Regina v Ronald Steven LILLEY

Court of Criminal Appeal (NSW)|2004-12-20|Before: Santow JA, Bell J, Howie J

CITATION : Regina v Ronald Steven LILLEY [2004] NSWCCA 424 HEARING DATE(S) : 25/11/04 JUDGMENT DATE : 20 December 2004

JUDGMENT OF : Santow JA at 1; Bell J at 2; Howie J at 58 DECISION : 1. Allow the appeal and quash the sentence imposed in the District Court; 2. In lieu thereof impose a non-parole period of three years and nine months to date from 19 February 2004 and to expire on 18 November 2007. The balance of the term of imprisonment to which the respondent is sentenced is two years and three months. The sentence will expire on 18 February 2010.

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED : Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 Drug Misuse and Trafficking Act 1985 Devries v Australian National Railways Commission (1993) 177 CLR 472 State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 R v Clark (unreported) Court of Criminal Appeal, 15 March 1990 R v Bernath [1997] 1 VR 271 CASES CITED : R v Johnson [2004] NSWCCA 76 R v Osenkowski (1982) 30 SASR 212 - 213 R v Pilley (1991) 56 A Crim R 202 R v Veen [No. 2] (1988) 164 CLR 465 R v Wickham [2004] NSWCCA 193 PARTIES : Regina (Appellant) Ronald Steven LILLEY (Respondent) FILE NUMBER(S) : CCA 2004/2348 COUNSEL : D. Arnott (Crown) P. Byrne SC / J. Barnett (Respondent) SOLICITORS : S Kavanagh S O'Connor (Respondent)

LOWER COURT District Court JURISDICTION : LOWER COURT 04/11/0866 FILE NUMBER(S) : LOWER COURT Graham DCJ JUDICIAL OFFICER :

SANTOW JA BELL J HOWIE J

Monday 20 December 2004 Regina v Ronald Steven LILLEY Judgment 1 SANTOW JA: I agree with Bell J. 2 BELL J: This is a Crown appeal against inadequacy of sentence. The respondent pleaded guilty in the Local Court to a charge of supply prohibited drug, namely, heroin contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (the DMTA) on 13 July 2004. He adhered to his plea before his Honour, Judge Graham (the Judge) in the Sydney District Court on 26 August 2004. He asked the Judge to take into account two related matters on a Form 1. These were one charge of possession of a prohibited drug (1.41 grams of heroin) and goods in custody reasonably suspected of having been unlawfully obtained ($1,560 in cash). 3 The Judge sentenced the respondent to a term of imprisonment for two years and six months to commence on 19 February 2004 and to expire on 18 August 2006. A non-parole period of twenty-one months was specified. The non-parole period will expire on 18 November 2005. The Judge directed the respondent's release on parole at that time. 4 The Judge did not set out the facts upon which he sentenced the respondent in detail. In light of one of the challenges made by the Crown, it is necessary to refer to the evidence concerning the circumstances of the offence. The police brief of evidence was tendered at the sentence hearing and was admitted without objection. It included a statement of facts prepared by a police officer. It is convenient to refer to the evidence concerning the offence by reference to the statement of facts. 5 The respondent was arrested on 19 February 2004. The police executed search warrants on the respondent's home in Rockdale and on an address with which he was associated in Surry Hills. He was arrested on his return to the Rockdale home. He was asked if he was in possession of heroin, to which he opened his hand and showed the police a white tissue containing three pink pieces and one white piece of paper. Each piece of paper contained heroin. The sum of $1,560 in cash was found in his wallet. A maroon sports bag containing seven plastic bags each with an ounce of heroin in it was found in the boot of the car in which the respondent had been travelling. 6 The kitchen of the respondent's home contained a set of Tanita electronic scales and numerous plastic resealable bags. 7 The respondent was cooperative with the police and participated in an electronically recorded interview. In the course of that interview he admitted to having been in possession of the seven ounces of heroin found in the motor vehicle. He said he had obtained the heroin in a laneway in Surry Hills and that it had been supplied to him on credit.

8 The respondent told the police that he had been using heroin off and on since he was aged eighteen years. He said that he had resumed heroin use a couple of months prior to his arrest. He described himself as having a heroin habit of about half a gram per day at the date of his arrest. He agreed that the cost of this habit on a weekly basis was approximately $1,000. He said that he did not have the means to support this habit other than by the sale of heroin. His only other income was the receipt of sickness benefits in the amount of $400 per fortnight, which covered his other living expenses. 9 During the course of the interview the respondent stated: "This is the first time I ever got this amount. The only reason I got the amount in that size was they've gone overseas for seven weeks, and … Q. 81 Sorry, you were? A. No, no, the people who I got it off have gone overseas for seven weeks, and because of the money I owed 'em, they wanted me to keep some, so I could pay 'em back" (A 80-81)

10 The heroin was submitted to the Division of Analytical Laboratories for analysis. Each of the seven plastic bags contained heroin and weighed approximately one ounce. The contents of two of the bags were analysed to determine the purity of the heroin. One bag was 44.5 percent pure heroin and the other bag was 42.5 percent pure heroin. The four paper packages together weighed 1.41 grams. They were not tested to determine the purity of the heroin. 11 The respondent was aged fifty-two years at the date of his arrest. He had an extensive record of criminal convictions dating back to 1968 when he was a juvenile. He had first been sentenced to a term of imprisonment in 1970 following his conviction for a number of offences of stealing motor vehicles. Thereafter, he had been convicted on many occasions of offences, including breaking, entering and stealing, stealing a motor vehicle, goods in custody, possession of housebreaking implements, possession of prohibited drugs, possession of unlicensed firearms and other minor offences. 12 Two of the respondent's prior convictions were of particular significance. On 7 May 1993 he was convicted before the Sydney District Court of the supply of a prohibited drug. He was sentenced to a term of two years' imprisonment comprising a minimum term of 18 months and an additional term of six months. 13 On 6 August 1999 the respondent was convicted before the District Court at Campbelltown of (i) knowingly taking part in the supply of a commercial quantity of a prohibited drug (heroin), (ii) supplying a prohibited drug (heroin) and (iii) attempting to pervert the course of justice. He was sentenced to a term of imprisonment to be served by way of periodic detention for offence (i) and released on recognizances with respect to offences (ii) and (iii). The Crown appealed against the inadequacy of these sentences. On 10 March 2000 this Court upheld the appeal and substituted sentences as follows: for offence (i) - four years' imprisonment comprising a minimum term of imprisonment of two years commencing on 22 July 1999 with an additional term of two years, for offence (ii) - a concurrent term of two years' imprisonment with a one year minimum term, and for offence (iii) a sentence of two years' imprisonment comprising a minimum term of one year to date from 22 July 1998 with an additional term of one year. The effect of the sentences was an aggregate sentence of five years' imprisonment with a minimum term of three years' imprisonment. 14 A copy of the judgment of this Court was tendered at the sentence hearing. Again, having regard to the submissions advanced on the hearing of the appeal, it is appropriate to refer to the facts relating to these earlier convictions. The offence of knowingly taking part in the supply of a commercial quantity of heroin related to an agreement for the respondent to supply one pound of heroin to persons, including a man named Hatch, for the sum of $120,000. The matter proceeded upon an acceptance that the respondent had not in fact been in possession of one pound of heroin. The attempt to pervert the course of justice was related to the first offence in that the respondent had written to Hatch setting out certain false evidence that he wished him to give at his trial. The supply offence occurred when the respondent was on bail. He was arrested for the offence of attempting to pervert the course of justice offence when he reported to the police on bail. He was in possession of the sum of $450 in cash. Thirteen packages of heroin, scales and some paper used for weighing and wrapping the heroin were found in his vehicle. The net weight of the heroin was 44 grams and its estimated street value was $58,000. 15 The respondent gave evidence at the sentence hearing. He said that he had successfully completed his two year parole period. His parole order expired in November 2003. During his period as a parolee he had been compliant with a methadone treatment program. He was taking 65 milligrams of methadone each day. About six weeks before his arrest he had taken up heroin again. 16 The respondent described his history of heroin use as dating back to when he was aged around twenty years. He had been "on and off it all my life" (T 4.41). He agreed that since the early 1980's whenever he had been subject to either a bond or parole order he had managed to remain heroin free. He was unable to explain why he had resumed heroin use on this occasion. 17 The respondent described the circumstances surrounding the commission of the offence in this way. He was in debt to his heroin suppliers. The suppliers were going overseas for seven weeks and on the day of his arrest they had given him this quantity of heroin on credit. His only means of repaying the debt was to sell more heroin. He had not wanted to have such a large amount of heroin and he had tried to give it back. His suppliers had insisted that he take it. He had not previously been supplied with such a large quantity of heroin. When asked what had happened when he sought to hand the heroin back to his supplier, the respondent said: "They wouldn't accept it at that time. I had to pay them the money back. There was threats of violence. That's basically what it got down to. Q. What was it your intention to do with that heroin? A. I was meant to sell it to give them their money back, plus I would have used - I don't know how much I would have used; I probably would have used more than I sold in the end. That's what I meant to do with it." (T 6.4 - 14) 18 The respondent said that he had been given the bags of heroin and the small deals on the afternoon of his arrest. He had used one or two small deals himself. He described them as half-weight deals. He was asked by his counsel whether these deals would sell for $100 each. He replied: "$100, yes, $120" (T 7.9) 19 The respondent confirmed in the course of his evidence the account that he had given to the police that half of the cash found in his wallet was derived from the sale of heroin. 20 In the course of cross-examination, the respondent expressed doubt about the police estimate that the heroin seized from him had a value of $50,000. He did not believe it was worth anywhere near that amount. In this connection the respondent observed: "It wasn't a real high quality heroin. It was only forty percent or something, which is not high." (T 7.30-31) 21 The respondent said that since his return to custody he had resumed the methadone treatment program and that his dosage at the date of the sentence hearing was 25 milligrams per day. He planned to withdraw from methadone completely while in custody. He said: "Once I've usually been away for any hard drugs for probably a three-month period, I don't have a problem with it." (T 8.49-50) 22 The respondent was challenged in cross-examination on his version of the circumstances of the offence. He was not able to remember the amount of the debt owed to his heroin supplier. He said that it was probably $3,000 or $4,000. He agreed that if he had been using half a weight per day for a period of six weeks, he would have owed approximately $6,300. He explained that he had paid for his initial drug purchases from savings.

23 The Crown Prosecutor questioned the respondent's assertion that this was not very good quality heroin: "Q. Heroin is quite commonly cut with other substances for on-selling, isn't it? A. Yes, it is. Q. It would be perfectly possible to cut down from the purity of something over forty percent to a far lesser purity to on-sell it? A. It's very hard to sell it at forty percent. Q. Isn't it the case that street heroin is commonly about twenty-five percent? A. I really don't know. Q. Did you say that you were given seven ounces because your supplier was going away? A. Yes. Q. It's not the case that you had access in a commercial sense to that amount to sell. A. It was to sell. It was to pay their money back, but I didn't have access to any more otherwise I probably would have had it, and as I said earlier on, I didn't want to take that amount, they made me take it." (T 9.22-44)

24 The respondent was asked in cross-examination if the real position was that he was dealing in one ounce lots. He denied this and maintained that the heroin in his possession was for personal use and sale in half-weight deals. He said that he would have made up half-weight deals and sold them for "$100, $150, in between, depends" (T 11.53). 25 A pre-sentence report set out the history that the respondent had given concerning the commission of the offence in terms that were consistent with the account he gave to the police and with his evidence.

26 The author of the pre-sentence report recorded that the respondent had completed his last period of supervision with the Probation and Parole Service in July 2003 and that he had been compliant and appeared to respond well to supervision. It was said to be a matter of concern that after successfully completing the parole period the respondent had, for no apparent reason, returned to illegal drug use and reverted to criminal behaviour to fund his addiction. It was noted that the respondent had been in a stable and supportive relationship with his partner for a period of twenty years. 27 The Judge accepted the respondent's account of the circumstances in which he had committed the offence. His Honour observed: "He told the police that he was proposing to sell the heroin for the people from whom he had received it and was doing so in order to support his own daily heroin habit. There is no doubt that for a period of many years, at least on and off, he has had a serious drug problem with heroin, though his evidence is that he tends to take himself off heroin and then fall back into it. He is unable to explain why he did so in the present occasion, but I accept that he was using heroin at the time, and that his purpose in having the heroin in this case with him or in the car was a mixed purpose of being able to sell some of it. He says he may well have used up to half of it himself for his own habit. He had it in that quantity because his supplier was anticipating to be away for some time. His expectation was that because he had access to such a significant quantity, larger than he had ever previously had access to, he was likely to have used anything up to half of it for his own purposes to feed his then addiction. Since his arrest, he had gone back to about twenty-five mls of methadone. His evidence is that generally after about three months away from heroin, he is able to satisfactorily avoid use of it again, at least for some time. … So far as the offender's role in the matter is concerned, the evidence, not only of the offender himself, but of the surrounding circumstances and his own history, all point very strongly to the acceptance of his claim that his involvement was as he described it to the police and as he confirmed in court. Whilst his heroin use provides some explanation for his involvement in the supply of heroin on this occasion, it is not an excuse, nor has it been put forward as one, rather as some explanation as to how he came to commit this offence and why it is that the court might take a more lenient view. This is clearly a case which can be distinguished from the case of a person involved in drug dealing simply because it appears to be a good way of making money in a hurry. The motivation for involvement here was one which arose out of the offender's own involvement in the use of heroin. Whilst that provides some measure of mitigation, that mitigation is to some extent counterbalanced by the consideration that at the age of fifty-two this offender renewed his use of heroin, having previously been punished on two occasions by the courts for offences of a serious type involving the supply of prohibited drugs, and in circumstances where it must have been clear to him what risk he was running in terms of his liberty by firstly becoming involved in the use of heroin, and secondly by the almost certain necessity in his circumstances to become involved in the sale of heroin simply to support that habit." (ROS 6-8) 28 The Judge concluded that the offence was one that required the imposition of a "substantial prison sentence". He allowed a discount of twenty percent for the utilitarian value of the respondent's plea of guilty, together with a further five percent discount to reflect the respondent's remorse. The starting point for the sentence, it can be seen, was approximately three years and four months. In the Crown's submission, a starting point of this length was manifestly inadequate to reflect the objective gravity (and the need for personal as well as general deterrence) of an offence involving the possession of 198 grams of heroin (of a purity of 40%) for the purpose of supply committed by a persistent drug offender, who had previously been sentenced to terms of imprisonment on two occasions, for the supply of heroin. 29 The Judge commented on the ineffectiveness of the previous sentences of imprisonment and of the need for a substantial sentence on this occasion. In the Crown's submission he failed to reflect this conclusion in the sentence imposed. 30 In written submissions the Crown challenged the Judge's findings that I have set out at [26] above: "His Honour uncritically accepted the Respondent's account as to his role in the matter (ROS 7). The Respondent's version was that he (a heroin user) had been provided with 198 g of quality heroin on credit by a person he had only known for six weeks or so (and to whom he was substantially indebted to). That version should have been rejected as inherently implausible." 31 The Crown did not challenge that it had been open to the Judge to find that the respondent was a long-standing user of heroin and to approach the sentence on the basis that his case was to be distinguished from the case of a supplier whose sole motivation was greed. It was the Judge's acceptance of the respondent's account that he was a street supplier who had fortuitously come into possession of seven ounces of 40% pure heroin, of which the better part would be used by him, with which the Crown took issue.

32 Counsel for the respondent submitted that the Judge's factual finding was one that was open to him. In his submission the Crown was wrong to characterise the offence as one relating to the possession of 198 grams of heroin for the purpose of ongoing distribution to the community. On the Judge's findings an amount somewhat less than 100 grams was held for the purpose of supply. 33 The Judge did not make express detailed factual findings. However, it does appear that he approached sentencing on an acceptance of the respondent's evidence of the circumstances in which he came to be in possession of the heroin and of his intention to consume a substantial quantity of it himself. These findings depended on an assessment of the respondent's credibility. In Devries v Australian National Railways Commission (1993) 177 CLR 472 Brennan, Gaudron and McHugh JJ said at 479: "More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellant court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' (ss Hontesteroom v SS Sagaporack [1927] AC 37 at 47) or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable' ( Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 at 844)."

34 There are features of the respondent's evidence that make the acceptance of it somewhat surprising. His account that his heroin supplier, whom he had known for only six weeks, and to whom he owed a debt of $3,000 or $4,000, gave him seven ounces of heroin on credit is one such feature. The assertion that he had had tried to hand it back to the supplier is another. 35 The Judge found that the "surrounding circumstances and his own history, all point very strongly to the acceptance of his claim" (ROS 7). There was nothing in the surrounding circumstances that provided independent support for the acceptance of the respondent's account save that he did not appear to have a lavish lifestyle. His history showed him to be a person who had engaged in the commercial supply of heroin. 36 The respondent's evidence may be thought unsatisfactory in some respects. His denial that the heroin was worth $50,000 does not sit well with the remainder of his evidence. He said that half-weight deals are sold for amounts varying between $100 and $150. He acknowledged that a half-weight deal is less than half one gram. This receives support from a consideration of the weight of the four half-weight deals that he had on him at the time of his arrest and which were less than 1 ½ grams in total. Four hundred half-weight deals sold at $120 would yield $48,000. When an allowance is made for the fact that half-weight deals are less than half a gram, it can be seen that the police estimate of the value of the 198 grams in the respondent's possession is conservative. This is so accepting for present purposes (there being no evidence on the topic) that heroin of a purity of 40% was to be sold in street deals and not further diluted before being sold to the ultimate consumer. 37 The respondent said that half of the cash found in his wallet was the proceeds of the sale of heroin. This left a sum of $750 unexplained. The evidence was that the respondent's only source of income, apart from dealing in heroin, was the receipt of $400 per fortnight in social security benefits.

38 The Crown Prosecutor was critical of the absence of any analysis of the evidence or explanation of how it was that despite the seeming implausibility of the respondent's account, the Judge found it established on the balance of probabilities.

39 A Judge's factual findings, including those based on credibility, are not immune from appellate review: State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306. This is an appeal brought by the Crown. It is necessary for the Court to be circumspect before acceding to a challenge to the favourable factual findings made by a sentencing judge, which depend upon an assessment of the credibility of the offender. As I have noted, there were no independent surrounding circumstances that pointed to an acceptance of the respondent's claim. It is not clear what the Judge had in mind when he made this observation. It remains the case that the Judge had the benefit of seeing the respondent give his evidence and he accepted him. I have concluded that despite the apparently implausible features of the respondent's evidence it cannot be said that it was not open to the Judge to have accepted him.

40 The offence was committed on 19 February 2004 and, accordingly, the Judge was required to comply with the provisions of s 44 of the Crimes (Sentencing Procedure) Act 1999 and firstly specify the non-parole period and then the balance of the term. The Crown pointed out the terms of the sentencing order, which make clear that the Judge approached the proceeding consistently with the scheme of the Crimes (Sentencing Procedure) Act as it stood prior to the amendments introduced by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002. It was not in issue that his Honour was in error in this respect. This would not be a basis for this Court intervening on a Crown appeal. Of more significance in the Crown's submission was the Judge's failure to advert to the factors to which s 21A of the Crimes (Sentencing Procedure) Act directs attention. In particular, the Crown referred to the failure to take into account the aggravating factors identified in s 21A(2)(d) that the offender has a record of previous convictions and (2)(i) the offence was committed without regard for public safety. 41 It is not necessary for a sentencing judge to refer in terms to each of the factors, both aggravating and mitigating, to which s 21A of the Crimes (Sentencing Procedure) Act directs attention: R v Wickham [2004] NSWCCA 193. 42 The consideration of an offender's record of previous convictions is to be taken into account consistently with the common law principles enunciated in R v Veen [No. 2] (1988) 164 CLR 465 at per Mason CJ, Brennan, Dawson and Toohey JJ at 477; R v Johnson [2004] NSWCCA 76. This was a case that required that the Judge give consideration to the respondent's previous record of convictions for serious offences involving the supply of prohibited drugs and to the need for personal deterrence. 43 In written submissions counsel pointed to the sentences that had been imposed on the respondent by this Court following the successful Crown appeal in March 2000. He put it this way: "It would not have escaped the notice of the sentencing judge that the sentences imposed by this Court on that occasion were for an offence of supplying a commercial quantity of heroin and also for an offence of supplying a trafficable quantity of heroin, the latter offence being committed whilst on bail for the former. Although considerations of totality would have played a part, for an offence involving the possession for supply of a quantity of heroin said to be valued at $58,000, the offence being committed whilst on bail, a sentence of two years comprising a minimum term of one year with an additional term of one year was considered appropriate for a sentence substituted on a Crown appeal. The sentence under appeal is significantly more severe. It is not manifestly inadequate." 44 In dealing with this submission it is necessary to note what it was that this Court said about the sentences that were substituted by its order upholding the Crown appeal. Smart AJ, who proposed the orders with which the other members of the Court agreed, said this at [31]: "The sentences proposed have been substantially modified because this is a Crown Appeal and they involve returning Mr. Lilley to full-time custody some seven months after he was sentenced to periodic detention. There is a further element of leniency in that the effect of sentences is to treat the seven months served by way of periodic detention as part of the full time custodial sentence. The sentences proposed are less than those which should have been imposed at first instance." 45 A further matter to be considered in evaluating counsel's submission concerning the sentence imposed for the prior conviction for the supply of heroin is that the quantity involved in that case was 44 grams. This is an amount less than half the amount that the respondent admitted he had in his possession for the purposes of supply. This Court imposed a sentence that it acknowledged to be less than that which should have been imposed having regard to the fact that it was a Crown appeal. Seven months after the expiration of that lenient sentence the respondent was arrested and charged with the present offence. In these circumstances, I am unpersuaded by the submission that the present sentence is aptly characterised as significantly more severe than that imposed on the last occasion in respect of the count of supplying heroin. 46 Counsel took us to the decision of the Court of Appeal in R v Bernath [1997] 1 VR 271 at 270-271: "[I]t is sometimes a very significant factor in sentencing that an offender engaged in trafficking, especially at street level, in order to gain the wherewithal to satisfy his own craving, rather than purely for reasons of greed in callous disregard of the grave harm that the offence does to its victims. But, as McGarvie J said in R v Nagy [1992] 1 VR 637 at 640 the regard to be paid to this factor depends on the circumstances of each case. The weight to be attributed to it is greatly diminished, often to vanishing point, when one is considering operations above street level. … It is important to bear in mind also the distinction between sentencing facts and sentencing issues. The issue was whether there was such a link between addiction and the offences as to call for mitigation of punishment." 47 Counsel also invited us in considering the disposition of the Crown appeal to take into account the well-known observations of King CJ in R v Osenkowski (1982) 30 SASR 212 - 213: "It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform. The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience." 48 It does not seem to me that either Osenkowski or the decision of the Victorian Court in Bernath provides assistance to the respondent. While the Judge considered that the respondent's "off again/on again" addiction to heroin provided some measure of mitigation his Honour correctly considered this factor to be counterbalanced by the fact that at the age of fifty-three years the respondent had chosen to renew his use of heroin having previously served sentences of imprisonment for the supply of that drug. In these circumstances his Honour concluded that the respondent's heroin use afforded little in the way of mitigation for his offence. 49 The Judge said nothing to suggest that he had arrived at a view that it was appropriate to exercise exceptional leniency in order to promote reform. His Honour observed that prison terms had not served to deter the respondent in the past. He considered the question of whether the respondent may be involved in offences of this type in the future to be linked to the question of whether he resumed illegal drug use. In this context he noted that the respondent had not been able to offer any explanation for his resumption of heroin use on this occasion.

50 The maximum penalty for the offence is fifteen years' imprisonment. The Judge made reference to this consideration in his remarks. I am persuaded that to take as a starting point a sentence of approximately three years and four months for an offender with a lengthy criminal history, including for serious drug offences, in possession of this quantity of heroin (of which some 100 grams of heroin was for the purpose of supply to any person who would buy it) against the statutory maximum is indicative of error. The sentence failed to adequately reflect considerations of general and personal deterrence: R v Clark (unreported) Court of Criminal Appeal, 15 March 1990 per Hunt J at 3; R v Pilley (1991) 56 A Crim R 202. 51 Accepting the respondent's account of the circumstances of the offence, I am nonetheless persuaded that the Crown has made good its challenge. The sentence imposed in the circumstances of this case was not merely a lenient one, it was manifestly inadequate. The respondent was a man of mature years who made the choice to resume heroin use and to deal in heroin in order to fund his habit.

52 The Court exercises restraint in Crown appeals and, on occasions notwithstanding that the appeal is made good, will not intervene in the exercise of a residual discretion. I am not persuaded that would be an appropriate course to adopt in this case.

53 In re-sentencing the respondent it is necessary to take into account both the aggravating factors and mitigating factors to the extent that they are relevantly provided in s 21A of the Crimes (Sentencing Procedure) Act 1999. The respondent's record of previous convictions is a matter to be taken into account as an aggravating factor in that it requires that weight be given to the consideration of personal deterrence. The offence was one committed without regard for public safety. The respondent told the police that he would supply heroin to anyone. The offence is mitigated by the respondent's willingness to facilitate the course of justice evidenced by his plea of guilty and the Judge's acceptance that he was remorseful for his offence. 54 It is appropriate that the sentence be discounted by twenty-five percent to take into account the utilitarian value of the respondent's plea of guilty together with the remorse that the Judge found that it evidenced. 55 The Judge found that there were special circumstances within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act that made a departure from the statutory proportion between the non-parole period and the balance of the term appropriate. The Crown has not submitted that this finding should not be reflected in any sentence imposed by this Court. The Judge considered that the special circumstances were to be found in the respondent's need for supervision on his release. I am not sure that I would have come to that conclusion at first instance, however, I propose to approach the re-sentencing by giving the respondent the benefit of the finding of special circumstances. 56 Since the occasion for re-sentencing the respondent is a successful Crown appeal I propose a sentence which for the circumstances of this offence is at the low end of the range.

57 For these reasons the orders that I propose are: 1. Allow the appeal and quash the sentence imposed in the District Court;

In lieu thereof impose a non-parole period of three years and nine months to date from 19 February 2004 and to expire on 18 November 2007. The balance of the term of imprisonment to which the respondent is sentenced is two years and three months. The sentence will expire on 18 February 2010. 58 HOWIE J: I agree with Bell J.

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