Regina v Way

LOWER COURT District Court JURISDICTION : LOWER COURT 03/51/0056 FILE NUMBER(S) : LOWER COURT Garling DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60131/04

SPIGELMAN CJ WOOD CJ at CL SIMPSON J

Tuesday 11 May 2004 Regina v Colin James WAY Judgment 1 THE COURT: The applicant pleaded guilty in the District Court, on 2 May 2003, to one count of supplying a commercial quantity of a prohibited drug, methylamphetamine (s 25(2) Drug Misuse and Trafficking Act 1985), and to one count of the ongoing supply of prohibited drugs, methylamphetamine (s 25A Drug Misuse and Trafficking Act). An offence of possessing a prohibited drug (1.17 gms of methylamphetamine) was taken into account on a Form 1, in relation to the first count. The maximum penalty for each count was one of imprisonment for 20 years, or a fine of $385,000, or both. The count one offence, but not the count two offence, was subject to s 54B of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act"). 2 Concurrent sentences of imprisonment were imposed of 13 years and 4 months for count 1, and of a fixed term of 3 years for count 2. A non-parole period of 10 years was fixed for the first count, which represented 75% of the overall term.

A. FACTS 3 The applicant became the subject of a controlled operation in relation to the supply of drugs in the Coffs Harbour area. The ongoing supply offence involved three sales of methylamphetamine, each in quantities of 3.5 gms or thereabouts, known as "8 balls", to an undercover officer on 25 and 26 January 2003. The total quantity of the drug supplied was 9.7 gms, for a price of $1200. 4 On the first occasion when a sale was made (3.5 gms for $400), the undercover officer made inquiries of the applicant as to the possibility of purchasing the drug in greater quantities. The applicant informed him that, in 3 weeks, he could supply as many ecstasy tablets as the operative wanted, and that he could provide any amount of amphetamine for $3,200 an ounce. The operative was shown up to 8 small bags of white powder which were taken from a compartment in the centre console of the applicant's vehicle. 5 Later that day, and on the following morning, the second and third sales were made, following arrangements which had been made for further meetings in the vicinity of the Coffs Harbour Marina. There was a discussion, during the first of these further meetings, about the purchase of an ounce of methylamphetamine, which the applicant said he could arrange for a cost of $2,800. 6 At the first meeting, the undercover officer questioned the applicant as to the availability of 5 to 9 ounces of amphetamine. The applicant replied that it would take him a couple of days, and that it would cost $2,700 per ounce. 7 The drugs which were supplied on the second and third occasions were produced from magnetic key holders, which the applicant had placed in a concealed position under the wheel arch of his car. 8 Between 26 January and 3 February there were a number of conversations concerning the proposed purchase, which culminated in an arrangement whereby the applicant would supply the undercover operative with 10 ozs or 280 gms of methylamphetamine for $25,000.

9 On 4 February the operative booked into Room 42 of the Country Comfort Motor Inn. The applicant booked into Room 25. After making telephone contact, he attended room 42, carrying a bum bag, which contained 10 ozs of methylamphetamine. The meeting was the subject of electronic surveillance, and the applicant was arrested when the undercover operative returned to the unit with the purchase money, accompanied by other police. A search was conducted of the applicant's house, in the course of which the methylamphetamine, the subject of the matter on the Form 1, was discovered, along with the usual accoutrements of the drug trade in the form of plastic bags, digital scales and a book which contained a large number of figures.

10 When interviewed, the applicant made admissions in relation to the offence charged in the first count, but declined to answer any questions relating to the sales that gave rise to the second count.

11 The applicant had previous convictions for drug offences, including a conviction on 11 February 2002 in the Local Court, for an offence of supply prohibited drug, in respect of which he was sentenced to imprisonment for 12 months. That sentence was suspended conditionally upon him entering into a bond for the same period. He was also subject to a two year bond, which was imposed at the same time, for an offence of goods in custody. Otherwise he had a relatively minor record for offences of dishonesty, and lesser drug offences, which had been dealt with in the Local Courts by fines, community service, probation and bonds.

12 It was the applicant's account that, following the 2002 arrest, he had buried a quantity of similar drugs, and that he had later been approached by a man by the name of "Shipman" who asked him where he might purchase amphetamine. Believing that he was "hanging out", he dug up his stash and sold Shipman a street deal. Thereafter he said he was encouraged by Shipman to make further sales, which led to him being introduced to the undercover operative.

13 He admitted that he saw dollar signs, and arranged to buy the drugs from another source or sources for on sale to the undercover operative. It was his account that the drugs, the subject of the first charge, were purchased for $12,000, which would have resulted in a net profit for him of $13,000. It was his account that he went to Newcastle to buy the drugs, and paid $8000, the balance being supplied to him "on tick".

14 His Honour contrasted this account with the terms of the various conversations which the applicant had with the undercover operative, the ready manner in which the drugs were obtained and supplied, and the fact that the applicant had, on each occasion of a sale, other quantities of the drugs available in containers within his vehicle. As a consequence he observed that he had "extreme difficulty in accepting" the applicant's version, and rejected his explanation as to how it was that he had returned to the activity of selling. On the contrary, he found that the applicant was prepared to supply methylamphetamine as well as ecstasy tablets, that he expected the drugs to be resold on the street, that he was acting for profit, that there was a lot of money involved, and that he had acted deliberately, and in a way that involved him covering his tracks, in relation to the way that he had used the motel.

15 Further, he found that the applicant had access to drugs for supply, and was quite prepared to supply whatever amount he could afford to acquire. He rejected the argument that the case was one of entrapment and concluded: "this was a man who was in the business of selling drugs and who was prepared to sell whatever he could get his hands-on".

16 Subjectively his Honour noted that the applicant was 49 years of age, that he had not completed the term of the suspended sentence, or the bond in relation to the previous supply conviction, when he had supplied the drugs the subject of the present charges, and was also in breach of a bond for the goods in custody offence.

17 He also noted that the applicant had a history of ischaemic cardiac disease, non-insulin dependent diabetes, raised cholesterol, and low back and shoulder pain, and was at risk of further cardiac problems. Additionally reference was made to the fact that the applicant was married, had two dependent children, and to the fact that, as a known drug dealer, he had been targeted while in prison for money and drugs. As a result he had been placed on protection by Corrective Services staff, even though he had not made any request for this to occur.

18 His Honour accepted that he had shown some remorse, that this would be his first custodial sentence, and that the plea was an early plea, and as such it had a value, although he added "he was of course caught red-handed".

19 The extent of the discount for the plea, which had been offered in the Local Court on 15 April 2003, 2 months after the applicant's arrest, was not disclosed in the reasons for sentence. The reasons did, however, disclose that his Honour was unimpressed with the submission that the applicant's offer to assist the police attracted a discount under s 23 of the Sentencing Procedure Act; or that the applicant's medical health, or the fact that he had been placed on protection, provided any material basis for mitigation of sentence. 20 As to the first of these matters, he indicated that he had real doubts as to whether the applicant had wished or tried to help the authorities, finding that the information supplied was very vague and of no real assistance. In that regard there was evidence from Detective Sergeant Atkinson to the effect that he had spoken to the applicant on 1 August 1993, that the information supplied was not first hand, was not current and was considered not to be reliable. The information given in relation to three persons who might be involved in the distribution of drugs in the Coffs Harbour district he said, was very scant, and was not directly related to any direct observation or contact with those persons. The information as to the applicant's source in the Newcastle region was similarly vague, as was the "mud map" which was drawn to indicate the location of the relevant premises.

21 In relation to the applicant's health his Honour noted that while he had a problem in the past, there was no real evidence to assist on that aspect of the case.

22 Finally, while observing that he had taken into account the fact that the applicant had been placed on protection, he added: "I imagine that is something which would occur with a number of people who are convicted of similar offences and who are sent to gaol as we know the majority are. It did not seem to me to be anything usual".

23 In fixing the sentence for the second count, his Honour made reference to the sentencing statistics, which he concluded showed that about 80% of persons convicted of the continuous supply offence were sentenced to full terms of imprisonment varying between 12 months and 5 years, with the majority between 2 and 4 years, and to the decisions in Regina v Fogg [2002] NSWCCA 395 and Regina v Jordan [2002] NSWCCA 228. He declined to find special circumstances, noting that there had been no submission that he should do so. Having regard to the aggravating circumstance that the offence was committed while the applicant was subject to conditional liberty, he indicated that he would have imposed a sentence of 4 years with a non-parole period of 3 years, which he converted to a fixed term of 3 years by reason of the fact that it would be wholly absorbed in the sentence for the first count. Further reference to the statistics shows that in 65% of cases of this kind, where there had been a plea of guilty, the non-parole period was 18 months or less.

24 His Honour approached the first count, which was subject to s 54A of the Sentencing Procedure Act, upon the basis that the offence fell within the "middle range of objective seriousness" for the offence. After weighing the aggravating and mitigating factors referred to in s 21A of the Act, he reached the conclusion that the "aggravating features probably slightly outweigh the mitigating features", with the consequence that he set, as the non-parole period, the standard minimum parole period of 10 years, which was specified in the Table. The balance of the term was fixed, so as to reflect the statutory proportion referred to in s 44 of the Sentencing Procedure Act.

25 The approach which his Honour took to the new Division 1A of Part 4 commenced with a reference to the commentary in Butterworths Criminal Practice and Procedure, which he understood to point out that: "the standard non-parole period statutory scheme is not a form of mandatory sentencing and seeks to provide further guidance structure to judicial discretion and that it still remains a matter for the Court".

26 His Honour continued: "It is upon that basis that I believe I have to approach this sentence. In other words, as I understand it what I have to do is firstly ascertain where this offence falls within the range then to indicate what non-parole period will apply and then to look at section 21A, that is the aggravating and mitigating factors." 27 His Honour rejected the defence argument that the assessment of where an individual case fell within the range should be made solely by determining where the quantity of drugs involved in the offence fell between the lower limit of 250 gms, and the upper limit of 999 gms, for a commercial quantity of amphetamine.

28 If that were the correct approach, then the quantity here involved would have fallen below the middle range of 625 gms (wrongly calculated by his Honour as 500 gms), since the quantity here involved was in the order of 274 gms.

29 In rejecting that submission, his Honour accepted that the quantity was but one of the factors to be taken into account, along with the circumstances in which the supply was made, including the applicant's position as a seller of drugs for profit, who was acting in a deliberate way, and who was "typical of the type of person who is committing these offences."

30 Having assessed the offence as falling within the middle of the range for this type of offence, his Honour took into account, as aggravating circumstances, the following matters which were identified in s 21A(2) of the Act: · Item (d) - prior convictions · Item (i) - offence committed without regard for public safety, because of the expectation that the drugs would be on sold to members of the public · Item (j) - offence committed while on conditional liberty.

31 The only mitigating factor referred to in s 21A(3) which was taken into account was the following: · Item (k) - plea of guilty, along with some cooperation and admissions at the time of arrest.

32 His Honour declined to find special circumstances, it may be assumed because of the findings previously mentioned, although the reasons for that conclusion were not expressly stated.

33 Before turning to the grounds of appeal, it is useful to note that his Honour said that, were it not for the newly enacted Division 1A of Part 4 of the Sentencing Procedure Act, he would have imposed a head sentence of 7 years, a sentence which would have been significantly less than both the total term of the sentence which was in fact imposed, and of the non-parole period that was set.

34 It is evident that his Honour considered that the new provisions had left him in the situation where he was required to impose a sentence which was well in excess of that which would have been suggested by his review of the sentencing patterns, as disclosed by the Judicial Commission statistics, for this offence, had it been committed prior to 1 February 2003.

35 In that regard he noted that the middle range for the full term of the sentence for the supply of a commercial quantity of amphetamine, for all offenders, had been between 4 and 5 years, with the highest sentence (a single case) having been one of 9 years. The statistics now available have been updated, but the submissions of the applicant, which we see no reason to question in this respect, suggest that the database, which was available at the time of sentencing, showed that in a population of 62 cases, 89% had resulted in the imposition of full-time custodial sentences, that 80% of the sentences of full-time imprisonment had fallen within the range of 2 years to 6 years, and that the entire range had been from 18 months to the 9 years previously mentioned. The non-parole periods ranged from 12 months to 7 years, with 80% of those periods having fallen within a range of 12 months to 4 years. 36 The following grounds of appeal are raised: '1. The learned sentencing judge erred in the manner in which he discounted the sentences for the utilitarian value of the applicant's pleas of guilty: (a) The learned sentencing judge erred in having regard to the strength of the prosecution case in assessing the utilitarian value of the applicant's plea of guilty; (b) The learned sentencing judge erred in not allowing an appropriate discount for the utilitarian value of the pleas of guilty. 2. The learned sentencing judge erred in finding that the commercial supply offence was in the "middle range of objective seriousness" for such an offence; 3. The learned sentencing judge erred in his approach to the application of sections 21A and 54B of the Crimes (Sentencing Procedure) Act 1999. 4. The sentences are manifestly excessive."

37 While grounds 1 and 4 have a relevance for both sentences, the principal question for determination relates to the application of sections 21A and 54B of the Sentencing Procedure Act to the sentence for the first count. Before considering those grounds it is convenient to examine the impact that the amendments to the Sentencing Procedure Act have had on sentencing.

B. DIVISION 1A OF PART 4 OF THE CRIMES (SENTENCING PROCEDURE) ACT

1. The Legislation and the Second Reading Speech 38 This Division applies to the offences which are identified in the Table to the Division, and which were committed on or after 1 February 2003. 39 The provisions of the Division, which are of immediate relevance for this application, are as follows: 54A What is the standard non-parole period? (1) For the purposes of this Division, the standard non-parole period for an offence is the non-parole period set out opposite the offence in the Table to this Division. (2) For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division. 54B Sentencing procedure (1) This section applies when a court imposes a sentence of imprisonment for an offence set out in the Table to this Division. (2) When determining the sentence for the offence, the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period. (3) The reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in section 21A. (4) The court must make a record of its reasons for increasing or reducing the standard non-parole period. The court must identify in the record of its reasons each factor that it took into account. (5) The failure of a court to comply with this section does not invalidate the sentence.

40 As his Honour noted, the standard non-parole period for an offence of the kind charged in Count 1, which falls in "the middle of the range of objective seriousness" for that offence, is 10 years; while the maximum available term of imprisonment for the offence, as a whole, is one of 20 years. 41 Division 1A of Part 4 does not stand alone in the Sentencing Procedure Act. It needs to be considered in the light of several other provisions, which have a direct and important relevance for sentencing. 42 First, there is s 3A, which was introduced to take effect on and from 1 February 2003, although it applies to the determination of a sentence thereafter for any offence, whenever committed, unless before that date the offender has been convicted of that offence, or a court has accepted a plea of guilty to it, which has not been withdrawn. The section provides: 3A Purposes of sentencing

The purposes for which a court may impose a sentence on an offender are as follows:

(a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. 43 Secondly, there is s 21A which, in its present form, similarly applies on and from 1 February 2003 to the determination of a sentence for an offence, whenever committed, unless before that date the offender has been convicted of it, or a court has accepted a plea of guilty which has not been withdrawn. It provides: 21A Aggravating, mitigating and other factors in sentencing (1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters:

(a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence.

The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.

(2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the victim was a police officer, emergency services worker, correctional officer, judicial officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim's occupation, (b) the offence involved the actual or threatened use of violence, (c) the offence involved the actual or threatened use of a weapon, (d) the offender has a record of previous convictions, (e) the offence was committed in company, (f) the offence involved gratuitous cruelty, (g) the injury, emotional harm, loss or damage caused by the offence was substantial, (h) the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability), (i) the offence was committed without regard for public safety, (j) the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence, (k) the offender abused a position of trust or authority in relation to the victim, (l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim's occupation (such as a taxi driver, bank teller or service station attendant), (m) the offence involved multiple victims or a series of criminal acts, (n) the offence was part of a planned or organised criminal activity. The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.

(3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, (b) the offence was not part of a planned or organised criminal activity, (c) the offender was provoked by the victim, (d) the offender was acting under duress, (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner, (j) the offender was not fully aware of the consequences of his or her actions because of the offender's age or any disability, (k) a plea of guilty by the offender (as provided by section 22), (l) the degree of pre-trial disclosure by the defence (as provided by section 22A), (m) assistance by the offender to law enforcement authorities (as provided by section 23).

(4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.

(5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence. 44 Then, there are provisions such as s 22, 22A and 23 which confer a sentencing discretion to impose a lesser sentence or penalty than would otherwise have been imposed where the offender has pleaded guilty (s 22); or has cooperated in making pre-trial disclosures for the purposes of the trial (s 22A); or has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection, or investigation of, or in proceedings relating to the relevant offence, or any other offence (s 23). 45 The discretion under s 22A and 23 is subject to a qualification, which is not expressly mentioned in s 22, namely that any lesser penalty that is imposed "must not be unreasonably disproportionate to the nature and circumstances of the offence." Section 23 differs from other provisions in so far as it refers in some detail to the matters which are to be taken into account in deciding whether to impose a lesser penalty, and in determining the nature and extent of that penalty. 46 Next, there are a series of provisions concerning the way in which the Court is to set a sentence of imprisonment, commencing with s 44 which, in the version applicable to sentencing for offences committed on or after 1 February 2003, and which accordingly by a matter of days, applies in relation to the Count 1 offence, provides relevantly: 44 Court to set non-parole period

(1) When sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence).

(2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).

(3) The failure of a court to comply with subsection (2) does not invalidate the sentence.

(4) Schedule 1 has effect in relation to existing life sentences referred to in that Schedule. 47 The remaining provisions within Division 1 of Part 4 have no immediate relevance, although it should be noted that s 45, which permits the Court to decline to specify a non-parole period for an offence, does not apply to the offences set out in the Table to Division 1A (s 45(1)). It follows that fixed term sentences are not available for such offences. 48 Finally, reference may be made to s 101A of the Act, so far as that has relevance for the determination of an appeal against a sentence where there has been a failure to comply with a relevant provision of the Act. It is in the following terms: 101A Effect of failure to comply with Act

A failure to comply with a provision of this Act may be considered by an appeal court in any appeal against sentence even if this Act declares that the failure to comply does not invalidate the sentence. 49 In the course of the Second Reading Speech of the Attorney-General (Legislative Assembly, Hansard 23 October 2002), the following observations were made of relevance for the amendments, which were proposed. "…At the outset I wish to make it perfectly clear that the scheme of sentencing being introduced by the Government today is not mandatory sentencing. The scheme being introduced by the Government today provides further guidance and structure to judicial discretion. These reforms are primarily aimed at promoting consistency and transparency in sentencing and also promoting public understanding of the sentencing process. By preserving judicial discretion we ensure that the criminal justice system is able to recognise and assess the facts of an individual case. This is the mark of a criminal justice system in a civilised society. By preserving judicial discretion we ensure that when, in an individual case, extenuating circumstances call for considerations of mercy, considerations of mercy may be given. … The Government's bill establishes a new sentencing scheme in new division 1A, part 4, of the Crimes (Sentencing Procedure) Act 1999 - the principal Act - by setting standard non-parole periods for a number of specified serious offences set out in a table in the bill. Under the bill the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period for the offence. … A fair, just and equitable criminal justice system requires that sentences imposed on offenders be appropriate to the offence and the offender, that they protect the community and help rehabilitate offenders to prevent them from offending in the future. The imposition of a just sentence in the individual case requires the exercise of a complex judicial discretion. The sentencing of offenders is an extremely complex and sophisticated judicial exercise. The High Court has described the various purposes and the necessary complexity of the sentencing exercise in the following terms: 'The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.' That is a quote from the judgment in Veen v The Queen (No. 2) from page 465 of 162 Commonwealth Law Reports by Chief Justice Mason and Justices Brennan and Dawson and also from the judgment of Justice Toohey at page 476. By introducing a regime of standard non-parole periods for a specified number of serious offences the Government will ensure not only greater consistency in sentencing but also that proper regard is given to the community expectation that punishment is imposed that is commensurate with the gravity of the crime. In conjunction with this proposed legislation the Government will continue to support the use of guideline judgments given by the Court of Criminal Appeal. Guideline judgments are another extremely useful tool in achieving consistency in sentencing and in taking into account community expectations as to the appropriate penalty to be imposed. The legislative and constitutional validity of guideline judgments in New South Wales was recently affirmed by the Court of Criminal Appeal in R v Whyte , New South Wales Court of Criminal Appeal 2002, page 343. … The bill inserts a new division 1A - sections 54A to 54D - into part 4 of the principal Act. The proposed division provides for standard non-parole periods for a number of serious offences listed in the table to the division. Proposed section 54A provides that the standard non-parole period for an offence is the non-parole period set out opposite the offence in the table…. The standard non-parole periods set out in the table to the bill have been set taking into account the seriousness of the offence, the maximum penalty for the offence and current sentencing trends for the offence as shown by sentencing statistics compiled by the Judicial commission of New South Wales. The community expectation that an appropriate penalty will be imposed having regard to the objective seriousness of the offence has also been taken into account in setting standard non-parole periods. The bill provides in section 54A (2) that the standard non-parole period for an offence represents the non-parole period for an offence in the middle of the range of objective seriousness for such an offence. The standard non-parole period provides a reference point or benchmark within the sentencing spectrum for offences that are above or below the middle of the range of objective seriousness for such an offence. The concept of a sentencing spectrum is well known to sentencing judges and criminal law practitioners. The first important point of reference which must be considered in the sentencing exercise is the maximum penalty for an offence. The maximum penalty is said to be reserved for the "worst type of case falling within the relevant prohibition": Regina v Tait and Bartley (1979) 46 Federal Law Reports at page 386, the decision of Justices Brennan, Deane and Gallop at page 398. However, as the High Court observed in Veen (No. 2) at page 478, this does not mean that "a lesser penalty must be imposed if it be possible to envisage a worse case…". At the other end of the sentencing spectrum lie cases which might be described as the least serious or trivial. The new sentencing scheme proposed in the bill introduces a further important reference point, being a point in the middle of the range of objective seriousness for the particular offence. The identification of a further reference point within the sentencing spectrum will provide further guidance and structure to the exercise of the sentencing discretion. Every sentencing exercise necessarily involves the identification by the court of where the offence lies in the spectrum of objective seriousness. In Ibbs v The Queen (1987) 163 Criminal Law Reports (sic) at page 447 the High Court referred at pages 451 and 452 to the need for a sentencing judge to identify where in the spectrum of objective seriousness an offence lies. Chief Justice Spigelman recently restated this principle in Thorneloe v Filipowski (2001) 52 New South Wales Law Reports, page 60 at page 69. The Chief Justice referred again to the principle in the case of Whyte when His Honour stated: However, in this State the principle of proportionality identified in Veen v The Queen (1978-1979 143 CLR 458 esp at 490; Veen v The Queen [No. 2] (1987-1988) 164 CLR 465 esp at 472-3, 476 has long been held to permit, indeed to require, that a sentence should be proportionate to the objective gravity of the offence. This necessarily requires a sentencing judge to consider, at some stage in the reasoning process, the sentence that is appropriate for the particular circumstances of the crime without reference to the subjective case of the particular offender. This principle was also enunciated by Justice Howie of the New South Wales Supreme Court in R v Moon (2000) New South Wales Court of Criminal Appeal Reports, page 534 at [67]-[68]. His Honour stated that after first having regard to the maximum penalty for the offence, a sentencing judge must then "consider where in the range of the conduct covered by the statutory offence, the particular criminal conduct committed by the offender falls". Proposed section 54B(2) provides that a court sentencing an offender to imprisonment for an offence set out in the table to the proposed division is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period which is longer or shorter than the standard non-parole period. Under proposed section 54B(3) the reasons for which the court may set a non-parole period longer or shorter than the standard non-parole period are only those matters referred to in proposed section 21A. The court must make a record of its reasons for increasing or reducing the standard non-parole period, and must identify in the record of its reasons each factor to which it had regard - proposed section 54B(4). Under the bill the sentencing process remains one of synthesis of all the relevant factors in the circumstances of the case. The requirement for a court to identify each factor that it takes into account does not require the court to assign a numerical value to such a factor. That is, proposed section 54B does not require a court to adopt a mathematical or multi-staged approach to sentencing."

50 In a case involving a Table offence, there are now two statutory guideposts or benchmarks or reference points available: namely the maximum sentence (that is, the term of the sentence) which the legislature has prescribed for the offence; and the non-parole period which applies to the offences specified in the Table. 51 The statutory maximum penalty has been regarded as an expression of the policy of the legislature in providing for the offence (R v Oliver (1980) 7 A Crim R 174 at 177; Gilson v The Queen (1991) 172 CLR 353 at 364), or as a reflection of the seriousness of that offence as perceived by the public (R v H (1980) 3 A Crim R 53 at 65). It has been reserved for the "worst type of case falling within the relevant prohibition": Regina v Tait and Bartley (1979) 46 FLR 386, R v Fernando [1999] NSWCCA 66 at para 227 and Ibbs v The Queen (1987) 163 CLR 447, although the adoption of that phrase is not an occasion for the imposition of a lesser sentence if it is possible to envisage a worse case: Veen v The Queen [No 2] (1988) 164 CLR 465 at 478. 52 Traditionally any intention on the part of the legislature that the offence should attract a heavier sentence has been manifested by an increase in the statutory maximum: R v Sha (1988) 38 A Crim R 334; R v Peel [1971] 1 NSWLR 247. The courts are expected to recognise and reflect that intention when sentencing offenders for offences after such amendments are made: R v Slattery (1996) 90 A Crim R 519 at 524 and R v Jurisic (1998) 45 NSWLR 209 at 227. 53 There is nothing in Division 1A to suggest that the statutory maximum ceases to provide a benchmark, or a reference point, in sentencing, so far as it is a manifestation of legislative intention as to the seriousness of the offence. The focus is, however, likely to shift more towards the standard non-parole periods where they apply, since they may be taken to express a legislative intention as to the minimum periods of actual imprisonment, which are appropriate for the relevant offences. 54 As will be mentioned later in these reasons, this may well result in some change in the established sentencing pattern for these offences, or at least some of them, with an overall increase in the non-parole periods and terms of the sentences. 55 Irrespective of these considerations, there is no basis for assuming that guideline judgments of this Court are to have any less relevance, or that there is to be a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice. 56 In this regard, it is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the "relative seriousness" of the offence, they are expressly preserved by s 21A(1)(c). 57 Furthermore, s 21A(1) preserves the entire body of such principles. They fall within the scope of "matters" which are "required or permitted to be taken into account under any … rule of law". The judicially developed body of sentencing principles constitute "law" for the purposes of this clause and also for purposes of s 21A(4). When Parliament referred, in s 54B(1), s 21A as identifying the matters for which a non-parole period that is shorter or longer than a standard non-parole period may be set, it was not referring to a narrow list of considerations. 58 Very clear direction would be expected if the courts were to be required to depart from the breadth of discretion which has been accepted as available in passing sentence and which was confirmed in R v Whyte (2002) 55 NSWLR 252 where Spigelman CJ said at 276 [147]: "The maintenance of a broad sentencing discretion is essential to ensure that all of the wide variations of circumstances of the offence and the offender are taken into account. Sentences must be individualised." 59 In this respect, it is clear that the legislative policy in introducing Division 1A, so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges, since s 54B(2) does permit reference to be made to a range of circumstances that would justify a departure from the standard non-parole period. If reference to the second reading speech were necessary for that conclusion, it may be noted that the Attorney-General specifically observed that the amendments were not introduced as a form of mandatory sentencing, but rather were intended to provide "further guidance and structure to judicial discretion."

2. Questions Arising 60 S 54B of the Sentencing Procedure Act is expressed in terms which give rise to some serious questions as to its interpretation arising from the fact that:

(i) ss (2) says that the court " is to set the standard non-parole period as the non-parole period for the offence unless the Court determines that there are reasons for setting" some other period;

(ii) ss (3) says that "the reasons for which the court may set" some other non-parole period "are only those referred to in s 21A"; and

(iii) s 54A(2) says that "the standard non-parole period (set out in the Table) represents the non-parole period for an offence in the middle of the range of objective seriousness (for that offence)". 61 We will deal sequentially with the questions which appear to arise.

(a) Cases to which the s 54B(2) Direction Applies 62 It can be seen that subsection (2) of s 54B is framed in mandatory terms, (subject to the finding of reasons falling within those identified in s 21A, for departing from the standard non-parole period). Neither s 54B, nor s 21A, nor any other provision in the Sentencing Procedure Act expressly identifies, as a reason for departing from the standard non-parole period, that the offence is one that falls outside the middle-range of objective seriousness. 63 Section 21A does not assist in this regard, as the aggravating and mitigating circumstances listed in ss (2) and (3), which comprise a combination of objective and subjective circumstances, are not themselves exhaustive of the facts which would need to be considered in an assessment of the seriousness of any particular offence. 64 Certainly they include some of the factors to be taken into account. It would not however be safe to assume that there is some shared quality of objective seriousness which places any individual offence, for which the necessary elements have been established, at the mid level of objective seriousness, and that it is by reference to the s 21A factors, that the Court is then to determine whether, and the extent to which, the seriousness of the individual offence is to rise or fall above or below that level of seriousness. 65 If section 54B(2) is construed literally, it would need to be confined, in its application, to an offence which falls in the middle range of objective seriousness, since the standard non-parole period which it requires to be set (by virtue of the definition in s 54A(2)) is that which is applicable to an offence in the middle of the range of objective seriousness. 66 Clearly, the Division was not intended to have such a restrictive application. A purposive interpretation needs to be applied, by which s 54B(2) should be understood as permitting a departure from the standard non-parole period, wherever the objective seriousness of the individual offence is either lesser or greater than that of an offence in the middle range of seriousness. 67 Such an interpretation is possibly open by reference to the open ended terms of s 21A(1)(c) and the concluding sentence to that subsection, which might extend the assessment of the objective seriousness of the individual offence to any of the matters which have been regarded, according to statute or common law or sentencing practice, as relevant to sentencing generally. If that is incorrect, then in order to give the Division any sensible meaning, in accordance with the stated legislative intention, s 54B(2) must be construed so as to include, as a reason for departing from the standard non-parole period, that the individual sentence falls outside the middle range of objective seriousness. 68 Although there is nothing in Division 1A of Part 4 that expressly says so, the standard non-parole periods in the Table must also be taken as having been intended for a middle-range case where the offender was convicted after trial. This follows from the fact that factor (k), being one of the mitigating factors specified in s 21A(3) which is to be taken into account as a matter which might justify a departure from the standard non-parole period, is "a plea of guilty by the offender (as provided by s 22A)". A plea of not guilty can never be an aggravating factor.

69 If the standard non-parole period had been intended to apply to cases where there had been a plea, then it may be safely inferred that such circumstance, which s 22 says "must be taken into account" would have already been factored into the assessment of the appropriate period. It would, in any event, be contrary to long-standing sentencing practice, save in exceptional circumstances, for there to be no differentiation in the setting of a non-parole period, between matters resolved by plea, and at trial. 70 The judgments in Regina v Thomson and Houlton (2000) 49 NSWLR 383 and R v Sharma (2002) 54 NSWLR 300 indicate that a deduction in the range of 10 to 25 percent would be appropriate as a general guideline, for the utilitarian value of a plea, depending on its timing. It is true that there is no presumption in favour of, or entitlement to, any specific discount (R v Scott [2003] NSWCCA 286, and there are cases involving such enormity that no discount will be extended: for example R v Kalache (2000) 111 A Crim R 152. 71 Notwithstanding, a plea will, in most instances, have a utilitarian value such as to attract some level of discount. Absent the specification of separate standard non-parole periods, we are of the view that the periods specified in the Table should be understood as having been specified for sentences imposed for midrange cases after conviction at trial. We do not understand the Crown to be contending for the contrary.

(b) What is Constituted by an Offence in the Middle of the Range of Objective Seriousness? 72 It is evident that the sentencing exercise which is now required for Table offences requires a critical focus, not only upon the objective seriousness of the particular offence before the Court, but also upon the abstract, or putative, offence in the middle of the range of objective seriousness, in respect of which the standard non-parole period is specified. 73 There is no statutory definition or guide as to what is an offence in the middle of the range of objective seriousness, even though this is a key to the sentencing exercise. 74 It was urged upon this Court by counsel for the applicant and by the Crown that there is no need for a judge to determine, in any given case, what is an abstract offence in the middle of the range of objective seriousness. It was further submitted that, if any such exercise is required, then it should be approached intuitively and should be based upon the general experience of the courts in sentencing for the particular offence.

75 We do not have any difficulty with the second proposition, but we do not consider that the first proposition is correct. 76 Unless some understanding is reached as to what is a midrange offence, we are unable to see how any meaningful comparison can be made between the offence at hand, and the offence for which the standard non-parole period is prescribed. Difficult and imprecise it might be, but the reference point identified in s 54A has to be kept in mind if the sentencing exercise is to comply with the legislative intention expressed in the Division. 77 We do not however consider that the exercise which is required will differ, to any material extent, from that which has always been necessary in evaluating the objective seriousness of a subject offence. Judges are well accustomed to considering and stating that a particular case falls into the worst category, or into the category of offences at a lower level of objective seriousness: see Ibbs v The Queen; Baumer v The Queen (1988) 166 CLR 51 at 57, and R v Moon (2000) 117 A Crim R 497 at 510. 78 Such expressions are commonly seen, for example, in sentences for drug offenders, where the scale of the operation, and the role played by the offender as a courier, or warehouseman, or middle man, or principal, have been factors taken into account. 79 While it may not be the case that particular attention has been given to the precise process of reasoning involved in this kind of assessment, it would appear to us to depend upon a combination of sentencing experience, which is based upon the range of instances which go to make up cases of the relevant kind that come before the courts, combined with an understanding of the facts which are necessary elements of the offence, as well as those which are concerned with its consequences, and the reasons for its commission. 80 Clearly there will have been offences at one end of the spectrum, of which the court is aware, which can be regarded as wholly exceptional in their seriousness and infrequency of occurrence; just as there will be occasions of trivial conduct in which the necessary elements might, in a technical way, be satisfied, but where the moral culpability is minimal. 81 It would neither be necessary, nor productive, in formulating an understanding of the mid range offence for which the standard non-parole period is set, to engage in an exercise of imagination as to the entire range of circumstances that might give rise to the offence. Nor would it be productive, or even relevant, to engage in an exercise that began with an assumption as to the presence of the facts constituting the bare elements of the offence, and that then contemplated a mid point between a range with an offence at one end of the spectrum which possessed all of the aggravating circumstances and none of the mitigating circumstances referred to in s 21A (in each instance being matters properly to be considered as relating to its objective seriousness), and an offence at the other end of the spectrum with none of the aggravating circumstances and all of the mitigating circumstances, so as to arrive at mid range abstract offence between these extremes. 82 It would be no more helpful to assume an offence with the aggravating and mitigating factors in perfect balance, or to attempt an exercise that attributed numerical values to those factors. 83 Any such approach would be artificial in the extreme, given the infinite variations which might arise, and it would reduce the sentencing exercise to an arithmetic nonsense. It would not even begin to reflect long standing practice in which Judges have necessarily, and inevitably, been required to make an intuitive assessment of where the offence before the Court sits in terms of objective seriousness. 84 The sentencing case law is replete with references to objective features of the offence and subjective features of the offender. It has not hitherto been necessary to classify a factor as one or the other. It is now necessary to construe the words "objective seriousness" of an offence. 85 The multiplicity of purposes of sentencing set out in s 3A of the Act, quoted above, do not suggest a narrow perspective as to the range of facts and matters that are to be regarded as "objective" facts and matters which may affect the judgment involved in assessing "seriousness". It is too narrow a perspective to confine attention to the physical acts of the offender and their effects, as those acts or effects could be observed by a bystander. The inquiry which we consider to have been intended is one that would take into account the actus reus, the consequences of the conduct, and those factors that might properly have been said to have impinged on the mens rea of the offender (see for example Fox and Freiberg, Sentencing, 2nd Edition at paras 3.506 to 3.510). 86 Some of the relevant circumstances which can be said "objectively" to affect the "seriousness" of the offence will be personal to the offender at the time of the offence but become relevant because of their causal connection with its commission. This would extend to matters of motivation (for example duress, provocation, robbery to feed a drug addiction), mental state (for example, intention is more serious than recklessness), and mental illness, or intellectual disability, where that is causally related to the commission of the offence, in so far as the offender's capacity to reason, or to appreciate fully the rightness or wrongness of a particular act, or to exercise appropriate powers of control has been affected: Channon v The Queen (1978) 20 ALR 1 and R v Engert (1995) 84 A Crim R 67. Such matters can be classified as circumstances of the offence and not merely circumstances of the offender that might go to the appropriate level of punishment. Other matters which may be said to explain or influence the conduct of the offender or otherwise impinge on her or his moral culpability, for example, youth or prior sexual abuse, are more accurately described as circumstances of the offender and not the offence. 87 Questions of degree and remoteness arise which will need to be developed in the case law. There are potential areas of overlap. For example, impaired mental or intellectual functioning can go to either, or both, the seriousness of the offence and punishment, so far as deterrence is concerned. 88 In an assessment of the objective seriousness of the subject offence it seems to us that attention must accordingly be given to the factors mentioned above. Some of these relevant factors will be elements of the offence itself. Others will fall within the list of aggravating and mitigating factors referred to in s 21A (2) and (3) of the Act, so far as they relate to purely objective considerations. . 89 That there is a comparison which can properly be made, and which has always been made, in the course of sentencing, between an offence in the abstract, and an individual offence, when assessing the relative seriousness of the latter is inescapable as a matter of logic, and it was something which was adverted to in Walden v Hensler (1987) 163 CLR 561 at 577 per Brennan J and at 595 per Dawson J. 90 In that comparison, it is necessary to reflect the distinction between circumstances which go to the seriousness of the offence considered in a general way, and matters that are more appropriately directed to the objectives of punishment. 91 If that distinction is respected then the spectrum of offences, and the identification of those which fall in the mid range of seriousness can be confined to matters which are directly or causally related to its commission. 92 For instance, while the antecedent criminal history, or the fact that the offender has reoffended while on conditional liberty can be relevant for a determination of an appropriate level of punishment where either: "illuminates the moral culpability of the offender in the instant case, or shows dangerous propensity, or shows a need to impose condign punishment to deter the offender and other offenders from committing similar offences"

per the majority in Veen [No. 2], considerations of this kind are more relevant to the measure of punishment for the individual offender, than they are to a consideration of where the offence before the Court falls within the spectrum of conduct which may constitute the offence in the abstract. 93 The existence of this dichotomy between matters relevant to the offence and to the offender, or put another way, between matters to be taken into account as relevant to an assessment of the objective seriousness of an offence, and matters going to the punishment of the offender for its commission, has not always been fully recognised, or at least expressly reflected, in the reasons which are given for sentence. 94 That is illustrated by reference to the terms in which the authorities have spoken of the factor last mentioned, namely re-offending while on conditional liberty, and of the factor that the offender has a prior record for similar offences. 95 Very often these factors have been spoken of in terms suggestive of their demonstrating "an increased animus and culpability for the instant offence", per Angel J in R v Mulholland (1991) 1 NTLR 1 at 13, or of having been matters which elevated "the offence to a higher level of criminality" per Badgery-Parker J in R v Moffitt (1990) 20 NSWLR 114 at 128. 96 On other occasions, for example R v Richards [1981] 2 NSWLR 464, per Street CJ and R v Plocharski NSWCCA 14 September 1988, the significance of these factors has been more directly related to the aspect of punishment, and particularly the need for deterrence, so as to make it clear for example, that offenders who abuse their conditional liberty will receive additional punishment. 97 Similarly in Veen v The Queen [No. 2] (1998) 164 CLR 465 it was said by the Court at 477 (in a passage applied by this Court in R v McDonald NSWCCA 12 October 1998): "There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v.Ottewell (1970) AC 642, at p 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind." 98 Prior to enactment of legislation of the kind which is seen in Division 1A of Part 4 it was probably not necessary for any strict line to be drawn between matters which related to the offence, and to the offender, respectively, since the focus was placed upon the question of setting a sentence that reflected the overall criminal culpability involved. 99 The position has now changed in relation to sentencing in respect of offences for which standard non-parole periods have been set, in so far as there needs to be an examination of the level of objective seriousness involved in the offence, in which considerations that do not have a nexus with its commission are to be placed to one side. 100 Before parting from this aspect of the Division, we observe that we do not consider that a midrange offence should be regarded as one that is necessarily "typical" of those that are charged under the relevant provision; nor do we consider that the midrange for the offence should be assumed to occupy a relatively narrow band within the continuum between the least serious instance and the worst category case.

101 A moment's reflection shows that the "typical" or "common" case is not necessarily representative of the offence which is to be considered as falling in the midrange of seriousness. An offence will acquire the characteristic of being "typical" or "common" by reference only to the numerical frequency of its occurrence, and not by reference to any assessment of the objective seriousness of the offending, or of its consequences.

102 Similarly an assumption that the midrange of objective seriousness should occupy a narrow band, assumes a particular and, perhaps, an even, pattern of distribution of cases on the continuum between the least serious and the worst category. For any given offence, it may be that a significant number of incidents of its commission do in fact occupy the middle ground of seriousness, and an assessment, which begins by an assumption that there is a narrow band in the middle, similarly risks substituting bare statistical probability for an assessment of the seriousness of the conduct in question.

(c) The factors to be taken into account 103 It is important to note that the s 21A factors are not confined to those that are specifically identified in subsections (2) and (3), and that s 54B (3) is not to be read down as restricting consideration to those factors. This arises from the fact that s 21 A (1) specifically requires the Court to take into account, in addition to the aggravating and mitigating factors referred to in those subsections, "(c) any other objective or subjective factor that affects the relative seriousness of the offence",

and from the fact that it goes on to say "the matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the Court under any Act or rule of law". 104 These provisions are a further indicator that the factors specifically listed in s 21A(2) and (3) were not intended to operate as an exhaustive or exclusive code. They make it clear (as did the Second Reading Speech) that existing statutory and common law factors may still properly be taken into account in determining a sentence even though they are not listed in s 21A(2) or (3). They might include, for example, hardship to the family where that qualifies as exceptional hardship (R v T NSWCCA 15 March 1990), or the fact that the serving of the sentence will be unduly onerous by reason of illness (R v L NSWCCA 17 June 1996), or by reason of the fact that it will be served on strict protection: R v Totten [2003] NSWCCA 207. Questions of parity in sentencing with co-offenders, and of totality, will continue to be relevant, as will the fact that the sentence involves a first time in custody, a matter which can have a particular relevance for a young offender. 105 In the absence of any amendment of the Children (Criminal Proceedings) Act 1987 or of any provision to the contrary in the Sentencing Procedure Act, it would seem that the sentencing directives contained in the former, specifically s 6, remain applicable to children who are sentenced for Table offences. 106 As s 21A(2)(e) makes clear, the factors, which are elements integral to the offence, are not to be taken, of themselves, as aggravating factors. For example, the bare fact that an offence was committed in company where that is an element of the offence (as is the case for offences charged under s 61J(2)(c) or s 97 of the Crimes Act) cannot have an additional or cumulative effect. 107 That is not to say, however, that the nature and extent of the company, and the manner in which their presence and behaviour add to the menace of the occasion, cannot be regarded as circumstances relevant to the seriousness of the actual offence which is charged. Clearly the presence of a large number of overbearing and powerful companions can dramatically increase the objective seriousness, and moral culpability, of those who engage in a sexual assault of a lone victim, and s 21A(2)(e) should not be regarded as excluding reference to any such consideration.

(d) The Relevance of Special Circumstances Under s 44(2) of the Crimes (Sentencing Procedure) Act 108 Although not directly arising in this application a question does remain as to the role (if any) which special circumstances under s 44 of the Sentencing Procedure Act should play in sentencing for Table offences. 109 We are of the view that the section will continue to apply to such cases, for the reason that a finding of special circumstances under s 44(2) is an example of a matter that is "required or permitted to be taken into account by a court under any Act or rule of law." Moreover there is nothing in the newly enacted s 44, which has reverted to the position which applied under s 5 of the repealed Sentencing Act 1989, to suggest that it does not apply to sentencing for Table offences. 110 While many of the factors which qualify as special circumstances will be taken into account as factors specifically listed in s 21A in determining the appropriate non-parole period, it does not necessarily follow that its work is fully done at that stage, although caution will need to be exercised so as to avoid inappropriate double counting. 111 The view that was taken in R v Moffitt (1990) 20 NSWLR 114 in relation to the former s 5 of the Sentencing Act did not require the sentencing judge to first determine a minimum term, which was thereafter immutable, notwithstanding a subsequent finding of special circumstances. In substance, the section specifies the sequence in which the sentence was to be set, focussing upon the period which was considered appropriate to be served by way of a minimum period of actual imprisonment, followed by the period for a potential supervised release on parole. 112 While there are separate considerations involved for s 44(2) of the Act, they need not be regarded as involving a two-step or sequential process since, as Spigelman CJ pointed out in R v Hampton (1998) 44 NSWLR 729, the relevant steps can be taken simultaneously. 113 To this end the sentencing principles approved in R v Moffitt at 117-118, 121-122 and 134-135 and also in R v GDR (1994) 35 NSWLR 376 at 381-2 will provide guidance.

(e) Does s 54B Preclude Non Custodial Sentences for Table Offences?

114 Division 1A of Part 4 of the Sentencing Procedure Act takes its place in the context of an Act which contemplates sentences other than those requiring full term imprisonment. In this regard it is to be noticed that s 5(1) gives an important direction in so far as it provides: 5 Penalties of imprisonment (1) A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. 115 This reflects the accepted principle that imprisonment is a sentence of last resort: O'Connor v The Queen (1986) 23 A Crim R 50, a circumstance which the Act recognised in so far as provision is made for the suspension of sentences, periodic detention, home detention, monetary penalties and bonds to be of good behaviour. 116 The nature of the offences included in the Table is such that only rarely will sentences involving an alternative to full time custody be appropriate. However, there is nothing in the Act, to indicate any intention to confine the available sentence, for a Table offence, to one of full time custody, provided that a non-custodial sentence would be a proper sentence upon the particular facts of the case. In fact, subject to appropriate reasons being given s 54C(1) of the Act expressly contemplates that alternatives to full time custody will continue to be available.

(f) The Approach to s 54B 117 In order to give the Division practical utility it seems to us, in the light of the foregoing analysis, that a sentencing judge must ask and answer the following question: "are there reasons for not imposing the standard non-parole period?" 118 That question will be answered by considering:

(i) the objective seriousness of the offence, considered in the light of the facts, which relate directly to its commission, including those which may explain why it was committed, so as to determine whether it answers the description of one that falls into the mid range of seriousness for an offence of the relevant kind;

(ii) the circumstances of aggravation, and of mitigation, which are present in the subject case, or which apply to the particular offender, as listed in s 21A(2) and (3), and as incorporated by the general provisions in s 21A(1)(c) and by the concluding sentence to s 21A(1). 119 Depending upon the considerations referred to in the first of these paragraphs, it may become immediately apparent that the case is not one for which the standard non-parole period specified in the Table was intended to apply. 120 Whatever be the case in that regard, the considerations referred to in the second paragraph may similarly provide a reason for a departure from the standard non-parole period. 121 If the question, which we consider should be posed, is answered in the affirmative, then it seems to us that the Court should exercise its sentencing discretion in accordance with established sentencing practice and by reference to the matters identified in sections 3A, 21A, 22, 22A and 23 of the Act. The ultimate objective remains one of imposing a sentence that is just and appropriate, having regard to all of the circumstances of the offence and of the offender, and so as to give effect to the purposes mentioned in s 3A of the Sentencing Procedure Act. 122 In this approach the standard non-parole period can properly take its place as a reference point, or benchmark, or sounding board, or guidepost, along with the other extrinsic aids such as authorities, statistics, guideline judgments and the specified maximum penalty, as are applicable and relevant. In particular, it can have a direct relevance as a reference point to be compared with the sentence which is provisionally reached after an assessment has been made of the relative seriousness of the subject offence, and of the various aggravating and mitigating factors, as well as any other subjective factor that may be present, including in particular the fact, if it be the case, that the offender entered a plea of guilty. In that regard the sentencing judge will need to keep in mind that the standard non-parole periods were framed upon the assumption that the case was determined at trial and that s 22 of the Act contemplates that the fact of a plea will attract a discount. 123 The reference point has, in this sense, an important role to play in ensuring consistency in sentencing. Because the standard non-parole period will be imposed, subject to s 21A, for matters within the mid range, it will act as a guide for cases that are outside the mid range. 124 The desirability of a judge adopting the practice of standing back after reaching a provisional sentence, and of reviewing it so as to be sure that it is appropriate for the offence at hand (see the observations made in R v McGourty [2002] NSWCCA 335 at para 45), cannot be understated, and the existence of a standard non-parole period is likely to be of assistance in this respect. 125 Sight should also not be lost of the fundamental principle noted in Hoare v The Queen (1989) 167 CLR 348 at 354: "Secondly, a basic principle of sentencing law is that a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances." 126 It is true that the Division does not specify either a minimum or a maximum non-parole period for the relevant offence, nor is there anything to suggest that it had in contemplation either a linear, or an exponential progression within a range between those points, in which the mean was to be understood as the standard non-parole period. Had there been an intention to convert sentencing to a precise arithmetic exercise of that kind then those reference points would need to have been identified and consideration given to the weight to be attached to the adjusting factors. The absence of any provision of that kind is a further pointer towards the continuation of a wide area of discretion, without resort to some rigid mechanistic or arithmetic approach, of the kind which would be totally unsuited to the difficult task of sentencing. 127 The approach which we have outlined does not seem to require a departure from the intuitive or instinctive synthesis approach to sentencing which received judicial support in R v Thomson and Houlton (2000) 49 NSWLR 383 at paras 57-60 and which was favoured in the joint judgment in Wong v The Queen (2001) 207 CLR 584, but which has also attracted some criticism (R v Markarian [2003] NSWCCA 8 - special leave to appeal to the High Court granted). Nor do we see it as requiring resort to a rigid two-tiered approach which involves determining an objective sentence and then adjusting it to take account of subjective factors of the kind which was criticised in AB v The Queen (1999) 198 CLR 111, per McHugh and Hayne JJ. 128 In R v Whyte (2002) 55 NSWLR 252 Spigelman CJ did not regard the use of guideline judgments as being inconsistent with the ultimate application of an "instinctive synthesis approach" (at paras 160 - 167) and we do not see that any material difference arises where the benchmark or reference point is given by legislation. 129 Moreover, if the exercise is confined to a single stage, the risk of double counting which might otherwise be involved can be avoided. That arises from the circumstance that some of the aggravating and mitigating factors referred to in s 21A (eg the use of violence on the one hand, or the presence of provocation or duress on the other hand) are of direct application to the circumstances in which the offence occurred, and need to be taken into account in assessing where the offence ranks in the range of seriousness. If they were to place it for example in the mid range, then to bring them to account again for the purposes of s 54B(2) would involve double counting. 130 The approach which we favour is consistent with the disclosed legislative intention that Division 1A of Part 4 was to operate, not by way of any mandate or removal of sentencing discretion, but rather as providing a guidepost, or benchmark, against which the case at hand could be compared. That is not say that it should be merely acknowledged in the passing. It takes its place alongside guideline judgments, and the prescribed maximum sentence for the relevant offence, which are to be taken into account in the same way that sentencing judges are required to take into account the provisions of s 21A, 22, 22A and 23, when exercising their sentencing discretion. 131 What is not appropriate, in our view, is for a sentencing judge to commence the process for every offence (irrespective of its seriousness, and irrespective of whether the offender's guilt was established after trial or by a plea), at the standard non-parole period, and then to oscillate about it by reference to the aggravating and mitigating factors. The problem with that approach is that the standard non-parole period will tend to dominate the remainder of the exercise, thereby fettering the important discretion which has been preserved by the Act.

(g) Should the Amendments be Understood as Reflecting a Legislative Intention that there should be an Increase in Sentencing Patterns? 132 It is evident from an examination of the standard non-parole periods for each of the Table offences, that there is no consistent pattern so far as a ratio between those periods and the maximum prescribed sentences is concerned. In several instances, as can be seen for example in the case of the offence which is the subject of the present appeal (as well as in the case of the offences under the Crimes Act sections 61I, 61J, 61M(2)) and s 24(2) of the Drugs Misuse and Trafficking Act), the standard non-parole period is set at 50% of the maximum sentence. In some instances the proportion falls below 30% (for example the offences under ss 33, 98, 112(2), 112(3) of the Crimes Act) and in one other instance it exceeds 50% (s 66A of the Crimes Act). 133 The absence of any consistent proportion is not surprising in the light of the fact identified in the Second Reading Speech, that reference was made, in setting the individual standard non-parole periods, to the seriousness of the offence, the maximum penalties, the Judicial Commission statistics and community expectations in relation to each of the selected offences.

134 When reference is made to the statistics, it does however appear that the standard non-parole periods do fall at the very top of the existing range "for all offenders", and that they sometimes fall above the longest non-parole periods recorded for particular offences.

135 For example, the maximum non-parole period recorded in the current statistics for the offence which is the subject of the present application, is one of seven years, it being the case that there has been a non-parole period set in excess of four years in only three of the forty-eight cases in the statistical population. 136 A sample of some of the other Table offences (for all offenders) produces a similar impression. For the s 33 offences of wounding with intent, the standard non-parole period for a midrange offence is seven years. The statistics show that, for such offences, only 8 cases out of a population of 163 cases have exceeded that period, with 75% of the cases attracting a non-parole period of four years or less. 137 For the s 61I offences, the standard non-parole period is also seven years. The statistics show that only four cases, in a population of 166 cases, have attracted a non-parole period of that length, with approximately 80 percent of the cases having attracted a non-parole period of three years or less. 138 For the offence of murder, other than for the cases where the victim falls into the special category of public official killed in the course of duty, the standard non-parole period is 20 years (25 years for the special category). The sentencing statistics do record 29 cases out of a population of 190 (all offenders) which attracted an equivalent non-parole period. However in 60 percent of the recorded cases the non-parole period was fourteen years or less. In the case of offenders who pleaded not guilty but were convicted, the percentage of cases attracting a non-parole period of less than 14 years falls to 54 percent. 139 In general terms it does appear that in most, if not all of the Table offences the standard non-parole period will exceed the mean non-parole period, both for all offenders and for those who have been sentenced after a plea, as recorded in the Judicial Commission Sentencing Statistics.

140 The impression which might be gained from any such review needs to be treated with care, since the statistics mentioned are for all offenders, and show the non-parole period which was set after adjustment for all relevant mitigating and aggravating circumstances, whereas the standard non-parole periods are intended as starting points for midrange offences after conviction and before adjustment. Additionally, for a number of the offences in the Table, the statistics currently available are, in some instances, based on a numerically small population, while other offences in the Table encompass such a wide variety of circumstances and outcomes that it is difficult to determine where a midrange offence might lie. The statistics are anonymous and, as a result, it is not possible to use them to identify a case which might fall within the mid range, by reference to outcome. Finally, they represent little more than a snapshot for the period selected, and care in relation to their use, in sentencing has been repeatedly expressed, for example R v Derbas [2003] NSWCCA 44 and Blomfield (1998) 44 NSWLR 734. 141 There was no mention in the Second Reading Speech of any dissatisfaction with the general level of sentencing for the Table offences, or of any intention to increase the time that persons convicted of them should remain in custody. Moreover it is hardly surprising that the standard non-parole periods specified in the Table are generally longer than those that have been imposed in the past, since they were set as reference points before adjustment for the purely subjective features which almost certainly influenced the outcome of the cases included in the statistics.

142 The outcome for individual cases will depend upon the range of objective and subjective considerations that are to be taken into account. Given the absence of any consistent proportion between the non-parole period and maximum penalties prescribed for the Table offences, and the absence of any consistent relativity between those non-parole periods apparent from an examination of the statistics, it may be that for some offences the sentencing pattern will move upwards, while for others it will not.

(h) Compliance with s 54B(4) 143 Where the non-parole period which is set is longer or shorter than the standard non-parole period, then it is necessary that the reasons for the variation are recorded expressly in the remarks on sentence, and that each factor that is taken into account is specifically identified. That is not confined to the factors which are specifically listed in s 21A, since other factors may properly be taken into account within the general provisions of s 21A(1)(c) and the concluding sentence to that section.

C. GROUNDS OF APPEAL 144 In the light of these considerations we return to the individual grounds of appeal. GROUND 1: THE LEARNED SENTENCING JUDGE ERRED IN THE MANNER IN WHICH HE DISCOUNTED THE SENTENCES FOR THE UTILITARIAN VALUE OF THE APPLICANT'S PLEAS OF GUILTY: (a) THE LEARNED SENTENCING JUDGE ERRED IN HAVING REGARD TO THE STRENGTH OF THE PROSECUTION CASE IN ASSESSING THE UTILITARIAN VALUE OF THE APPLICANT'S PLEA OF GUILTY; (b) THE LEARNED SENTENCING JUDGE ERRED IN NOT ALLOWING AN APPROPRIATE DISCOUNT FOR THE UTILITARIAN VALUE OF THE PLEAS OF GUILTY. 145 In our view Ground 1 has been made good, and that error was made in relation to the way in which the pleas were approached, both by reference to the s 21A and s 22 considerations, and also by reference to the assumption which his Honour made that the standard non-parole period of 10 years for the offence, which was the subject of the first count, was applicable to a case where there had been a plea of guilty. For the reasons previously mentioned, that was not correct. 146 His Honour did not follow the practice which has been encouraged (for example Regina v Shenton [2003] NSWCCA 346 and R v Thomson and Houlton (supra) per Spigelman CJ (at para 160), but which is not mandatory, of disclosing the extent of the discount for the pleas. The assessment that they were of value was however qualified by the observation "although he was caught 'red handed'". 147 That little if any discount was given for this circumstance, in relation the first count, is strongly suggested by his Honour's assessment that the aggravating factors "slightly outweighed" the mitigating circumstances (the plea) such that there should be no departure form the standard non-parole period. 148 The utilitarian value of a plea is not affected by the strength of the Crown case, or by the fact that an offender was caught "red handed", as was made clear in R v Parkinson (2001) 125 A Crim R 1 and R v Carter [2001] NSWCCA 245. 149 We are unable to construe his Honour's observations in any context other than that the utilitarian value of the pleas to each of the counts was regarded as having been reduced by the strength of the Crown case. The present case is not of the kind considered in R v Ebsworth [2002] NSWCCA 465 where the context in which the observation was made pointed in a different direction. 150 The pleas in this case were offered at an early stage in the Local Court (on 15 April 2003), and were adhered to in the District Court. They had a significant utilitarian value in so far as they avoided the need for both a committal, and for a trial of some duration, which may have led to the exposure of controlled operations in the Coffs Harbour area or of the identity of the undercover operative. Together with the admissions which were made, they properly attracted a discount in the upper range of that considered in R v Thomson and Houlton. This applies to the sentence for each count. This ground is made good.

GROUNDS 2 & 3: 2. THE LEARNED SENTENCING JUDGE ERRED IN FINDING THAT THE COMMERCIAL SUPPLY OFFENCE WAS IN THE "MIDDLE RANGE OF OBJECTIVE SERIOUSNESS" FOR SUCH AN OFFENCE; 3. THE LEARNED SENTENCING JUDGE ERRED IN HIS APPROACH TO THE APPLICATION OF SECTIONS 21A AND 54B OF THE CRIMES (SENTENCING PROCEDURE) ACT 1999. 151 In the present case, as we have pointed out, his Honour considered that what he was required to do was to: "firstly ascertain where this offence falls within the range (of objective seriousness), then to indicate what non-parole period will apply, and then to look at Section 21A, that is the aggravating and mitigating matters." 152 In substance this involved a three-tiered arithmetic approach of the kind which was criticised by McHugh J in AB v The Queen (at Paras 16 to 18), so far as it resulted in an objectively determined non-parole period which was then examined for potential adjustments, so as to take account of the s 21A factors.

153 As such it elevated a provision which was intended as providing a reference point, or benchmark or guidepost, into a rigid rule of sentencing practice, which, to use the words of McHugh J, would "allow the first step in the sentencing process to dominate the remainder of the exercise".

154 It departs from the approach that we consider to be appropriate, which permits the judge to give consideration to all of the relevant objective and subjective factors which are properly to be taken into account, including those which fall within s 21A(1)(a), (b) and (c), and which otherwise apply as a matter of settled sentencing law, to arrive at a sentence which also takes into account the guidance which is provided by the existence of a standard non-parole period for a midrange offence, of the kind for which the offender is to be sentenced. 155 For these reasons, we are of the view that his Honour misdirected himself in so far as his approach to s 54B seems to have involved a mathematical exercise, which was too rigid and in which ,for the reasons later mentioned, sight was lost of the circumstances which justified the imposition of a less severe sentence. 156 We are also of the view that his Honour erred in assuming, as he appears to have done, that the standard non-parole period for a mid range offence, where there was a plea of guilty, was 10 years. 157 Further for the reasons mentioned in relation to Ground 4, we have come to the conclusion that insufficient weight was given to the mitigating factors, and that in this respect there was patent error in the reasoning process that led to the sentence imposed for the first count. 158 We are not however persuaded that his Honour erred in regarding the subject offence as having been in the midrange of objective seriousness for a s 25(2) Drug Misuse and Trafficking Act offence.

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:

(a) so far as any comparison is made with sentencing statistics for certain classes of offence, most particularly those involving sexual assaults committed on children, but also those involving the murder, or serious wounding, of children, it is likely that the non-parole periods and the terms of the sentence which form part of the statistical array, will have already been reduced to take this factor into account;

(b) so far as the fact of protection might qualify as a special circumstance, it should not normally be used to reduce the non-parole period any further, if it has already been taken into account under s 21A of the Act.

179 We would add that, now that special arrangements exist for certain classes of prisoners, which do not reflect the harsh conditions, or the degree of isolation and lack of access to programs, that had been the lot, in the past, of prisoners on protection, it is important for precise evidence to be called, so that this factor can properly be weighed in the sentencing exercise. 180 The matters mentioned so far were properly to be taken into account, along with the pleas, as justifying considerable mitigation of the sentence. 181 We are not however persuaded that the applicant can properly suggest that his objective criminality was in any way reduced by reference to the conduct of the undercover officer. While the applicant could lawfully have been arrested after the first supply offence, there were very good reasons for the police to pursue the operation in order properly to investigate any suspected distribution network in Coffs Harbour and its supply sources. That could not be done without the undercover operative expressing a continuing interest to make further purchases, in a context where the applicant had indicated both a willingness, and a capacity, to oblige. The present case was distinguishable from the case of a reluctant offender who was encouraged to commit an offence, or "pushed" to supply larger quantities of a drug which he would not have done absent pressure or persuasion from police, in which some mitigation of sentence would be warranted, as was the situation in R v Rahme (1991) 53 A Crim R 8. 182 Nor are we persuaded that he should have been given any benefit for his offer to assist police. That offer was late, the information was general and out of date, the Newcastle source could not be identified or located from the mud map, and the applicant made it clear that he would not give evidence against anyone other than Shipman who was of little interest. Its value was assessed by the police as negligible, and his Honour's findings in this respect were clearly open on the evidence. In that regard it cannot be overlooked that among the other considerations to be taken into account, under s 23, are the "significance and usefulness" of the assistance, its "completeness and reliability", and its "timeliness". At most, the offer of information was relevant to a display of contrition, and was able to be taken into account in support of the other evidence in relation to remorse. 183 In the result, and after reference to the standard non-parole period, we are persuaded that insufficient weight was given to the mitigating factors which were present in this case. We are also of the view that error was demonstrated in relation to way that the sentence for Count 1 was approached, an error which was compounded by the assumption that the standard non-parole period specified for the offence was the reference point for a case where there was a plea of guilty.

2. Sentence in relation to Count 2 quashed, and in lieu thereof the applicant be sentenced to a fixed term of imprisonment for 2 years, to date from 4 February 2003. 3. Sentence in relation to Count 1 quashed and in lieu thereof the applicant be sentenced to a term of imprisonment which is to consist of a non-parole period of 7 years, and a total term of 9 years and 4 months, each to date from 4 February 2003, with the non-parole period expiring on 3 February 2010. 4. Specify 3 February 2010 as the earliest date on which the applicant will be eligible for release on parole. 185 We decline to set a non-parole period in relation to the sentence for Count 2, since it will be wholly absorbed in the sentence for Count 1. We also decline to find special circumstances justifying a departure from the statutory ratio referred to in s 44(2) of the Sentencing Procedure Act, since all the relevant circumstances have already been taken into account in setting the non-parole period. No other factor has been identified which would justify any variation of the period for potential release on parole. 186 In compliance with s 54B(4) of the Sentencing Procedure Act we specify that a non-parole period has been set for Count 1 which is less than the standard non-parole period by reason of the applicant's pleas, his genuine remorse, his age, the fact that this would be his first time in prison, and the fact that he will need to spend at least some of the sentence on protection. **********

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