See R v Simpson [2001] NSWCCA 534; R v Johnson [2005] NSWCCA 186.
33 That calls for consideration of the third ground of appeal, that is, whether any or all of the sentences has or have been shown to be manifestly excessive. I have already mentioned that Twigg DCJ stated that he intended to discount the sentences by 20% in recognition of the pleas of guilty. He confirmed this at the point of sentencing when he said:
"I would have imposed a sentence of ten years for this matter, but allow a discount of 20% thus reducing it to eight years."
34 He then proceeded to impose the identical sentences in respect of each offence to which I have already referred.
35 Counsel who appeared for the applicant on the application sought comfort from statistics provided by the Judicial Commission. The caution to be exercised in relying on such statistics is well known and does not need repeating. However, in this case, the statistics do present a fairly stark picture. Before coming to them, it is convenient to refer to the sentence imposed in relation to the possession of the precursor charge. In respect of that offence, the maximum penalty is imprisonment for ten years. It is also well established that the maximum penalty is reserved for cases in the worst category of their kind. The applicant was certainly in possession of a large quantity of Sudafed tablets, although the evidence does not disclose the precise quantity of pseudoephedrine. However, it is not possible to conclude, either from the quantity or from other circumstances, that this offence was in the worst class of case. Senior counsel who appeared for the Crown conceded that he could not contend that the pseudoephedrine offence was in that category. Notwithstanding that, and the strong subjective circumstances of which his Honour was fully conscious, the starting point (prior to the discount for the plea of guilty) for that offence was the maximum provided by the statute. I accept the submission of senior counsel for the applicant that this, alone, demonstrates error in relation to the sentence imposed in respect of this offence. Another sentence should have been imposed and it will be necessary for this Court to determine what that sentence was and to impose it.
36 A similar, if less powerful, case can be made in relation to the offence of possession of a prohibited weapon. As to that, the applicant's evidence was that he had come into possession of it because it had been left in his premises by somebody else and that he had retained it because, during periods of psychosis, when he feared that someone would seek to do harm to him, he would use it to frighten them away.
37 Obviously, as a replica, it would not have been possible for the applicant to use it as a firearm. It could only be used, as he envisaged, to frighten a person who believed it to be a genuine firearm. Once again, reference to the maximum penalty provided, set against the ten year starting point for this offence, suggests error. Recourse to Schedule 1 of the Weapons Prohibition Act, which defines prohibited weapons, shows that a wide variety of items much more dangerous than a replica pistol are encompassed in the prohibition contained in s7(1). These include flick-knives, ballistic knives, and a variety of other kinds of obviously dangerous knives, bombs, grenades, rockets, missiles and mines in the nature of explosives or incendiaries, flame throwers, darts, dart projectors, devices capable of administering electric shocks. The starting point for this offence was ten years out of a possible maximum of fourteen years. I would think that the replica pistol would be among the least dangerous of the weapons prohibited by s7, which would put the applicant's offence at a lower point on the scale than his Honour appears to have treated it.
38 Senior counsel for the Crown also conceded that this sentence "may well be excessive". I am satisfied that this sentence also has been shown to have been manifestly excessive.
39 That brings me back to the statistics, which are particularly relevant to the charges of manufacturing and supplying methylamphetamine. In each of these cases the starting point was again ten years, this time two-thirds of the maximum penalty available. The sample provided in relation to the manufacture charge is very small, barely sufficient to provide relevant information. Only six cases of manufacturing amphetamines in less than the commercial quantity are included. Of these, four offenders received custodial sentences and two non-custodial sentences. The sentences were two, three, four and six years. The non-parole periods were one year, eighteen months, and three years (presumably one of the four mentioned was a fixed term without a non-parole period).
40 The caution that must be exercised in relation to the use of statistics is, among other reasons, because of the sparsity of the information available in relation to the individual cases. It is not known, from the data supplied, whether any of the offenders the subject of the statistical material pleaded guilty - in which case the statistics would be of even greater assistance to the applicant. Nor are the offenders' criminal histories known. This is of particular relevance in a case where the offender, as here, has a long history, with many instances of drug offences. If they had not, then obviously that factor would not assist the applicant.
41 In respect of the supply offence, the available material is far more extensive, including 356 individual cases. Of these, no offender was subject to a longer head sentence than that imposed upon the applicant. Indeed, only one out of the 143 who were sentenced to full time custody, was sentenced to a full term of eight years. The next longest term, imposed on three offenders, was six years. The vast majority were between eighteen months and thirty-six months. The non-parole periods spell a similar, if not quite so favourable, story. One offender was sentenced to a non-parole period of six years, and two to four and a half years. The majority hovered between six months and two years.
42 It is necessary, however, to stress that the applicant's very poor history would tend to suggest that his case called for greater, rather than lesser, severity. It may safely be assumed, also, that some of the cases involved supplies of relatively small quantities of amphetamines, considerably less than the quantity the applicant agreed to supply and was deemed to have supplied.
43 While it is important not to lose sight of the applicant's criminal history, and the fact that he was engaged in a commercial enterprise, those factors have to be balanced against the subjective circumstances to which I have referred. The applicant's psychiatric condition meant that less attention could be given to questions of general deterrence, although, particularly in drug cases, they remain of fundamental importance (R v Scognamiglio (1991) 56 A Crim R 81; R v Fahda [1999] NSWCCA 267). Further, the needs of the applicant's disturbed son warranted some consideration under the principles stated in Edwards. His Honour purported to make some allowance in respect of that circumstance, but it does not appear that he, in fact, did so in the sentences imposed.
44 I have come to the view that the applicant has succeeded in showing that each sentence was manifestly excessive. In coming to this view I have not overlooked the submission made by senior counsel for the Crown, who argued that it is not helpful to assess criminality of a drug manufacturing offence only by reference to the quantity of the drug involved. As I have already mentioned, and as senior counsel pointed out, the applicant was plainly involved in a commercial enterprise of both manufacturing and distributing methylamphetamine. Senior counsel is correct to characterise this as a serious offence, not a minor one. Even so, I adhere to the view expressed that the sentences were manifestly excessive. The consequence is the sentences must be set aside and the applicant re-sentenced. Against that possibility the court received additional evidence in the form of affidavits affirmed by the applicant and by his solicitor. Each of these confirms that the applicant's rehabilitation is continuing. In particular, in his affidavit, the applicant said:
"6. The first six months I spent in gaol I was all over the place. As soon as I started the Dexamphetamine treatment there was a sudden change. I feel normal for the first time in 40 years. I was diagnosed with ADHD (Attention Deficit and Hyperactivity Disorder) when I was put in a psychiatric ward when I was 9 years old because I was hyperactive. When I came here and went to the Clinic I saw a male psychiatric nurse called David Caine who remembered me from the psychiatric hospital when I was a child. He told me back then they called me "speedy". He said I should have been medicated from that time.
7. I am now focused. I can sit still and have a proper conversation. I couldn't work or concentrate before. Now I can just do it. I'm relaxed, calm and slow. All my urines have been clean since I've been in custody. Only prescribed medication was detected."
45 The evidence given by the applicant at the sentencing proceeding, and the evidence subsequently provided to this court, satisfies me that he has made quite remarkable progress towards rehabilitation. That is to be encouraged and rewarded.
46 It is now necessary to consider whether the sentences to be imposed ought to be fixed, to be served concurrently, cumulatively, or partly concurrently and partly cumulatively. Senior counsel for the Crown argued that, having regard to the nature of the offences, it would be appropriate for them to be served entirely concurrently. Accordingly, his concession in respect of the replica pistol offence and the concession later made in respect of the precursor offence would not affect the overall sentences. Otherwise, senior counsel argued that the sentences had not been shown to be manifestly excessive. I have already rejected this contention.
47 This is a case in which, in my view, it would not be erroneous to impose sentences to be served partly concurrently and partly cumulatively. But it also would not be erroneous to impose sentences to be served entirely concurrently. As the High Court pointed out in Pearce, totality is a significant issue in sentencing. In my opinion the imposition of an appropriate sentence in relation to each of the manufacture and supply charges will serve to recognise and encompass the totality of the applicant's criminality. The possess precursor offence was really an integral part of the manufacture charge and I would not propose to make the sentence in relation to the replica pistol cumulative.
48 I would adopt the sentencing judge's discount of twenty per cent in recognition of the pleas of guilty and I would adopt his finding of special circumstances, justifying departure from the statutory ratio between the head sentence and the non-parole period.
49 I propose that the applicant be re-sentenced as follows: