These remarks by his Honour are clearly correct and reflect the approach adopted by this Court over a very long period of time. In the course of the proceedings today our attention was drawn to similar expressions uttered by Lush, J., in R v. Hill[1], approximately 25 years ago.
13 However, acknowledging the force of these remarks, counsel for the appellant has nevertheless submitted that his Honour attributed undue weight to these factors and, in particular, the principle of general deterrence in these specific circumstances. He failed, the argument proceeded, to take properly into account the extent and success of the appellant's rehabilitative endeavours in the substantial period of time that has elapsed since the commission of the offences. This resulted, Mr Melasecca argued, in the imposition of a sentence that was manifestly excessive in all of the circumstances.
14 In this context, I observe that after his arrest towards the end of 2002 the appellant spent six months in custody before being released on bail. By that stage it appears that he was drug free for the first time since his teenage years. His long-time partner Van Phan gave birth to their first child on the following day. Thereafter, he has remained totally abstinent from heroin and has acted as the head of his family, caring for his mentally ill brother, his own siblings and those of his partner. He sought and secured lawful employment in a car wash during the period when he was at liberty on bail. A second child was born of his relationship with Van Phan before he returned to court 18 months later. There was evidence from Joseph Lamberti, a very experienced drug counsellor, and Richard Tregear, an outreach worker with Open Family, which strongly supported the genuineness of the appellant's endeavours and presented him in a very favourable light.
15 This, Mr Melasecca argued, was a case of the kind to which Callaway, J.A. referred in R. v. MWH[2], where the existence of a substantial interval between the commission of an offence and the date of imposition of sentence can be seen to operate, in one sense at least, in the offender's favour, as it has permitted the individual to demonstrate significant rehabilitation and to reconstruct his life in a more satisfactory fashion.
16 Further, the argument was advanced that his Honour made inappropriate references in the course of discussion to his image of the extent of drug dealing in the Vietnamese community. It was clear, the argument proceeded, that his Honour had formed very strong views about the incidence of such criminal activity and that they were indeed of such strength that he failed to address properly the individual situation of the person before the court. The consequence of that approach was that he failed to deal with the specific person and imposed a sentence which disregarded or undervalued a number of important considerations applicable in his case.
17 There is more than one danger in the application by a sentencing judge of his own anecdotal experience or impressions, however extensive that experience might be. Importantly, such views, which are in no way based upon the evidence immediately before him in the matter and depend upon a variety of unchallengeable considerations, accord to the individual no opportunity for answer. It would be indeed unfortunate were judges to replace the ordinary principles upon which courts must operate in such circumstances with their own impressionistic responses to the situations with which they are confronted. I would add that the principle of general deterrence, to which his Honour directed those remarks, is concerned with the engagement in the prohibited conduct by members of the community generally. It should not be used to convey a message to a specific ethnic community by the imposition of a deterrent sentence upon an offender who is regarded as an appropriate vehicle essentially because he is a member of that community.
18 Unfortunately, I am of the view that there is a distinct possibility that that is what occurred here. On more than one occasion in the course of the proceeding, his Honour made comments indicating the possession of particular knowledge of other matters coming before the courts and his impressions and experience concerning the involvement in drug dealing by members of the Vietnamese community. In other words, his Honour appears to have based his sentence, in part at least, upon his view of the need to deter members of the Vietnamese community from engaging in drug trafficking through the particular person before him who was identified as Vietnamese, rather than the need to deter persons from engaging in drug dealing generally. In consequence, he attributed insufficient significance to the appellant's background, youth and rehabilitative endeavours.
19 Accordingly, I consider that it is necessary in the circumstances of this matter that the appeal be allowed. I propose that the sentences imposed in the court below be set aside and I would re-sentence the appellant as follows:
On count 1: imprisonment for two years and six months;
On count 2 imprisonment for 12 months.
I would direct that six months of the sentence imposed on count 2 be served cumulatively upon that imposed on count 1. This would create a total effective sentence of three years' imprisonment in respect of which I would fix a non-parole period of 15 months.