. Indeed that is what seems to have occurred in this case. His Honour, having referred to the objective and subjective features, including the Respondent's addiction and efforts towards rehabilitation, having expressed the opinion that the Respondent was entitled to a discount of 25% for his plea of guilty, and that he proposed to extend some leniency because Chung was treated very leniently, said simply "In my view, the starting point for this sentence would have been a sentence in the order of three and a half years but with the offender's plea of guilty, that translates to a sentence of thirty months, namely, two and a half years." 34 No reasons were advanced in support of the 3½ years figure or to explain why it was not 5, or 7 or 10 years. I acknowledge that, in many sentencing exercises, there will be an element of subjective choice or value judgment which it may be impossible to avoid but it seems to me far preferable that reasoning be apparent in respect of the more significant features than occurred in relation to what was his Honour's fundamental starting point. 35 Neither does it seem very satisfactory for me, sitting on appeal, simply to say "His Honour's instinctive synthesis was manifestly wrong. My instinctive synthesis leads to the view his starting point should have been 5 (or 7 or 10) years." 36 I appreciate that the more reasoning which is exposed, the more opportunity there is for error to be obvious but as s6(3) of the Criminal Appeal Act provides that unless the Court is of the view that some other sentence should have been passed, an appeal against sentence shall be dismissed, the exposure of reasons should not be unduly problem causing. In this case, as I have reasoned to a conclusion, it seems to me appropriate to indicate what those reasons are. 37 Had the Respondent's offence and circumstances fallen within the category of a worst case falling within the statutory provisions, the sentence should have been not less than the 15 years maximum for the offence of supplying an indictable quantity. I appreciate that the charge specified a commercial quantity, that the maximum period of imprisonment prescribed for that offence is 20 years and that the quantity involved in this offence was only a little more than 40% of the maximum commercial quantity. However, Parliament cannot have intended that, other things being equal, the penalty for supplying more than 250 grams should be less than for supplying that quantity. The absence of proportionality in the maximum sentences prescribed is perhaps partly explicable upon the basis that the severity of imprisonment is not simply proportional to its length. Having regard to the sorts of terms under consideration for drug dealing a sentence of one of the longer periods is liable to have an impact on an offender's life in terms of wife, children, job prospects and the like far greater than a sentence, say half as long. 38 But be that as it may, in face of the totality of the statutory provisions and the principles for which I have cited Veen v R (No 2) and R v Peel, it seems to me that the maximum prescribed for the supply of 250 grams is not too high a starting point. In Perrier v Richardson (No 2) (1991) VR 717, (1990) 59 A Crim R 164 at 168-9, the Victorian Court of Criminal Appeal thought the sentences prescribed for lesser quantities relevant to the sentence appropriate for higher quantities. 39 Given the circumstances of the offence and the Respondent there were in my view only 5 topics which operated or may have operated in any substantial way to remove the offence from a worst case category - his role, his plea, the finding of contrition, his addiction, and matters which fall within the topic of rehabilitation. 40 So far as the Respondent's role is concerned, he was of course not the principal and the charge was not to supply but only of being knowingly involved in supply. While at times he seems to have been no more than a chauffeur, on other occasions his role was substantially more significant. In light of the matters referred to in this paragraph, I would reduce my 15 year starting point by about 1/3. A number of factors lead me to the view that the reduction on this account should not be greater. These include the sorts of considerations spoken of in Le Cerf. They include also my view that the severity of sentences is not simply proportionate to length. They include the nature of the Respondent's activities and the fact that they extended over a much longer period than that during which a courier is normally involved. The conclusion derives some support also from the relativity between the maximum sentences available for importing heroin and the pattern of sentences imposed on couriers involved in the importation of quantities in the top part of trafficable quantities of that drug. Based on the decisions to which I referred, I concluded in R v Spiteri [1999] NSWCCA at [33] that 9 years out of a maximum of 16½ or 17 years seemed to be the pattern. Of course those figures show a greater difference than one third and if the comparison is to be made between the circumstances here and those in the cases to which I referred it is necessary to recognise the differences. I need not detail these but they include that most of those cases included a plea of guilty and I am not at this stage taking any account of such a plea of guilty. One must recognise also the difference in nature and extent of the Respondent's activities compared with those of persons regarded as couriers. 41 In R v Wong and Leung (1999) 48 NSWLR 340 at [84] the Chief Justice deduced a wider range - 6.5 to 10 years - for couriers of high range trafficable quantities but because one is not engaged in a precise mathematical exercise, I do not see the differences between my conclusions (and perhaps approach) and those reached by the Chief Justice as presently of significance. In any event the foundation for any comparison lies not in my or the Chief Justice's conclusions but in the cases to which we each referred. 42 One may accept Judge Hosking's conclusion that the Respondent's offending was in order to feed his own addiction but that increases, rather than reduces the community's need for protection. And in that connection, it must be remembered that when the Respondent resumed contact with Mr Caccamo, the Respondent was drug free. It is a reasonable inference that the Respondent's resumption of drug taking was a voluntary decision on his part - c.f. R v Henry (1999) 46 NSWLR 346 at 385 - made at a time when he must have been fully aware of many of the likely consequences. These sorts of considerations lead me to the view that the Respondent's addiction at the time of his offending provides no basis for reducing the sentence from that otherwise appropriate. 43 I have referred above to the Respondent's plea and its incidents. Both on account of its time of entry and the lack of complexity in any trial the plea avoided, it failed to meet the characteristics of those which, in accordance with the remarks of the Chief Justice in R v Thomson and Houlton (2000) 49 NSWLR 383 at [152-155] could be expected to result in a discount as high as 25% for a plea's utilitarian value or, since Cameron v R [2002] HCA 6, willingness to facilitate the cause of justice - but see Sharma v R [2002] NSWCCA 142. 44 However it is not entirely clear that his Honour was intending to reflect only those matters in his allowance of 25%. He did in the passage I have quoted also refer to the Respondent's contrition. In the circumstances, and perhaps as an incident of the discretion this Court has on a Crown appeal, I am disposed to allow the Respondent the 25% his Honour did but make it clear that it covers all credit the Respondent may be entitled to in consequence of the plea. 45 Operating in the other direction are the offences on the Form 1. I have said sufficient to indicate my view about them save and except that principles of totality have also to be taken into account. On account of the matters on the Form 1, particularly the first and second of these, I would increase the sentence otherwise appropriate by between 18 months and 2 years. 46 The Respondent's efforts towards, prospects of, and to some degree success in, rehabilitation are matters which merit specific attention. His Honour's view was that "there are some prospects" of rehabilitation. To the extent to which the Respondent's aims in this regard are achieved, the needs of the community for protection and the Respondent for personal deterrence will be less and the aim of rehabilitation served. As the Respondent's efforts to date in this regard would seem to have been appreciably more than token, I am disposed to reduce the sentence to a limited extent, but because the value of his efforts depends so much on their success, it seems to me that the topic should be reflected more in the non-parole period than in the head sentence. His efforts and prospects and the desirability of supervision amount to special circumstances. 47 Earlier I said that it was only the Respondent's role and plea, the finding of contrition, his addiction, and matters which fall within the topic of rehabilitation which operated or may have operated in any substantial way to remove the offence from a worst case category. There were of course other matters to which Judge Hosking was invited to have regard, in particular some evidence from the Respondent, a Pre-Sentence Report, and a number of references. Apart from matters to which I have referred, there was nothing in his evidence or the Pre-Sentence Report which has any appreciable significance. In the main the references go to provide some explanation of the circumstances which may have led to his addiction and to showing that, his drug addiction and its consequences and his criminality apart, he has attributes which would make him a worthwhile member of the community. 48 In this Court, an affidavit of the Respondent recording some further matters was read. Either alone, or in combination with the matters to which I have earlier referred, none of the evidence referred to in this or the immediately preceding paragraph takes the matters to which I have earlier referred further than I have indicated nor does this evidence have, to my mind, any material impact on the question of what should be a proper sentence. 49 Thus, on the basis of the matter to which I have referred, I would impose on the Respondent a sentence of 8 years. In proposing that figure I make it clear that in arriving at it I have taken account of the fact of the double jeopardy to which the Respondent has been subjected and selected a sentence which is the lowest that could reasonably be imposed. I would reduce the non-parole period from 6 years to 4½ years. 50 So far, I have approached the determination of the appropriate sentence by reference to accepted sentencing principles and what I see as the application of those principles to the circumstances of this case. However there are 2 further topics to which I should refer. The first is that although no argument was advanced on behalf of the Respondent to the effect that principles of parity required that there be limitations on the sentence to be imposed on the Respondent, such is the increase in sentence I propose that I have considered the issue. 51 Mr Chung, as has been said, received a sentence of 3 years imprisonment, including a non-parole period of 2 years, to be served by way of periodic detention. His offending was of the same character as the Respondents although less in extent. He apparently drove less and the quantity involved was not a commercial one. He had three matters on a Form 1 - being knowingly concerned in the supply of a prohibited drug, administering a prohibited drug and being in possession of equipment for administering drugs - but the last 2 of these are significantly less serious than those on the Respondent's Form 1. His record was substantially better, consisting of offences relating solely to drug use, not supply. 52 Given the magnitude of the differences between Mr Chung and the Respondent, I agree that no issue of parity between the sentences imposed on the Respondent and Mr Chung arises. 53 So far as Mr Caccamo is concerned, he was charged with supplying a commercial quantity of heroin and was sentenced to imprisonment for a term of 8 years with a non-parole period of 5 years. This Court has not been supplied with any of the details of Mr Caccamo's record, or of his subjective circumstances, or whether any additional matters were taken into account so we do not know what factors led Judge Shillington to impose the sentence he did. Certainly, by comparison with the statute it seems light for a professional drug dealer on an extensive scale. 54 Prima facie the differences in their roles - one the driver and assistant, and the other the principal - should mean that the sentence imposed on the Respondent should be appreciably less than that imposed on Mr Caccamo. However, the Respondent's offence was committed while he was on parole and at least part of the sentence I am inclined to impose reflects the criminality involved in the offences of the Respondent's Form 1. Given the considerations referred to in this and the immediately preceding paragraph, I do not see the sentence on Mr Caccamo as arguing against that which I have foreshadowed. 55 The second of these further topics to which I should refer arises from the statistics kept by the Judicial Commission. By comparison with those statistics, the sentence I propose is a high one. Those statistics show that, in the period from July 1995 to December 2001, there were 22 offenders sentenced in respect of the offence of being knowingly concerned in the supply of (not less than) a commercial quantity of heroin. 21 were sent to prison. The longest full term of imprisonment was 8 years, imposed on 2 offenders, and only 7 offenders received full terms of 6 years or more. The statistics indicate that all the persons referred to in the last sentence pleaded guilty and, except for one of the 7, had matters on a Form 1. 56 This comparison raises the question whether the sentence I propose is the lowest which should properly be imposed for the Respondent's offending but, having reflected on the question, I am satisfied that nothing less will properly reflect the considerations to which I have referred. 57 Accordingly, I would propose the following orders:- 1. Appeal allowed. 2. Quash the sentence imposed on the Respondent on 18 July 2002 by Judge Hosking. 3. In lieu thereof the Respondent is sentenced to imprisonment for a period of 8 years, such term to include a non-parole period of 4 years and 6 months, both such periods to commence on 18 July 2002. 4. Specify as the earliest date upon which the Respondent shall be eligible to be admitted to parole, 18 January 2007. 58 CARRUTHERS AJ: I agree with Hulme J.

R v MARKARIAN

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