This discount is not to be confused with any allowance as part of the subjective factors in the case arising from an offender's remorse and contrition, nor with factors relating to the strength of the Crown case as distinct from its complexity or difficulty.
7 The Court's judgment frankly emphasised the public interest considerations that underlay the requirement, in an appropriate case, that the utilitarian discount be separately identified and expressly applied. It is clear that in this case there was no good reason for not giving both the utilitarian discount and the allowance for remorse and contrition. In the nature of things, of course, the weight given to an offender's regret will be incommensurable. Properly considered, it is but part of the subjective features of the case, all of which need to be considered together when assessing the appropriate sentence and before applying the utilitarian discount. It will almost never be right to isolate this factor and accord it any particular significance and there is no logical reason for joining it with the utilitarian discount, which is an entirely objective matter. The reason why these two quite disparate factors may be "mixed" is that they are connected to the plea of guilty. That fact, however, should not obscure their essentially different character.
8 In this case the learned sentencing judge was, with respect, entitled to think that the applicant's expressions of regret indicated only a limited degree of actual remorse. Mr Hulme SC does not submit otherwise. However, he submits that the allowance given to the applicant for the utilitarian benefit of his plea fell beneath that which should have been accorded to him by virtue of the considerations for which R v Thomson and Houlton is authority.
9 It is, of course, a matter for the discretion of the sentencing judge what discount is appropriate in the particular circumstances of each case. But the discretion is to be exercised judicially, with due regard to the reasons for the discount as articulated by this Court. This present case was an ordinary case which presented, except for one factor which I will come to in a moment, no unusual elements calling for any departure from the usual outcome. The learned sentencing judge articulated no reason for departing from that outcome except, as I see it, by referring to the limited extent of remorse and the strength of the Crown case, factors which were irrelevant.
10 In this case there was the additional public interest in avoiding the necessity for police officers to give evidence. It seems to me that there was no reason for reducing what would otherwise have been a discount at the upper end of the 10-25 per cent figure specified by the Chief Justice.
11 Consistency and coherence of sentencing is an important element of the administration of justice. As has been often said, sentencing is not a purely logical exercise, it is very much a matter for judgment to weigh matters which are necessarily incommensurable. However, some matters are relatively clear and the utilitarian discount is one of them in the ordinary case where the plea is obtained on the earliest practicable occasion. Where, as here, the offender does not admit the offences when first questioned, it may be that his or her cooperation will be less than that which should attract the full discount of twenty-five per cent, although this is not an invariable rule by any means. For example, the avoidance of a lengthy trial or the embarrassment or distress of witnesses may be countervailing considerations. However, the discount ultimately given should not smack of some capricious departure from the usual measure, lest the public policy which it reflects be undermined.
12 In this case I have, with respect, come to the conclusion that the learned sentencing judge incorrectly reduced the appropriate discount by the consideration that the applicant's remorse was slight, though not insignificant. If it was right to give the applicant some benefit from such remorse he did exhibit, and I cannot see why this was not a subjective feature of the case, that should have affected the sentence to some degree, the reduction of the otherwise apparently appropriate utilitarian discount is inexplicable. With respect it seems to me to be also inappropriate and bespeaks error.
13 The applicant's record discloses a number of traffic offences and what is agreed to be a minor drug offence for which he was fined. The matters taken into account on the Form 1 were relatively trivial and would ordinarily attract only a fine. In my view, the learned sentencing judge was right not to increase the sentence that he thought otherwise appropriate in this regard.
14 The objective seriousness of the offences was very much at the lower, if not the lowest, end of the scale. There were three offences, however, not only one, and also the applicant was at the beginning of a bond for good behaviour imposed in respect of the traffic offences. These were features that took this matter from the lowest end of the scale.
15 It seems to me very likely (or at least there was no basis upon which the judge could have drawn the opposite conclusion) that the applicant would not have supplied any amphetamine had he not been requested to do so by his friend. There was no evidence that justified a conclusion that he was standing in the marketplace to supply amphetamines and these three examples were part of a continuing trade. Such an inference required proof beyond reasonable doubt, which it is not even suggested was established either below or in this Court. These charges represented but three incidental occasions that arose from the instigation of the police.
16 In passing sentences in the way he did his Honour did not distinguish between the very different legal and culpable character of the offences. There can be no doubt that supplying the small quantity of drug will almost invariably be, and certainly in this case was, less serious than the supply of the larger. There was no basis for considering, as his Honour did, that the supply of each of these drugs warranted a sentence of the same length. Indeed, his Honour said that he was sentencing him in effect for all charges because of what he said was the common thread that they demonstrated. This was, if I may say so respectfully, a failure to follow the injunction of the High Court of Australia in Pearce v The Queen (1998) 194 CLR 410 that requires for good reason, quite apart from legal principle, attention to be focused on the criminality of the individual charges for which a person is being sentenced, the question of totality being addressed by adjusting the extent of accumulation or concurrency of the sentences thus imposed.
17 I am of the view that the sentence passed below was indeed manifestly excessive. I would grant leave to appeal, allow the appeal, quash the sentences passed at first instance and substitute sentences as follows -