Ward v R

CATCHWORDS: sentence appeal - supply of amphetamines and cannabis - whether additional aggravating factor of disregarding public safety under s25A(2)(i) Crimes (Sentencing Procedure) Act 1999 should be taken into account - whether disregarding public safety inherent feature of offence - need to avoid double counting

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

Elyard v. The Queen [2006] NSWCCA R v Ancuta [2005] NSWCCA 275 CASES CITED: R v Aslan [2005] NSWCCA 121 R v Burke [2002] NSWCCA 353 R v Olbrich (1998) 45 NSWLR 538 R v Way (2004) 60 NSWLR 168

PARTIES: Clinton Rex WARD REGINA

COUNSEL: Crown: Ms J Girdham Applicant: Mr A P Cook

SOLICITORS: Crown: Director of Public Prosecutions Applicant: Legal Aid Commission of New South Wales

IN THE COURT OF CRIMINAL APPEAL 2006/2190

ADAMS J HOWIE J PRICE J

12 FEBRUARY 2007 Clinton Rex WARD v REGINA Judgment

1 ADAMS J: On 9 February 2006 the applicant, Clinton Rex Ward, pleaded guilty to three charges as follows: knowingly take part in the supply of a prohibited drug (cannabis) between 1 December 2004 and 26 May 2005; knowingly take part in the supply of a prohibited drug (methylamphetamine) between 1 December 2004 and 26 May 2005; and knowingly take part in the supply of a prohibited drug (methylamphetamine) on 23 March 2005. The first offence carried a maximum penalty of ten years, whilst the second and third offences each carried a maximum term of fifteen years' imprisonment. In respect to the first offence the applicant was sentenced to a term of two years' imprisonment with a non-parole period of eighteen months commencing on 24 February 2006. In respect of each of the second and third offences the applicant was sentenced to an overall term of three years' imprisonment with a non-parole period of two years dating from 24 February 2007. Accordingly, the sentences for the latter two offences are to be served wholly concurrently but they were accumulated by one year on the sentence imposed for the first offence. The applicant seeks leave to appeal from these sentences.

The facts 2 The first offence involved the supply of 3 pounds or 1,381.5 grams of cannabis leaf, with an estimated street value of $10,500. The indictable quantity is 1,000 grams. Count 2 involved the supply of 300 tablets of methylamphetamine weighing 75 grams and having an estimated street value of $7,200. The indictable quantity in respect of this drug is 5 grams. Count 3 involved the supply of 250 tablets of methylamphetamine, weighing 90.5 grams and with an estimated street value of $6,096. 3 Tendered on sentence was an agreed statement of facts, which the learned sentencing judge set out in his Honour's reasons. What follows is drawn from that document. The evidence against the applicant is largely derived from telephone conversations between the applicant and a drug supplier named Torbett, together with physical surveillance and discoveries on arrest. The applicant's involvement with the first offence commended on 18 February 2005 when he contacted Torbett and arranged for him to supply a pound of cannabis for $3,500. A number of further telephone calls were made culminating in a conversation on 3 March 2005 when Torbett agreed to deliver the cannabis to the applicant. The next transaction occurred on 25 and 26 May 2005 when the applicant again arranged with Torbett for the supply of a further pound of cannabis. However, the motor vehicle being used to effect the supply was stopped by police en route and the cannabis was seized. It appears that, immediately following his arrest, Torbett negotiated the supply of a further pound of cannabis to replace that which had not, by virtue of police intervention, reached the applicant. Whatever might be the technical position (as to which it is unnecessary to say anything) it is clear that, in substance, the quantity being sought by the applicant and which was the substance of his agreements with Torbett was two pounds and not three pounds of cannabis. 4 Negotiations for the supply of the methylamphetamine to which the second count referred commenced on 18 February 2005 with a discussion between the applicant and Torbett relating to obtaining locally produced tablets of methylamphetamine and caffeine. As it happened, on 23 February 2005 police stopped and searched a motor vehicle being driven by the applicant but, although they found a substantial sum of money, they did not find any drugs. In a telephone call made shortly after to Torbett, the applicant said that the drugs had been hidden under the car seat cover and were not discovered and, as to the money which was found, he explained to police that he intended to buy a boat with it. During this conversation, the applicant arranged for Torbett to supply him with another 100 tablets of methylamphetamine. Further discussions relating to the supply of methylamphetamine took place during the ensuing days and weeks, culminating in a conversation of 23 March 2005 when Torbett agreed to have available for him that day 200 tablets of methylamphetamine. In the evening of 23 March 2005, following this agreement, Torbett was arrested by police en route and 254 tablets were found in Torbett's car. It seems that the applicant actually obtained possession of 100 tablets of methylamphetamine and that the total of 300 tablets to which the charge relates comprised also 200 tablets which he had agreed to acquire from Torbett on 23 March 2005. The applicant has been in custody since 24 February 2006. 5 The learned sentencing judge stated that the offences were very serious, involving continued and systematic supply of drugs. His Honour inferred that the applicant was part of an organised activity of drug supply in which he participated at a number of levels from arranging to obtain drugs and paying for them to on selling the drugs and collecting the proceeds of sale. His Honour concluded that the applicant was involved in the enterprise for commercial gain as well as the need to feed his own habit. His Honour classified the applicant as "somewhere in the mid levels" of the organised commercial activity. His Honour concluded that he had personally made substantial profits. His Honour regarded as aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 the facts that the applicant had committed the offences whilst on a bond, that they were part of a planned and organized criminal activity and committed without regard to public safety. His Honour added that "the fact that an offender supplies a criminal drug as part of a commercial enterprise is also a matter of aggravation", citing R v Olbrich (1998) 45 NSWLR 538. Subjective features 6 At the time of sentence the applicant was 27 years of age. His record showed that his first conviction was in 1997 for shoplifting for which he was fined. More relevantly, the applicant was convicted in 2004 of the offence of supplying a small quantity of drugs in respect of which a community service order of 300 hours was imposed. He was also convicted on that occasion for possession of a prohibited drug and was subjected to a bond with eighteen months' supervised probation. For a third conviction on the same date for having goods in his personal custody suspected of being stolen, he was subjected to a bond in the same terms. As his Honour observed, the fact that the applicant was in breach of the bonds when he committed the offences under consideration is an aggravating feature of the offences. 7 The following subjective features were set out by the learned sentencing judge and are not the subject of controversy. The applicant's upbringing was stable, normal and supportive and all of his family continue to support him. Following his father into the army, the applicant enrolled as an infantryman after completing year 11 in 1997. He obtained his discharge in 2001 after having decided that he wished to change his career. The applicant attended TAFE and obtained a diploma in graphic design. He has had a number of jobs since then. At the time of his arrest he was working as a sanitiser in a factory. He approached the army to reenlist but obviously that cannot now occur. Because of his involvement with drugs his de facto relationship broke up. It is reported that the applicant started using marijuana in 2001 after a back injury and then it appears he became a user of other prohibited drugs. This evidence is somewhat uncertain and, in the sentence proceedings, it was said that he was at that time abstinent. 8 Two personal tragedies affected him whilst young. His brother was left a quadriplegic as a result of a boat accident when he was eleven and he was cared for by their mother. The applicant is close to his brother and has an increasing role as a helper to his mother since she has been diagnosed with cancer. It appears that the applicant suffers from a hormone imbalance syndrome that causes a range of problems. He had enlarged breast tissue after adolescence which required the removal of excess tissue, leaving him with scars and inverted nipples. He is very self-conscious about this. Furthermore, he has suffered from osteoporosis due to the hormone imbalance, although this is apparently improving. When he was eighteen years of age the applicant suffered an accident which has left him sterile. In January 2004 the applicant attempted suicide by hanging, which was interrupted by his mother, who cut him down. He was treated at the Mandala Clinic at Gosford Hospital and reported ongoing symptoms of post-traumatic stress disorder and depression due to being present at his brother's accident. Testimonial material was tendered on his behalf from his family and others who knew him through work or family connections. The learned sentencing judge said that he accepted all this evidence and summarised its effect as describing "an otherwise decent person who retains a lot of support from friends and a recognition that his troubles have been caused by illicit drug use and he requires counselling and treatment to assist him to rehabilitate". His Honour noted that the applicant was spoken of favourably within the corrective system for his behaviour and his attempts to rehabilitate himself. His Honour considered that the applicant's plea justified a utilitarian discount of 25%. His Honour believed that the applicant was genuinely remorseful and contrite and was satisfied that there were good prospects of rehabilitation. His Honour added that he thought "his need for long term treatment and counselling in his attempt at rehabilitation amounts to a special circumstance".

The Grounds of Appeal 9 It is submitted that the learned sentencing judge erred in regarding as an aggravating feature under s21A(2)(i) of the Crimes (Sentencing Procedure) Act 1999 that the offences were committed without regard for public safety. The offence of supply may, of course, be committed in a number of ways. On occasions the supply involves drugs being passed to an individual for that person's own use; in other cases, the supply can be to a distributor who passes or intends to pass the drugs on to all comers. In R v Way (2004) 60 NSWLR 168 at [172] this Court said - "We also consider that it was appropriate for his Honour to have regarded the offence as one committed without regard for public safety (another s21A(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 motivational 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 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." See also R v Lilley [2004] NSWCCA 424; R v Emmanuel [2004] NSWCCA 267; R v Shi [2004] NSWCCA 135. (Emphasis added.) 10 However, in R v Ancuta [2005] NSWCCA 275, where the applicant pleaded guilty to supplying a commercial quantity of heroin (it being deemed that it was in his possession for the purpose of supply) where the quantity was almost 702 grams and the sentencing judge found that the offender had purchased the heroin for resale, Brownie AJA (with whom Buddin and Latham JJ agreed) stated - [11] … it might be said that the offence of supplying heroin and related offences such as being deemed to supply heroin, all carry with them the concept that the supply of heroin is likely to endanger the public safety in the sense that the end users were exposed to various dangers, and that because those with a heroin habit are likely to commit crimes to fund their habit, other members of the public will be exposed to various dangers. However, s21A(2) is directed to a different question, namely whether there is some aggravating factor to be taken into account when imposing a sentence for a particular offence. It might be said that every supplier or deemed supplier of heroin has failed to have regard to the public safety, but it cannot be right to say that everyone convicted of such an offence is to be punished on the basis that there is an aggravating factor as described in s21A(2)(i). [12] The applicant drew a distinction, which I accept as correct, between the supply (or deemed supply) of heroin and offences of a like kind on the one hand, and other offences about which one can properly say that there was a disregard for public safety such as to constitute an aggravating factor - for example, offences relating to the driving of a motor vehicle whilst inebriated, or involving the use of a firearm." 11 In Elyard v. The Queen [2006] NSWCCA 43 Basten JA (with whom Howie J agreed, Hall J not commenting) said - "[10] To give effect to the underlying purpose of the prohibition [in s21A(2) against having additional regard to an aggravating factor that is an element of the offence contained], differences in language between the definition of elements of an offence and the statement of aggravating factors, must be borne in mind, as must the purpose underlying the inclusion of a particular element in a particular offence. Such a purposive approach should be applied to the constraint contained in the last sentence of sub-s (2), as a more semantic approach to the language of the various paragraphs may otherwise fail to avoid the risk of "double-counting", being the result which is clearly intended. As a matter of principle, it follows that characteristics of an element of an offence should also not be treated as aggravating factors if they merely reflect the policy underlying the offence. There can be no doubt that the inclusion of the circumstances of aggravation identified in s 52A(7) of the Crimes Act are intended to prohibit conduct which may well occur in disregard of public safety, because the conscious creation of a drug-affected state, combined with the act of driving a motor vehicle, will usually satisfy that description. Accordingly, acting without regard for public safety should not, in such a case, be given additional effect as an aggravating factor in its own right, unless the circumstances of the case involve some unusually heinous behaviour, or inebriation above the statutory precondition. [11] Because, as noted above, elements of an offence are not irrelevant considerations in identifying an appropriate sentence, it will often be important for sentencing judges to identify with some clarity the way in which they have regard to particular factors. Use of the expression "aggravating factors", without qualification, is likely to suggest that the matter has been relied upon as falling within the positive mandate of s 21A(2). Nor is the use suggested above the only legitimate use for such considerations. By parity of reasoning, the use of an aggravating factor as defined, which may constitute an element of, or characteristic inherent in or generally appertaining to, a particular offence, may assist in a comparative exercise. For example, it may allow a logical extension to be made from guidelines specified with respect to the ordinary offence, so as to give guidance with respect to sentencing for the aggravated offence. [12] It appears from the cases that the factor which has given rise to significant difficulty is par (i) dealing with offences committed "without regard for public safety". There has been limited consideration as to whether this factor involves an objective, or subjective test, and if subjective, what level of conscious or reckless disregard is required on the part of the offender. It may well be that this factor should be understood as encompassing both objective and subjective circumstances. However, the distinction can be helpful in order to avoid the danger of double-counting. Where the offence is of a kind which, objectively or abstractly, reflects a policy of prohibiting conduct which disregards public safety, it will be necessary, in order to engage the aggravating factor, to find some aspect of the specific conduct in question which goes beyond the objective element or underlying policy."

Basten JA referred to the passage from Way set out above and went on to discuss Ancuta - 14 Subject to one possible qualification, that approach [as stated in Way ] is also consistent with what was said by this Court about aggravating factors in Regina v Ancuta [2005] NSWCCA 275 at [11]-[13] (Brownie AJA, Buddin and Latham JJ agreeing). This case involved a deemed supply of a commercial quantity of heroin. The question raised was whether the sentencing judge was correct in taking into account as aggravating factors the fact that the offence was committed "without the regard for public safety" and that the victims were "vulnerable persons", matters contained in pars (2)(i) and (l) respectively. There being no victim of the particular offence, the Court understandably held that the primary judge erred in taking par (l) into account: at [13]. In relation to par (i), the Court stated at [11]: 'It might be said that every supplier or deemed supplier of heroin has failed to have regard for public safety, but it cannot be right to say that everyone convicted of such an offence is to be punished on the basis that there is an aggravating factor, as described in s 21A(2)(i).'

15 So much may be accepted, to the extent that failure to have regard for public safety is an inherent characteristic of the offence of deemed supply of heroin and is reflected in the maximum penalty. [Emphasis added.] As a characteristic of all such offences, it should not be taken into account as an aggravating factor with respect to a particular offence. (If, as might be arguable, a deemed supply did not involve conduct "without regard for public safety" at all, the aggravating factor would simply be irrelevant.) However, Brownie AJA continued, by way of obiter dicta, to make a distinction which has the potential to confuse the issue when applied to cases such as the present. At [12] his Honour stated: 'The applicant drew a distinction, which I accept as correct, between the supply (or deemed supply) of heroin and offences of a like kind on the one hand, and other offences about which one can properly say that there was a disregard for public safety such as to constitute an aggravating factor - for example, offences relating to the driving of a motor vehicle whilst inebriated, or involving the use of a firearm.' 12 Following a discussion of Regina v Aslan [2005] NSWCCA 121, Basten J added - "[17] As discussed above, it is necessary to distinguish cases where a factor identified in sub-s 21A(2) as an aggravating factor is an element of an offence or, in the sense described above, an inherent characteristic or a characteristic that appertains generally to conduct covered by that offence, on the one hand, and other conduct which cannot properly be so described. Driving a motor vehicle whilst inebriated describes a range of conduct and a range of potential offences; in the case of some offences, including the present one, the conduct which includes the circumstance of aggravation in question, might be said to demonstrate an absence of regard for public safety in a more direct and obvious manner than a deemed supply of heroin…" 13 If I may say so with respect, Basten JA's analysis of the problems posed by s 21A(2) is clearly correct. I would simply make the comment that, even if the concluding words of the sub-section were limited to elements of the offence strictly so-called, general principle must require the avoidance of double-counting at all events. 14 It is important, I think, to note that s 21A(2)(i) in terms refers to the state of mind with which an offence is committed. Where, as a matter of fact, the commission of an offence involves a real risk of harm to the public but, in the result, does not actually endanger the safety of the public it may nevertheless be the fact that the offender intended to do something that would have endangered the public. In this situation, it is correct to say that he or she acted without regard for public safety and, thus, within the precise terms of s21A(2)(i), which refer to the indifference of the offender to the public safety implications of the criminal conduct. Of course, if there were no real risk to public safety, this indifference would not matter, except in those cases where the commission of the offence is interrupted and the risk averted by accidents out of the offender's control, such as occurs where imported drugs are discovered by police and removed. Paragraph 21A(2)(i) is not limited to the doing of acts which of themselves actually endanger public safety. As the passage from Way extracted above makes clear, the paragraph is concerned with the offender's motives for the crime. Actual endangerment of public safety would, of course, render the offence objectively more serious. But it does not follow that, not having reached that stage, the intention to act regardless of public safety is not a culpable aggravating feature. It seems to me that it must be. Of course, it is still necessary to weigh the objective seriousness of this feature in the particular circumstances of the individual case. 15 So far as the supply of commercial or traffickable quantities of drugs is concerned, it may be that the feature of disregarding the public safety is necessarily inherent in the description of the offence, since the fact that it is a commercial or traffickable quantity of itself implies that distribution to a greater or lesser degree has occurred or is intended. In such a case a court would need to be careful not to additionally punish for a matter which is inherent in the crime. But, even in cases of supply that were not charged under provisions characterising the quantities as commercial or traffickable, a very significant (though not the only) feature of objective seriousness is the quantity of drugs involved, there is such a close connection between the quantity of drugs involved and the public safety implications of distribution that double counting could easily occur. In principle, this must be avoided. 16 It is imperative in my view that, in considering the application of this feature of aggravation, close attention is paid to the circumstances of the offences charged. Thus, in the present case, it is clear that the applicant was involved in the business of drug supply as described by the learned sentencing judge and briefly set out above. But he was not being sentenced for participation in that business. It is important to assess, as the learned sentencing judge did, the role that the applicant undertook in the criminal enterprise of which the offences he committed was a part. But the purpose of that assessment is not to punish the applicant for participating in that enterprise: it is to assess the objective criminality of the offences with which he was charged. There is no offence of carrying on the business of drug dealing. The extent to which the business involved the disregard of public safety is irrelevant except to the extent that it sheds light on the intention with which the applicant committed the offences. The fact that the offences were "part of a planned or organized criminal activity" is an additional aggravating feature under s21A(2)(n). (It is worth noting, by the way, that both these aggravating features have always been relevant, under the common law, to assessing the objective seriousness of offences.) 17 There are occasions when, in dealing with the role of an offender in an organized criminal activity, judges use language that implies that it is that activity and that role which constitutes the criminal conduct for which the offender is being sentenced. I would respectfully suggest that, in dealing with this aspect of the offender's criminality, it be made clear that, in the end, the offender is being punished for the crimes for which he or she has been charged and for no others, for all that the charges form part of a pattern of criminal conduct and the fact that they do is an aggravating feature. There are few more vital principles of criminal law than that a person can only be punished for crimes for which they are convicted. 18 Here, as the agreed facts made clear, the charges focussed on the applicant's involvement in the acquisition of drugs. It was his being concerned in those supplies - and not any possible on-supply - which was the gravamen of the offences. Although it is obvious that it was the applicant's intention to on-supply most, if not all, of the drugs he sought to acquire, this opportunity (except for the quantity he did manage to obtain) did not actually arise. It may be said, therefore, that in respect of the drugs that he did not even acquire, there was no actual endangerment of the public in what he did, over and above the usual endangerment of the public that involvement in drug dealing entails. 19 It is notorious that the drug trade carries in its wake criminality far greater than supplying the needs of those, addicted or not, who purchase the drugs. In addition to the crimes that many (though by no means all) addicts commit to purchase their drugs, those who take any significant part in the business are inevitably involved, directly or indirectly, in corruption and violence and the financing of criminal organizations on a massive scale. Compared to the enormous social cost of these factors, giving addictive drugs to individuals, however tragic might be the consequences for those persons, is relatively trivial. In my view, all these factors are already reflected in the very high maximum terms of imprisonment prescribed for drug dealing and which are designed to reflect the gravity of such criminal conduct; endangerment of public safety arising out of these matters is part of the objective seriousness of the offence and, if placed on the scales in this way, cannot be a ground for further aggravation within s 21A(2) of the Act. As Basten JA said in the passage quoted above, "failure to have regard for public safety is an inherent characteristic of the offence of deemed supply of heroin and is reflected in the maximum penalty". It matters not, in my view, whether this factor is taken into account as part of the general assessment of objective seriousness or specifically as an aggravating feature under s 21A(2), providing it is not double counted. At all events, at the end, it is but a part of the process of instinctive synthesis yielding an appropriate sentence. 20 In the present case, it is undeniable that the applicant sought to obtain the drugs for on-sale and hence he committed the offences intending in due course to endanger the public: to use the language of Way, this was his "motivational understanding". The question is (vide Way (60 NSWLR at [106]-[107]) whether the scale of drug dealing actually involved significantly increased the objective seriousness and moral culpability of this offending over and above that integral to the offences charged. Or, to use the language (quoted above) of Basten JA in Elyard, is there "some aspect of the specific conduct in question which goes beyond the objective element or underlying policy" of the offence so that "the aggravating factor" is engaged? In my view, in this case this question is answered by reference to the quantities of drugs involved (an inherent factor) and the extent of the planned or organized organization involved (an aggravating factor under s21A(2)(n)). Once these factors are taken into account, no additional significance should be given to the fact that the offences were committed without regard for public safety. This factor is either no more than an inherent feature of the offences themselves or adds nothing to the additional criminality of the other aggravating factors. 21 The learned sentencing judge, in correctly characterising the offences as being part of a commercial enterprise, regarded this as an aggravating feature in addition to those specified in s 21A(2)(i) and (n). The gravamen of this factor is not danger to the public in any particular sense but the undertaking of criminal offences for the purpose of making a profit. However, it is difficult to see, in the context of drug dealing offences going no further than supply for the purpose of financing the offender's own addiction, how this factor adds significant aggravation to offences whose objective seriousness has already been assessed having regard to the quantity of drugs involved, the extent of planning and organization and the position of the offender in that scheme: all these matters reflected and were an inherent part of the commercial nature of the offences. 22 It seems to me that the real issue is whether the applicant's disregard for public safety was so inextricably involved with the quantities sought to be obtained and the planning entailed that its separate identification as an aggravating feature led the learning sentencing judge to double count or showed that the applicant was being punished for crimes with which he had not been charged. To use the words of Basten JA quoted above, was the applicant's disregard for public safety no more than being, in the circumstances, "an inherent characteristic or a characteristic that appertains generally to conduct covered by" the offences or the offences as characterised by the features of quantity of drugs and planning? In my view, although the applicant had no regard for public safety, this feature was inherent in the offences themselves, and cannot in the circumstances "have an additional or cumulative effect" (see Way, infra, at [106]). 23 With respect, I have concluded that the learned sentencing judge did err in double counting the aggravating feature of disregarding the public safety and that this error affected the exercise of his Honour's discretion. However, in exercising my independent assessment of all the objective and subjective features of the case, I would not impose a sentence that was more lenient than that imposed at first instance. Accordingly, subject to the second ground of appeal, I would dismiss the appeal: see R v Burke [2002] NSWCCA 353 at [83]. 24 The second ground of appeal contends that the learned sentencing judge erred in that, having decided that there were special circumstances justifying a variation of the statutory ratio to support the applicant's efforts at rehabilitation, in the result his Honour's overall sentence reflected the statutory ratio absent variation for this reason. His Honour said - "…I believe that [the applicant's] remorse is genuine and that he is contrite. I am satisfied that there are prospects of rehabilitation. I think his need for long term treatment and counselling in his attempt at rehabilitation amounts to a special circumstance…" 25 It is clear from this passage that the learned sentencing judge had in mind more than the necessity to adjust accumulated sentences in order to preserve the statutory ratio. His Honour (if I may say so, with good reason) considered that the applicant's rehabilitation was well underway by the time he came to be sentenced and that in both his and the public interest it was desirable to vary the statutory ratio to provide a longer period of supervision whilst at liberty on parole than would otherwise have been the case. This is made evident, to my mind, by the fact that, in respect of the sentences on counts 2 and 3, the balance of term was one half of the non-parole period as distinct from the one third referred to in s44(1)(ii) of the Crimes (Sentencing Procedure) Act 1999. 26 With respect, I have concluded that the extent of accumulation ultimately imposed overlooked the earlier finding as to special circumstances and the cognate variation of the ratio that finding required. The overall sentence needed to be adjusted to give effect to this determination. In my view, this Court should correct that error by adjusting the commencement date for the sentences on Counts 2 and 3 so that the overall sentence will remain at four years but the overall non-parole period comprise two and a half years' imprisonment. Accordingly, I propose the following orders -

1. Leave to appeal against sentence be granted;
2. In respect of counts 2 and 3 the sentences are quashed and substituted therefor in respect of each count a sentence comprising a non-parole period of one year and six months' imprisonment commencing on 24 February 2007 and expiring on 23 August 2008 with a balance of term of one year and six months expiring 23 February 2010. The earliest date upon which the applicant will be eligible for release on parole is 23 August 2008.

27 HOWIE J: I have had the advantage of reading the judgment of Adams J in draft. I agree for the reasons given by his Honour with the orders proposed as a result of the success on the second ground of appeal. 28 As to the first ground of appeal the difficulty is that R v Way (2004) 60 NSWLR 168 at [172] is authority for the proposition that on a charge of supplying drugs an aggravating factor may be that the offence was committed without regard for public safety. The relevant passage is quoted in the judgment of Adams J. The Court was responding to a submission that such an aggravating factor was not present because the applicant was selling to an undercover operative. The Court was not called upon to consider the question that arose in later cases: whether acting without regard for public safety was an inherent characteristic of some offences of supply and, therefore, ought not be considered as a separate matter of aggravation. As Elyard v R [2006] NSWCCA 43 recognised, this was a gloss on the limitation contained in s 21A(2) that "the court is not to have additional regard to such aggravating factor in sentencing if it is an element of the offence". 29 In the present case it appears that the sentencing judge simply referred to the factor of aggravation contained in s 21A(2) almost automatically without any real consideration of what it meant or how it applied in the particular case before him. In some cases it will be unnecessary to explain why a particular aggravating feature is found to be present, but in cases where the aggravating factor is an element of the offence or may be thought to be an inherent characteristic of offences of the kind for which sentence is being passed the judge should explain why the factor is present in the particular case before the court. 30 PRICE J: Having read the draft judgment of Adams J, I agree for the reasons given by his Honour that the second ground of appeal should succeed. I agree with the orders proposed. I have also read the judgment of Howie J and agree with his Honour's remarks as to the first ground of appeal. **********

13/02/2007 - Wrong case number - Paragraph(s) Heading 24/09/2007 - Clarification of sentence on coversheet. - Paragraph(s) coversheet 23/11/2007 - Orders not the same as on coversheet - Paragraph(s) 26

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