Judgment
1 HOWIE J: The applicant pleaded guilty before a magistrate to four counts of supplying a prohibited drug and was committed for sentence to the District Court under the provisions of s 51A of the Justices Act. He adhered to his pleas before Judge Woods and also requested that his Honour take into account two matters on a Form 1 under the provisions of the Crimes (Sentencing Procedure) Act. The four offences before the District Court comprised one count alleging that between 18 January and 28 January 2000 he supplied not less than a commercial quantity of methylamphetamine and three counts each alleging that on 28 January he supplied a prohibited drug, each count relating to a different drug, being heroin (count 2), methylamphetamine (count 3) and cocaine (count 4). The two matters on the Form 1 consisted of a charge of supplying heroin on 20 January 2000 and a count of possession of cannabis on 28 January.
2 The maximum penalty prescribed for an offence of supplying not less than a commercial quantity of a prohibited drug, not being cannabis, is 20 years imprisonment with a fine of $320,000. The maximum penalty for each of the offences of supply is 15 years imprisonment with a fine of $220,000.
3 Judge Woods sentenced the applicant on the first count to imprisonment for 5 years to date from 28 January 2000 and specified a non-parole period of 3 years to expire on 27 January 2003. In respect of the second count his Honour imposed a sentence of imprisonment for 4 years to date from 28 January 2001 and fixed a non-parole period of 2½ years to expire on 27 July 2003. The sentences of a fixed term of 2 years imprisonment for each of the other two offences of supply were totally subsumed in the sentence imposed for the first two counts. The applicant, therefore, is eligible to be considered for release to parole on 27 July 2003. This is an effective non-parole period of 3½ years as against a head sentence of 5 years.
4 There are two grounds of appeal contained in the written submissions on behalf of the applicant although only one was pressed in oral submissions to this Court. Firstly, it is said that there is an unjustified disparity in the overall sentence imposed upon the applicant with those imposed upon others who might be considered to be his co-offenders; secondly, that having found special circumstances, his Honour failed to adequately reduce the non-parole period to reflect that finding.
5 It is necessary to consider briefly the facts of the matters before his Honour before considering whether any disparity arises justifying the intervention of this Court. The charges arose from a police investigation of the supply of prohibited drugs through premises known as the Underground Café in Kings Cross from November 1999 to January 2000. The premises were owned by persons named Vadja and Williamson. Drugs were stored in the office of the premises and distributed by staff members, one of whom was a doorman named McConochie. He placed orders on behalf of the café and himself from various suppliers one of whom was a man I shall refer to as G. During the police operation, evidence was obtained against the applicant by means of intercepted telephone calls and surveillance using an undercover operative.
6 The charge in relation to the supply of not less than a commercial quantity of methylamphetamine arose from negotiations between the undercover officer and the applicant about the supply of drugs to the operative by the applicant. In a recorded conversation between them on 18 January, the applicant admitted that he supplied drugs in what he described as "big amounts" to the café at cost price. The applicant told the operative that if he ever wanted "some pills" he should come and see him and he would sell a thousand or two thousand for the same price as he sold to the café. On 27 January the operative approached the applicant about the supply to him of some ecstasy tablets. The applicant handed 149 tablets to the operative by way of a sample and they discussed the supply of 1500 tablets to take place the next day. The tablets handed to the applicant were not in fact ecstasy but methylamphetamine.
7 On 28 January the applicant arranged to meet the operative to supply him with the 1500 tablets. Telephone calls were then made by the applicant in order to obtain the drugs. Later that day, after the applicant was seen to meet an unidentified male, he met with the operative and handed him 351 tablets, later found to contain 106.5 grams of methylamphetamine, and 1,175 tablets, found to contain 308.9 grams of that drug. The applicant received $30,000 from the operative in exchange for the drugs. This supply gave rise to the first charge.
8 The applicant was arrested shortly after this offence and taken to his home where police conducted a search of the premises. They found cocaine weighing 19.8 grams in two resealable plastic bags in a kitchen cupboard. Underneath a lounge, the police located a package containing 108.2 grams of 85 percent pure heroin. Inside a pair of running shoes in a bedroom cupboard was found a foil containing 42 tablets being 12.6 grams of methylamphetamine. The finding of these packages of drugs gave rise to the three charges of supplying those drugs, the Crown relying upon the deeming provision in s 29 of the Drug Misuse and Trafficking Act. Although those charges are referred to as deemed supply in the remarks of Judge Woods, they were themselves serious charges, particularly in relation to the high-grade heroin.
9 It was not argued either in written submissions or orally that the total sentence of 5 years is itself excessive and no realistic argument to that effect could have been made. Quite to the contrary, it seems to me, to be a sentence very much at the lowest end of what would be appropriate to meet the objective criminality and the need for general deterrence, notwithstanding the pleas of guilty which were entered by the applicant at an early stage in the proceedings against him. Judge Woods accepted that the applicant supplied the large amount of methylamphetamine to the operative as an intermediary acting on behalf of others. But when that fact is seen in the context of the earlier conversation with the operative and the giving of the sample, it was still a serious offence of supply for which the applicant had to receive a severe sentence. The applicant was fortunate in my view that the sentences for the other supply offences were made concurrent and only extended the non-parole period by 6 months. The offence of supply in relation to the heroin alone was an offence that, given the amount of the drug and its purity, would have justified a lengthy prison term even had it stood alone.
10 It follows from what I have just said that, in my view, a non-parole period of 3½ years was also a lenient sentence. This is notwithstanding that there was evidence before the sentencing judge that the applicant had himself become a drug addict through emotional and depressive problems. But he was a 34-year-old man who was clearly engaged in a commercial enterprise of drug trafficking even if it were accepted as being to finance his own addiction. He had a criminal record mainly for violence or breaching apprehended violence orders but significantly he had served a short gaol sentence before his arrest for these offences. He was involved in various courses while on remand awaiting sentence in order to address his anger and his abuse of drugs. But as His Honour noted, rehabilitation of the applicant was only one of the considerations in determining the sentence. I do not believe that any lesser non-parole period than that imposed by his Honour could possibly be justified regardless of what weight is given to the fairly unremarkable subjective considerations.
11 I turn now to the question of parity. In my opinion the argument is totally misconceived. The written submissions for the applicant contain the following statements:
"The applicant is one of a group of offenders most of whom have been dealt with by different judges of the District Court in respect of the sale of amphetamines ("ecstasy" and cocaine) from an establishment in Bayswater Road Kings Cross called "The Underground Café".
"The applicant was sentenced on the basis of his role in an illegal drug enterprise operating from a nightclub at Kings Cross described as the "Underground Café".