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[2005] NSWCCA 78
mixed. Conviction appeal dismissed. Leave to appeal against sentence granted. Sentence quashed and replaced with imprisonment for a non-parole period of five years three months, commencing 4 March 2004, and a...
The Court of Criminal Appeal upheld Blair’s conviction because the evidence described him as receiving drugs to pass them on, not simply holding an owner’s drugs temporarily so they could be returned. The jury had also been adequately directed about the knowledge required for a commercial-quantity offence. The sentence was set aside because the sentencing assessment did not properly account for Blair’s limited role, the amount and purity of the drug, and the correct approach to prior convictions. The Court imposed a shorter sentence.
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2,427 words · generated 29/09/2026
Robert Keith Blair appealed to the New South Wales Court of Criminal Appeal against his conviction for supplying a commercial quantity of methylamphetamine. He also sought leave to appeal against sentence. Grove J gave the principal judgment, with James J and Barr J agreeing ([1], [62]-[63]).
No linked legislation citations have been extracted yet.
Police searched Blair’s home on 21 March 2003. They found three containers in a freezer containing 371.3 grams of methylamphetamine, two sets of electronic scales, and 62 resealable plastic bags of a type frequently used to package saleable quantities of prohibited drugs ([3]). Some of the contents of one container appeared to have been removed.
Blair told police that a friend from South Australia had asked him to collect a parcel in Coogee. According to Blair, an unidentified man approached his parked vehicle, asked whether he was “Bob”, and handed him three bags of white powder. Blair said he transferred the contents into Tupperware containers and put them in the freezer until the South Australian friend, or someone on that person’s behalf, collected them. He said he did not know what the substance was when he first received it, although he suspected it might be heroin. At trial, he said he had become aware a few days before the search that the substance was drugs, but had not weighed it ([4]-[6]).
A jury found Blair guilty on 4 March 2004. The District Court sentenced him to a non-parole period of ten years and a total term of 13 years four months ([2]). The Court of Criminal Appeal dismissed the appeal against conviction, but allowed the sentence appeal. It quashed the District Court sentence and resentenced Blair to a non-parole period of five years three months and a total term of seven years, commencing 4 March 2004 ([61]).
The judgment deals with two conviction grounds. The first concerned whether the jury needed a direction that Blair could have possessed the drugs otherwise than for supply. The second concerned the mental element for supplying a commercial quantity. The sentence grounds concerned the assessment of objective seriousness, the quantity’s place in the commercial range, Blair’s role, prior convictions, and the operation of the standard non-parole period framework ([7]-[8], [25], [37]).
On the first conviction ground, Grove J considered whether Blair’s account could bring his possession within the principle in R v Carey. Carey concerned drugs deposited temporarily with a person by the owner, or a person reasonably believed to be the owner, with the intention that they be returned. The judgment treated that as distinct from a person receiving drugs on behalf of someone else and then passing them onwards ([11]-[16]).
The statutory definition of “supply” was relevant. As set out in the judgment, it includes not only selling and distributing, but also keeping or having possession for supply, receiving for supply, and other acts connected with supply ([12]). Grove J relied particularly on the distinction drawn in Carey between a mere bailment and the situation in which a person obtains drugs on behalf of another and transfers physical control to that person. Carey described the latter situation as falling within the ordinary meaning of supply ([15]).
On Blair’s version, he received the drugs from the Coogee man for the South Australian man. He was therefore not merely holding drugs that an owner had directly entrusted to him for return to that owner. Grove J characterised him as “a link in a chain of intended supply” ([16]). The possibility that the South Australian man was already the owner was not supported by evidence sufficient to permit an inference. Blair had said he knew who owned the drugs but did not wish to identify that person; he also said he did not know the name of the person who gave them to him. There was no evidence that he paid the Coogee man, or that the Coogee man held the drugs as bailee for the South Australian man ([17], [23]). The Court concluded that the proposed Carey direction was not required on these facts ([20]-[24]).
The second conviction ground challenged the direction about knowledge of a commercial quantity. The trial judge had told the jury that the Crown had to establish actual knowledge, a belief falling short of guilty knowledge, or awareness of a significant or real chance that the quantity was at least 250 grams ([26]). The Court considered that direction alongside the judge’s directions on intentional custody or control, knowledge or belief that the substance was a prohibited drug, and the possibility of a verdict for supply of a non-commercial quantity if the jury was not satisfied about the 250-gram threshold ([30]-[31]). In that context, Grove J was not persuaded that the charge was defective ([32]). The conviction appeal was dismissed ([33]).
The sentence appeal succeeded because the sentencing judge’s assessment did not adequately address matters relevant to the standard non-parole period. The relevant Division 1A provisions had commenced on 1 February 2003, before Blair’s offence. The table in s 54B prescribed a standard non-parole period of ten years for the offence ([35]). The Court referred to R v Way, which required the sentencing judge to ask whether there were reasons not to impose the standard period, including an assessment of objective seriousness and aggravating and mitigating circumstances ([41]).
A central factor was Blair’s role. The evidence established that on one occasion he acted as a courier and storeman, moving the drugs from Coogee to his freezer. He was not shown to be the owner or a principal in a transaction, other than the intended passing on of the drugs to the South Australian man. There was no evidence of what reward, if any, he expected to receive ([47]). The Court considered role relevant to objective seriousness, drawing on its discussion in R v Shi ([42]-[45]).
The sentencing judge also made an arithmetic error in describing Blair’s quantity as above the middle of the commercial range. The range was 250 to 1000 grams, making its midpoint 625 grams. Blair had 371.3 grams ([49]-[50]). The Court observed that this error could affect the seriousness assessment, particularly when considered alongside the low purity of the drug ([50], [56]). The Court also addressed the proper treatment of prior convictions: common law principles did not permit a prior conviction to aggravate the offence, although it could affect leniency and the weight given to sentencing purposes such as deterrence and community protection ([52]-[53]).
Taking the role, quantity, purity and other relevant circumstances into account, Grove J concluded that there were reasons not to impose the standard non-parole period ([56]). Blair’s health was also taken into account in fixing the sentence. The Court described his incarceration as more onerous because of his health problems and need for medication and assistance, while noting that there was no diagnosis of the suspected condition mentioned at sentence ([55], [60]).
The judgment applied legal principles it described as already established. On the meaning of supply and the temporary holding of drugs, it considered Carey and related decisions. Carey’s particular facts involved an owner depositing drugs temporarily with another person for return. Blair’s case was distinguished because his account described receipt from one person for onward passage to another ([11]-[20]). The judgment did not announce that every form of custody for another person is supply. Its reasoning turned on the distinction between return to an owner and participation in an intended chain of supply.
On the mental element, the Court referred to R v Lau as authority for a direction framed in terms of knowledge, belief, or awareness of a significant or real chance concerning the drug and the commercial quantity ([27]-[28]). It also considered the appellant’s reliance on Saad and the relevance of R v Kural. Grove J rejected the contention that Lau should not be followed, noting that Lau cited Kural and that the directions in Blair’s trial should be considered together ([28]-[32]).
For sentencing, Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 had already come into effect. The judgment applied the approach in Way and referred to Shi as an example of applying that approach to a commercial-quantity methylamphetamine supply offence ([35], [41]-[45]). It used that framework to assess whether reasons existed not to impose the listed standard non-parole period.
The judgment’s contribution on the facts was its application of those principles. It held the conviction sustainable while finding the sentence assessment inadequate. It does not, in the supplied text, describe a subsequent amendment to the law or later judicial treatment of the decision. The judgment itself is the only source available here for describing the law before and after this decision.
At [16], Grove J described Blair as “a link in a chain of intended supply”. In plain English, the Court saw the evidence as involving receipt of drugs for onward transfer, rather than temporary safekeeping for return to the person who had entrusted them.
At [17], the Court said that a speculative possibility about the South Australian man’s ownership did not leave open a finding by inference. The point was evidentiary: the fact that Blair referred to a person who might own the drugs did not, without more, establish that the drugs belonged to that person before they were handed to Blair.
At [32], Grove J said he was “unpersuaded” that the jury charge was defective. This conclusion depended on the directions being considered together, including the alternative verdict direction. The judgment does not treat the challenged sentence of the charge in isolation.
At [41], the judgment set out the Way framework: the sentencing judge must ask whether there are reasons not to impose the standard non-parole period, considering objective seriousness and relevant circumstances. Put simply, the statutory period was not applied mechanically in the Court’s reasoning; the prescribed framework required an assessment of the particular offence and offender.
At [53], Grove J stated that a prior conviction “does not operate to aggravate an offence” under the common law principles discussed there. In plain English, a prior record could be relevant to whether leniency was appropriate or to the weight given to purposes such as deterrence, but it could not simply be used to make the current offence more serious.
At [56], Grove J identified Blair’s lesser role, the quantity’s position in the commercial range, and the drug’s low purity as reasons for finding the offence below the middle range of seriousness. That assessment supported a non-parole period below the standard period.
For the supply issue, the relevant factual comparison is between temporary custody for return to an owner and receipt as part of intended onward supply. The judgment indicates that Carey-type reasoning is engaged by a genuine temporary deposit from an owner, or someone reasonably believed to be the owner, where the drugs are to be returned to that person ([11]-[16]). By contrast, the case treats receipt from one person for passage to another as materially different, even where the recipient describes himself as a courier or custodian ([15]-[16]).
The ownership and transfer evidence matters. Here, there was no evidence establishing that the South Australian man already owned the drugs or that the Coogee man was acting as that person’s bailee ([17], [23]). The Court did not accept that the possibility of prior ownership, unsupported by evidence, could establish the temporary-return characterisation.
For the mental element, the judgment is relevant where a jury is asked to decide whether an accused knew, believed, or was aware of a significant or real chance that the drug quantity met the commercial threshold. It illustrates the Court’s assessment of the entire charge, including directions about custody or control, prohibited-drug knowledge, and a lesser alternative verdict ([26]-[32]).
For sentencing, the judgment is relevant to the assessment of a standard non-parole period where the offender’s role, the drug quantity, purity, health, or other relevant circumstances may bear on objective seriousness. It particularly addresses a courier or storeman role, rather than a role established as principal, and the need to locate the quantity accurately within the statutory commercial range ([47]-[50], [55]-[56]). It also addresses the distinction between using prior convictions as aggravating factors and considering their relevance to leniency and sentencing purposes ([52]-[53]).
The supplied judgment does not identify decisions issued after Regina v Blair that applied, distinguished, followed, or criticised it. It therefore does not support a conclusion about how later courts have treated Blair.
Within Blair itself, the Court considered earlier authorities including Carey, Liberti and Frazer on temporary possession and supply; Lau, Kural and CWW on the mental element and jury directions; and Way and Shi on standard non-parole periods and objective seriousness ([10]-[20], [26]-[32], [35]-[45]). It also relied on Johnson, Veen (No 2) and Wickham when discussing prior convictions in sentencing ([53]). Those are the authorities the judgment itself uses. Any account of later treatment would require sources beyond the supplied text.
The judgment does not determine what factual evidence would be sufficient, in a different case, to establish that a recipient held drugs temporarily for return to an owner. Its conclusion depends on the evidence in Blair, including the absence of evidence about ownership or the relationship between the unidentified men ([17], [23]). It also does not establish that a person’s asserted lack of knowledge at the moment of receiving drugs would resolve the supply issue in every case. The alternative argument based on Blair’s claimed ignorance was considered against the same disputed account and rejected in the circumstances ([22]-[24]).
On jury directions, the judgment found the charge adequate as a whole but does not prescribe a single mandatory formulation for every commercial-quantity case. The outcome was affected by the directions actually given and the absence of a request for an additional direction at trial ([30]-[32]).
On sentence, the judgment identifies relevant considerations but does not give a universal numerical sentence for courier or storeman roles, or for quantities at a particular purity. It refers to sentencing statistics but expressly cautions that they must be used carefully, especially given the possible effect of Division 1A on sentencing patterns ([57]-[58]). The treatment of prior convictions is also discussed in the context of the statutory provision and common law principles identified in the judgment ([52]-[53]).
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JUDGMENT OF: Grove J at 1; James J at 62; Barr J at 63
DECISION: Appeal against conviction dismissed; Appeal against sentence allowed; Appellant resentenced
CATCHWORDS: CRIMINAL LAW AND PROCEDURE - DEEMED SUPPLY OF PROHIBITED DRUG - HELD BY APPELLANT AFTER RECEIVING FROM ONE PERSON FOR PURPOSE OF PASSING TO ANOTHER - DIRECTION THAT APPELLANT MAY BE IN POSSESSION OTHERWISE THAN FOR PURPOSES OF SUPPLY NOT REQUIRED IN THOSE CIRCUMSTANCES - DIRECTIONS AS TO KNOWLEDGE THAT COMMERCIAL QUANTITY OF DRUGS IN POSSESSION SUFFICIENT - CONVICTION SUSTAINED - SENTENCE - STANDARD NON PAROLE PERIOD AND TOTAL TERM IN ACCORDANCE WITH STATUTORY FORMULA IMPOSED - ERROR IN CALCULATING POSITION OF SUBJECT QUANTITY IN RANGE AMOUNTING TO COMMERCIAL QUANTITY - PRIOR RECORD TREATED AS AGGRAVATING FACTOR OF OFFENCE - OMISSION TO ASSESS FACTORS RELEVANT TO SERIOUSNESS OF OFFENCE - INADEQUATE ASSESSMENT OF OTHER EVIDENCE CAPABLE OF AFFECTING DETERMINATION OF WHETHER STANDARD NON PAROLE PERIOD SHOULD BE IMPOSED - RESENTENCE BY THIS COURT APPROPRIATE
Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: s 6(3) Criminal Appeal Act 1912 s 29(a) Drug Misuse & Trafficking Act 1985
Gilchrist Watt & Sanderson Pty Ltd v York Products Pty Ltd 1970 2 NSWR 156 R v Barnier [2001] NSWCCA 459 R v Carey 1990 50 A Crim R 163 R v CWW 1993 70 A Crim R 517 R v EAS, unrep, NSWCCA 26 July 1990 R v Fong, unrep, NSWCCA 20 November 1996 R v Frazer 2002 128 A Crim R 89 R v Johnson [2004] NSWCCA 76 CASES CITED: R v Kural 1987 162 CLR 505 R v Lau 1998 105 A Crim R 167 R v Liberti 1991 55 A Crim R 120 R v Shi [2004] NSWCCA 135 R v Tucker, unrep NSWCCA 8 November 1991 R v Way 2004 60 NSWLR 168 R v Wickham [2004] NSWCCA 193 Saad v The Queen 1981 70 ALR 667 Veen v The Queen (No 2) 1998 164 CLR 465
D. Woodburne (Crown) COUNSEL: S. Odgers SC (Applicant)
S. Kavanagh (DPP) SOLICITORS: S.E. O'Connor (Applicant)
IN THE COURT OF CRIMINAL APPEAL 2004/2731
GROVE J JAMES J BARR J
11 March 2005 REGINA v ROBERT KEITH BLAIR Judgment
1 GROVE J: The appellant stood trial before O'Reilly DCJ and a jury at Penrith District Court on an indictment charging that on 21 March 2003 at Parklea in the State of New South Wales he did supply a prohibited drug namely methylamphetamine, the quantity of which was not less than the commercial quantity prescribed in respect to that prohibited drug. 2 The trial extended from 1 to 4 March 2004 and on the lastmentioned date a verdict of guilty was found by the jury. On 13 May 2004 his Honour sentenced the appellant to imprisonment consisting of a non parole period of ten years and a total term of thirteen years four months, commencing on 4 March 2004. He appeals against conviction, and alternatively, seeks leave to appeal against sentence. 3 On 21 March 2003 police executed a search warrant at the appellant's home. Significant finds included three containers in a freezer, the content of which was later shown to be 371.3 grams of methylamphetamine; two sets of electronic scales and sixty two resealable plastic bags of a type frequently used for packaging saleable amounts of prohibited drugs. The appearance of the contents in one of the containers in the freezer suggested that some of it had been removed. 4 In the course of search Police Sergeant Lofts asked the appellant if he could tell him what the frozen material was and he replied, "I have no idea what it is". Later after being taken to the police station but returned to the premises he was again asked what the white powder was, but gave a similar reply. He was then asked if he could say who owned the material and responded, "I could, but I don't wish to". On returning to the police station he was formally interviewed. In summary, he told police a friend from South Australia, whom he did not wish to name, had asked him to drive to Coogee and collect a parcel. The appellant was a courier by occupation. He went to Coogee and parked his vehicle in a place which he could not exactly remember but whilst there he was approached by a person, who asked him if he was "Bob", and upon giving an affirmative reply, this man handed him three bags of white powder. He came home and transferred the contents to Tupperware containers and put them in the freezer. He did not know what the substance was, but suspected it may have been heroin. Neither the friend from South Australia nor anyone else on his behalf had come to collect the goods. A visitor (also unnamed) with apparent knowledge of what was in the freezer came and asked for some of it but the appellant declined to supply any. He thought that this person may have been responsible for the appearance that some had been extracted from one of the containers. 5 The appellant gave evidence at trial. He confirmed the circumstances of obtaining the drug which he had described to investigating police. He corrected something he had said about when he collected the substance, to say that it had been in his possession for about three months, rather than three weeks which he had mentioned beforehand. He said he had been given the scales by his son to repair, and although he had done this he had simply not got around to returning the scales. He explained that he had the plastic bags because he used to store loose coins in them and give them to his nieces and nephews. 6 Inter alia, he admitted in cross examination that "a few days before the police got here" he became aware that the substances in the freezer were drugs but he kept them in accordance with the arrangement which he had made. He had not weighed the amount of drugs. 7 The appellant advanced two grounds of challenge against conviction. Ground 1 asserted: "The trial judge erred in directions to the jury regarding the element of supply". 8 A submission on behalf of the Crown was that "The appellant's story was not without its difficulties"
and elements which were vague, improbable and unlikely were pointed to, as were inconsistencies between what the appellant had asserted from time to time. There is much force in these observations but the ground appears to focus upon the basis upon which it might be concluded by the jury, so it was submitted, that the appellant had the drugs in possession other than for the purpose of supply. See s 29(a) Drug Misuse and Trafficking Act 1985 . 9 The first proposition was that, until handed to the appellant, the man at Coogee had physical control of the drugs. When the appellant received them he did so as bailee for the owner whom he (and the jury) might reasonably infer was the man from South Australia. On these facts the jury ought to have been directed, a verdict of not guilty would follow, as on the balance of probabilities, the appellant had the drugs in possession to return them to the owner, which is a circumstance "otherwise than for the purposes of supply". 10 Authority for this proposition is contended to be found in R v Carey 1990 50 A Crim R 163 and to be supported by R v Liberti 1991 55 A Crim R 120 and R v Frazer 2002 128 A Crim R 89. 11 In Carey, the sister of an accused woman had given her some packages of a drug (which apparently had not been located by police during a morning search), asking her to mind them overnight and stating that she would return to retrieve them on the following day. These facts were not in dispute. It was held that the mere transfer of physical control of drugs from a person who has them deposited with him or her back to the owner, or the person reasonably believed as such, was not included in the notion of supply either within s 3or s 29 of the abovementioned statute. 12 "Supply" has an extended definition for the purposes of the statute: "Supply includes sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things". 13 The judgment in Carey was delivered by Hunt J (Wood & Finlay JJ agreeing). Senior counsel for the appellant referred to expressions in the text of the judgment which his Honour articulated in terms of "transferring physical control" of drugs which he argued demonstrated a wider scope of applicability of the concept of holding drugs "otherwise than for the purpose of supply" than a limit of that concept to the strict circumstance of return to an owner. 14 He acknowledged, however, "that Hunt J's opinion concerning the extended definition of "supply" was that none of the various limbs of s 3 would include the mere return of drugs to the owner or to the person reasonably believed to be the owner. There is no reason to conclude that Hunt J intended his remarks to be understood beyond the context of the facts in Carey which involved deposit by an owner with intent to return to that owner, and it stands as authority that that particular circumstance of intended return falls outside the definition. 15 In the judgment of Hunt J there appears a specific caution, namely: "I should also refer to one very common situation which that construction should not be understood as including. That is the situation where one person has obtained a quantity of drugs on behalf of another person or on behalf of a group of persons (which may or may not include himself) and where he transfers physical control of those drugs (or some portion of them) to that other person or to those other persons. That is in no sense analogous to the 'bailment' situation as is that with which the present appeal is concerned, and in my view such situation would necessarily fall within the ordinary meaning of the word 'supply' ". 16 The appellant's assertion of facts, if accepted, would fall within that situation which is expressly distinguished from that of Ms Carey. The appellant received the drugs from the Coogee man on behalf of the South Australian man. He was not a receiver of them from the latter as a mere custodian but was a link in a chain of intended supply commencing with the man at Coogee and passing through the appellant's possession ultimately to the man from South Australia. That does not demonstrate a possession by the appellant "otherwise than for the purpose of supply". 17 Counsel contended that it was open to the jury to infer that the drugs handed to the appellant by the Coogee man were the property of the South Australian man. The evidence before the jury went no further than the response set out above in which the appellant claimed to know the owner but did not wish to say who it was and answers to questions recorded on an ERISP system: "Q27. That Tupperware container was located in your freezer. Is that correct? A. Yes. Q28. Inside that is a(n) offwhite substance which was frozen. Can you tell me who owns that? A. Not really, no. Q29. Do you know who owns it? A. Not really, no. Q30. Do you know who gave it to you? A. I do. I don't know his name."
There was no evidence that the appellant paid any money to the Coogee man. That is the only material which might provoke speculation that the South Australian man might have been (already) the owner of the drugs. A speculative possibility does not leave open a finding by inference. 18 It is notable that in each of the authorities cited by the appellant in support of argument, there was, on the facts, a mere deposit of temporary possession directly from an owner with an intention to return the goods to that owner. In Liberti the drug had been received from a friend who was afraid his house would be searched and the drug was to be later returned. In Frazer, in a car which stopped at a service station, one occupant gave the other a bubble like container which she secreted in her clothing, intending to return it to him when he came back from paying for the petrol. She did not do so because she had fallen back to sleep before he returned. 19 The Crown has collated other cases where a direction along the lines of Carey has been appropriate. In R v EAS unreported, NSWCCA 26 July 1990 cocaine was left with the appellant by his brother to keep for him until he returned from interstate; in R v Tucker unreported, NSWCCA 8 November 1991 cocaine was given to the appellant by a customer to hold for a couple of days until he paid money owed for some clothes that she had purchased; in R v Fong unreported, NSWCCA 20 November 1996 heroin was given to the appellant for a few days to look after and return and in R v Barnier [2001] NSWCCA 459 methylamphetamine was minded for a person who was to return and collect it. 20 The argument on behalf of the appellant is not sustained by application of or analogy to any of these cases. 21 Counsel frankly conceded that he could not point to any case in which, other than in circumstances of holding for return to an owner, a Carey direction had been held requisite or appropriate. 22 An alternative shade of the argument was premised on the appellant being unaware that he was taking possession of drugs (as such) until some time after the delivery of the packages to him by the man who located him in his parked vehicle at Coogee. If he was not a "deemed" supplier at Coogee because he was ignorant of the nature of the contents of the packages then, when he later appreciated what they were, his possession was only for the purpose of holding them until they were collected by the owner. 23 The appellant adverts to the law of bailment and asserts that when the appellant received the drugs at Coogee he possessed them as bailee of the owner. The decision of the Privy Council in Gilchrist Watt & Sanderson Pty Limited v York Products Pty Limited 1970 2 NSWR 156 was cited to demonstrate that it is not necessary for a bailee to receive goods by direct delivery from the bailor. To regard the appellant as a sub-bailee of the man at Coogee assumes that the latter was in fact a bailee of the man in South Australia and was passing that man's goods to the appellant. There was no evidence as to what was the situation between these unidentified men vis a vis each other, and there was no basis for assuming that the goods were, before and at the time of transfer of possession to the appellant, the property of the man from South Australia. 24 It is noted that the appellant's legal representative at trial accepted that Carey was inapplicable. That concession was correct. Criminal Appeal r4 is applicable. Ground 1, in any event, is not made out. 25 Ground 2 asserted: "The trial judge erred in directions to the jury regarding the mental element of the offence". 26 A direction was given by his Honour to the jury in terms requested by the appellant's trial advocate. It was: "It is the law that whether (sic) there is a charge of supplying a commercial quantity of prohibited drug the Crown must establish that the accused had either actual knowledge or a belief falling short of guilty knowledge that the amount of the drugs involved was not less than the commercial quantity, that's the 250 grams. Or was aware of the likelihood in the sense that there was a significant or real chance that there was that amount of drug involved". 27 The Crown drew attention to the decision in R v Lau 1998 105 A Crim R 167 where a direction to a jury in very similar terms to that was held to be appropriate. The passage from the charge in Lau is set out @ 172 viz: "By 'knowingly' in this context is meant that the accused knew either of the existence or the likely existence of the item in question and was also aware that it was likely to be a narcotic drug. This means that Lau must have known or believed that the white plastic bag he was alleged to have in his physical possession contained drugs or he was aware that there was a significant or real chance that it did and that the amount of the drug was not less than the commercial quantity or at least that there was a significant or real chance that it was". 28 Senior counsel for the appellant recognized the barrier to his argument created by Lau and submitted that, either it not be followed or it be determined that it was decided, in effect, per incuriam as there was no reference to Saad v The Queen 1987 70 ALR 667. The requisite intention to possess a commercial quantity is a question of fact and Saad cautions against succumbing to the temptation of transforming matters of fact into matters of law. Counsel pointed to the absence of reference to Saad in the judgment in Lau. On the same day as the High Court delivered judgment in Saad, it delivered judgment in R v Kural 1987 162 CLR 505 and in the joint judgment of Mason CJ, Deane & Dawson JJ it was observed that what they were saying in Saad was derived from what had been said in Kural. There was citation of Kural in Lau @ 173 and the proposition that Lau was decided without being referred to appropriate authority should be rejected. Nor, in the light of what O'Reilly DCJ charged the jury, including matters to which I now turn is there any reason to embark upon a decision as to whether Lau should not be followed. 29 The complaint now raised on behalf of the appellant is that his Honour should have directed the jury that they must be satisfied beyond reasonable doubt that the appellant intended to possess more than 250 grams of prohibited drug: per Sheller JA in R v CWW 1993 70 A Crim R 517 @ 524 (which dealt with a commercial quantity of cannabis crop). 30 In the present case the passage of jury direction by O'Reilly DCJ which I have cited was followed shortly thereafter with a direction in these terms: "What the Crown has to prove is that the accused intentionally had the substance in his custody or control, to the exclusion of others - I have told you about that. The Crown must also prove beyond reasonable doubt that in intentionally having such custody or control he did so with the knowledge or belief that the substance was a prohibited drug; not necessarily the particular prohibited drug charged here but a drug the possession of which is prohibited". 31 The jury had previously been directed about the consequence of not being satisfied of knowledge concerning the presence of at least 250 grams in these terms: "And I remind you again that if you are satisfied of knowledge of there being at least 3 grams of mixture there containing methylamphetamine but you are not satisfied that there was at least 250 grams then it is open to you to say not guilty on the commercial quantity count but guilty on the ordinary supply count of at least 3 grams". 32 There was no request for additional direction. Those able to gauge the atmosphere of the trial had no apparent complaint about the adequacy of direction to the jury in the performance of their task given these various directions. I am unpersuaded that his Honour's charge was defective in the fashion now claimed, but to the extent that it is complained that there was no independent direction of express requirement in the terms now suggested, I would apply Criminal Appeal r 4 and refuse leave to rely on this ground. 33 The appeal against conviction should be dismissed. 34 I turn to the application for leave to appeal against sentence. 35 The date of offence was 21 March 2003. Division 1A of Pt 4 of the Crimes (Sentencing Procedure) Act 1999 came into effect on 1 February 2003 and pursuant to the table in s 54B (Item 18) there was prescribed for the offence upon which the appellant was convicted a "standard non parole period" of ten years. An important judgment of this Court dealing with serious questions as to the interpretation of s54B was delivered on 11 May 2004: R v Way 2004 60 NSWLR 168. Also delivered on that day by the Court as then constituted was a judgment in which the principles illuminated in Way were applied: R v Shi [2004] NSWCCA 135. O'Reilly DCJ sentenced the appellant on 13 May 2004 noting that he had had access to the judgments in Way and Shi delivered two days earlier. 36 The sentence which he imposed consisted of precisely the standard non parole period specified in the table and a total term in which the proportion between total and non parole period matched that prescribed in s 44(2). That proportion may be departed from where a sentencing judge finds special circumstances. His Honour made no reference to special circumstances in his remarks. 37 Senior counsel for the appellant presented argument in support of the challenge to sentence under six grounds expressed as: "1. The sentencing judge erred in failing to determine the factual basis upon which the applicant was to be sentenced. 2. The sentencing judge erred in failing to give reasons for the sentence imposed. 3. The sentencing judge erred in finding that the quantity of methylamphetamine involved was 'above the middle of the range'. 4. The sentencing judge erred in finding that the offence fell in the middle of the range of objective seriousness. 5. The sentencing judge erred in finding that the offence was aggravated by the applicant's criminal history. 6. The sentence was manifestly excessive." 38 Grounds 1 to 5 focus upon different aspects revealed by the remarks on sentence of his Honour and it is convenient to deal with them compendiously. 39 The recitation by his Honour of the evidence at trial inculpatory of the appellant was obviously intended to indicate an acceptance of those facts. The submission that no findings of fact were made should be rejected. Nevertheless, whilst the difficulty identified in "the dearth of actual knowledge about simply what went on" should be acknowledged, it was important in this instance to assess what the appellant's role was. I will return to this matter. 40 It is plain that the learned sentencing judge was taken aback by what he perceived to be obligations imposed by Division 1A of Pt 4. He said that he was "shocked to see what the nett result was likely to be for Mr Blair, but I have come to the conclusion that there is really nothing I can do to help him". After imposing sentence he added, "…. And I hope for his sake there is some appealable error demonstrated". 41 In Way, the Court said: "In order to give the Division practical utility it seems to us, in the light of the foregoing analysis, that a sentencing judge must ask and answer the following question: 'are there reasons for not imposing the standard non-parole period?' That question will be answered by considering: (i) the objective seriousness of the offence, considered in the light of the facts, which relate directly to its commission, including those which may explain why it was committed, so as to determine whether it answers the description of one that falls into the mid range of seriousness for an offence of the relevant kind; (ii) the circumstances of aggravation, and of mitigation, which are present in the subject case, or which apply to the particular offender, as listed in s 21A(2) and (3), and as incorporated by the general provisions in s 21A(1)(c) and by the concluding sentence to s 21A(1)". 42 Although his Honour considered that he was not assisted by the result in Shi, it could have been of assistance by observing that the role of the offender is germane to the assessment to the objective seriousness of the offence, and its location in the notional range of seriousness. He recognized that determination of objective seriousness is not to be confined to consideration of those matters listed in s 21A(2) and s 21A(3) but he made no reference beyond the "s 21A criteria" which he could identify. 43 In Shi the offence was the same as that presently in focus, supply of a commercial quantity of methylamphetamine, although in contrast that offender had pleaded guilty. 44 However, Wood CJ at CL (Spigelman CJ and Simpson J agreeing) said: "The offence involved in this case was a serious offence, having regard to the weight and purity of the drugs involved, and also to the fact that the respondent knowingly and with his eyes open, lent aid to those who directed the supply network (for reasons subjective to that offender). Clearly the case fell well below the middle range of seriousness, since the respondent was not a principal, and was not shown to have been engaged in the work of a courier on more than one occasion. There is also the fact that his supplier had taken advantage of him". 45 The amount of drug in Shi was 999.2 grams of 84.5 percent purity. An analyst certificate (Exhibit N at trial) concerning the contents of the three Tupperware containers in this case, identified the contents of each as methylamphetamine and respectively as in one container: 321 grams of 6 percent purity; in the second, 13 grams of 14.5 percent purity and in the third, 37.3 grams of 14 percent purity. 46 I return to the absence of explicit finding as to the role of the appellant. Whilst, as the Crown submission on the conviction appeal noted, the appellant's story would provoke likely scepticism, he should be sentenced for what has been established that he has done, bearing in mind of course, the statutory definition of "supply". 47 The evidence shows that on one occasion he acted as a courier and type of storeman, moving the drugs from Coogee to the freezer. He was not shown to be the owner of the drugs nor a principal in any transaction or intended transaction, other than passing the drugs on to South Australia. His Honour appears to have accepted the existence of the man in Adelaide and the appellant acting at his behest. There was no evidence of what, if any, reward the appellant was to receive. If his assertion that he was acting in effect, as a favour for the South Australian man is disbelieved, the contrary remains unproved. 48 O'Reilly DCJ did not seek to answer the question postulated in Way by reference to matters outside of the scope of "s 21A criteria". There was material to be found and it should have been examined in order to answer that question. 49 The Crown concedes that his Honour made a mistake when, making a comparison with a fact in Way, he said: "The quantity being dealt with in this case (Way) was about 274 grams and of course the commercial quantity lies between 250 and 1000 grams, so that Mr Way was in a position where his quantity was below the middle of the range whereas Mr Blair's is above the middle of the range". 50 As a matter of arithmetic, the mid point in a range from 250 to 1000 is 625. The total quantity in the freezer was weighed at 371.3 grams. This error was drawn to attention and his Honour accepted the error but commented, "It won't affect the reasoning". Even if that be so, it could have potential effect in weighing the seriousness of the offence as indicated in the passage from Shi cited above. 51 His Honour said in his remarks: "Looking at the aggravating factors (d) applies, because there is a record of previous conviction and previous significant convictions subject to this qualification that there is nothing there about drugs". 52 As the Crown submitted, it is obvious that his Honour was referring to the prescription in s 21A(2)(d) which is part of a list of specified "aggravating factors", but I do not accept that it can be concluded that his Honour did not treat prior convictions as matters of aggravation, because he referred to the absence of conviction for drug-type offences. 53 I would suggest that it is unfortunate that the legislature has included "a record of previous convictions" in the list of aggravating factors, because it invites, as appears to have happened here, overlooking the qualification in s 21A(4) that a court does not have regard to any such factor as specified if it is contrary to "rule of law" to do so. "Rule of law" is construed to include common law principles: R v Johnson [2004] NSWCCA 76. It is the common law that prior conviction does not operate to aggravate an offence but may deprive an offender of leniency or indicate that it is appropriate to give more weight to factors such as retribution, deterrence or community protection Veen v The Queen (No 2) 1998 164 CLR 465; R v Wickham [2004] NSWCCA 193. 54 The appellant has succeeded in making good the matters which I have indicated in the foregoing. Accordingly, ground 6 should be sustained. I am unpersuaded that it is the situation that no less severe penalty than that imposed is warranted: Criminal Appeal Act s 6(3) and in my opinion the sentence should be quashed and this Court should proceed to resentence. 55 For that purpose, and without objection for such use, the Court has been provided with more up to date material by way of affidavits. The thrust is to draw attention to the appellant's poor state of health. The sentencing judge had noted a reference to the possibility of the appellant suffering from Charcot-Marie-Tooth Disease, a rare illness which affects his sister. The new material offers no diagnosis but does show that the appellant is awaiting medical assessment for a number of reasons including cardiac, sleep and back conditions. He has multiple symptoms and on occasions he is assisted by other inmates. The work he is assigned to in prison does not involve real activity. He is given a large number of medications. It can be concluded that his incarceration is more onerous in the incidents of service of sentence than it would be for a prisoner in more robust health. 56 As set out above, the question to be posed in accordance with Way is whether there are reasons for not imposing the standard non parole period. I would answer the question in the affirmative. In particular, a prominent reason for determining that the offence does not answer the description of one that falls into the mid range of seriousness for an offence of the relevant kind is that the role of the appellant was not that of a principal but the lesser, albeit culpable, role of a courier and storeman. In addition, the weight of prohibited drug was in the lower part of the range of defined commercial quantity and it was of extremely low purity. 57 The discretion to sentence (or in this case resentence) should be exercised in accordance with established sentencing practice by reference to matters identified in ss 3A and 21A of the Crimes (Sentencing Procedure) Act as well as common law sentencing principles. Guidance as to established sentencing practice can be derived from the statistics published by the Judicial Commission. It has frequently been stated that the use of such statistics must be accompanied by caution and further caution is necessary because, as was recognized in Way, a consequence of the introduction of Division 1A Pt 4 may be a change in the established pattern in an increase of non parole periods and terms of sentence. 58 A survey of sixty one offenders whose offences were committed before 1 February 2003 showed the highest term imposed (on a single offender) as nine years imprisonment. A survey of offences after 1 February 2003 recorded only one case where, although the offender was unidentified, the sentence imposed was precisely that now under challenge. The statistic is likely to refer to the appellant. 59 Save the consideration relating to the appellant's health, there is little in his subjective case which can be drawn upon to his benefit. Whilst there was understandable scepticism in the questioning of the appellant at trial by the Crown Prosecutor concerning the South Australian man described by him, the prosecutor was not in a position to deny his existence, and the appellant should stand for sentence on the basis that he probably committed this crime to assist this person. There was no evidence of personal gain by the appellant and there was no evidence that he had acquired the trappings of wealth. Nevertheless, there was no assistance to authority in identifying other participants, no contrition manifest in a plea of guilty, and no lenience to be gained by the appellant by reason of prior good record. 60 In setting the non parole period and the total term, I would take into account in the appellant's favour matters pertaining to his health, but I would not by reason of special circumstances, vary the proportion between the elements of sentence from that prescribed in the statute. 61 I propose the following:
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Regina
Blair
Conviction appeal dismissed. Leave to appeal against sentence granted. Sentence quashed and replaced with imprisonment for a non-parole period of five years three months, commencing 4 March 2004, and a total term of seven years, with parole eligibility specified as 3 June 2009 ([61]).