21 Counsel for the applicant relies upon the line of authority emanating from this Court to the effect that where an offender is involved in supplying prohibited drugs on only one occasion, he or she does not fall within the ambit of the principle laid down in R v Peter Michael Clark (Unreported, NSWCCA 15 March 1990) and other cases, namely that only in exceptional cases which someone who was involved in trafficking to a substantial degree be able to avoid a full-time custodial sentence. See R v Ozer (Unreported, NSWCCA 9 November 1993) and R v Bardo (Unreported, NSWCCA 14 July 1992.)
22 However, it is appropriately conceded by counsel for the applicant that a full-time custodial sentence may still result from a single occasion of supply where the detailed involvement of the offender in the preparation and execution of the transaction is such as to mandate a gaol sentence. (See Ozer at page 5).
23 Counsel for the applicant before this Court submitted that the applicant's involvement was no more than that of a go-between, and did not involve any detailed or elaborate preparation on his part.
24 It is not contended, however, that his Honour fell into appellable error in imposing a full-time custodial sentence, but that the sentence imposed, particularly the head sentence, was manifestly excessive and reliance was sought to be placed on an analysis of comparable sentencing statistics compiled by the Judicial Commission between April 1993 and March 2000.
25 These statistics were said by counsel for the applicant to demonstrate that both the head sentence, and to a lesser extent the non-parole period, were at the upper end of the range.
26 Thus it is submitted, bearing in mind the objective and subjective factors, that his Honour fell into error in imposing the terms which he did. It is submitted that his Honour must have failed to maintain the distinction between single-episode supplies, and supplies involving trafficking, once he decided to impose a full custodial sentence.
27 Considerable care must be exercised in drawing conclusions from statistics relating to the subject offence. Some, but by no means all, of the relevant qualifications were referred to by learned counsel for the Crown in his written submissions. Thus he pointed out that the statistics do not provide information as to important factors such as:
· the quantity of drug involved;
· whether the supply was actual, deemed, or caught by the extended definition in s 3 of the Drug Misuse and Trafficking Act 1985, and
· whether the supply was motivated by financial greed, as opposed to the need to fund a drug addiction.
28 His Honour did not make a specific finding as to whether the criminal conduct of the applicant fell within the concept of a single episode supply. I do not consider that this was an enquiry which his Honour was required to undertake.
29 Although the applicant gave evidence before his Honour, he withheld relevant evidence pointing to the full extent of this criminal enterprise. In certain respects his Honour, understandably, declined to accept evidence given by the applicant.
30 Ultimately a limited factual basis provided the material upon which his Honour was required to determine the seriousness of the applicant's criminal conduct.
31 Taking into account the matters in the Form 1, serious criminal conduct was revealed to his Honour which merited condign punishment.
32 The majority judgment (Gleeson CJ, Gaudron, Hayne and Callinan JJ) in The Queen v Olbrich (1999-2000) 199 CLR 270 provides helpful guidance in this context. In that case the respondent pleaded guilty to a charge of having imported prohibited imports contrary to s 233D of the Customs Act, 1901. The High Court held that the sentencing judge having rejected the respondent's contention that he was merely a courier, was correct to "simply apply normal sentencing principles, taking into account the nature of the offence, the maximum penalty and such other matters which are relevant to an assessment of the objective features of a criminal offence."
33 At page 277, the majority said:
"We do not accept that the identification of the precise nature of the accused's involvement in an act of importation of prohibited imports is an essential aspect of the sentencing process.
It is understandable that, in order to promote consistency in sentencing, appellate courts, when expressing views about sentences for drug offences, have sometimes categorised the role of an offender, where that is known, in a scheme of importation or distribution. Similarly, sentencing judges who are dealing with several co-offenders may consider such categorisation relevant in differentiating between individuals. However, the utility of such an exercise is necessarily limited by the extent to which the material facts are known. What may be a convenient shorthand method of describing the facts of particular cases should not be elevated to an essential task to be undertaken on every case, regardless of whether that is possible or appropriate."