HIS HONOUR: Patrick Kishor Singh appears today for sentence in relation to seven offences for which he has been committed for sentence to this court. The offences were variously committed by him between early to mid-May 2007 and on or about 21 or 22 December 2007. In considering, obviously, the appropriate sentences, many things have to be taken into account, but one thing that needs to be taken into account in the context of consideration and totality of criminality is the relationship of offences one to the other and, of course, the period of time over which they are committed. This is not a case of sentencing a man in relation to what can fairly be said to be a large number of offences committed over a relatively short period of time.
There are in addition, a large number of matters on four Forms 1. There are separate Forms 1 which I will identify shortly in respect of four of the committal for sentence matters, I will provide particulars of those charges shortly. In identifying the specific charges, I will briefly describe them, but also ascribe to the relevant charge the sequence number as it is disclosed in the Crown cover sheet. The relevant orders to be made obviously will be made by reference to those sequence numbers which attach to the court attendance notices produced to this court upon which the prisoner was committed for sentence to this court.
Although there has been considerable delay in relation to this matter in New South Wales as well as since the offences were committed in circumstances I will outline shortly, in bearing in mind the complicated character of the offending and the offences charged, the manner in which the various offences have been structured and other features, I accept the prisoner has pleaded guilty at the first reasonable opportunity. In respect of each matter requiring the fixing of an appropriate sentence I have granted the prisoner a discount of 25% upon the otherwise appropriate sentence to be imposed by regard to the guideline judgment on assessing a discount for the utilitarian value of pleas of guilty of R v Thomson and Houlton (2000) 49 NSWLR 383. The committal for sentence offences in sequence are firstly an offence of supplying a large commercial quantity of a prohibited drug, to wit, methylamphetamine on or about 15 May 2007, this is Sequence 1. This offence carries a maximum penalty of life imprisonment and has a standard non-parole period of 15 years imprisonment. The Crown cover sheet provided to me, which was materially inaccurate in other respects, has not provided me with the relevant number of penalty units. I am advised it could be as high as 5,000 penalty units, it certainly would be no less than 3,500 penalty units. It is a matter of little significance in this exercise.
In respect of that committal for sentence matter, there are five matters on a Form 1. Sequence 3 of the Court Attendance Notices is the first matter on that Form 1 relating to supplying not less than a commercial quantity of a prohibited drug, to wit, 280 grams of cocaine on or about 13 May 2007. This is an offence, if charged principally, contrary to s 25(2) Drug Misuse and Trafficking Act (NSW) 1985 and would, if dealt with for sentence, carry a maximum penalty of 20 years imprisonment with a standard non-parole period of ten years. Sequence 5 is on that Form 1. It is an offence of supplying an indictable quantity of cocaine on or about 25 July 2007, contrary to s 25(1) of the Act. It involves the supply of 168 grams of cocaine. It would carry a maximum penalty for that offence of 15 years imprisonment if charged as a "principal" offence. The next matter on this particular Form 1 is Sequence 9, supplying an indictable quantity of cocaine, to wit, 84 grams on or about 12 August 2007. Sequence 11 is an offence of supplying an indictable quantity of methylamphetamine although less than a trafficable quantity of 0.84 grams on or about 4 November 2007. The last matter on the Form 1, relating to the Sequence 1 offence, is an offence of supplying an indictable quantity of the prohibited drug, cocaine, on or about 6 December 2007, to wit, an amount of 41.1 grams. In relation to that matter on the Form 1, I think it is just worth noting at this point in passing that a person whose name figures prominently in the 30-odd pages of facts that I was provided in this matter, Igor Polikov, apparently was sentenced by his Honour Judge Walmsley on 20 May 2011 on one charge of supply prohibited drug, "deemed supply", for which he apparently was sentenced as I can best can work out to two years seven months and four days imprisonment with a non-parole period of one year seven months and four days being released on the date of sentence. On the information available to me, he is the only person who has been sentenced to a specific term of imprisonment referrable to offences with which I am concerned. I am mindful, of course, that he was sentenced for a common offence for which this offender appears on the Form 1. It reflects, it must be fairly said, the seriousness of the offending of the prisoner, in context, but it also reflects given the facts available to me some failure on the part of someone to properly prosecute Mr Polikov given his alleged involvement in other offending with which this prisoner has been charged. As to the reasons for him facing only one charge I have absolutely no idea.
In respect of the second matter, if I might call it that, for sentence, that is, a committal for sentence matter described as Sequence 2, "knowingly take part in the supply of a prohibited drug, to wit, MDMA on or about 11 May 2007", that offence contrary to s 25(1) of the Act as I earlier indicated carries a maximum penalty of 15 years imprisonment and/or a fine of 2,000 penalty units. There is no Form 1 in relation to that matter.
The next committal for sentence matter is an offence which is described as "supply not less than a commercial quantity of a prohibited drug", to wit, cocaine on or about, as I understand it, 13 May 2007. This is Sequence 6. This offence carries a maximum penalty pursuant to s 25(2) of the Act of 20 years imprisonment with a standard non-parole period of ten years imprisonment. In relation to that matter, as I understand it, there is no Form 1.
The next committal for sentence matter is an offence of taking part in the manufacture of a prohibited drug or attempting to manufacture a prohibited drug. It is Sequence 12. It is an offence contrary to s 24(1) of the Act and carries a maximum penalty of 15 years imprisonment and/or a fine of 200 penalty units. There is no standard non-parole period for that offence. That matter has matters on a Form 1 directly and intimately bound up in the offending. That cannot be said, it must be pointed out, of the offences on the Form 1 in relation to the Sequence 1 offence.
In respect of the Form 1 concerning the Sequence 12 offence the charge concerned with manufacturing methylamphetamine, the two matters on the Form 1 are Sequence 23, possessing a precursor with intent to manufacture, to wit 50.4 kilograms of iodine and Sequence 24, again of possessing a precursor with intent to manufacture, to wit as I understand it 19 kilograms of hypophosphorous acid, although the facts reveal the prisoner's possession of other material which I will refer to shortly.
The next committal for sentence matter is Sequence 13, an offence of offer to supply a prohibited drug, to wit not less than a large commercial quantity. This carries the same maximum penalty as the sequence 1 offence. There is no Form 1 on that matter.
The next committal for sentence matter is an offence of possessing an unauthorised pistol contrary to s 7(1) of the Firearms Act (NSW) 1996 which at the time carried a maximum penalty of 14 years imprisonment with a standard non-parole period of three years imprisonment. That standard non-parole period has in early 2015 been raised to four years, but does not apply to this offence, being committed in 2007. There is a Form 1 relating to that offence including Sequence 18, possessing a prohibited weapon, to wit a push knife, Sequence 19, possessing a prohibited weapon, to wit a replica pistol and Sequence 20, possessing ammunition without licence or permit. That is an offence contrary to s 65(3) Firearms Act (NSW) 1996 and the first two matters are offences contrary to the Weapons Prohibition Act (NSW) 1998. A further offence, Sequence 22, of possessing a prohibited weapon (s 7) Weapons Prohibition Act (NSW) 1998, that is possessing a silencer, is on the Form 1.
The last committal for sentence offence and the last offence in time is an offence of supplying not less than a commercial quantity of a prohibited drug, the Crown relying upon the deeming provisions given the fact that the drug was uncovered by police whilst the accused was in South Australia. That is an offence contrary to s 25(2) of the Act and carries a maximum penalty of 20 years with a standard non-parole period of ten years. In respect of that offence there are two offences on a Form 1, Sequence 26, supply an indictable quantity of a prohibited drug, to wit 167,69 grams of cocaine and Sequence 27, supplying an indictable quantity of a prohibited drug, to wit 3.42 grams of methylamphetamine.
It has taken over ten minutes simply to read onto the record, as I am required to, the specific charges for sentence and the matters on the Form 1. With regard to the matters on the Form 1, to anticipate a matter that will be briefly referred to from the very helpful submissions of learned Senior Counsel for the prisoner, I am required in sentencing the offender in respect of principal offences to which are attached matters on a Form 1 to have regard primarily to the guideline judgment of the Court of Criminal Appeal in relation to sentencing and taking into account matters on a Form 1, known as Attorney General's Application No 1 of 2002 (2002) 56 NSWLR 147.
That was a wide-ranging discussion upon the relevance of Form 1 matters when sentencing in accordance with the relevant provisions under the then Crimes (Sentencing Procedure) Act (NSW) 1999, which itself will hereinafter be referred to as 'the Act' in the appropriate context. The Court there held that the fact that there are matters to be taken into account on a Form 1 means that usually greater weight should be given to the need for personal deterrence and the community's entitlement to extract retribution. The Court pointed out the entire point of the process is, to use my words, usually to impose a longer sentence or to alter the nature of the appropriate sentence for the principal offence that would have been imposed if the principal offence had stood alone. The Court said ([18]) that it was wrong to suggest that the additional penalty should be small, sometimes it will be substantial. The Court, however, noted that the sentencing process is, as was pointed out by learned Senior Counsel for the prisoner, only concerned with the principal offence, not to determine appropriate sentences for matters listed on a Form 1 or determine an overall sentence that would be appropriate for all the offences and apply a discount giving appropriate weight to the matters referred to above.
The Court observed that "(deterrence and retribution) are entitled to greater weight than they may otherwise be given when sentencing for the primary offence." The Court pointed out by reference to the then current legislative provisions that there are matters that limit the extent to which this will be so, for example the primary matter being the maximum penalty for the primary offence. The concept of totality in a sense is, of course, another and that is a very significant matter in this sentencing exercise. It would be rarely appropriate for a sentencing judge to attempt to quantify the effect of a sentence from taking into account Form 1 matters and it is interesting to note that that observation in 2002 was followed by the observations of the High Court in the decision of Markarian v R [2005] HCA 25, specifically criticising any endeavour to in some mathematical way calculate a particular matter to be taken into account in the sentencing task. It is underlying all sentencing tasks the need for the sentencing judge to instinctively or intuitively synthesise all the relevant material save for the special examples of providing discounts for the utilitarian benefit of the pleas of guilty and discounts for cooperation and the like.
In the decision of the Court of Criminal Appeal, to which I have referred concerning Form 1 matters, their Honours also noted that offences included on a Form 1 will have a significantly lower salience in the sentencing process for various reasons. That a judge must be careful to assess whether it is appropriate to proceed to sentence on a basis that would otherwise bring the administration of justice into disrepute by sentencing a person guilty of a course of conduct on a "manifestly inadequate, unduly narrow or artificial basis" (see generally [18] [44]). As I said in passing, learned Senior Counsel for the prisoner in her written submissions took the Court to a range of other subsequent authority dealing with the issues that relate to sentencing for Form 1 matters. She extensively quoted in fact from a decision of Abbas & Ors [2013] NSWCCA 115, particularly in the judgment of the learned Chief Judge at Common Law, Justice Hoeben, which matters I have also taken into account.
There was an extensive statement of facts running to 30 pages. The reproduction of it in full would be of no useful purpose to this judgment. It goes without saying, of course, that all of its detail has been taken into account, and much of its detail will need to be referred to in passing or directly in assessing the offending of the prisoner that I am required to consider.
What the facts reveal in a global fashion is that the prisoner was intimately and extensively in 2007 involved in the trafficking of prohibited drugs, particularly methylamphetamine and cocaine. This was commercial trafficking of substantial quantities. In that regard, of course, the Court is well familiar with that line of authority that often comes into play in dealing with much smaller quantities, but still indictable quantities, that is said to have commenced with the decision of Hunt J in Clark (unrep, 15/3/90, NSWCCA). That has been considered very closely in a range of other decisions of the Court of Criminal Appeal including Regina v Gu [2006] NSWCCA 104, R v Gip [2006] NSWCCA 115, Fayd'herbe v R [2007] NSWCCA 20 and recently in Polley v R [2015] NSWCCA 247 amongst many other cases.
This offending with which I am concerned raises no fine consideration of whether full time custody is appropriate or whether there is a need to consider "exceptional circumstances" that might prevent a person being sentenced to full time custody. In the context of the terms of s 5(1) of the Act there is no doubt that a substantial term of imprisonment is required to be imposed.
The prisoner was arrested in South Australia, as I can best work out on 22 December, in the course of, as I would understand it from the facts upon which he was sentenced in South Australia, endeavouring with others to distribute, that is traffic, slightly less than 600 grams of methylamphetamine and 600 grams of cocaine. His arrest in South Australia was in fact the culmination of many months of patient and skilled investigation by the New South Wales Police Force.
On his arrest in South Australia, search warrants were issued in New South Wales which led to the search of the prisoner's home and other premises, particularly storage premises, that were said to be associated with the prisoner. These searches led to the ultimate charging of the prisoner with not only offences for which he has been committed for sentence, but offences that appear on the Forms 1 at various places, particularly committed in the period 21-22 December 2007 while the prisoner was in South Australia.
Coming back to what I have described as the first offence, otherwise described as Sequence 1, for which the prisoner was committed for sentence, this concerns the supply, as can best be estimated in the facts, of one kilogram of methylamphetamine. The facts reveal a number of intercepted telephone conversations between the prisoner and others, whose names I need not read onto the record, in the period of time between 7 May up until 15 May 2007. The conversations included discussions about the cost of the methylamphetamine, which would be up to $185,000 per kilogram in respect of that transaction.
The arrangement ultimately negotiated involved the purchase of a kilogram of methylamphetamine for $180,000 by the prisoner, perhaps on behalf of others, and then on selling it for $195,000, representing a profit to him of $15,000. The facts reveal the purchaser from the prisoner eventually complained about the quality of the drugs, and the facts state that he was "aggressively seeking" to have his money returned. Whether it was or not I do not know, but it is quite clear on the facts that a couple of observations may be made that need to be reflected upon when I deal with assessment of the matter in accordance with Pt 4 Div 1A of the Act.
The prisoner was a middle man who was endeavouring to play a role in negotiations for the transfer of drugs from a vendor to him, to a purchaser to him. It reveals in the facts intimate knowledge by the prisoner of the ways of transacting the sale of a substantial quantity of prohibited drugs, and it reflects at the relevant time - although the prisoner is not charged with offences before this time and I certainly do not sentence the prisoner on the basis of any prior offences that might be suspected - that the prisoner was at the time well experienced in such matters.
With regard to the matters on the Form 1, to take them out of true chronological order, the first offence on the Form 1 in relation to this committal for sentence is the offence of supplying 280 grams of cocaine on 13 May 2007. In this matter the prisoner was clearly the "principal supplier", although I accept he must have obtained the cocaine from somewhere else.
My understanding of the matter is - from 16 years as a judge and 20-odd years as a lawyer doing criminal work - cocaine is usually brought to this country from overseas, although I am not suggesting this prisoner was involved in the importation of the drug. The prisoner had been approached by the person who was about to supply him with methylamphetamine to supply cocaine. There was a negotiated price of $56,000 for "ten ounces".
During the course of negotiating for the supply of the cocaine, it would seem the prisoner sampled some of the methylamphetamine the subject of the Sequence 1 charge. In other words, the two transactions seem to be negotiated at the same time whilst they were both ongoing. The prisoner was thus the primary supplier. Again, he would have been required no doubt to pay somebody else for the cocaine. There is no evidence as to when he obtained the cocaine. He certainly has not given evidence in this Court, nor need he, to add further detail to the facts. But it is significant in assessing this matter on the Form 1 that there are other offences at later times with the prisoner supplying other quantities of cocaine. In fact, between 24 and 25 July 2007, coming back to the next matter on the Form 1, the prisoner was asked to provide and agreed to sell to another man, six ounces of cocaine at $5,650 an ounce. These negotiations occurred over those two days. The principal supplier in the context of that negotiation was the prisoner.
On 3 August 2007 the same purchaser, as I understand the facts, approached the prisoner about purchasing an even larger quantity of cocaine. It was eventually agreed to be half a kilogram. The prisoner agreed to sell it for $90,000. The person to whom it was to be provided only had $10,000. Apparently the further $10,000 for the negotiated price was to be given to the prisoner once the cocaine or part of it had been on sold. The prisoner the principal supplier in a chain of "distribution" or supply, although I hasten to say there is no evidence of what could be called an organised crime, a network at work in this matter.
The next matter on the Form 1 involves the prisoner's supply of, by comparison, a negligible quantity of methylamphetamine. This was supplied to a person who was detected trying to smuggle that drug into the correctional centre at Cessnock, but the prisoner is not directly responsible for that. Apparently the prisoner also supplied that person with some Xanax tablets.
With regard to the Form 1 concerning the Sequence 1 offence, there is a further supply by the prisoner of cocaine on 6 December. This was an amount of 41.4 grams. I have already noted it is common, as I understand it, to the prosecution of a person who figures prominently in the facts relating to this prisoner. Initially the purchaser wanted five ounces or 140 grams, but the prisoner only supplied the smaller quantity. Why this was so is not entirely clear according to the facts. However, the exact quantity as identified is that the purchaser was in possession of when arrested by police after the transaction with two plastic bags of white powder in his possession. Hence the detail of the quantity.
The second committal for sentence matter, that is, the Sequence 2 matter, was the supply of 100 tablets of MDMA. It is estimated, because the tablets were never weighed, that the tablets were less than the minimum commercial quantity of 125 grams, but clearly greater than the indictable quantity of 1.25 grams for methylenedioxymethamphetamine.
There is little or no evidence as to the profit the prisoner received, although there is some evidence about the purpose of the supply or the purchase was to reduce a debt owed by one or other person involved in the transaction. This offence apparently occurred on 11 May, again during the negotiations relating to the methylamphetamine (in Sequence 1) and at about the time of the first supply of cocaine on the Form 1 for the Sequence 1 offence.
The next committal for sentence offence is the Sequence 6 offence which is the supply of a prohibited drug not less than a commercial quantity. This is the supply of what is estimated to be 500 grams of cocaine on 3 August 2007. This was a case where telephone intercepts were recorded between 2 and 3 August 2007. The prisoner had called the purchaser and had offered to the purchaser the relevant drugs. The prisoner initially indicated that the price was $97,500. The negotiated price of $90,000 was not fully paid.
The next committal for sentence matter involves an attempt to manufacture a prohibited drug between 12 and 15 November 2007. It alleges that the prisoner had endeavoured to manufacture the prohibited drug, either methylamphetamine or amphetamine-based in the prisoner's home particularly in his kitchen. The prisoner had access to various precursors, which are referred to in the relevant Form 1, but the manufacture was unsuccessful. There is no particular detail as to what quantity, if any, was manufactured.
It is clear, as I understand the facts, that the manufacture was unsuccessful. It would appear, as was submitted to me by learned Senior Counsel for the prisoner, that the process was, if not amateurish, certainly not highly skilled. There were said in the facts to be over 700 grams of base left over and it would seem that ultimately nothing of significance was manufactured. In relation to that offence, as I pointed out, there were two matters on Form 1 relating to the possession of precursors.
In relation to the Sequence 13 offence, that is, the offer to supply a prohibited drug, a large commercial quantity, the prisoner offered to supply a quantity estimated to be a kilogram. The price was negotiated as between $190,000 and $195,000. The prisoner produced the methylamphetamine in heat sealed, clear plastic bags. They were given to an associate of the purchaser who took some of them away apparently to test them. The quality was obviously not up to the standard sought by the purchase and the purchase was declined.
In relation to the further committal for sentence matter, sequence 21, the possession of the unauthorised pistol and the related charges on the Form 1, this charge arose from the circumstances of the searches of the prisoner's home at the time that he understood that he was wanted by police, at least in South Australia. When the prisoner learned that one of his associates in South Australia had been arrested, he made a series of phone calls apparently to his mother and perhaps others, which were intercepted by police. The prisoner's mother's residence, which apparently was nearby to his own, and other premises associated with the prisoner were subject to police surveillance. The prisoner arranged through his mother and through associates to attend upon his residence to remove various items.
A co accused in Adelaide also made various phone calls that were intercepted in relation to this exercise. Apparently a van was used to remove items from the prisoner's home. This was intercepted by police. In that van were found prohibited drugs, a large amount of documents and personal items, mobile phones, weapons and the like. The operation of "stripping" a house of incriminating evidence and placing items in the van was all the subject of surveillance. Arising from the various searches of the prisoner's house, the van and a storage facility to which I earlier referred, are the charges of possessing the push knife, the replica pistol and the quantity of ammunition of various calibres, offences on a Form 1.
With regard to the possession of the unauthorised pistol for which the prisoner has been committed for sentence and the matter on the Form 1 of possession of a silencer, these items were found inside a backpack which the police observed to be carried by one of the people who removed material from the prisoner's home. The pistol, when it was recovered, was described as a long rifle calibre Cold self-loading pistol with a magazine found that contained ammunition. The evidence in the statement of facts states that the prisoner had been seen with a hand gun on prior occasions. There is no evidence that the prisoner had threatened a particular person with the hand gun or particularly discharged it in a menacing or threatening fashion to any person. Obviously the prisoner had no licence or authorisation to have access to those weapons.
Other items were found in the storage unit, consistent with the paraphernalia and indicia of drug trafficking, including multiple mobile phones and SIM cards, computer equipment, prohibited drugs including methylamphetamine, MDMA, precursors to the manufacture of methylamphetamine, et cetera. As the facts state, the prisoner, throughout the investigation, demonstrated through the telephone intercepts that he could supply at least three different types of prohibited drugs in varying amounts to particular purchasers, or else play the role of a middleman and negotiate the supply of substantial quantities of prohibited drugs.
The committal for sentence matter, Sequence 25, relating to 644 grams of methylamphetamine. This is a committal for sentence charge and arises out of seizures from the prisoner's home, primarily, as well as small amount of the drug found in the storage facility or the van I have spoken of. The 167.69 grams of cocaine on the Form 1 was apparently found in the prisoner's home. Obviously it was in his possession for the purpose of supply, as was the methylamphetamine. The charge relating to the 3.42 grams of methylamphetamine on a Form 1 was relating to drugs found in areas associated with the prisoner.
In respect of the matters arising from the prisoner's arrest in South Australia, the criminal history reveals, as does the judgment from the South Australian District Court, that the prisoner was sentenced to a term of imprisonment in 2011. It would appear that he was in custody from approximately 22 December 2007 to a date in May in 2008. He was then granted a form of bail known as "home detention bail", but apparently committed offences whilst subject to that bail.
In respect of the offences that he committed in 2007 in South Australia, that I see as intimately and directly concerned with the offences that he had committed in New South Wales with which I am concerned, one offence was an offence of what I understand to be "trafficking" 562 grams of cocaine which, from the facts as I understand them, were "pure" to the extent of 224 grams. The purity is not expressed as percentage but as a quantity.
He was also convicted and sentenced in relation to trafficking in 564.3 grams of methylamphetamine of which 401 grams were pure. These are substantial levels of purity although the level of purity in the cocaine, of course, is nowhere near as great as it would be on arrival in the country.
The learned sentencing Judge referred to these quantities as being worth "hundreds of thousands of dollars". The prisoner when arrested was in possession of $23,000-odd in cash. I note the Judge in South Australia said that, outstanding offences in New South Wales, which obviously the South Australian Court was aware of, were "contested". Thus were to be "disregarded". I do not know whether the Judge was deliberately misled by somebody or what the situation was. I certainly could not draw any inference as to the prisoner doing that but the truth of the matter is that the offences in New South Wales in general terms were in fact ultimately not contested.
The Judge noted that the prisoner had been in custody he said from 31 December 2007, but that date must be wrong, it must be a typographical error in the judgment. I take it to be either 21 or 22 December 2007.
He was released on bail on 30 May 2008, as I said, to home detention bail. Importantly on 27 October 2009, when police visited his home, search of his home revealed the presence of the methylamphetamine and he was charged with trafficking in methylamphetamine in a quantity of 20.09 grams, of which 7.26 grams was pure. There was other methylamphetamine found in the premises. There was also found in the premises the indicia of manufacture. Police found traces of methylamphetamine in the various locations around the house including on the prisoner's hands and he had $1,150 in his possession that apparently, was not lawfully obtained. As would be expected, his bail was revoked.
For the two 2007 offences, that I have outlined, the sentence to be imposed was reduced from eight years to six years to reflect the value of the pleas of guilty. I am paraphrasing the words of his Honour but they are not expressed in any specificity to assist me as to the reason for that discount other than what was said.
For the 2009 offences his Honour calculated an appropriate sentence for three years but reduced it to two years, three months for the same reasons. The total sentences his Honour calculated thus was eight years, three months but he reduced that term of imprisonment to seven years, six months to take into account the pre-sentence custody between December 2007 and May 2008 as well as the home detention bail. So, in effect, he gave the prisoner the benefit as I have calculated of three months and few weeks for the home detention bail.
He backdated the sentence, as I understand it, to the date the prisoner came back into custody which was 27 October 2009. His Honour thus fixed the sentence of seven years, six months imprisonment with a non-parole period of four years, nine months. That non-parole period was, as I understand it, to expire in July 2014. The prisoner was not released to parole until 11 August 2014.
He was, as I have indicated earlier in brief summary, extradited to a New South Wales custody on 14 August 2014 and the sentences I impose will date from that date. But I am obliged, in the context of some principles I will refer to in a moment, to have very close regard to the fact that the prisoner had in fact spent that period of continuous custody in excess of four years and nine months in custody in South Australia referable to the offending with which I am concerned.
I am mindful of course of the subsequent offences in 2009, that there was some additional penalty imposed in relation to those offences, but it is impossible to unscramble the egg, so to speak, to separate them out in terms of trying to give effect to totality. In any event, by their very character, they were much more minor offences than the offences with which I am concerned.
I would calculate, I hasten to say, that the prisoner's total time in custody in South Australia, both continuous and which occurred after his initial arrest, would have been in excess of the five years and two months, as well as the restraint on his liberty by home detention. Before his arrest in South Australia he had a number of convictions in New South Wales. His criminal history does not entitle him to any particular leniency but it is not an aggravating factor. I hasten to say that, whilst he does have findings of guilt in relation to the supply of prohibited drugs, his offending before the offences in 2007 was by comparison relatively minor.
He had convictions for dishonesty dealt with in the Local Court, a conviction for possession and supply of prohibited drugs in January 2009 and 1995, again dealt with in the Local Court by either fine or good behaviour bonds. He had traffic convictions in 2004. He had a conviction for having goods in custody - suspected of being unlawfully obtained - for which he was fined and placed on a good behaviour bond in 2002.
The prisoner obviously has been in continuous custody since his return to New South Wales and I have indicated the commencement date. His counsel in her submissions to me suggested I could backdate the sentences to partway through the time he was in South Australia. In the context of the issue of totality of sentencing it seems to me more appropriate to commence any sentences I impose from the time he came back to New South Wales.
That having been said, it is clear if I may put the cart before the horse, as I have not dealt with the particular submissions in detail at this point I am required to have a close regard to that previous time in custody. There are a number of reasons for this to which I have already briefly referred.
First of all, there is the issue of totality of sentencing in respect of related offending. This has been discussed in a range of authorities, Pearce v The Queen (1998) 194 CLR 1610, and particularly Mill v The Queen (1998) 166 CLR 59 (at 62-63).
Mill is a significant case because it also discusses another important matter in this sentencing exercise. Mill discussed the issue of totality of criminality in sentencing when a person appears for a sentence in one State, having previously been sentenced in relation to related offences committed within the same timeframe in another State and then a serving of sentence in that other State before returning to the second sentencing Court. As their Honours said in Mill, "The application of the principle becomes more complicated in this situation (at 63)".
In this context their Honours reflected upon, with approval, a 1979 judgment of the Court of Criminal Appeal, but reported in 1982, that is, Todd v Regina (1982) 2 NSWLR 517, particularly the observations of the then learned Chief Justice, Street CJ at 518-520. In that judgment of Todd Street CJ said it was:
"(W)rong to disregard the practical situation that the appellant had already served a substantial term of imprisonment in Queensland for offences so closely related in time and character to the (New South Wales) offences".
His Honour noted the regard to be had to the progress of the rehabilitation of the prisoner to the circumstance that the prisoner has been left in a state of uncertain suspense as to what would happen to him or her and the fact that sentencing for a "stale crime" calls for a considerable measure of understanding and "flexibility of approach". His Honour noted :
"Passage of time between offence and sentence when lengthy will often lead to consideration of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence. At times this will require what might otherwise be an 'undue degree' of leniency being extended to the prisoner."
In the context of the evidence available to me, helpfully summarised very accurately by learned Senior Counsel for the prisoner, there is a body of material both in testimonials provided from prisoners that the prisoner has helped and from people that have had a connection with the prisoner whilst he served his South Australian sentence, both by employment outside of prison as a "pre-release" prisoner and in community service as a prisoner working for an instrument of the government of South Australia, to wit the Department of Environment, Water and Natural Resources.
I have testimonials, firstly in that respect, to the prisoner's industry and his success working for an organisation called "Australian Whole Foods". The warehouse manager indicated that at the time of the prisoner's "sudden departure", which I take to be as a result of his non-parole period expiring and then his extradition to New South Wales, the prisoner was about to be made an "afternoon shift supervisor". He thought the prisoner would go a long way and he had impressed the manager.
With regard to the South Australian Authority the prisoner worked in the "Parks Presentation Program", acted autonomously but helpfully and cheerfully, was considered "courteous, conscientious and industrious" and had impressed the Supervisor in that program.
What those references display, in the context of some of the matters that I noted from the judgment of Chief Justice Street, is that putting aside the issue of "uncertain suspense" as to what would happen to him, even though he had outstanding matters waiting in New South Wales, he was given the liberty of working in the outside community, an opportunity obviously that will be denied to him in New South Wales for some period of time.
What I am doing is imposing what could be described on one view as a substantial term of imprisonment in circumstances where the prisoner, had leave been earlier given the "hope" of freedom at a relatively early time and certainly the "taste" of freedom.
I appreciate in the context of what Chief Justice Street said that the issue of whether the offences with which I am concerned are "stale crimes" is a moot point. The offences were committed in 2007. For a person of my age that seems like yesterday; to a man of Mr Singh's age that might seem a long time ago. Certainly they are of some age. They may not necessarily be classified as "stale" crimes, but I accept on the evidence available to me that they represent criminal activity of a serious nature by the prisoner when the prisoner was a person considerably different from what he is at the present time.
The release to him on parole by the South Australian authorities, the references concerning his work before his release, the background given by the prisoner, which seems to be largely uncontroversial, concerning his past attitudes and his current attitudes and the like, reveal a progress in rehabilitation that was discussed in some detail in Mr Todd's case. It is to be fairly said that one needs to go back to Todd to consider the facts of that matter and the sentences that had been imposed in South Australia to understand in that case what the learned Chief Justice was talking about when he talked about "stale crimes".
The prisoner of course however has to understand that just because he had served a period of continuous custody close to five years in South Australia the seriousness of the offending with which he is concerned now is of such a character that "early release", if that is the correct expression, could not reasonably be expected. But I have given full weight to the progress of his rehabilitation as it is evidenced and which I accept, and full weight to the extent that I can to the other matters adverted to in the judgment of Todd approved by the High Court in Mill which I have quoted.
The prisoner was not on any form of conditional liberty at the time of the commission of the subject offences. He had not previously served, as I understand it, a term of imprisonment of any substance beyond limited periods probably on remand and the like.
The prisoner, I point out, was born on 29 May 1970 thus when he committed the offences with which I am concerned on my calculation he would have been 36 then 37 years of age. He was a mature man.
This brings me to material contained in the psychological report, again dealt with in the written submissions of learned counsel for the prisoner and very much at the heart of the helpful submissions she made which I have taken into account in relation to the prisoners "subjective circumstances".
The prisoner gave a history to the psychologist which I am prepared to accept. The prisoner was born in Fiji. His father was a business person. He is the second eldest as I understand it of four children and it would appear he had within the Fijian context a happy upbringing. His family were close-knit, there was no violence in his home, his parents were non-drinkers, non-drug users.
It seems as though that by reference to historical events with which Australians are familiar as I would understand it, although it is not spelt out in detail, the 'Rambuka' coup as it was called in the mid to late 80s, and then a second coup at later time, considerable disruption was caused to the prisoner's family.
I am very mindful of the fact, having been to Fiji - although not an expert on the country of course - that for many decades there has been great tension between the Indian Fijian population and the Indigenous population. Although the rights and wrongs of that are not for me to judge, there has been over many decades considerable resentment of the commercial acumen of the Indian Fijian population by the Indigenous population and that resentment has found its way into particular laws and particular actions during the course of coups and the like which have greatly disadvantaged people of Indian heritage.
I worked as an article clerk for the firm of solicitors where a person who preceded me as an articled clerk, Mr Ramrakha, became the speaker at a Fijian Parliament. His brother was a medical practitioner in Balmain for many years. Of course we have had the situation of Kishor Govind, a barrister of the NSW bar, who went back to Fiji to become a Judge of the Supreme Court only to be removed from office in the course of a coup.
In any event, I accept from the history that his family were greatly affected. The prisoner spoke of an incident involving a home invasion and damage to property and threats of violence and the like. I am sure these matters have had an effect upon the prisoner, although there is no evidence persuasive or conclusive that the prisoner is suffering from post-traumatic stress disorder. Although the psychologist retained suggests that there may be some symptoms consistent with that that condition the psychologist does not seek to "diagnose" that as fact.
The family eventually came to Australia, and I accept that their financial and social circumstances were greatly impacted by the loss of the opportunity to continue to live in Fiji. It must be fairly said however, by reference to the observations of the psychologist and the submissions, that the events in Fiji precede by quite a number of years the matters with which I am concerned and there is no doubt that the prisoner had well-settled into the "Australian way of life", if that is the correct expression, and was a person settled in Australia, not unsettled in Australia, before he committed the current offences.
The key to the current offences would appear to be the prisoner's introduction to amphetamine-type substances whilst working as a truck driver in his 30s. It is commonly known - at least it has been in the past - that people in the long-haul trucking industry have been using amphetamines when driving trucks. When I was a young university student working for TNT loading semitrailers it was commonly known that the drivers were taking what were called "bennies" to keep awake to drive the considerable distances that they travel.
The prisoner's background includes his use of drugs which led to, I accept, a dependency, or a familiarity at least, with methamphetamines, MDMA and cocaine, although he was never addicted to cocaine. His criminal history reflects these matters as well. The prisoner I accept through that period of time was a hardworking person. He had had limited opportunity for education in Fiji. It had obviously been disrupted. I have been provided with an exhibit which sets out 'World Data' on education showing the limitations of education, particularly the effect of what are described as "four coups" in Fiji between 1987 and 2007. Of course by 2007 the prisoner was committing the offences with which I am concerned.
The facts of the matter are it must be said, that this prisoner is not a dealer/user that we often see in this Court that probably would be better appearing in the Local Court. This is not a case of a fellow selling very small quantities in order to obtain a little bit of extra money but primarily to money to buy drugs or to obtain prohibited drug. He would appear to me to have embraced a substantial criminal lifestyle with some considerable passion reflected by his possession of the firearm, a matter I will come to in a moment in the context of submissions made to me.
The psychological report, although it contains hearsay statements by the prisoner that have not been tested by the prosecution, notes his remorse. It notes amongst other things his perception of his conduct in 2007. Whilst he did not realise he was subject to close police surveillance he presumably - in fact clearly - committed the offences simply because he thought he could get away with them and they were an easy way to make money. There is no doubt that he was making substantial sums of money even if one allows for the fact that he had to pay other people for some of the drugs that he provided to others.
He has noted to the psychologist that he did his best in prison to be a better person. He studied and made a contribution to the community in South Australia and that is confirmed by the documentation and I accept that that is so. He comes before the Court, it should be pointed out, now in a much better position in that respect than he would have if he had appeared in 2008. But then again, it is his criminal conduct in South Australia that has delayed the matter. He has had no control, of course, over how long he has stayed out of the State.
I do have some difficulties with some of the psychometric testing in the psychological report. I have difficulty accepting that the full-scale IQ score describing him as being in the "high borderline range" could be accurate. I note it places him at a range of 73 to 87 with a 95% confidence interval and it is claimed that his percentile ranking was eight, meaning that 92% of his age cohort would score equal or ahead of him.
His conduct in relation to the commission of these offences, his business acumen, his skill in being able to deal with other people as revealed in the criminality, shows a confidence and intellectual capacity that would, without having any professional qualification to judge such matters, be above what I understand to be the "borderline range" from the many psychological reports I have read and evidence given by psychiatrists and psychologists and the like.
I note in relation to the matter that many certificates of achievement have been produced to the Court to which I have had regard. They all reflect in my mind the capacity of a prisoner to achieve with the use of both physical and intellectual skill. Those many certificates of course reflect favourably upon his attitude, his remorse, and the progress of rehabilitation.
I also note the references from prisoners that he has assisted. The two references I have dated May 2015 and November 2015 reflect upon the prisoner assisting the inmates about life skills providing confidence, providing encouragement to better themselves, and providing guidance in a range of ways. This is to the prisoner's credit that he can be an example to others. That having been said it seems hardly consistent with a person in the 'borderline' range.
I am not suggesting for a moment the prisoner deliberately fudged the matter. There are means of cross-checking such results. But one must approach such an evaluation, where the objective facts speak otherwise, with some circumspection.
That having been said there are psychometric tests that reveal his substance abuse disorder, at least based upon the history obtained. With regard to the clinical assessment of the prisoner, it reveals him to be a largely private person.
His profile showed elevations on drug dependence and anxiety scales but one might have thought that was in part reactive to his circumstances in terms of anxiety. As I said, he has symptoms of long term effects of trauma. It is said that his risk assessment is in the "low end of the low-moderate scale for overall risk of reoffending". He would benefit from a community based programs and custody programs in relation to drug and alcohol addiction. The summary of the psychologist reflecting upon a number of the matters I have already identified states that having regard to his intelligence assessment he would "need educational and therapeutic programmes to be adapted for him to engage fully".
It is said, if I might quote from the report:
"His self-report of his functional capacity depicts him as capable of managing his budget, his hygiene, his grocery shopping, his transportation, cooking and laundry".
This seems to my mind, with the greatest of respect on the facts, to be an underestimate of his basic functioning skills. He is well able to deal with those matters, and many other matters, as the facts reveal.
He needs, in my view, an extended period of supervision on his release from custody to adjust to community living having spent a very substantial term of custody both in South Australia and New South Wales. He will obviously need professional assistance no matter what his progress in custody to deal with the issue of a drug dependency or drug usage which is a contributing factor to his involvement in the current offending. He needs relapse therapy to be in place. He also needs assistance, notwithstanding his capacity for industry, to return to community living to obtain employment.
He called one witness in the matter. This lady was the mother of his two older children. As I understand from the history he has four children, two from a relationship that apparently finished in about 2002/2003 and two children from a subsequent relationship. Those two children from the first relationship, as I understood the evidence, were born in 1998 and 2001. He has a great deal of interest in his children, although he obviously hasn't lived with them for many years. She confirmed his substance abuse problems in 2002/2003 and this was a contributing factor to the breakup of their relationship. But she did not understand the depth of his problems. She has regular contact with him as do the children, and the children in New South Wales see him every weekend. She reflects upon what she regards as his "turn-around". She described him at one point as "an amazing person". She believes his level of commitment to crime-free life on release is good and she would encourage his continued contact with the children of the relationship, which I accept to be so.
There are of course in every sentencing exercise a range of sentencing principles and legislation to be considered, not just in a perfunctory way by simply referring to something and not analysing, but adequately dealing with it. I have referred to the issue of 'special circumstances' as I have found it pursuant to s 44 of the Act which has led to a substantial adjustment of the relationship of various non-parole periods to the balance of sentence. It must be pointed out, I hasten to say, that in every matter where there is a standard non-parole period, and there is a large number of such matters, the law requires that I must fix a non-parole period. I cannot simply decline to fix a non-parole period.
In relation to the issue of the standard non-parole period I am mindful of the judgment of Muldrock v R (2011) 244 CLR 120 which considered the previously operating provision s 54A(2) and s 54B(2). Those provisions well amended in the wake of Muldrock. Of course, Muldrock set aside the rigidity of approach that had been favoured in the decision of Way of the Court of Criminal Appeal from 2004. I do not need to go through the essence of Muldrock beyond pointing out that the High Court approved the need in fixing appropriate sentences, including non-parole periods, to approach the matter in the manner as set down by the High Court previously in the decision of Markarian to which I earlier referred, particular the judgment of McHugh JA in that judgment at [51].
In relation to s 54A(2), it now provides that a standard non-parole period represents the non-parole period for an offence of middle-range of objective seriousness in the Table of the Division, only taking into account the objective factors effecting the relative seriousness of the offence. In relation to s 54B (2) that provides now that the standard non-parole period was a matter to be taken into account in determining the appropriate sentence of an offender without limiting the matters that were otherwise required or permitted to be taken into account in determining the appropriate sentence. This includes a range of considerations both in common law and pursuant to statute including of course relevant mitigating factors that arise under s 21A(3) of the Act, the finding of special circumstances and overarching principles such as totality of criminality and parity. Also, issues such as sentencing for stale offences as discussed in Todd and the like.
With regard to matters that arise under s 3A of the Act, of course, at the heart of every sentencing exercise whether it is in the Local Court or in the Supreme Court the 'purposes of sentencing' are required to be taken into account. Obviously there must be a need for adequate punishment of the prisoner in respect of each offence. The prisoner must be deterred from offending and others must be deterred from offending. All these principles need to be seen in the context of other considerations that might arise in the instant sentencing exercise.
I do not believe at this stage that the community requires protection from the offender. I do not believe he is a danger to the community. I believe I am required to promote his rehabilitation. He is still required to be made accountable for his conduct, bearing in mind the dissemination of substantial quantities of drugs to the community. I am required to appropriately denounce his conduct and recognise either the harm or potential for harm done to the community. I have referred to s 5 of the Act.
In relation to specific "aggravating factors" that arise under s 21A(2), in respect of the offences involving supply of prohibited drugs at varying degrees requiring sentence one could in each case determine that it was an aggravating factor that the offences were committed "without regard to public safety". I don't believe it is necessary to refer to authority on that matter. I feel in relation to the issues of planning and the financial gain which might be found as independent aggravating factors, that they are very much inherent in the character of the offending.
It seems to me, although they are not pleaded as elements, that the very purpose of the supply of prohibited drugs is to supply drugs that are known to do damage to others, to obtain financial benefit. There must be some inherent planning in the commission of the offence in order to find buyers or to find vendors to participate in a particular transaction and the like. Howie J in a number of judgments formed the view in relation to particular cases that planning as an aggravating factor should not be found given the inherent character of particular types of drugs supplied. Thus, ultimately it seems to me that the facts in themselves plus the pleaded elements provide sufficient understanding of the "aggravating factors" as they are generally understood. I do not find any additional "aggravating factors" pursuant to s 21A(2).
With regard to mitigating factors I am prepared to accept that the prisoner does have good prospects of rehabilitation. I am prepared to accept ultimately, given the length of time since he first came into custody, that he is unlikely to reoffend. I am prepared to accept as a mitigating factor that the prisoner has shown remorse, although he hasn't given evidence before me. There are both the hearsay representations untested and support for them in the material provided on his behalf. His pleas of guilty of course are a mitigating factor but he receives a discrete discount for them. Although I have not found as an aggravating factor that his conduct constituted planned or organised criminal activity, I couldn't find as a mitigating factor on balance that his offending was not part of "planned or organised criminal activity".
In relation to the gun possession charge this is an offence of substance. I was taken to the decision of Raniga v The Queen [2016] NSWCCA 36, particularly the judgment of Justice Davies given with the approval of the Court. His Honour cited with approval the observations in Cao, a judgment of one of his sister or brother Judges ([2013] NSWCCA 421 at [32]-[35]) referred to by Justice Davies at [42] of his judgment.
As the Court said in Cao, approved by Justice Davies and expanded upon in his later observations, an offender's criminality is more serious when he possesses a firearm as "part of their involvement in crime such as trading in illegal drugs".
However, having said that there are matters of degree. Obviously if a person is running around with an unauthorised pistol and holding it up to enforce drug debts and the like, which does not appear to be the case here, that shows an active use of a firearm to further the trade in illegal drugs. Whilst there is evidence the prisoner displaying the gun on occasions, I could not find this to be a case where it is the most serious offence involving the use of guns in association with drug trafficking.
This brings me, if I may to the submissions of learned Senior Counsel for the prisoner. Many of the submissions of learned counsel for the prisoner have been reflected upon in the remarks I have made thus far both by reference to the evidence and the assessment of aspects of the case both objective and subjective.
However, I am required, as it is well known, in respect of those offences where there is a standard non-parole period to make an assessment of where the offence appears in the range of objective seriousness by reference to the 'middle range of objective seriousness' and the reasons for that, at least in summary having regard to what I have already concluded.
I am prepared to accept both by reference to the quantity and the role of the prisoner that Sequence 1, referred to as "charge 1" by learned Senior Counsel for the prisoner, is significantly less serious than an offence in the middle range. The quantity is at the cusp of criminal responsibility under this charge.
I pause for one moment, however, to point out without criticising learned Senior Counsel's submission, that if one possesses for example 990 grams of the same drug then, as far as quantity went, one would be at the very upper end of the lesser offence of supplying not less than a commercial quantity of the drug which carries a maximum penalty of 20 years imprisonment with a standard non-parole period of ten years imprisonment. But as has often been said in the context of Makarian and other judgments and in the context of authority I referred to earlier, sentencing is not a purely "mathematical exercise". In fact, this is one of the key observations of the High Court in its rejection of guideline judgments for Commonwealth sentencing in the decision of Wong.
In relation to the supply charges generally it was not submitted on the prisoner's behalf that he was merely a courier or a warehouser or was employed by another to do what he did. The evidence did not suggest that he was a "principal" in an hierarchically organised enterprise but it is conceded, of course, that he was a person who was a principal in his own activities so to speak. I believe that the best analysis, and I mean this not unkindly to the prisoner's counsel, was actually provided to me by the learn Crown Prosecutor. He described the prisoner as a "entrepreneur" seeking to make money where he could from the sale and supply of drugs. Sometimes he would be a middle man. Sometimes he would be a supplier or an on-supplier. His role varied from offence to offence.
That having been said one needs to look at his activities in South Australia. He was prepared with others, who seemed to be with him in South Australia for that purpose, to travel interstate to traffic drugs to pursue his business interests. It is not to be forgotten that at the very time he was in South Australia being rounded up by the South Australian police there were substantial quantities of cocaine and methylamphetamine awaiting for him back in New South Wales presumably for trafficking.
With regard to the submission of learned Senior Counsel she referred to the fact that he did not "have others working for him or furthering a business of his overseen by him". While it appears to be the case in relation to the individual offences, it is not to be forgotten that when the alarm bells went off in South Australia the prisoner, if I might use an expression of Mario Puzo's, had all of his associates or friends in Sydney 'hitting the mattresses' for him by going back to his house with the aid apparently of his mother, or at the instruction of his mother, trying to strip the house and other places of incriminating evidence as the Crown pointed out in its written submissions.
With regard to Sequence 6 I accept the analysis of learned counsel for the prisoner having regard to the quantity and the role of the prisoner that the offender's criminality in an objective seriousness sense was "a little less serious than an offence in the middle range of seriousness". Of course, the words "middle range of objective seriousness" may not necessarily be a narrow band, as the Court of Criminal Appeal said in Way, a comment I do not think has been disturbed.
With regard to Sequence 13, with regard to its seriousness I accept it likewise is "significantly less serious than an offence in the middle range of objective seriousness" having regard to the quantity and the failure to actually supply. Although it is to be a fairly said that the prisoner was anxious to supply and capable of supply it would seem. The relevant prohibited drug was not very good and probably had a very low level of purity judging by the supplier's reaction, another relevant consideration.
With regard to Sequence 21 it is correct, as was pointed out by counsel for the prisoner, that the offence is slightly above the middle range of objective seriousness or at the very best at the upper range of the middle range of objective seriousness. I have noted the involvement of the prisoner in the supply of drugs although there is not a direct connection between his possession of the pistol and the actual supply of drugs which I have taken into account. The firearm itself is a very intimidating and dangerous weapon although I accept that there are far more intimidating weapons that might fall within the ambit of the legislation. The possession of the silencer is a sinister aspect of the matter, but there is no evidence that the prisoner had ever used the weapon to assault anybody and he is certainly not charged with that.
With regard to Sequence 25 that likewise is slightly below the middle range of objective seriousness having regard to the quantity involved and the role of the prisoner as submitted by counsel for the prisoner. With regards to the other offences without standard non-parole periods I accept the prisoner's role in relation to Sequence 2 was not important and I bear in mind the quantity of the drug and the value of the drug is not significant. It is not the lowest level of seriousness but it is not a high level of seriousness within the ambit of offences for that type.
Similarly in relation to Sequence 12 the offending was an earnest attempt to commit a significant offence, but it could be regarded as unprofessional and disorganised and ultimately unsuccessful, demonstrating the prisoner's lack of experience in relation to the manufacture of prohibited drugs. I note in 2009, of course, his alleged involvement in manufacturing methylamphetamine again but that does not assist me in assessing the criminality two years earlier.
I have referred to the totality of criminality. This is a matter of considerable submission by learned counsel for the prisoner. I have referred to Pearce. Another decision not I believe cited by learned counsel is the decision of R v Hammoud [2000] NSWCCA 540, a New South Wales decision which reflects upon the sequelae or the consequences of Pearce and the consideration of reflecting totality of criminality in the accumulation and concurrency of sentences, the matter of exercising appropriate discretion having regard to all the circumstances of the matter. It must be fairly said there is no one correct answer to the conundrum that faces a Judge dealing with multiple offences committed at different times.
I am mindful as I have said earlier that the offences with which I am concerned were not committed over a limited period of time. They very much reflect a considered and deliberate course of conduct on the part of the prisoner for a substantial financial gain. That having been said, as I have earlier pointed out, the issues concerning the sentencing in South Australia loom large indeed in this exercise.
With regard to that aspect of the matter I understood, although I do not have a transcript of the matter, that learned counsel appearing for the Crown submitted in fairness, in response to the submissions made by Ms Rigg that in sentencing the prisoner, noting what had been said in Mill, one could approach the matter by looking at all the offences including the South Australian offences, given that I have considerable information about them, and approach the appropriate sentencing of this offender as if one were endeavouring to give effect to the totality of the criminality of both the offending in New South Wales and South Australia. That is what I have attempted to do.
There was a submission made by learned counsel for the prisoner that I should perhaps approach the matter by reference to the fixing of an aggregate sentence in accordance with s 53A of the Act. There was a suggestion that I might "compress" the sentences. If that was a submission that I should reduce the sentence for a particular matter I cannot do that because of the decision of Pearce and New South Wales authorities since then which substantially changed sentencing practice in this State.
What I have determined to do ultimately, because of the fact that I believe I must commence the term of imprisonment to be imposed in its totality from the time the prisoner came back into custody in New South Wales, is to make all the sentences in relation to the drug related matters, although of varying lengths because of their varying seriousness or the varying matters on the Form 1 and the varying maximum penalties which, of course, are an important indicator of seriousness and the like, make all those sentences concurrent one with the other but make those sentences partially accumulative upon the sentence in relation to the firearms offence to in part recognise the importance of imposing deterrent sentences and the community's distaste for firearm matters.
If I was sentencing the prisoner afresh as I have already pointed out, the extent of accumulation would be greater. But ultimately, endeavouring to achieve justice in the situation, I have settled upon the approach that I have indicated.
The learned Crown Prosecutor I might say in his submissions, as my notes indicate, did make the point of the prisoner having committed offences whilst on bail before he was sentenced. I have noted that but it seems to me there is conclusive evidence in the intervening five or six years of the progress of rehabilitation by the prisoner and a turning of his back upon a way of life with which I am concerned.
Mr Singh it has taken some time, it is a quarter past one, I will sentence you now if you do not mind, if you do not mind standing up.
In relation to Sequence 21, that is the firearms offence you are convicted. In relation to that matter you are sentenced to a term of imprisonment by way of a non-parole period of two years and three months. That period of sentence will date from 14 August 2014 and expire on my calculation on 13 November 2016. In respect of that sentence I fix a balance of sentence of nine months to expire on my calculation on 13 August 2017. I have taken into account the matters on the Form 1.
In respect of the Sequence 1 offence, that is the offence that carries life imprisonment you are convicted. You are sentenced to a term of imprisonment by way of non-parole period of four years to date from 14 February 2016, so it is partly accumulative upon the non-parole period for the firearms offence. That will expire on my calculation on 13 February 2020. The balance of sentence will be six years. That will expire on 13 February 2026. In relation to that matter I have taken into account the matters on the Form 1.
In relation to the Sequence 2 offence you are convicted. This is knowingly take part in the supply of prohibited drugs. You are sentenced to two years imprisonment. That will date from 14 August 2016 and expire on 13 August 2018.
In respect of Sequence 6, that is supplying not less than a commercial quantity of a prohibited drug I believe, you are convicted. You are sentenced to a term of imprisonment by way of non-parole period of three years to date from 14 August 2016. That will expire on 13 August 2019. In relation to that sentence I fix a balance of sentence of one year six months.
In relation to Sequence 13, that is the offer to supply not less than a large commercial quantity of a prohibited drug, you are convicted. You are sentenced to a term of imprisonment of four years imprisonment by way of non-parole period. That will date from 14 February 2016 expire on 13 February 2020. In relation to that sentence I fix a balance of sentence of two years. That will expire on 13 February 2022. I have taken into account the matters on the Form 1.
In relation to the Sequence 12 offence, that is knowingly take part in the manufacture of a prohibited drug, you are convicted. You are sentenced to a term of imprisonment of two years three months. That will date from 14 August 2016 expire on 13 November 2018. I decline to fix a non-parole period for that matter. I am not required to.
In relation to Sequence 25 you are convicted. You are sentenced to a term of imprisonment by way of non-parole period of four years. That will date from 14 February 2016 expire on 13 February 2020. In relation to that offence, taking into account the matters on the Form 1, I fix a balance of sentence of three and a half years imprisonment to expire on 13 August 2023.
As I best calculate it that means a total sentence of 11 and a half years imprisonment with an effective non-parole period of five and a half years imprisonment but as I say it is to be remembered that I am required to consider that period of time of South Australian custody to which I have referred. You can take a seat thanks very much.
You will be eligible for release to parole on my calculation on 13 February 2020. Whether you are released to parole or not will be a matter for the Parole Authority. That will be subject, of course, to your rights of appeal and the Crown's rights of appeal.
I am sorry to keep you, it is 20 past 1. There is a confiscation order to be made Madam Crown?
SERCOMBE: Yes your Honour. There are a number of orders that the Crown would seek. First in relation--
HIS HONOUR: Can we deal with that at 2 o'clock?
SERCOMBE: I'm afraid I'm before her Honour Judge Hock at 2 o'clock.
HIS HONOUR: Well I've got two sentence matters at 2 o'clock. I've got Corrective Services staff. I've got a Court officer who's been with me for three weeks who'll never work with me again after his three weeks with me.
SERCOMBE: Yes your Honour. We're seeking a date for that confiscation order.
HIS HONOUR: Well what orders are you seeking, may I ask? You need the drug destruction orders?
SERCOMBE: We are seeking a drug destruction order.
HIS HONOUR: Well there's no objection to that. Hopefully they've been destroyed. So I order the destruction of all relevant drugs. Yes?
SERCOMBE: And I understand that there will be an application for a drug proceeds order. I'm not sure of the nature of the amount.
HIS HONOUR: There was an order and I didn't bring it down with me. Remember Ms Rigg I was given a document but I can't remember whether they were confiscation orders or drug proceeds orders. Do you remember those orders?
RIGG: No I haven't seen the application myself. It was proposed, as I understand that that matter be put over for a period of approximately eight weeks. Mr Singh has to have an application for legal aid made on his behalf. It's proposed--
HIS HONOUR: Right well they noted.
RIGG: Yes.
HIS HONOUR: Look why don't we stand the matter over for any formal orders to be made. Can I give you a date now?
SERCOMBE: Thank you your Honour.
HIS HONOUR: And I'll direct Mr Singh to return. Is there any other order that I can make on the run so to speak that doesn't require anxious consideration by Mr Singh or his counsel?
SERCOMBE: If I could just clarify whether your Honour has dealt with sequence 20, the related matter on the s 166 certificate. It's an offence of possess ammunition.
HIS HONOUR: Yes that's right there was a related matter on the s 166 certificate. Can you remind me what that is?
SERCOMBE: Yes your Honour it's a possess ammunition pursuant to--
HIS HONOUR: The ammunition charge. I wondered where that went.
SERCOMBE: Yes, with a maximum of 50 penalty units.
HIS HONOUR: Yes that's right. I'm sorry. I have got a note of that. It sort of got lost in the wash yes.
RIGG: Your Honour that is one of the matters that's been taken into account on a Form 1 document.
HIS HONOUR: The ammunition has been, yes--
RIGG: That's correct.
HIS HONOUR: On the Crown's cover sheet there's a reference to a sequence number and a matter on a Form 1, then there's (related offence). That's where I saw it.
RIGG: Thank you your Honour. Yes.
SERCOMBE: Yes I see that thank you your Honour.
HIS HONOUR: So it's been taken into account, you're right.
SERCOMBE: For the record the maximum penalty is 5,000 penalty units for those large commercial supplies.
HIS HONOUR: Well I ensure that goes into the revised judgment but I've noted that it could as high as that, yes.
SERCOMBE: And could I clarify the starting date of the non-parole period for sequence 1 please your Honour.
HIS HONOUR: Starting date is 14 August 2014. Sorry, 14 August 2016 - 14 February 2016 I'm sorry.
SERCOMBE: 14 February thank you your Honour.
HIS HONOUR: It's 18 months into the non-parole period for the firearms, 14 February 2016 and thus the longest of the non-parole periods, There are two of them, both expire on 13 February 2020, I'm sorry.
SERCOMBE: Thank you your Honour.
HIS HONOUR: Yes.
SERCOMBE: And is there a suitable date for the formal orders?
HIS HONOUR: Well I'm looking at my diary now. How about Friday 17 June?
SERCOMBE: Suitable to the Crown thank you.
HIS HONOUR: Suitable Ms Rigg? Your solicitor could be here if needs be if you've got other engagements.
RIGG: Thank you your Honour, yes I'll just check whether he's available. Yes.
HIS HONOUR: Do you want a s 77 order for Mr Singh to be here on that day? I'd ask him. It's a matter for him. I mean I'm happy to order it but it's a matter--
RIGG: It's not necessary your Honour.
HIS HONOUR: Not necessary?
RIGG: No thank you.
HIS HONOUR: Right I'll deal with the confiscation issues in your absence but your counsel will be sufficiently instructed I'm sure and your solicitor. I'm sure it's not a matter that necessarily will require evidence. Do you understand?
OFFENDER: Yeah.
HIS HONOUR: So I'll put the matter of Singh in for relevant proceeds of crime orders. There are some orders in draft form on my desk. No s 77 order for Mr Singh unless requested at a later time. Right thank you.
RIGG: Thank you your Honour.
SERCOMBE: Thank you your Honour.
HIS HONOUR: Thank you Ms Rigg very much for your assistance and would you thank your colleague Mr Poulos very much for his assistance.
RIGG: Thank you your Honour. I will your Honour.
HIS HONOUR: Thank you Mr Singh. You understand the effect of the sentence I've imposed.
OFFENDER: Yes.
HIS HONOUR: Yes thank you, you're excused.
[2]
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Decision last updated: 22 February 2017