Grounds 1 and 2
32 The decision of this Court in Clark (supra) was present to Judge Nicholson's mind in connection with the sentencing of Mr. Elias and of Miss Kipic: see, for example, the reference to that decision in paragraph 35 of the remarks on sentence. What that decision establishes is made completely clear in the following extracts from the judgment of Hunt J:
"This Court has, on occasions too numerous to mention, emphasised that sentences involving a substantial general deterrence are to be imposed on drug traffickers, and it has indicated that only in exceptional circumstances will a non-custodial order be appropriate. That statement is not, as has been suggested, restricted to those cases in which it has been demonstrated that a profit has been obtained. ………………………. What the statement is principally directed to is the trafficking, the dissemination of drugs to others."
33 That statement of the law has never been overruled by the High Court of Australia, or by another Bench of this Court; and it has not been over-ridden by legislative amendment. Until any one of those things occurs, the statements stand as good law; and primary sentencing Judges must give dutiful effect to them.
34 So much was recognised by Judge Nicholson, as is apparent from the interchanges, earlier herein recorded, in which his Honour expresses frankly a perception that there are features which are strong, but not exceptional, in Mr. Elias' case; and by implication also in Miss Kipic's case.
35 The extraordinary leniency of the sentences ultimately passed and the various accompanying orders ultimately made, seems to me to entail that his Honour concluded that in some way or other exceptional circumstances of the kind contemplated by Clark had in fact been demonstrated. But exactly what circumstances? I have read the lengthy and careful remarks on sentence; and, with all proper respect, I can find no statement identifying circumstances found by his Honour to be exceptional in the Clark sense, and thus to warrant effectively non-custodial sentences.
36 As to Mr. Elias, his Honour found that "his conduct does amount to dissemination of drugs to others". His Honour found that Mr. Elias made, during a three month period, somewhere between ten and twenty deliveries of methylamphetamine; and somewhere in the order of twenty deliveries of cannabis. His Honour was satisfied to the same standard that Mr. Elias was involved in such trafficking on a regular basis; and, at least sometimes, on a daily basis. His Honour found that Mr. Elias' involvement "appears to have been limited to answering mobile phones, collecting or passing small quantities of someone else's drugs and using someone else's vehicle to effect deliveries and returning with someone else's money to give to the syndicate principals". His Honour found that Mr. Elias' "overall involvement appears less than that of either Culbert or Kipic".
37 His Honour recognised that:
"An aggravating feature for all offenders is that these offences were committed with little regard for public welfare and with little regard for the harm, loss or damage that their supply of drugs was capable of doing to the community. Each was part of an operation that was sophisticated and designed to minimise risk of detection and maximise sales. The offences were deliberately and calculatedly undertaken as part of an ongoing criminal enterprise."
38 What all of the foregoing findings add up to seems to me to be that Mr. Elias is the kind of drug-related offender of whom Wells J spoke as follows in Le Cerf (1975) 8 ALR 349 at 351:
"Where evidence discloses that a convicted person is highly placed in an organization for the importation, distribution, and sale, of drugs, contrary to law, it is, to my mind, obvious that, other things being equal, he must expect condign punishment. Substantial retribution must be exacted from those who deliberately, cynically and greedily seek to profit on a large scale from breaking the law.
But again, assuming all other things are equal, it does not follow that a person less exalted in the organization can confidently expect that his punishment will be correspondingly less severe. The ambit of his direct responsibility in deliberate law breaking is, in a sense, less, simply because his authority and role are less important to the organization as a whole, but it remains true that he has knowingly entered into an unlawful conspiracy with persons known and unknown to obtain and distribute drugs, and it is only because persons like him are ready, able and willing to do such a thing that the entrepreneur is able to ply his nefarious trade on a large scale. If there were no middlemen or underlings, there would be no top men in an organization. If an organization is starved of recruits it must collapse.
It seems to me to follow that after making all due allowance for the personal circumstances and antecedents of the prisoner, the facts of the particular case, and the need to show mercy as is compatible with the safety of the public, a court should impose such a sentence as will spell out clearly to those minded to establish or continue an unlawful organization for purveying drugs, as well as to potential recruits, the simple truth, that a man who participates in such an organization at any level - I repeat at any level - must expect, and will receive, a heavy penalty. I do not, in saying that, mean to imply that no distinction at all will be drawn between the upper and lower echelons of organized crime. But I wish it clearly to be understood that, given that a particular range of penalties is considered appropriate for those in the upper echelons, there is no inevitable correlation between the standing of an offender who is in the lower echelons and the severity of the punishment that he can expect and will receive."
39 There were undoubtedly subjective matters favourable to Mr. Elias, and properly available to mitigate otherwise just sentences for his admitted criminal offending. But to regard those matters as justifying sentences as extraordinarily lenient as those finally passed upon Mr. Elias is in my opinion sufficient to manifest error in the sentencing process.
40 As to Miss Kipic's case, much the same analysis can be made as in the case of Mr. Elias. In her case, it suffices to note these findings made by his Honour:
"On 26 and 27 July 2002, Kipic answered calls and made deliveries during an afternoon/night hours in the absence of Culbert and so far as can be told all other members of the syndicate. Summaries of phone taps tendered demonstrate that Kipic accepted numerous orders and facilitated orders, collected drugs for delivery and made numerous deliveries during this period, as I said many of them on her own. The evidence before me satisfies me Kipic made more than thirty deliveries on her own in circumstances where she had initially taken orders. I am also satisfied she participated with Culbert in making deliveries. I am satisfied, beyond reasonable doubt, that at the very least an indictable quantity of both drugs was supplied. Indeed seven supplies of quantities of methylamphetamine similar to the supplies to the undercover operatives would have been sufficient to reach the indictable quantity."
41 It is relevant that Miss Kipic's offences were committed when she was at liberty on a 12 month bond which she had received in Local Court on 9 May 2003, albeit for driving, and not for drug trafficking, offences.
42 After Judge Nicholson had examined in careful detail what his Honour saw as the relevant objective and subjective features of each of the two cases with which he was dealing, his Honour made these observations:
"128. In the case of Kipic and Elias, I rely upon guideline number (iv) announced by the Chief Justice in Thompson and Houlton in para 160 in these terms:
"In some cases the plea in connection with other relevant factors will change the nature of the sentence imposed …."
129. So that in each case, the question of whether those offenders will be eligible for home detention can be considered. In each case I have chosen home detention over periodic or some other lesser sentence because the restrictions of liberty on each offender will apply for seven days per week, whereas in periodic detention, the offender's liberty is not restricted or confined for more than two days a week initially, and further into the sentence of periodic detention, restrictions on liberty are even less."
43 The approach thus laid out is, in my respectful opinion, erroneous in at least two significant respects.
44 First, Thomson and Houlton was a guide-line judgment concerning the discounting of a sentence because of a plea of guilty. As the Chief Justice said at paragraph 162: "The purpose of identifying a discount range is to improve the transparency of the process and to alter the wide-spread perception that there is no benefit from an early plea".
45 Judge Nicholson gave effect to the true ratio of Thomson and Houlton by allowing each of Mr Elias and Miss Kipic a top-of-the-range discount in recognition of their respective early pleas of guilty.
46 To move on to a proposition that one of four related components in the guide-line as finally laid down may be treated as weakening the guidance given in a wholly different context by Clark, is in my respectful opinion wholly misconceived.
47 Secondly, the propositions stated in paragraph 129 of the remarks on sentence, expressed as conclusions flowing rationally from a premise stated in paragraph 128, are, in my respectful opinion, a non sequitur from paragraph 128.
48 On at least two occasions differently constituted Benches of this Court have given precise guidance about the way in which a sentencing Judge must approach the possible use of a home detention order.
49 In Jurisic (1998) 45 NSWLR 209, I discussed the matter at pages 246-251. Spigelman CJ was in substantial agreement: page 215C. The other members of that Bench did not find it necessary to decide whether errors of principle, which I had suggested to have been made in the approach taken by that particular sentencing Judge to the matter of home detention, had in fact been made. I do not understand any of their Honours to have differed from the analysis of principle which I offered at pages 246-251.
50 In Zamagias [2002] NSWCCA 17, a Bench constituted by Hodgson JA and by Levine and Howie JJ endorsed the staged approach propounded in Jurisic.
51 I allow, of course, for the fact that sentencing is an art and not a science; and for the proposition, stated by Gleeson CJ in Wong v The Queen [2001] 207 CLR 584 at para 12: "Judges are generally capable of entertaining two or more ideas at one time". Those allowances duly made, however, it seems to me that his Honour's approach to the matter of home detention simply, and on its face, did not comply with the guidance given by Jurisic and by Zamagias.
52 I would uphold Ground 1. Because of what I have already said about Zamagias, I would also uphold Ground 2.