The Judge took into account to "some indefinable extent" that the man Peter did influence the applicant but remarked, "there is a long gap between influence and duress".
12 The applicant was aged 35 years at the date of sentencing. He had no prior criminal record and there was little in evidence about his formative years of relevance to the task in sentencing him for the offences for which he was convicted. The applicant had completed his Higher School Certificate and had been enrolled in courses at TAFE and university without successfully completing them. He was generally in employment and at the time of offending was self-employed selling mobile telephones and repairing electrical equipment. He explained the offences to the officer from the Probation and Parole Service and a psychologist who prepared a report upon him for the purpose of sentencing in accordance with the evidence he gave at the trial, being that he traded in drugs because he was afraid of Peter.
13 The applicant maintained that he did not use illegal drugs to the probation officer and the psychologist. The psychologist reported that the applicant told her that "many of his friends use drugs and he could often see the negative effects drugs have on them". He also told her that he had lost a few friends through their drug usage. He was at a loss to explain the offence other than by reacting to threats by Peter and maintained that he was not acting for financial gain.
14 The psychologist reported that the applicant had been depressed for much of his life following the death of his father when the applicant was aged 11 years. He had often felt isolated and had suicidal ideas. He had not revealed the extent of his depression to his mother and had otherwise tried to protect her from being hurt by the truth. He had developed a personality that was dependent and "ill-equipped to deal with pressures and stress alone". He was also submissive and "subordinating his own needs to those of others".
15 The applicant wrote a letter to the Judge indicating his remorse and the actions he has taken while in custody to improve himself by undertaking courses. There was also in evidence a letter from the applicant's mother, from his fiancée and from his sister, in which she refers to the traumatic effect upon the applicant of the death of their father. There were testimonials tendered as to the applicant's character generally, his assistance to charities and his behaviour while in custody.
16 It is submitted on behalf of the applicant that the sentences imposed were manifestly excessive. Reliance is placed in support of that submission on the applicant's good character, the fact that Peter had some influence upon the applicant, that there was no hierarchy involved in the applicant's business of supplying drugs, and the inexplicable nature of the crimes. As to the last matter I do not understand why the court should search for reasons to explain the fact that the applicant took an opportunity that presented itself to involve himself in a lucrative business with high financial gains. The Judge was satisfied beyond reasonable doubt that at least $30,000 to $50,000 of the money in the safe in the applicant's home was a direct result of the supply of drugs.
17 It is submitted that the sentence for count 1 is at the top of the range. Accepting that this is so, it seems to me to be remarkable that, for an offence that carries life imprisonment, the top of the range of sentences imposed is 10 years imprisonment notwithstanding that there must be cases such as the present of offences being committed over a significant period of time in which a large commercial quantity of a dangerous drug is being supplied in the community for profit. In my view the sentence imposed as against the maximum penalties prescribed, bearing in mind that the applicant on his own admissions was not a user of drugs and that he was involved in an on-going business of supplying drugs was well justified.
18 It must be borne in mind that the applicant pleaded not guilty and, therefore, was entitled to no discount that might have followed a plea. His expressions of remorse have to been seen against the fact that he continued to maintain that he offended only because the man Peter had threatened him and his family. He never accepted full responsibility for his actions that, on the face of it, were merely those of a person motivated by greed. Although the Judge said that he was taking into account the applicant's contrition, I frankly do not understand the basis upon which any significant mitigation could be allowed for the fact that the applicant made some remarks to the effect that he was sorry for the offences notwithstanding that he was continuing to maintain that he only offended because of threats made to him and his family by Peter. Similarly it is difficult to see the basis for the Judge's view that the applicant was not likely to re-offend.
19 Even in an affidavit placed before this Court the applicant tempers his statements of remorse by the explanation that he was "very scared and paranoid at the time".
20 The applicant relies on the hearing of the appeal upon fresh evidence in the form of a psychiatric report and an affidavit from the applicant in which he now admits to having been using drugs at the time of the offence, a matter denied by him throughout the trial and the sentencing proceedings. It is submitted that, notwithstanding that there is nothing to indicate why the applicant was not psychiatrically examined prior to sentencing, the Court should receive the report because in the absence of that evidence a miscarriage of justice had occurred.
21 The applicant was convicted on 18 November 2003. The sentencing proceedings took place on various dates through February 2004 and the sentence was imposed on 1 March 2004. The applicant was legally represented during the course of the proceedings by an experienced barrister and a solicitor. A psychologist examined the applicant and prepared a report for the purpose of the sentencing proceeding. A significant amount of material was tendered on the applicant's behalf including a letter from the applicant in which he attempted to explain the circumstances of his offending. The applicant did not give evidence before the sentencing judge. He had of course given evidence during the trial and in respect to the related matter of goods in custody.
22 This is a case where those now appearing for the applicant in this Court have determined to seek to support the application by placing before this Court evidence that could have been placed before the sentencing judge. As I have indicated the applicant did not give evidence on sentence. He steadfastly maintained before those who examined him for the purposes of sentencing that he was not a user of drugs. No doubt that was a stance that supported his defence of duress on the basis that the only reason he became involved in the offences with which he was charged was because of the threats of the applicant. Now he wishes this Court to receive and take into account evidence that he was a user of drugs with the explanation that, "I now know that this affected my judgment and was one factor that led to my committing the offences".
23 The applicant relies upon statements I made, with the concurrence of Sully and Hidden JJ, in R v Walsh [2004] NSWCCA 435 as to the reception of fresh or new evidence on appeal where to exclude the evidence might result in a miscarriage of justice. I expressed the view that cases such as R v Goodwin (1990) 51 A Crim R 238 and R v Fordham (1998) 98 A Crim R 359, that refer to pre-conditions for the admissibility of new or fresh evidence on sentence appeals are merely examples of situations where the Court might find that a miscarriage will have occurred. However, those remarks were made in the context of an appeal against conviction and the pre-conditions that have been applied to the reception of evidence on sentence should not simply be ignored but apply with considerable force in the present case.
24 The applicant chose to conduct his defence both at the trial and on sentence as it seemed best for him at the time. As I have indicated, one can readily understand why the applicant chose to assert that he was not a drug user in light of the defence he ran at the trial and the stance he took on sentence, being that Peter pressured him into committing the offences. The psychiatrist in the report dated 4 April 2005, that is over 12 months after the sentencing proceedings, states that the applicant gave the following reasons for not revealing his drug usage: