52 Thirdly, the fact that Tezer did not appear to have benefited financially from his involvement with the offence was referred to by his Honour, who then went on to note the lack of evidence of substantial assets or a lavish lifestyle. His Honour clearly understood the limited role played by Tezer and how it had come about that Tezer agreed to help Laurie.
53 Fourthly, Tezer's efforts at rehabilitation were referred to by the learned sentencing judge and his Honour took Tezer's "prospects of rehabilitation" into account in fixing the non-parole period. His Honour nevertheless took into account the need for specific and general deterrence.
54 Given that Tezer was involved at the wholesale level, albeit as an aider and abetter, in two relatively large transactions some months apart and that he was clearly aware of the extent of his friend's involvement in the drug trade and yet he knowingly and willingly provided assistance to him, the argument that both the head sentence and the non-parole period were manifestly excessive must fail. As counsel for the respondent submitted, a sentence of imprisonment of 10% of the maximum penalty was, in the circumstances, lenient rather than excessive.
55 All of the matters specifically relied on by Davis as matters to which the judge did not give any or sufficient weight were expressly referred to by his Honour although not at all of them were taken into account by his Honour. I have already dealt with the specific ground of appeal based on the purpose of, and benefit from, trafficking. It does not lend any support to the argument that the sentence imposed on Davis was manifestly excessive. There was also the question of delay referred to above.
56 Further, there is no reason to conclude that the learned sentencing judge did not give appropriate weight to the remaining matters. His Honour treated Davis' prospects of rehabilitation favourably despite the fact that he continued to use amphetamine albeit on a reduced scale. The judge also recognised that Davis' plea of guilty demonstrated acceptance by him of responsibility for his criminal conduct and merited "a significant reduction in the penalty that would otherwise be imposed". Moreover, both of these matters and Davis' "limited criminal history of offences involving drugs" were expressly mentioned by his Honour when fixing the non-parole period.
57 Given the number of illegal transactions in which Davis was intentionally involved as a busy salesman actively seeking customers and sales over the seven month period, the total amount of drugs trafficked by him and the amount of money involved, the argument that both the head sentence and the non-parole period were manifestly excessive must fail. In the circumstances, a sentence of imprisonment of 14% of the maximum penalty of 25 years was, as counsel submitted, moderate.
58 I have, however, concluded that the sentencing discretion ought be re-opened because I would uphold the complaints made under other grounds by both appellants as to the factor of delay. The fact that sentences imposed are deemed not to be manifestly excessive does not mean that they would be the sentences imposed by the judges sitting on appeal. The appellate task, in response to a ground complaining that sentences are manifestly excessive, is decidedly not to substitute its own discretion for that of the judge below. Rather, the ground will be rejected if the sentences imposed by the judge were within the range open to him or her in the exercise of his or her discretion.
Re-sentencing
59 I must now consider whether in the exercise of my own discretion, upon re-sentencing, I would impose any lesser sentence in either case.
60 Counsel on behalf of Tezer highlighted the early plea of guilty, the absence of prior convictions, the fact that it was not proved that Tezer had gained any financial reward for his offence, the delay and his prospects of rehabilitation. On behalf of Davis, counsel highlighted his client's limited and relatively old prior convictions, his remorse, delay, and his prospects of rehabilitation. Davis, who was aged 37 when arrested, had been a user of amphetamine and had been engaged in the offending partly in order to obtain drugs for his own use.
61 As the summary of evidence discloses, the appellants were part of a major drug ring that was the subject of extensive investigation by police. They each pleaded guilty to trafficking in a commercial quantity of a dangerous drug of dependence, an offence which carries a maximum sentence of 25 years' imprisonment. In my opinion, the learned sentencing judge appropriately evaluated the roles of each offender in the enterprise and the nature of their offending. I have already approved his Honour's analysis.
62 The sentencing discretion has been re-opened in my opinion only because of the factor of delay, but that factor is not a matter of particular significance, in my view, when evaluating the offending in these cases and the mitigating factors which they could each call in aid. Although I would make allowance for delay in both cases I would conclude, in the exercise of my own discretion, that the sentences imposed in both cases were appropriate.
63 Accordingly, whilst I would allow the appeals, in each case I would re-impose the same sentence imposed below and declare it to commence on the same date 11 May 2006, varying the orders only by making a declaration of pre-sentence detention which has regard to time served up to the date of sentencing in this court. I would confirm the confiscation, pecuniary penalty and forensic sample orders made below.