Consideration
32 To my mind the volume and frequency of the transactions confirm that the respondent was engaged in a significant drug enterprise in breach of the law. His purpose was profit from the sale of drugs which he expected would be distributed in the community. If I was sentencing at first instance I would have concluded that the offence was at least mid range. However, mindful of the statements of this Court that the determination of the objective seriousness of the offence is primarily a matter for the sentencing judge I would not for this reason have intervened to resentence. However, I will consider later whether the sentence imposed was appropriate even for a finding that the objective seriousness fell towards the "lower end of the mid range of objective seriousness."
33 The Crown complained that her Honour failed to comply with s 54B(4) of the Crimes (Sentencing Procedure) Act 1999 and adequately explain her reasons for concluding that there could be a departure from the standard non-parole period. In R v Mills [2005] NSWCCA 175 Wood CJ at CL said at [49] that a statement which gives a clear identification of the relevant factors, the weight given to them and their role in the structuring of the sentence is required. See also R v Walker [2005] NSWCCA 109.
34 In the present case her Honour was entitled to depart from the standard non-parole period by reason of the respondent's guilty plea: R v Way (2004) 60 NSWLR 168 at [68]. However, this was the only reason which justified a departure and there were matters which pointed the other way. The respondent was on conditional liberty at the time the supply offence was being committed. He has a lengthy criminal history. There was no evidence of remorse and her Honour found that she could not conclude that there were prospects of his rehabilitation.
35 The respondent emphasised that her Honour did give careful consideration to the finding which she made of special circumstances. Although this is true, beyond stating her finding as to where the offences lay on the spectrum of objective seriousness her Honour did not provide reasons for departing from the standard non-parole period. Although by reason of the guilty pleas the standard non-parole periods were not directly relevant they remained a "benchmark or guide post" for the sentencing judge (R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131; R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434.
36 The obligation to provide reasons for departing from a standard non-parole period was no doubt intended by the Parliament to ensure that unless reasons for departure could be identified and articulated, sentencing judges would impose the standard non-parole period. Because the standard non-parole periods identified by the Parliament are in many case greater than the range of non-parole periods which the courts were commonly imposing for the relevant offences it could be expected that, unless judges were required to give careful consideration to any reasons for departing from the standard, the impact of the standard non-parole period on sentencing regimes may be less than intended. This Court has remarked on previous occasions on the apparent failure in many cases of sentencing judges to have proper regard to and impose penalties consistent with, standard non-parole periods: R v Knight; R v Biuvanua [2007] 176 A Crim R 338. It is more likely that problems will arise when a trial judge does not comply with his or her obligations under s 54B(4). The reasons need not be elaborate but must make plain the matters which justify the departure.
37 In the present case, as I have indicated, there was only one matter, being the guilty plea, which justified a departure from the standard non-parole period. When the period of 10 years is compared with the non-parole period of 2 years and 9 months provided for the drug offence it is clear that the sentencing discretion has miscarried. This may not have occurred if the sentencing judge had exposed her reasoning process.
38 When delivering her remarks on sentence the sentencing judge stated that in relation to count 1 the starting point for calculating the sentence was 8 years but that she discounted that figure by 25% because of the plea of guilty resulting in a 6 year sentence. If, as appears likely, her Honour arrived at the 8 year period because this was a figure which was justified by the offence being at the lower end of the mid-range it is plain that error has occurred. The 10 year period provided by the statute is the non-parole period not the overall term. Appropriate regard for the standard non-parole period, even with a guilty plea, would have provided an overall term well in excess of 6 years.
39 The error which the Crown identified is similar to that which occurred in R v Burgess [2006] NSWCCA 319. But for the plea of guilty the non-parole period in the present case should have been close to the standard non-parole period of 10 years which was the position in Burgess. By providing a non-parole period of 2 years and 9 months her Honour has imposed a sentence which was grossly inadequate and which requires the intervention of this Court.
40 The Crown submitted that the offence of selling a pistol to an unauthorised person was also an offence of significant seriousness. Although her Honour said that a lack of information meant that she could not determine where the offence lay in relation to the mid-range of objective seriousness she nevertheless concluded that it was a matter of significant seriousness. It was submitted that by so doing her Honour erred.
41 The prohibited pistol the subject of the charge was a .22 calibre Ruger pistol which was found with 96 rounds of ammunition. The weapon was in working order and as her Honour found could inflict a lethal wound upon any human being. The evidence before her Honour confirmed that it was a pistol as defined in s 41 of the Firearms Act and was of a self-loading type.
42 Her Honour's conclusion that she was not able to say where the offence lay on the mid-range of objective seriousness, because she had limited information about the pistol is at odds with the evidence which was before her. Her Honour received the expert certificate confirming the nature of the weapon and there is nothing in the Firearms Act which distinguishes different sorts of pistols making the sale of one a more serious offence than the sale of another. The respondent was an active drug dealer and the evidence before the sentencing judge indicated that he had been engaged in a number of conversations about the supply of prohibited weapons. This offence was not an isolated act of criminality.
43 The sentencing judge found that the second firearm offence was less serious than the first only because the pistol was never supplied. The reason for the pistol not being supplied was that the respondent was arrested and the criminal enterprise accordingly interrupted. However, the sale had been agreed. It was only the delivery of the weapon which was not completed.
44 With respect to both firearm offences the respondent submitted that because the respondent was a principal but in the nature of an agent for the sale of the weapons his offending fell below the mid-range. It was submitted that it was apparent from the fact that there was a delay between when the undercover officer requested a firearm and its supply that the respondent played only a minor part in any illegal gun supply activity. The respondent stressed that there was no evidence of any significant profit to the respondent from these transactions.
45 I am satisfied, that the Crown's submission, that there was sufficient known about the weapon to enable the sentencing judge to make a finding of the effective seriousness of the offence is made good. The weapon was appropriately described and its lethal nature adequately explained. However, the objective seriousness of the offence depended in part upon the respondent's role in the gun supply activity. I am satisfied that the evidence proved that the respondent was an agent for others who were engaged in the business of illegally supplying weapons and for this reason his offending fell below the mid-range.
46 The Crown submitted that the sentencing judge erred by setting a fixed term for the 2 firearm offences and failing to impose a non-parole period. The submission derives from s 45(1) of the Crimes (Sentencing Procedure) Act 1999 which provides that other than for an offence for which there is a standard non-parole period a court may decline to set a non-parole period. This has been interpreted so as to require the sentence for an offence for which a standard non-parole period is provided to impose both a period of full time custody and a period on parole: see SCJ v R [2008] NSWCCA 258 at [76]; Ku v R [2008] NSWCCA 258; Graham v R [2008] NSWCCA 309; KC v R [2009] NSWCCA 110.
47 It was conceded in the present case, as it was in those earlier decisions, that the sentencing judge erred. In those circumstances whether that concession has been rightly made need not be determined. However, I note that s 45(1) is concerned with the circumstances where a court may decline to set a non-parole period for an offence where a standard non-parole period has not been provided. It is not concerned with offences where a standard non-parole period has been set.
48 The Crown submitted that each of the errors which I have discussed all contributed to entirely inadequate sentences being imposed. The respondent accepted that all of the sentences fell at the low end of the appropriate range. The respondent emphasised that during the course of the proceedings the sentencing judge indicated that she had looked at relevant statistics and considered that the non-parole period for the drug offence fell within a range of 2 to 4½ years and for the gun offences within the range of 1 or 2 years. The prosecutor did not take issue with these statements. For this reason it was submitted that if, as has been submitted on the appeal, sentences within the range suggested by her Honour were manifestly inadequate the Crown had a duty to assist the sentencing judge to avoid appellable error. It was submitted that as this did not occur the court's discretion to refuse to intervene despite the error demonstrated was enlivened, See R v Chad unreported 13 May 1997 NSWCCA.
49 The principles which have traditionally applied to a Crown appeal against sentence are well known. They were summarised in R v Wall (2002) NSWCCA 42 at [70]. However, following the enactment of the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009 those principles have changed. Although considerations relating to matters of double jeopardy are no longer relevant this Court retains a discretion not to intervene: R v JW [2010] NSWCCA 49.
50 In the present matter I am in no doubt that error has occurred. Both the individual sentences and the total sentence are substantially below that which was appropriate. I acknowledge that when the sentencing judge received submissions in relation to sentence she indicated the range which she had in mind as being appropriate and the Crown prosecutor did not demur. Although in some circumstances a discussion between the prosecutor and the judge may be of such significance that this Court for that reason could determine that no error had occurred that was not this case. Passive acquiescence by the prosecutor cannot lead to a finding that no error has occurred when the sentence, as in this case, fell so significantly below that which was appropriate.
51 Although before the amending Act sentences at the lowest end of the range should be imposed by this Court this is no longer the case: R v JW [2010] NSWCCA 49. With respect to the drug offence her Honour found that offence to be at the lower end of the mid-range of objective seriousness. The respondent pleaded guilty and her Honour found that he was entitled to the full 25% discount for that plea. The amount of prohibited drug was more than twice the minimum and involved ten episodes of supply and the sentence for this count must have regard to the matters on the Form 1.
52 There is nothing of particular significance in the respondent's subjective case. The offences were committed for profit, the respondent being a non user of either alcohol or drugs.
53 To my mind the appropriate sentence for the first count, having appropriate regard to the standard non-parole period as a guide and mindful of the matters on the Form 1, was a non-parole period of 6 years with an overall term of 8 years.
54 I have already indicated that to my mind the firearm offences fell below the mid-range of objective seriousness. However, even though the respondent was effectively acting as the middle man the offences were serious and call for a significantly greater punishment than was imposed by her Honour. Although, of course, they were separate criminal acts I would, as did her Honour, propose concurrent sentences for these offences. There were also the offences on the Form 1 which required consideration, although of less significance having regard to their relationship with the principal offences. For these offences I would impose a non-parole period of 4½ years with an overall term of 7½ years.
55 Totality is a difficult issue. Making the penalties for the firearm offences concurrent provides the respondent a significant benefit. With that in mind I would commence the sentence for those offences four years before the completion of the non-parole period of the sentence for the first count.
56 The sentencing judge found special circumstances which in my opinion was appropriate. The respondent will need a period of supervised relief if he is ever to establish himself as a responsible member of the community. In resentencing I have had regard to the affidavit material tendered by the respondent.
57 The orders I propose are: