R v OPA

• 22 - IN THE COURT OF CRIMINAL APPEAL 60120/04

GILES JA LEVINE J HULME J

Friday 17 December 2004 R v OPA Judgment 1 GILES JA: I have had the advantage of reading the reasons of Hulme J in draft. I agree with the orders his Honour proposes and, subject to the following observations, with his reasons. 2 The judge's sentencing miscarried because he took into account information not properly before him. If we are of the opinion that some other sentence was warranted in law and should have been passed, we must resentence (Criminal Appeal Act 1912, s 6(3)). It is necessary to consider what sentence was warranted in law and should have been passed. 3 When the Crown acknowledged that a trial would have been "a very very lengthy and complicated trial indeed", I would be reluctant to interpose some other view of the utilitarian value of the plea of guilty. The plea was at an early time, and taken alone would in my opinion attract a discount of 25 per cent. To that extent, in considering the appropriate sentence my view is more favourable to the applicant than that of Hulme J. 4 On the other hand, my view of an appropriate sentence prior to discounts is less favourable to the applicant. The amount of the ecstasy was much greater than that for which the legislature has ascribed a maximum penalty of imprisonment for life. Some indication of a scale at the top of which is imprisonment for life is give by the maximum penalty of twenty years imprisonment where the amount is not less than a commercial quantity. As Hulme J says, the applicant's role was not that of a principal, but it was substantial. Notwithstanding the guidance in a pattern of sentencing for other offences and on other facts his Honour has found and thought it proper, in the light of the Crown's position, to follow, I would take a higher starting point, of the order of 13 years. 5 These differences from his Honour balance out in the result. The sentence warranted in law was appealably less than that imposed by the judge, and the applicant should be resentenced as his Honour proposes. 6 LEVINE J: I agree with Hulme J. 7 HULME J: In June 2003 the Applicant for leave to appeal pleaded guilty at the Central Local Court to a charge that between 3 October and 7 November 2002 he did knowingly take part in the supply of a large commercial quantity of a prohibited drug. The drug is commonly known as MDMA or Ecstasy and the quantity involved was 3.1kgs. Pursuant to Section 25 of the Drug Misuse and Trafficking Act the offence carried a maximum penalty of life imprisonment and/or a fine of 5000 penalty units. 8 When the Applicant appeared before Judge Patten he adhered to his plea and on 12 September 2003 was sentenced to imprisonment for a term which included a non-parole period of 6 years and a total length of 8 years, both periods dating from 6 November 2002 when the Applicant was arrested. 9 The drugs, the subject of the charge against the Applicant were in two parcels. At about 9.45 on the evening of 6 November 2002 a vehicle in which the Applicant was being driven was stopped by police. The vehicle was found to contain approximately 2000 MDMA pills of various colours and descriptions. The total weight of the pills was 541.9gms. Later that night the police entered an apartment in the Century Towers complex where a search revealed some 8500 MDMA pills, again of a variety of colours and descriptions. These pills weighed 2604.3gms. 10 Evidence before Judge Pattern in the form of a statement of facts which was admitted without objection shows that the Applicant and a number of other persons had been under surveillance at least since early October. That statement provides clear evidence of an extensive operation revolving around the sale of MDMA pills. Those principally involved seemed to have been a Mr Chua, a Ms Dewind, and the Applicant, all of whom arrived on the same day from overseas, a Mr Lee of Sydney and someone referred to as "the boss" who also seems to have arrived in Sydney from elsewhere. 11 Intercepted telephone calls show the Applicant involved in conversations on the topics of the number of pills on hand, the proceeds of sale, the arrival of the boss, orders for pills and the sale of pills by the Applicant, where pills might be stored, packaging of the pills and shortages. Those calls make it clear that one of the Applicant's principal activities was to obtain orders for the drugs, physically supply the drugs in substantial quantities to persons who were interested in acquiring them and to receive moneys in return. He clearly knew of the quantities, or numbers of tablets, in which he was dealing. While it seems clear that the Applicant was obliged to pay over to Mr Chua much of the money he obtained by way of proceeds, records contained within a mobile phone found in the Applicant's possession indicated he was involved in the transfer of the money. Other records show some $29,300 transmitted from Australia into an account in his name in Singapore. 12 Having regard to the fact that the only drugs the subject of the charge against the Applicant were the 3.1 kgs to which reference has been made, there are limits on the use to which some of the evidence in the statement of facts can be put. However, that evidence can be used to indicate the nature of the Applicant's role in the enterprise concerned. As is apparent from the details in the immediately preceding paragraph, his role was a substantial one. At the time of the sentencing proceedings the Crown accepted that the Applicant was an underling of Mr Chua. 13 The above summarises the evidence by which the Applicant's criminality is to be judged. However, it appears from other material that later in November 2002 the Applicant agreed to help the authorities and provided other information on the condition that it would not be used against him. 14 It is unnecessary to set out at length the nature and extent of the Applicant's assistance. He has provided information by means of an ERISP and two signed statements and undertaken to give evidence against his co-offenders and any other persons for offences arising out of or connected with the drugs with which he was involved. The letter of comfort describes the information he provided as "vital", his co-operation "essential" and his willingness to testify as contributing greatly to the Crown case against his co-offenders. 15 So far as the Applicant's subjective circumstances are concerned, he was 39 at the time of sentencing and had no criminal record in Australia or overseas. His Honour referred to the Applicant being single and having no dependents. That is information which was not tendered in the proceedings and accordingly I shall disregard it. 16 At the time of sentence, the Applicant was then on special protection. Evidence tendered during the hearing of the appeal on the issues of discretion and re-sentencing if the Court reached that stage indicated that he is now in the Custodial Witness Protection Program and the Special Purpose Centre at Long Bay Correctional Centre. The evidence extended to the topic of the restrictions involved in that program and the details of services and facilities available to the Applicant. 17 It should be mentioned also that during the course of the sentencing proceedings, counsel appearing for the Applicant sought to rely on part of an induced statement of 16 March as indicating how the Applicant came to be involved in the transaction. According to those paragraphs the most the Applicant was expecting to be paid was between AUD$20,000 and $30,000 for his participation and the Applicant's motivation was to obtain funds to pay for kidney dialysis for two of his siblings. The need of one of these siblings for some dialysis was confirmed by medical records of February and March 2001. One of those records observed "renal function showed progressive deterioration". 18 The statement included the assertion, usual in witness statements obtained by the police that what was said was true to the best of the maker's knowledge and belief and it was attached to the Applicant's undertaking to give evidence in the course of which he also asserted that what was said in the statement was true. It should also be observed that there was no evidence before Judge Patten as to what other resources the Applicant had available to pay for the dialysis. In the same paragraph in which he said he needs money to help in this regard he also said that he had a business.

Ground 1 19 The first ground of appeal was that the sentencing Judge erroneously took into account information on a "Facts" sheet which was not tendered in the sentencing proceedings and which appears to have been on the court file. The Crown accepts the gravamen of this complaint. It cannot be said that information gleaned from the Facts sheet and quoted by his Honour was immaterial to his decision and in these circumstances the ground of appeal is made out. 20 That said, because they raise issues which require consideration by this Court in any re-sentencing of the Applicant, it is necessary to consider the other grounds of appeal.

Ground 2 21 This ground of appeal was that his Honour had failed to take into account, sufficiently or at all, the Applicant's contrition. What his Honour said on this topic was:- "I take the Prisoner's plea of guilty before the Magistrate as evidence, particularly when coupled with other matters to which I shall hereafter make reference, as indicating a degree of contrition on his part". 22 It is clear that the "other matters" to which his Honour referred were the Applicant's assistance to the authorities. But apart from his plea and assistance to the authorities and his undertaking to give evidence, there was no other evidence of contrition. The Applicant did not give evidence. 23 In these circumstances whether the Applicant was contrite depended upon whether an inference in that regard could be drawn from the matters to which reference has been made. In Holloway v McFeeters (1956) 94 CLR 470 at 477, Dixon CJ said that "(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." It may reasonably be inferred that from not long after the Applicant's arrest he was aware that he was facing the risk of a very substantial period of imprisonment and that there were significant advantages to be obtained by pleading guilty and assisting the authorities. It seems to me that these advantages are just as likely an explanation for his plea and willingness to assist as some genuine feeling of shame or guilt at his offending. There was no error adverse to the Applicant in his Honour's remarks which I have quoted.

Ground 3 24 The third ground of appeal is that the discount his Honour allowed "at the order of 15%" for the Applicant's early plea of guilty failed to give full effect to its utilitarian value. 25 In that regard attention is drawn to some parts of the remarks of the representative of the Crown at the sentencing proceeding. It is in my view appropriate to quote the passage in full:- "As the point on high utilitarian value, in this matter even had (OPA) not assisted the police in any way, there's probably little doubt that he would have been convicted. Certainly in respect of the 3 kilograms, I think it's probably doubtful that he could have avoided conviction, not matter what he did. But certainly, if a trial had to be run in this matter, it would have involved, as my friend averted, significant amounts of complex surveillance, a large quantity of listening device and telephone intercept product, and most of that was not only in a foreign language but in mixtures of foreign languages and it if there'd been any disputes or significant disputes about the translations of such it would be a very very difficult matter to run indeed. In fact, if that occurs, assuming the matter against Mr Chua does go to trial and significant agreement can't be obtained between the lawyers beforehand, then the matter will certainly be a very very lengthy and complicated trial indeed." (The paragraph is reproduced as transcribed.) 26 In R v Thomson & Houlton [2000] 49 NSWLR 383 the Chief Justice made it clear that in any determination of the discount to be allowed in a particular case, there were two particular matters which would generally affect the decision. One was the time at which a plea was entered. The second was the complexity of the issues about which evidence would have to be gathered and adduced. The trial of someone on a charge of knowingly take part in the supply of prohibited drugs found in his possession is not one which generally could be regarded as having any significant complexity. The matter becomes more complicated when one has regard to the fact that the 3.1 kilograms, the subject of the charge against the Applicant included not only the 541 grams found on him but approximately 2600 grams found in an apartment where he had been (and where other Asian occupants were also found). 27 However there were also the records of intercepted telephone calls in which the Applicant had participated. No doubt the fact that they were in a foreign language created a potential for disputes as to their interpretation but I remain unpersuaded that a trial of the Applicant would have been as difficult as the remarks of the Crown Prosecutor suggest. That said, 15% is very low for a plea entered in the Local Court and in my view, particularly as this Court is obliged to consider the sentencing of the Applicant afresh, the allowance should, subject to any other factors which may impinge on it, be 20%.

Grounds 4 and 6 28 In substance the fourth ground of appeal was that the sentence imposed failed to adequately reflect the discount the Applicant was entitled to for his assistance. The sixth ground of appeal was that a lesser sentence was warranted in law and, having regard to the way in which his Honour approached the matter, it is preferable to deal with these matters together. 29 His Honour took the view that an appropriate starting point for the sentence to be imposed on the Applicant was one of imprisonment for 16 years. As has been indicated his Honour took the view that a discount of 15% should be allowed for the Applicant's plea. His Honour went on to say that for assistance to the authorities:- "In my opinion a discount of the order of 50% would be justified. However, in terms of s23(3) of the Crimes (Sentencing Procedure) Act, that in my opinion would result in a sentence unreasonably disproportionate to the nature and circumstances of the offence. Accordingly, there should, in my opinion, be some upward adjustment." 30 As has been said, the sentence imposed was imprisonment for a term which included a non-parole period of 6 years and a total term of 8 years. Comparison of this with his Honour's starting point of 16 years indicates that the combination of discounts allowed for the Applicant's plea and assistance was 50% of that 16 years. A deduction of the 15% his Honour indicated he allowed for the plea indicates that the discount allowed for assistance was 35% of his starting point of 16 years or about 41% of the result of discounting that figure for the Applicant's plea. 31 Complaint is made about his Honour's approach of "upward adjustment" but there is no substance in this. Section 23 to which his Honour referred provides:- "(1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertakes to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence. (2) … (3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence." 32 Section 22 should be mentioned for completeness. So far as is relevant, it provides:- (1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account:- (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed. 33 Section 23(3) obviously imposes a restriction or limit on the discount that can be allowed under the section. By reason of the sub-section a court may feel disentitled to give a discount as large as the court would otherwise have done. Whether in these circumstances the court reduces the discount or simply makes "an upward adjustment" from the figure arrived at by applying the full discount is utterly immaterial. 34 Putting that issue aside, a logical starting point in any consideration of these grounds is the determination of the sentence or possibly the range of sentences which would be appropriate for the Applicant's offence in circumstances where there was no plea of guilty or assistance to the authorities. In that determination the appropriate starting point is the relevant terms of the Drug (Misuse and Trafficking) Act. In the case of methylendioxemethylamphetamine (MDMA) which was the drug involved in the Applicant's offending:- (i) Where the amount is not less than 0.5kg (a large commercial quantity) the maximum penalty is life imprisonment and/or 5000 penalty units (ii) Where the amount is not less than 0.125kg (a commercial quantity) the maximum penalty is 20 years imprisonment and/or 3500 penalty units (iii) Where the amount is not less than 1.25gms (an indictable quantity) and the matter is dealt with on indictment, the maximum penalty is 15 years imprisonment and/or 2000 penalty units. 35 The 3.1 kgs the subject of the charge against the Applicant was thus more than six times the 0.5 kilograms which Parliament saw fit to specify as the dividing line between commercial and large commercial quantities and approximately 24 times that which Parliament saw fit to specify as the dividing line between indictable and commercial quantities. 36 In addition to the statutory provisions it is also appropriate to bear in mind that, other things being equal, doubling the quantity is calculated to double the illegal profits for the principals engaged in drug dealing activity and if not to double, at least substantially increase the harm against which the relevant statutory provisions are directed and examples of which appear regularly in the courts. 37 The Applicant's offence rendered him liable to imprisonment for life. Uninstructed by authority I would have thought an appropriate starting point in any decision as to the sentence to be imposed upon the Applicant was that, or similar to that, which his Honour adopted. Twenty years is the term thought by Parliament appropriate for a worst case of a commercial quantity. Of course such a penalty would not in the ordinary course be imposed upon anyone involved in such a quantity who was not a principal in the operation and it is clear that the Applicant's role, while substantial, was significantly lower than this. However, operating in the other direction is the fact that the quantity with which he was involved was very substantially higher than the top of the commercial quantity range - six times as great. 38 As has been said, during the course of the submissions before Judge Patten, counsel appearing for the Applicant sought to rely on certain parts of one of the induced statements as setting out "the personal circumstances relating to (the Applicant) and how he became involved in this matter". Specific reference was made to a passage to the effect that the Applicant was expecting to be paid $20,000 to $30,000 as a commission for his activities. 39 Judge Patten did not say whether or not he accepted the assertion. It was not on oath. It was not capable of being tested in the proceedings before Judge Patten and it concerned the matter about which the Crown could not reasonably be expected to have any knowledge. Counsel's use of the statement means that one is able to conclude that the Applicant's likely reward was no less than the amount he had indicated. However, I do not need to rely on this. Commonsense would indicate that the Applicant was carrying out his activities for some reward - a matter also evidenced by the remission of $29,300 to a bank account in his name. Given the limited purpose for which I seek to use this fact, it does not matter that those moneys were presumably derived from activities other than the supply of the drugs the subject of the specific charge. 40 I do not ignore the fact that this was the Applicant's first offence. However, it was a naked commercial enterprise on his part deliberately undertaken for the rewards he thought it would bring. These factors are regarded as aggravating - Olbrich v R (1998) 45 NSWLR 538 at 544; R v Traicioni (1990) 49 A Crim R 417 at 419; R v Ramos [2000] NSWCCA 189 at [12]; R v Hameed [2001] NSWCCA 287 at [34]; R v Clark (unreported, CCA, 15 March 1990). The fact that an offender in the field of drug supply has a clean record is traditionally given less weight than in other fields and in my view this is certainly appropriate where the offending is constituted by conscious criminality undertaken for reward. Nor do I forget the suggested motivation of obtaining money to pay for his sibling's dialysis. There is in my view quite insufficient information upon which one could regard that, matter as entitled to any weight by way of mitigation. 41 For the purposes of determining this appeal, I have given consideration to a number of cases in the Court of Criminal Appeal which may provide an indication of the range of sentences generally imposed for offences similar to that committed by the Applicant. Most of these concern simple amphetamine rather than ecstasy but, providing allowance is made for the fact that a large commercial quantity of amphetamine is not less than 1 kilogram whereas a large commercial quantity of ecstasy is not less than 500 grams, and the bottom limits of commercial quantities display similar differences, I regard the amphetamine cases as comparable. There are far fewer cases concerning large quantities of ecstasy. 42 I have previously reviewed a number of these cases in Reardon (1996) 89 A Crim R 180 and see no need to repeat what I said there. Some later cases are referred to in a schedule hereto. It must be acknowledged that many of them are concerned with manufacture but, given the commercial nature of, and deliberation in, the Respondent's activities, I do not regard the fact of manufacture as in any significant extent a ground of differentiation. 43 Although I doubt if it is possible to reconcile all the sentences, when allowance is made for both the difference in drugs and quantities involved in the cases to which I have referred and in the statutory provisions, it does appear that, by comparison with all of the cases referred to in the immediately preceding paragraph, Judge Patten's starting point of 16 years was appreciably too high. Indeed the Crown Prosecutor virtually conceded as much. 44 As I have indicated, that was not my initial reaction. However, in the absence of detailed argument by the Crown seeking to support the 16 year figure, it seems to me that this is not the occasion to depart from the range of sentences displayed in the cases referred to in Reardon and in the Schedule hereto. By reference to that range, I am satisfied that Judge Patten's starting point was erroneously high and thus that error in the sentencing process is established. 45 In any determination of an appropriate starting point, account must be taken of the various matters relevant, including those referred to in s21A of the Crimes (Sentencing Procedure) Act. Given the limited ambit of contention within the written and oral submissions advanced in the appeal, it is unnecessary that I refer in any detail to these matters. Taking them into account, an appropriate starting point for the determination of the Applicant's sentence is 12 years. 46 I should add that, before arriving at that conclusion, I have also had regard to the Judicial Commission Statistics in respect of offences committed before 1 February 2003 (when the Standard Non-Parole legislation came into effect). The statistics relating to amphetamines and non-consecutive terms show (subject to their usual rounding):- (i) that of 17 cases involving the supply of a large commercial quantity, 6 offenders received sentences the total term of which exceeded 7 years, 2 received sentences of 10 years and there were no longer sentences. (ii) Of 8 offenders sentenced in respect of knowingly take part in the supply of a large commercial quantity, 2 offenders received a sentence of 6 years and the only higher sentence was of 8 years, imposed on one offender. (iii) Of 49 offenders who were sentenced to prison for the offence of supply of a commercial quantity, only 8 received sentences of over 5 years and the highest sentence was of 9 years, imposed on only 1 offender. (iv) Of 15 offenders sentenced in respect of knowingly take part in the supply of a commercial quantity, 4 offenders received a sentence of 4 years and the only higher sentence was of 6 years imposed on 1 offender. 47 The pattern relating to amphetamines and both consecutive and non-consecutive terms is not dissimilar. 48 The statistics relating to amphetamines and non-consecutive terms show:- (i) that of 15 cases involving the supply of a large commercial quantity, 5 offenders received sentences the total term of which exceeded 7 years, including 1 who received a sentences of 10 years and there were no longer sentences. (ii) Of 2 offenders sentenced in respect of knowingly take part in the supply of a large commercial quantity, both received a sentence of 30 months. (iii) Of 8 offenders who were sentenced to prison for the offence of supply of a commercial quantity, only 2 received sentences of over 3 years and the highest sentence was of 6 years, imposed on only 1 offender. (iv) In the case of 3 offenders sentenced in respect of knowingly take part in the supply of a commercial quantity, the sentences imposed were 18 months, 36 months and 42 months. 49 The pattern relating to ecstasy and both consecutive and non-consecutive terms is not dissimilar. 50 The statistics to which I have referred, reveal nothing concerning the facts of individual cases, not even whether the sentences recorded reflect discount for assistance. Nor, within the range of an offence, do the statistics indicate quantities. The statistics are thus of, at most, limited assistance. However they certainly raise the question whether there has not been systematic leniency in this area. To pick but one feature by way of example, it seems to me surprising that of 16 cases involving the supply of a large commercial quantity of ecstasy and 21 cases involving the supply of a large commercial quantity of amphetamines, only 4 should have resulted in sentences (consecutive and non-consecutive) of 10 years and there are none where an offender has received more than half the maximum penalty for the supply of (merely) a commercial quantity. 51 With the concurrence of the other members of the Court I expressed a similar view in Smiroldo (2000) A Crim R 47 at [21]. See also at [8]. However I need not pursue this. I am content to decide this appeal by reference to the cases to which I have referred. 52 I turn then to the topic of assistance. In R v Cartwright (1989) 17 NSWLR 243 the discount given for assistance was variously described as extensive and full and frank. A discount of 50% was allowed to an offender who had pleaded not guilty. In R v Chu (unreported, CCA 16 October 1998), this Court indicated that the discount given for assistance in New South Wales, with few exceptions, customarily ranges from 20% to 50%. The Court did not consider the inter-relationship between assistance and a plea of guilty. In R v El Hani [2004] NSWCCA 162 at [72]. Howie J, with whom Simpson and Bell JJ agreed, said that he doubted that a discount for assistance could amount to 50% or more, if given in addition to a discount for a plea. In R v PG [2001] NSWCCA 231 (a 2 judge bench), the offender's assistance was described by the sentencing judge as "quite extraordinary" and in this Court as "exceptional". Nevertheless, it was held that the discount for the plea and assistance should remain at the 50% allowed at first instance and not be increased to 60%. In S (2000) 111 A Crim R 225 the assistance was regarded as "of extremely high value and had the result of putting the offender's life at risk" and it was accepted that that risk existed even though the offender was in strict protection. 53 There are, of course, cases where a greater discount (or greater discounts) have been allowed - see e.g. R v Redward (unreported, CCA, 19 March 1992) and R v NP [2003] NSWCCA 195 where it was pointed out that discounts for a plea and assistance should not simply be added, but the discount for assistance should be applied to the result after the discount for a plea had been allowed. I confess I rather doubt that that is the only way that the discounts for these 2 matters can be applied but it is certainly important in any case to be conscious of both their separate and combined impact. As has been said, the discount allowed for the Respondent's assistance, although 35% of the starting point of 16 years, was approximately 41% of the figure arrived at by discounting the 16 years by 15% for the Applicant's plea (13.6 years). 54 And whatever that impact, there remains the requirement of s23(3). The section recognises that the result of applying a discount for assistance may be disproportionate to the nature and circumstances of an offence but says that the result must not be unreasonably so. When recognition is given to the evils at which the Drug (Misuse and Trafficking) Act is directed, the conduct in which the Applicant was engaged represented a very substantial assault on the welfare of the community. In my view, and subject to acceptance of his Honour's starting point and the 15% his Honour allowed for the Applicant's plea, there was no error on the part of his Honour in limiting the effect of the discount for assistance so that the result was a sentence of no less than his starting point. 55 I have reached the view that a proper sentence absent any discounts would be 12 years. Less 20% for the Applicant's plea the result is 9.6 years. Applying a discount of approximately 41% to that, the result is approximately 5 years and 8 months.

Ground 5 56 The fifth ground of appeal was that Judge Patten erred in failing to give consideration to the issue of, and to find, special circumstances in the Applicant's case. In fact his Honour made no mention of the topic but neither did counsel who appeared for the Applicant before Judge Patten. And even if his Honour had found special circumstances, it would not follow that he was obliged to effect a relativity between the non-parole and parole period different from that which was involved in his sentence. Indeed his remarks indicating a decision not to allow a 50% discount for assistance suggest his Honour may well have positively held the view that a non-parole period less than 6 years was inadequate. 57 The matters urged in this Court as constituting special circumstances were the suggested dependence of the Applicant's siblings on him, and the circumstances of his incarceration. One could add to these as circumstances perhaps deserving of consideration, the fact that the Applicant would seem to have needed an interpreter during the sentencing proceedings and that language difficulties are calculated to make his time in custody more difficult on that account, and that it was the Applicant's first time in prison. 58 I have remarked on the first of these and would not find that it constituted, alone or with other matters, special circumstances. Given the deliberateness of the offending and that the Applicant seems to have come to Australia to offend, nor would I regard the third and fourth matters mentioned in the immediately preceding paragraph as constituting or contributing to the existence of special circumstances or, even if they were, incline me to alter the relativity between the non-parole and parole portions of the Applicant's sentence. 59 The circumstances of the Applicant's incarceration merit further consideration. As to this he said in an affidavit filed for the purposes of the appeal:- "2. I have been in the Special Purpose Centre at Long Bay for most of the time I was in custody. 5. I am far more restricted here than I would be in the main jail. There are less educational courses and activities. There are no jobs available in this Centre. 6. 'Buy-ups' are restricted. For example, while I can buy tinned goods, I cannot buy fresh food. I have been told this is because of the possibility of poison." 60 In response the Crown relied on an affidavit by Gregory Bright, the Liaison Officer, Custodial Protection Programme. Mr Bright said participation in the program was voluntary, that the Applicant had access to a variety of services and activities which Mr Bright particularised. He said that the Special Purposes Centre had one of the highest participation rates in education within the Correctional system and had an in-mate employment profile consistent with other Centres on a percentage basis. Mr Bright said also that the Applicant's classification and changes thereto were not affected by being in the Centre although he would not be afforded day leave or work release programs so long as he remained in the Centre. 61 There was no cross-examination of either deponent. In these circumstances, it seems to me that the Court should approach the matter upon the basis that the Applicant's custody is more restricted and restrictive than were he not in protection, but the difference is not of major proportions except insofar as day leave or work release programmes are concerned and possibly in relation to employment. There is a clear dichotomy between the evidence on that topic which this Court is unable to resolve. Although the affidavit from Mr Bright asserts that participation in the Witness Protection Programme is voluntary, given the reasons for the existence of the program and the Applicant's participation in it, that is not a matter which is of any weight against the Applicant. 62 It should be mentioned also - and this was common ground - that the Applicant could be moved to another gaol and that conditions there may well not be as good as where the Applicant was at the time of the appeal hearing. 63 It is only a minority of prisoners who are on protection and in the circumstances of this case I am disposed to regard that fact as establishing the existence of special circumstances - c.f. R v Wahabzadah [2001] NSWCCA 253 at [19] where Howie J said that the fact that a person had placed himself in protective custody was not decisive of the existence of such circumstances. Nevertheless, I would not decrease the non-parole period below ¾ of the total term of the Applicant's sentence. To do so in addition to reducing the sentence in the way I have proposed would be to insufficiently punish him for his gross offending. 64

Accordingly, I propose the following orders:- 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the sentence imposed on the Applicant on 12 September 2003. 4. In lieu thereof, sentence the Applicant to imprisonment for a period of 5 years and 8 months, including a non-parole period of 4 years and 3 months, both such periods to commence on 6 November 2002. 5. Specify as the date upon which the Applicant shall be eligible for parole, 6 February 2007.

Schedule In R v Berl Larsson (unreported, CCA, 11 September 1997), the offender, although reluctant to see a laboratory for the manufacture of amphetamines in continuous operation, had been brought into a venture which involved the setting up the laboratory, visiting it periodically and in monitoring, guiding and training of another person in the procedures involved. The offender also provided some $54,000 to assist the venture. This Court proceeded on the basis that the laboratory was producing about 1kg of amphetamines per week for something under 2 months. The offender had no significant criminal record although his offending occurred while he was on bail. He suffered from some medical problems which led the sentencing judge to conclude that prison would impact on him very much more harshly than it would upon most prisoners.

The offender was entitled to some benefit from pleading guilty although this was only after he had had a previous conviction set aside on appeal. He was sentenced to imprisonment for a minimum term of 7 years, seven months of which overlapped a prior sentence, and an additional term of 5 years. Dismissing the offender's appeal, this Court said that he was fortunate the sentence imposed was not higher. (The offender in R v Cool was involved in the same venture but the facts found in each case differed.)

In R v English-Russell [2002] NSWCCA 179, this Court rejected a submission that a sentence of 9 years compared with a statutory maximum, as the sentencing judge had erroneously believed it to be, was not excessive for the supply of a quantity of ecstasy described as "in the low range for a large commercial quantity" when the offender was on bail for similar offences: A fortiori when the correct maximum of life imprisonment was considered. The offender had performed a significant role, although not a co-principal. She was 30 years old, regarded as "genuinely remorseful and contrite and had made an excellent start towards rehabilitation.

In Hodges (1997) 95 A Crim R 85 the offender had pleaded guilty to supplying a large commercial quantity of methylamphetamine, found to be 3 kgs. This Court held that the sentence of 7 years minimum and 3 years additional was proper but reduced it on grounds of parity. The provision of limited assistance was reflected in the 10 year term.

In R v Oldfield (unreported, CCA, 24 March 1998), the offender pleaded guilty to 4 charges. One was of conspiracy to manufacture methylamphetamine, some 14.3 kilograms with a street value of at least $4M being manufactured pursuant to the conspiracy. For this offence and 2 substantially lesser charges taken into account, the offender was sentenced to imprisonment for a minimum term of 11 years and an additional term of 3 years. For offences of (a) supplying 6 lots of 2.2 kilograms, the product of the manufacture, (b) possession of 3.1 kgs the result of another "cook" and (c) supplying part of the 3.1 kgs, the offender was sentenced to 3 fixed terms of 7 years imprisonment, concurrent with each other and with the sentence imposed on the conspiracy charge. The offender was of prior excellent character, provided assistance to the authorities and was regarded as unlikely to re-offend.

In R v Phillis (unreported, CCA, 16 July 1998) this Court allowed a Crown appeal and imposed a sentence of 4 years including a minimum term of 3 years on someone described as "a courier and perhaps not the principal player" who pleaded guilty to the supply of a large commercial quantity of amphetamine. The quantity involved was 2.8 kgs, 1kg being the upper limit of a commercial quantity. The sentencing judge was not persuaded that the offender showed genuine contrition. The sentence imposed reflected the discretion in this Court, was described as markedly lenient and not a yard stick for sentences at first instance.

In S (2000) A Crim R 225 the offender had pleaded guilty to taking part in the manufacture of not less than the large commercial quantity of amphetamines. There was no evidence otherwise enabling a finding as to what the quantity was. At the time of commission of the offence the offender was on bail and the offence was his second of the type. He became involved as a result of pressure from some criminal associates and was regarded as unlikely to re-offend. The sentencing judge also found that without the offender's confession and plea the Crown would have had difficulty in establishing the offence in relation to part of the drugs involved. This Court held that, but for the offender's assistance a sentence of less than 8 years would not have been adequate.

In R v Thompson [1999] NSWCCA 50, Thompson had pleaded guilty to manufacturing 795.6 grams of methylamphetamine. A second offence can be ignored. Finding a need to re-sentence, this Court imposed a minimum term of 5 years and 6 months and an additional term of 1 year and 10 months. Thompson was not regarded as having any significant criminal history but the sentencing judge would not conclude that Thompson was unlikely to re-offend.

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