159 In this regard we would concur with his Honour's assessment that the quantity of the drugs supplied was not determinative of that issue, a view which accords with the decision of the High Court in Wong v The Queen (2001) 207 CLR 584 and of this Court in Regina v Markarian (supra). Clearly it must be a factor, but it is only one of a number of factors that would be relevant to an assessment of what constitutes, in the abstract, a midrange offence for which the standard non-parole period was set, and whether the subject offence was in that range.
160 More relevant, in our view, were the other factors that were present in this case, namely that the applicant was prepared to supply a commercial quantity of methylamphetamine to a person to whom he had just been introduced, for a considerable sum of money, after having made smaller supplies to him; that he had an established source which he was both able and willing to use in order to supply a person who he expected would engage in street sales; that he was operating at a level above that of a street supplier, and had a capacity, if needed, to secure his stock on credit; that he had adopted security measures, and was deliberately and in a premeditated way, engaging in the supply of drugs for profit, in circumstances where he held himself out as willing to supply in whatever quantities were required.
161 Leaving aside all of the subjective circumstances, including matters which may have had a particular relevance in relation to punishment arising for example from the presence of a prior record or the status of the offender as a person on conditional liberty, the presence of factors of this kind would in our view place the subject offence, just within the middle range of objective seriousness. We say "just within" that range, because we recognise that the quantity of drugs involved was at the lower end of a commercial quantity. What was the decisive factor in this case relates more to the deliberate and organised nature of the applicant's operations than to the quantity of the drug.
162 While his Honour did make an observation to the effect that the applicant was "typical of the type of person who is committing these offences", and that "his actions are typical of a drug dealer", we do not regard him as having assessed the level of the applicant's objective seriousness solely upon the basis that he was behaving in a way that is typical of a drug dealer. By itself such a factor would not be determinative. The conduct which constitutes an element of the offence necessarily involves the kind of behaviour in which a drug dealer typically behaves.
163 There was however a good deal more in this case than a typical act of supply. As we have observed what was here involved was a sale made in the course of an established commercial activity that was carried out by a man who had an available chain of supply, who held himself out as able to sell drugs in whatever quantity was required, who was prepared to travel to Newcastle to collect the drugs, who was prepared to put up $8000 and to place himself temporarily in debt for $4000 in order to purchase them, and who anticipated a profit in the order of $13,000 from the transaction.
164 We are not persuaded for the reasons later mentioned that there was any measure of entrapment, or conduct of the undercover operative that could be regarded as inappropriate "pushing" of the applicant which undermined its seriousness.
165 Equally, we are not persuaded that the apparent lack of any evidence of the trappings of wealth, or the fact that the applicant had been out of work for some time, by reason of his earlier illness, reduces the objective seriousness of the offence. His relevant motive was one of profit and it was the particular transaction, in its own factual context, which was relevant to an assessment of its objective seriousness.
166 Nor are we persuaded that the fact that the drug was methylamphetamine, rather than cocaine or heroin, makes any substantial difference in this case. Amphetamines in all their forms regrettably comprise an easily available and widely used illegal substance. A good deal of criminal behaviour, of an organised kind, is attached to their manufacture and distribution.
167 In R v Bimahendali (1999) 109 A Crim R 355 the view was expressed that amphetamines in their various forms fall into the mid range of seriousness of prohibited drugs, and we see no reason to depart from that view. They take their place as a substantially evil substance in the illicit drug trade, as is indicated by the maximum penalty applicable to their supply in a commercial quantity.
168 Otherwise we are satisfied that these grounds, which overlap with the next ground, have been made good.
GROUND 4: THE SENTENCES ARE MANIFESTLY EXCESSIVE.
169 This ground was effectively confined to the sentence for Count 1. It relies upon the grounds already dealt with, as well as upon the overall submission that a sentence of 13 years and 4 months with a non-parole period of 10 years, is so out of kilter with existing sentencing patterns, and with his Honour's observation that, but for Division 1A of Part 4, he would have imposed a head sentence of 7 years, as to demonstrate error.
170 Specific error was asserted in so far as it was contended that his Honour failed to take into account the extent to which the applicant had been encouraged to commit the supply offence by the undercover operative, and that he gave little or no weight to his remorse, or to the circumstances that the serving of the sentence would occasion hardship beyond that experienced by the usual prisoner by reason of his health difficulties and by reason of the need to serve the sentence on protection, or to his offer of assistance.
171 There were some serious circumstances operating to the detriment of the applicant in so far as he had prior convictions for drug offences, and was on conditional liberty at the time of reoffending. These were matters falling within s 21A(2)(d) and (j) of the Sentencing Procedure Act; and were properly to be taken into account.
172 We also consider that it was appropriate for his Honour to have regarded the offence as one committed without regard for public safety (another s 21A(2) factor). The applicant was not to know that the buyer was an undercover operative and that the drugs would be seized and destroyed. What was relevant in this context was his motivation or understanding, so far as that went to an assessment of his moral culpability. He undertook the transaction expecting a considerable personal profit, and in the understanding that the drugs would be resold, heedless of the consequences to those who purchased and consumed them, or of the fact that users commonly resort to property offences to feed a habit, leaving other victims in their wake. The observations of Smart AJ in Regina v Chan [1999] NSWCCA 103 (at para 21) as to the limited relevance of the fact that drugs which are supplied to undercover agents will not reach the community, apply. As his Honour pointed out, that circumstance was not due to any act of the offender.
173 On the other hand, there was evidence of genuine remorse. Moreover, while the offender was only middle aged (47 years) at the time of sentence, he did have ischaemic cardiac disease and non insulin dependant diabetes which were less likely to be treated appropriately, or managed as effectively within a prison environment, particularly during a sentence of the length imposed, which would have had him confined for 10 years, than on the outside.
174 Furthermore, it was known that he faced problems from other inmates by reason of his history, which had led to him being placed on protection. While there was no specific evidence as to how long that would continue, or whether it might be the subject of some less secure or reduced conditions of confinement, as he worked his way through the classification system, it is a circumstance that has been recognised as justifying some moderation in sentence. It was not properly dismissed, in our view, as something of no relevance because the need for it was "something which would occur with a number of people who are convicted of similar offences."
175 If that is in fact the case, then it does not alter the situation that the sentence would be more onerous for this prisoner than for the run of the mill gaol population. It is not the case that part of the sentencing exercise for drug suppliers assumes that their sentence should be served in more onerous circumstances, by way of additional punishment because of the type of offence which they commit.
176 Similar considerations have not been applied in the past, in relation to the sentencing of the group of offenders who are most likely to go onto protection, that is, paedophile offenders and those who harm children physically. The fact of protection has been taken into account as a special circumstance in the case of such offenders, subject to the Court being satisfied that the sentence will in fact be served in conditions which are more onerous - a circumstance that is no longer necessarily the case for all such offenders, in the light of the current arrangements which exist for their alternative accommodation and special management, which were considered in R v Totten [2003] NSWCCA 207, R v Durocher-Yvon [2003] NSWCCA 299, and R v Mosytn [2004] NSWCCA 97.
177 In R v Mostyn, Howie J sounded a note of caution, with which we would respectfully agree, in relation to the manner in which the fact of protection should be taken into account, as follows:
"179. The material raises once again the issue of what mitigation of a sentence should be made on the basis that the offender might spend all or some of his sentence in protective custody. The matter has been recently considered in R v Totten [2003] NSWCCA 207 and R v Durocher-Yvon [2003] NSWCCA 299. It can no longer be assumed that a prisoner, by reason of the fact that he will serve his sentence on protection, will find prison life more difficult or onerous than other prisoners in the general prison population or that the prisoner will be deprived of amenities or opportunities for self improvement courses and education. The present is another instance where a sentencing judge has presumably taken into account in favour of the offender the fact that he will serve his sentence under the harsh conditions and deprivations of protective custody, but that has not proved to be the case. It is an example of the difficulty of a sentencing court taking into account possible executive or administrative action in respect of a prisoner's custody when predicting how a sentence will be served. Although in Durocher-Yvon the Court indicated that a sentencing judge was entitled to assume that an informer would find himself in strict protection for the best part, if not the whole, of his sentence, that assumption would have proved to be erroneous in the present case.
180. As was recognised in Totten , the court is placed in a difficult position. On the one hand, the sentencer should take into account the conditions of the prisoner's custody where it appears that they will be unduly onerous because of some matter particular to that prisoner. This requires that, at the time of sentence, the court make some prediction about the nature of the custody that will be endured by the prisoner. On the other hand, the courts should now be aware that assumptions or predictions, which have been made in the past about the nature of an offender's custody because, for example, the offender has given assistance to the authorities, no longer hold good. But the vagaries of prison life are such that it could never be confidently assumed or predicted that a prisoner will serve the whole of his sentence in any particular type of custodial arrangement."
178 Additionally, there is the circumstance that care needs to be taken to avoid double counting which has a relevance, in two potential ways: