(d) deemed supply of cocaine.
16 Judge Armitage determined that but for assistance given to the authorities he would have sentenced Ganem to ten years imprisonment by way of head sentence with a non parole period of six years for each of the conspiracy charges. However, because of assistance given, Ganem was sentenced to imprisonment for five years on the first two counts to be served concurrently and on the third count to imprisonment for eighteen months, also to be served concurrently. The judge fixed a non parole period of three years on each of the conspiracy counts and one of ten months on the third count.
17 Mr Stanton here argued that Acting Judge Dalgleish, having first considered that the parity principle was attracted, fell into error in the adjustments that he made from a starting point of a head sentence of ten years. Firstly, it was submitted that Ganem had pleaded guilty to two counts of conspiracy whilst the applicant had pleaded guilty to only one count of supply heroin. Secondly, Ganem's criminal activity extended for a period of twelve months and not only the lesser period expressed in the supply count to which the applicant pleaded guilty.
18 I shall return to this parity question later, but at this point I observe that it seems to me that the learned judge fell into error in his approach to his sentencing task. His Honour appears to have adopted the approach of taking as a starting point the sentence imposed upon Ganem and then deciding what departures from such sentence were warranted. In my view, that approach was incorrect. I shall return to this presently.
19 Turning to the submission as to the discount for the plea, Acting Judge Dalgleish concluded that nine years would have been an appropriate sentence having regard to parity but that, taking into account the Form 1 offence, he should fix a term in totality of eleven years and then allow one year discount for the plea. On my calculations, this was a discount of the order of nine percent and Mr Stanton has submitted that that was too little. He submitted that this was a plea entered at the first available opportunity.
20 The applicant entered his plea in the District Court on 15 March 2002, some ten months after Ganem had entered his guilty pleas in respect to the offences for which he was convicted. It is significant that the applicant's plea was entered after a committal at which several witnesses, including Ganem, were called to give evidence. At that time the applicant was facing charges of conspiracy, both in relation to the supply of heroin and in relation to the supply of cocaine. The plea that was entered followed negotiations after the applicant had been committed for trial. At the same time the agreement to deal with the cocaine offence on a Form 1 was reached.
21 It is to be recognised that the applicant's plea was entered as soon as possible after the Crown charged him with supply of heroin, and agreed to have the cocaine offence addressed on a Form 1, but it is, to my mind, unrealistic to ignore the earlier necessity that arose for the earlier committal proceedings. There is no rigid principle to be drawn from Thompson (2000) 49 NSWLR 383 as to the quantification of the discount attracted by utilitarian considerations upon a plea of guilty. Circumstances of a particular case, as well as the timing of the plea, have to be considered. Although the committal proceedings had not been avoided, there was doubtless a significant utilitarian outcome because of the applicant's plea, and I do not consider that this was adequately allowed for in a discount of the order of nine percent. In my opinion the appropriate discount was of the order of twenty percent.
22 I return now to what I touched upon earlier as to what I regard as the error in the approach taken in determining the starting point for this sentencing exercise.
23 Rather than starting with a consideration of the approach taken by Judge Armitage in his sentencing the offender Ganem, the correct approach in my view would have been firstly to arrive at a sentence otherwise considered appropriate, giving due weight to the objective gravity of the offence and the relevant subjective features, including those features attracting a discount for utilitarian considerations. Having thus arrived at a contemplated sentence, it would then have been appropriate for the learned judge to consider the issue of parity. I do not consider that the judge was correct here to take a starting point of a head sentence of ten years with an adjustment of one year for the cocaine offence. In my opinion, giving due weight to the objective gravity of the applicant's criminality, the starting point should have been significantly more than ten years. Not only was the applicant to be sentenced for the supply of heroin, but the Form 1 offence was also extremely serious and due consideration for this additional offence gave rise to a need to increase the sentence so as to appropriately bring into account its commission. This need was to be met by giving greater weight to personal deterrence and the community's entitlement to extract retribution: see Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999, No. 1 of 2002 [2002] NSWCCA 518, and in particular the judgment of the Chief Justice at para 42.
24 In my opinion an appropriate starting point before applying a discount of twenty percent was a term of fourteen years. After a discount of twenty percent, this would have resulted in a sentence of eleven years two months.
25 It is at this point of the sentencing task that the issue of parity properly fell to be considered. The criminal activity to be reflected in the sentences imposed on the offender Ganem exceeded that in the case of the applicant having regard to those features referred to earlier in paras 15 and 17.
26 Of course, the fundamental distinction to be drawn in comparing Ganem's case with that of the applicant is that in Ganem's case the sentencing judge gave him a fifty percent discount for assistance to the authorities. In considering what discount he ought to give for assistance to the authorities, Judge Armitage described the assistance given as "substantial" and added that it was offered not only in respect of the drug offences but also in respect of a shooting charge. Having considered the content of Ganem's statement to the police which was before the sentencing judge, it is altogether understandable that Judge Armitage gave him such a large discount for his assistance. His Honour was satisfied that in giving that assistance the offender was placing his own life in jeopardy and that the assistance would of course impact upon the circumstances in which Ganem would have to serve his sentence. However that substantial discount for assistance was reflected in the reduction of the head sentence from ten years to five years, and the reduction of the non parole period from six years to three years.
27 Whilst the assistance factor attracting the fifty percent discount present in Ganem's case is not present in the applicant's case, proper regard should be had in considering the parity principle to the ten year period of imprisonment and the six year non parole period first arrived at by Judge Armitage. However, avoidance of sentencing disparity for this applicant would, in my opinion, be achieved by arriving at a head sentence for him of ten years imprisonment, and, of course, this was the head sentence imposed by the sentencing judge.
28 The non parole period set for the applicant must also be considered. The judge here imposed a non parole period of seven years six months compared with the non parole period of six years first arrived at by Judge Armitage. It seems to me that a reasonable person looking at the circumstances of this case would consider the applicant would have a justifiable sense of grievance if that period of seven years six months by way of non parole period was allowed to stand.
29 In deciding in Ganem's case that a non parole period of six years would have been appropriate but for the assistance factor, Judge Armitage took into account