Determination
27 It was my opinion the sentences were manifestly inadequate. There has been a consistent line of authority in this Court that has made it quite clear that, unless there are truly exceptional circumstances present, a full-time custodial sentence ought to be imposed wherever the offender has been substantially involved in the supply of prohibited drugs; see R v Blanco (NSWCCA, unreported, 22 October 1987). It applies whether or not the offender has made a profit from the supply of drugs and a profit is an aggravating circumstance: R v Clarke (NSWCCA, unreported, 15 March 1990). Efforts at reform and rehabilitation since the offending will not generally be regarded as amounting to exceptional circumstances: R v Thompson (NSWCCA, unreported, 4 April 1994). The policy behind this line of authority has been held to be a rule to which sentencing judges must give serious consideration: R v Cacciola (1998) 104 A Crim R 178. It has been most recently referred to by Hulme J in R v Harmouche [2005] NSWCCA 398.
28 There was no acknowledgment of this line of authority in the sentencing remarks of the Judge. Rather, with respect, the Judge appeared to have equated a sentence to be served by way of periodic detention with a full time custodial sentence otherwise it was impossible to see how he was taking into account parity with the co-offender as he said he was. It was my opinion that there was nothing in the subjective circumstances of the respondent that was sufficiently exceptional to justify anything but a full time custodial sentence. The fact that the respondent had spent about three months in custody did not satisfy the need for general deterrence. The sentence was so inadequate as to be unreasonable: Markarian v The Queen (2005) 79 ALJR 1048.
29 It was clear in my view that the Judge had insufficient regard to the facts and made no attempt to identify where the respondent stood in relation to his co-offender. The Judge had to undertake that task, not only to assess the applicant's criminality, but also to determine the issue of parity. In my opinion it was plain that those facts reveal the respondent to be higher in the supply chain than was Cheng. It was to the respondent that Cheng came when Lim indicated he was not satisfied with the quality of the drugs. Cheng asked the respondent what he wanted him to do about it. I accepted that the respondent was obtaining the drugs from some other person, but he was nearer the source of supply than Cheng.
30 It was also my opinion that, despite what he said and the fact that he signed the Form 1, the Judge did not take those matters properly into account. Ms Francis's submission that the Judge used the period of three months in custody as being the differential between the two sentences by reason of the Form 1 matters could be accepted. The Judge ought to have properly assessed the seriousness of those matters and made it patent in his sentencing remarks how he was taking them into account and upon what sentence they were being taken into account. It was not satisfactory for the offender, the Crown or this Court to be left to speculate or conjecture about the manner in which the Judge derived the sentences he did. The supply offence on the Form 1 was a relatively serious matter. It was part of on-going supply of drugs as the notebook makes clear. The quantity of drug was over the trafficable quantity and was different from the type of drugs he was supplying in the offences to which he pleaded guilty.
31 In any event it seemed to me that the Judge must have taken as a starting sentence for each offence a period of 3 years. If this was reduced by 3 months and then 20 per cent deducted, the result was about 26 months. The total sentence imposed for each offence was 25 months. It seemed to me that the respondent received the advantage of having the 3 months served taken off both sentences. This was itself an error. I could only conclude that the Crown submission was correct and the Judge failed actually to take into account the matters on the Form 1 because there was no other explanation for the two sentences being the same length having regard to the seriousness of the matters on the Form 1.
32 It seemed clear from the sentencing remarks that the Judge determined not to impose a full-time custodial sentence only because of his opinion that it "would likely result in tragic consequences". That appeared to me, with respect, to be an over-reaction and there was insufficient basis for that conclusion. The Judge had made no investigation of whether the respondent could be adequately protected as apparently he was during the three months on remand. The protection of prisoners is the role of the Corrective Services Department. There are facilities available within the corrective establishments to house young vulnerable prisoners and still give them the facilities for rehabilitation. Apart from the psychologist's view that the offender might be "potentially vulnerable to assault", there was no evidence that the respondent was at any more risk than many other young and vulnerable prisoners or that he could not be adequately protected. It was an error for the Judge to refuse to impose a full-time custodial sentence that was otherwise warranted on this basis.
33 There was no evidence that the applicant would spend his time in more onerous conditions simply because he may need to be protected. There was none before this Court. The Judge could not make an assumption that he would: R v Durocher-Yvon (2003) 58 NSWLR 581; R v Mostyn (2004) A Crim R 304; R v Way (2004) 60 NSWLR 168. Counsel appearing for the respondent made no submission to the Judge that he could avoid a full-time custodial sentence because of the respondent's vulnerability. Nor did counsel submit that the Judge should impose sentences by way of periodic detention. Counsel's submission was that the Judge could impose a sentence by way of periodic detention for one offence and a "lengthy recognisance" on the other.
34 Insofar as it was asserted that the Judge erred in making the sentences concurrent, the Crown should not be allowed to criticise the Judge for not imposing at least partially cumulative sentences in light of the concession made by the prosecutor at the sentencing proceedings. That concession was based upon the Judge finding that the two offences were part of the one course of conduct. But that is not a fact that is decisive to a determination of whether sentences should be concurrent or accumulative. The question generally will be whether the sentence for one offence can encompass the totality of the criminality reflected in both offences. If it cannot, then it does not matter that the offences were part of the same course of criminal conduct: R v Gorman (2002) 137 A Crim R 326. It was my opinion that the penalty for the first offence could not reflect the total criminality of these supplies on two distinct occasions. The sentences should have been partially accumulative but, as this was a Crown appeal, I did not believe that Court should correct that error.
35 The principles upon which this Court considers Crown appeals were summarised in R v Wall [2002] NSWCCA 42 at [70]. There is no need to repeat them here but I took them into account and they were set out in the written submissions for the respondent. But it was my opinion that the sentencing exercise miscarried and the real issue was whether this Court should intervene. The respondent should have received a longer overall sentence than Cheng by reason of his role in the offences, the fact that they were committed while on bail, that they were committed for profit and because of the offences on the Form 1. The submission by the prosecutor that the Judge could impose sentences of three years or less by reason of parity was erroneous.
36 This Court cannot increase a sentence at the behest of the Crown to achieve parity but the fact that the co-offender ended up serving a sentence of full time custody for what I believed to have been a lesser role in the offences indicated the inadequacy of the sentence imposed upon the respondent.
37 The respondent attended at the hearing of this appeal. He was slightly built but otherwise there was nothing that indicated that he would be more susceptible to violence then any other young man of his kind. There was no reason for the Judge to avoid a sentence of full-time custody because of any special concerns about the respondent's well being in gaol. If young, vulnerable men want to undertake the risky profession of a drug trafficker, they should understand the consequences if caught and be punished accordingly.
38 It has previously been observed by this Court that a Judge who fails to impose an appropriate sentence for inappropriate reasons does the offender no favour. But more importantly a Judge, who does not perform his duty to impose a sentence of imprisonment where such a sentence is required in the public interest, does the community no favour. No doubt the present respondent has been put to additional anxiety by the Crown appeal hanging over his head. To return him to custody would probably have been harsher for him than had he been sentenced to full time custody by the Judge. There were affidavits before this Court showing that the respondent had continued with his rehabilitation including urine testing. He had been attending periodic detention without blemish.
39 Not without considerable doubt because I believed the sentence was manifestly inadequate in all its aspects, I concluded that the Court should exercise its discretion and dismiss the appeal. This was because of the youth of the respondent, his continuing rehabilitation since having been arrested for these offences and the double jeopardy in returning him to custody. The Judge was permitted to arrive at the position where he could impose periodic detention by inappropriate concessions by the prosecutor.
**********