(g) he was relatively young and would be experiencing a first term of imprisonment.
27 At least two of the errors identified by the Court in Shi also appear to me to have occurred in the sentencing of the respondent. Firstly the Judge appears to have thought, contrary to Way, that the standard non-parole period applied regardless of whether the offender was convicted after a plea of guilty or after trial. Secondly the Judge appears to have thought that it was unnecessary to have any further regard to the standard non-parole once he had determined that the offence fell outside the mid range of seriousness.
28 The Crown has argued its case on the basis that his Honour assessed the objective criminality of the offence as being within the mid range of seriousness. It has contended that, given the amount and purity of the drug and the fact that he was more than a courier, the Judge should have considered that the offence was above the mid range of seriousness. The first submission is in my view based on a misinterpretation of a transcription error of what the Judge said or meant to say. The second submission in my view is unsupportable and places too much weight on the amount and purity of the drug. It is inconsistent with the finding in Shi.
29 The Crown placed considerable emphasis in its submissions on the fact that the drug in the present case was cocaine whereas the drug in Shi was amphetamine and, therefore, the present was a more serious offence by reason of the nature of the drug being supplied. However, I note that there was no suggestion in Shi that one of the matters that took the offence below the mid range of seriousness was that the drug supplied was amphetamine. This Court no longer approaches the evaluation of the seriousness of a particular supply offence by distinguishing between different types of drugs according to the perceived dangerousness of the drug being supplied. Rather the Court has stressed that the appropriate consideration is the relevant statutory regime and the maximum penalty prescribed for the offence: R v Nai Poon (2003) 56 NSWLR 284; R v Neale (2004) 148 A Crim R 493. The Drug Misuse and Trafficking Act does not distinguish in any way between cocaine and methylamphetamine: the maximum penalty for offences involving the two drugs is the same, as are the prescribed quantities.
30 In my opinion it was open for the Judge to find, as I believe he did, that the offence was one that fell below the mid range of seriousness for the offence of supply notwithstanding the amount and purity of the drug. Although the respondent was more than a courier and was involved to some degree in the actual planning of the offence, there was only a single instance of supply. Further, the applicant was motivated by his addiction to cocaine even though he had become addicted to the drug as a matter of choice.
31 In any event the Judge was entitled to depart from the standard non-parole period and impose a lesser sentence by reason of the fact that the respondent had pleaded guilty. The Judge was also entitled to take into account in determining the non-parole period that the respondent had only one matter on his criminal record, had shown remorse and that he had good prospects of rehabilitation. It was also his first time in prison. However, the offence was aggravated by the fact that the applicant was on conditional liberty at the time.
32 In my opinion a non-parole period of 4 years as against the standard non-parole period of 10 years is manifestly inadequate. Even though it was open to the Judge to find that the offence was not within the mid range of seriousness, it was not very far below that range given the seriousness of the applicant's conduct and the amount and purity of the drug involved. The applicant could not have been mistaken about the quantity or the quality of the drugs as he had organised the sale as a middleman between the supplier and the purchaser: cf Wong v The Queen (2001) 207 CLR 584 at 609. The applicant was going to receive both money and drugs as a result of the sale. Even though his judgment might have been clouded by his use of cocaine, that can have little mitigation of the objective seriousness of the offence because it was self-induced by his abuse of drugs.
33 I believe that the Judge could not have used the standard non-parole period as a guide or indicator to the sentence to be imposed and achieved the result that he did, even after taking into account the discount for the plea of guilty. In any event as against a maximum penalty of 20 years, a term of imprisonment totalling 6½ years is also manifestly inadequate. The Judge has either given insufficient weight to the seriousness of the offence or too much weight to the subjective factors favouring the respondent. In my view the least sentence the Judge could have imposed was a sentence totalling 9 years and the least non-parole period was 5½ years.
34 But this is a Crown appeal and, therefore, this Court has a discretion whether to intervene notwithstanding that error has been shown. One of the relevant matters to be taken into account is the notion of double jeopardy inherent in a Crown appeal. Generally speaking, if the Court decides it should intervene, it will impose a sentence at the lowest end of range available to the sentencing judge.
35 However, in the present case the Court has been made aware that, if the respondent were re-sentenced to a term that included a non-parole period of more than 5 years, his progress through classification would be retarded. He is currently classified as C1. In light of the fact that the respondent is a relatively young man who is apparently progressing well in custody, in my opinion the Court should not impose the sentence that ought to have been imposed by the sentencing judge but should reduce it to assist the respondent maintain his present classification.
36 The reasons for departing from the standard non-parole period are:
(i) notwithstanding the amount and purity of the drug and that he was involved in planned criminal activity, the respondent was not a principal and had only been involved in a single supply as a result of his addiction to cocaine and, therefore, the offence fell below the mid range of seriousness;
(ii) the applicant was on conditional liberty at the time;
(iii) the respondent pleaded guilty at the first reasonable opportunity;
(iv) the respondent was remorseful;
(v) the respondent does not have any significant record of other offences;
(vi) the respondent has good prospects of rehabilitation;
(vii) the respondent is serving his first sentence in custody;
(viii) the respondent's current prison classification.
37 I propose that the appeal be allowed, the sentence imposed in the District Court be quashed and the respondent sentenced to a non-parole period of imprisonment for 5 years to date from 9 September 2004 and to expire on 8 September 2009. There is to be a balance of the term of 4 years to expire on 8 September 2013.
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