Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Miscellaneous matters - Offence committed while on bail or probation and effect of breach of probation - Whether continued commission of offence following arrest and release on bail an aggravating factor.

R v Richards [1981] 2 NSWLR 464; R v Gray [1977] VicRp 27; [1977] VR 225; R v Basso [1999] VSCA 201; R v Devine (No 2) 56/1998, followed.

Judgment Number: [2007] TASSC 25

1 Appeal allowed.

2 Sentence quashed.

3 Appellant re-sentenced to imprisonment for 4 years from 1 February 2006 with an order that he not be eligible for parole until he has served 2 years of the sentence.

4 Pecuniary penalty in the amount of $150,000 quashed.

5 Appellant to pay the State a pecuniary penalty of $149,635.

1 The appellant and his brother, Andrew Tony Wisniewski, pleaded guilty to trafficking in a controlled substance contrary to the Misuse of Drugs Act 2001, s12. His brother was convicted and sentenced to 15 months' imprisonment from 1 February 2006 with no eligibility for parole for 10 months of that sentence, and a probation order for two years following his release. The appellant was convicted and sentenced to four years' imprisonment from 1 February 2006 with no eligibility for parole until he had served three years of the sentence. It was ordered that his brother pay the State a pecuniary penalty of $50,000 and that the appellant pay the State a pecuniary penalty of $150,000.

2 The appellant has appealed against his sentence on the following grounds:

"1 That the Learned Sentencing Judge erred in finding that the appellant's crime of trafficking was aggravated by:

(a) The appellant's continued trafficking after his arrest for the same offence in November 2005; and

(b) His 'attitude to the law' as evidenced by the content of his e-mail to another person in 2005.

2 The Learned Sentencing Judge imposed a sentence which was manifestly excessive in all the circumstances.

3 The Learned Sentencing Judge erred in ordering that the appellant not be eligible for parole until he has served 3 years of a 4 year head sentence.

4 The Learned Sentencing Judge erred in making a pecuniary penalty order."

3 On the night of 9 November 2005, the appellant returned to Hobart on a flight from Sydney. Police officers found him to be in possession of 639 MDMA or ecstasy tablets and 15.7 grams of crystal methylamphetamine. On interview, he claimed that all of the drugs were for his personal use. A few hours later a search was conducted of his home, which he shared with his co-accused and another brother. Found in the house was a large quantity of cash, tick sheets evidencing drug sales on credit and more MDMA tablets. As a result of admissions made by the two accused men, police learned that they had been trafficking in ecstasy tablets for the previous eight months. The appellant would travel to Sydney to buy the drugs and would either bring them back into the State with him or post them back. Between about March and November 2005 he had made some 20 trips to and from Sydney. In addition, there were a number of other deliveries by post in that period of time. He sold part of each consignment to his brother. They each used some and sold the balance on the open market.

4 In his comments on passing sentence, the learned judge thought the appellant's attitude towards the law and the commission of the offence was apparent from what his Honour described as a cocky email sent to an acquaintance in April 2005. With respect to his offending, he said:

"But anyway I've been a busy boy somehow turned 3000 into 18000 in 3.5 weeks should be 25000 by the end of next week A big shock to the little tassie scene trod on a few toes and pissed off some people but no-one knows who we are or where it's coming from, I like that fact ... But it's all good I'm kick'n arse, mooven on with my not so legit carer [sic]. My Torana, final scratch and doin up the cruiser are on my to do list Just tryin to get to my target first (5000ea a week) should be about 12 day's away, Nice! Might go to NZ snowboarding in winter."

5 Shortly prior to intervention by the police, the appellant's brother ceased trading in MDMA. He was to be sentenced for trafficking between 1 March 2005 and 1 November 2005.

6 They were both charged and bailed. The appellant was not deterred. A bail condition prohibited him from travelling to Sydney, so he arranged for the ecstasy to be sent to him by mail. Parcels of the drug were addressed to a fictitious addressee at a post office. He collected them and continued trafficking until he was arrested by police on 1 February 2006. He has remained in custody since. Between November 2005 and his arrest he brought thousands of the tablets into the State and sold them to customers he had attracted. The undisputed assertion by the State was that he sold some $150,000 worth of MDMA and his brother sold some $60,000 worth. However, the $60,000 worth of drugs came from the $150,000 worth of drugs and were not additional to them.

7 The learned judge justifiably regarded their crimes as very serious ones. He continued:

"The widespread use of illicit drugs in our community is a grave social evil. Those who traffic in drugs like MDMA engage in a pernicious trade that ultimately spreads sickness and misery among those to whom you sell these drugs. Although both of you have been long-term drug addicts, I find that your crimes were not committed just to satisfy your personal needs, they were also committed for financial gain."

8 His Honour noted that the appellant's brother was aged 23 years old and without relevant prior convictions. He had ceased his unlawful conduct before police detection and had taken significant steps to rehabilitate himself. The learned judge said that the appellant's case was quite different from that of his brother. After referring to what his Honour described as "the cocky email" the learned judge continued:

"Further, you demonstrated breathtaking arrogance and contempt for the law by continuing your criminal career after being charged with the same crime in November. Aged 27, you have only one minor relevant prior conviction. I take into account your plea of guilty, but the aggravating circumstances to which I have referred, and the quantity of the drug trafficked, call for the imposition of a substantial term of imprisonment."

9 I will assume that when the learned judge had regard to "the aggravating circumstances to which I have referred" he was referring to the appellant's attitude to the law and the commission of the offence that was demonstrated by both the continuation of trafficking after his initial detection and arrest and the contents of the email. It was submitted by the appellant's counsel that it was erroneous to regard such a matter as an aggravating circumstance and that it could only be relevant to negate a claim of contrition or remorse or that he was not voluntarily participating in the commission of the crime.

10 A continuation of criminal conduct after having been charged and bailed is frequently regarded by courts as a matter of aggravation. It shows utter contempt for the law and authority. In R v Devine (No 2) 56/1998, Slicer J at 2 referred to it as being aggravating because it shows persistency of conduct. Professors Fox and Freiberg in Sentencing - State and Federal Law in Victoria, 2nd ed, observed at 289, "the fact that the offender has repeated the offence previously charged while entrusted to remain in the community adds markedly to the gravity of the offence". In this case, it demonstrated, as did the email, "a course of conduct that was consistent with the offender's character or general attitude" and not merely an aberration. See Fox and Freiberg at 271. If an offender manifests a continuing attitude of disobedience of the law, "retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted". Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477. It was said by Street CJ, when delivering the judgment of the Court of Criminal Appeal in R v Richards [1981] 2 NSWLR 464 at 465:

"The community must be protected as far as possible from further criminal activities by persons who take advantage of their liberty on bail to commit further crimes. The only means open to the criminal courts to seek to provide this protection is to pass severely deterrent sentences upon those who thus abuse their freedom on bail. This will ordinarily involve a significant accumulation of the sentence for any subsequent offences on top of the sentence proper to be passed for the original offence. It must be made abundantly plain that persons at large on bail cannot expect to commit further crimes 'for free'. On the contrary, they will receive salutory (sic) penalties for the very reason that they have abused their freedom on bail by taking the opportunity to commit further crimes."

11 It was observed by the Full Court in R v Gray [1977] VicRp 27; [1977] VR 225 at 230 that "the real point is that the commission of offences whilst on bail indicates contempt for or disregard of the system of law under which bail was granted to the offender; it suggests that the offender has small regard for the law and little intention of obeying its commands." In R v Basso [1999] VSCA 201 at pars 21 and 57, the Full Court was in no doubt that it was an aggravating factor. The contents of the appellant's email underlined his poor attitude to the law. Concerning that email, in the course of submissions from the appellant's counsel, the learned judge observed that it did not paint the picture of a drug user in the grip of a drug habit who was desperate to obtain his own supply but instead, the tenor of the email was that the appellant was in the business of being a drug dealer and doing very well at it. The appellant's counsel accepted the validity of that comment.

12 Therefore, the first ground of the appeal fails. It is convenient to deal next with the fourth ground which complains of error arising out of the making of the order that required the appellant to pay to the State a pecuniary penalty of $150,000. The order was made under the Crime Confiscation of Profits) Act 1993, s21(1), which gave to the learned judge a discretion, in the case of a serious offence such as the appellant's crime, to assess, in accordance with s22, the value of the benefits derived by him from the commission of the offence and a discretion to order him to pay to the State a pecuniary penalty to the value so assessed. It was submitted by counsel for the appellant that the learned judge erred in making a pecuniary penalty order in circumstances where there was little or no evidence of the appellant's financial resources and little, if any, likelihood that he would have the ability to satisfy the order at any time after his release. The submission requires an examination of what was said at the hearing.

13 Counsel for the State informed his Honour that following a calculation of the value of the drugs that had been imported, the State asserted that the appellant had sold some $150,000 worth of the drug and his brother had sold some $60,000 worth of the drug. He said that the State sought a pecuniary penalty order against the appellant in the sum of $150,000 and a forfeiture order concerning $365 cash seized from the appellant in November. However, counsel then deducted the latter sum from the former sum and said that the State sought a pecuniary penalty order in the net amount of $149,635. It follows that the learned judge erred in ordering payment of $150,000 instead of $149,635 and the order should be corrected accordingly. A pecuniary penalty order against the appellant's brother was sought in the amount of $50,000, together with a forfeiture order concerning $10,000 cash seized from him. The learned judge was informed that the appellant's brother had agreed to have nearly $20,000 of other cash belonging to him applied in part satisfaction of the $50,000 he would be liable to pay under his pecuniary penalty order.

14 The appellant's counsel informed the learned judge that the appellant was a qualified chef and had worked in different restaurants in Tasmania and interstate. He had also worked in the automotive industry and as a DJ in nightclubs. Counsel stated that upon his release, the appellant planned to enter the automotive industry by opening a business in car detailing. His mother had promised to assist him in achieving it, by contributing financially to the business and, given her previous experience in business enterprises, by overseeing it. Upon his release, the appellant would be looking for premises that combined a house and work shed on the one site. Counsel also informed the learned judge that the appellant "intends to put in place a plan for a - a payment plan in relation to the pecuniary penalty order in the future, once he's able to upon his release."

15 It is apparent from what was stated by his counsel that the appellant communicated to the learned judge that he expected that a pecuniary penalty order would be made in the amount sought by the State and he did not seek to oppose it, that he expected to operate a car detailing business following his release from custody, with assistance, including financial assistance, from his mother, and that he expected that following his release he would establish a plan for payment of the amount of the order. It was not suggested by his counsel that he would be unable to satisfy the order or that he would have any particular difficulty in doing so. In that light, this Court must reject his counsel's submission that the learned judge erred in making the order because there was little if any likelihood that the appellant would have the ability to satisfy it. That was not suggested to the learned judge and indeed, was contrary to the tenor of what was stated by the appellant's counsel. No error has been demonstrated in the exercise of the learned judge's discretion to make the pecuniary penalty order and the grounds fails.

16 It was held by this Court in Director of Public Prosecutions v Delaney (1998) 7 Tas R 383 that by virtue of the provisions of s21(1), a sentencing judge has a discretion, unfettered by statute, whether or not to make an assessment of the value of the benefits derived by an offender from the commission of an offence and a discretion whether or not to make a pecuniary penalty order. However, it was also held that if an assessment and a pecuniary penalty order are made, the latter must be in a sum equal to the former. Interestingly, that case concerned an exercise of the discretion by a sentencing judge by refusing to make a pecuniary penalty order consequent upon a finding of fact that there were no realistic prospects of the offender ever being able to pay off a penalty in the amount assessed in that case ($115,000) or even a small proportion of it. That is not the case here. There was no suggestion made to the learned judge that the appellant would be unable to pay off the penalty to any extent.

17 Before leaving this ground of appeal, I quote a passage from the judgment of Underwood J in Delaney at 391. No criticism of it was raised by the appellant's counsel. The passage is:

"By the enactment of the Crime (Confiscation of Profits) Act 1993 the legislature made its intention clear. The Act is designed to compel criminals to disgorge an amount equal to the profits gained by the commission of crime. It is also clear that the legislature does not want the court to engage in any nicely balanced inquiry into the means of the offender to pay any pecuniary penalty order, for no discretion is conferred with respect to the amount of the pecuniary penalty order. It must be for an amount equal to the profit earned by the commission of the crimes in respect of which the proceedings relate. It might be inferred, therefore, that the Parliament intended that where a respondent has some assets or income, or may, in the reasonably foreseeable future acquire assets or income, he or she should be ordered to disgorge all of the profit earned by criminal conduct. Accordingly, considerations which govern the proper exercise of the discretion upon the imposition of a fine have no part to play in the exercise of the discretion conferred by the Act, s21(1), cf Broughton v Lowe [1979] Tas R (NC 7) 309; Young v Geddie (1978) 22 ALR 232.

However, the legislature clearly did not intend that a pecuniary penalty order must be made in every case. Had it so intended, it would have provided that the making of the order was mandatory. The fact that a respondent has no prospects, either in the present or in the reasonably foreseeable future of meeting any part of a pecuniary penalty order, is a factor relevant to the proper exercise of the discretion. In such a case there is no point in making an order that the court knows will never be satisfied even in part."

18 I will deal with grounds 2 and 3 of the appeal at the same time. They raise the question whether the sentence of four years' imprisonment, with a non-parole period of three years, together with the pecuniary penalty of $150,000 were collectively and manifestly excessive. In Delaney at 398, I observed that a pecuniary penalty order is not a sentence and referred to Gardiner (1992) 62 A Crim R 370 at 372 in support of that proposition. Nevertheless, under the Crime (Confiscation of Profits) Act, s72(2), a person against whom a pecuniary penalty order is made may appeal against the order in the same manner as if it were the sentence, or part of the sentence, imposed on the person in respect of the offence in reliance on which the order was made. In Stocks v R [2000] TASSC 106; (2000) 9 Tas R 210 this Court held that the making of a confiscation order, which term includes a pecuniary penalty order, may be taken into account by a sentencing judge when exercising the sentencing discretion. It follows that this Court may also have regard to any such order that may have been made, along with the sentence, when determining whether the sentence was manifestly excessive.

19 It is to be noted that the appellant will always be indebted under the pecuniary penalty order unless and until he satisfies it. Bankruptcy, and subsequent discharge from bankruptcy, will not relieve him from its consequences because it is not a provable debt. See the Bankruptcy Act 1966 (Cth), s82(3A). It is also to be noted that the amount of the order is a substantial one and there is no suggestion that the appellant had in some way saved his ill-gotten gains or converted them into significant assets that could be applied in discharge of the order. Notwithstanding that he brought the penalty upon his own shoulders by his serious offending, it is a considerable penalty.

20 The appellant was 27 years old when sentenced on 6 October 2006. His record of convictions was unremarkable, apart from the offence of possessing a prohibited substance (psilocybine mushrooms) committed when he was 16 years of age. His counsel said that he had been addicted to drugs in various forms since the age of 15. Initially cannabis and morphine were used by him, but the drugs varied. They also included heroin and opiates. At one time he undertook a methadone program for two years. In more recent times he had used amphetamines and ecstasy mainly, along with heroin and ketamine. His habits were expensive ones.

21 He married but separated after five years. He ceased employment at a Sydney restaurant. His trafficking enabled him to support his drug habits, but at the same time it permitted him to enjoy a high level of living expenses. His email reflected that. He formed a close relationship with a woman who was also a drug addict . She was serving a prison sentence for drug offences at the time the appellant was sentenced. They were expecting a child.

22 Counsel for the appellant referred the Court to much lighter sentences imposed by judges on traffickers in this State. I think that at times, judges have been too lenient when dealing with traffickers. The sentence of four years' imprisonment was high when compared to most. Few have been as severe. However, in the case of Delaney, to which I have referred, a very late plea of guilty was followed by a sentence of four years' imprisonment for trafficking in amphetamines and heroin, the benefits from which were assessed at $117,000, and recently, a trafficker in methylamphetamine called Oxford unsuccessfully appealed from a sentence of three years' imprisonment. Sentences of four and five years' imprisonment have been imposed for trafficking in cannabis.

23 The conclusion I have come to is that the sentence, particularly the non-parole period, was a relatively severe one for an offender who had not seriously offended before, and having regard to the pecuniary penalty order as well, it seems to me that the sentence was indeed, manifestly excessive. It was, of course, a serious offence with the potential of causing great harm, but nevertheless, when regard is had to other sentences, the non-parole period of three years for a person who was virtually a first offender, led to excessiveness to the point of error. I would quash the sentence along with the pecuniary penalty order and make fresh orders. I would sentence the appellant to imprisonment for four years from 1 February 2006 and order that he is not to be eligible for parole until he has served two years of the sentence, that being the minimum period he should be required to spend in custody. I would also order that the appellant pay the State a pecuniary penalty of $149,635.

File No CCA 69/2006

24 The appellant was convicted on his plea of the indictable offence of trafficking in a controlled substance. Following conviction, he was sentenced to a term of imprisonment for a period of four years with a non-parole period fixed at three years and made subject to a pecuniary penalty in the amount of $150,000.

25 The appellant and his younger brother were charged with the indictable offences of trafficking in the controlled substance, namely methylenedioxyamphetamine ("MMDA") (commonly known as Ecstasy) between 1 March 2005 and 1 February 2006. On 9 November 2005, the appellant was intercepted at the Hobart Airport by officers of the drug investigation service. Some 639 MMDA tablets were found in his luggage. When interviewed on the same day, he stated that all the drugs, for which he had paid $2,000, were for personal use, that he smoked or injected methylamphetamine each day and that he had been able to afford to pay for his addiction by restoring motor vehicles over the previous year. He was not then in receipt of unemployment benefits. Police pursued their inquiries and some two days later, went to the appellant's home where they located a large sum of money, documentation which appeared to be tick sheets, and some MMDA tablets. The appellant's younger brother, and co-accused, was present during the search of the house. Some 33 tablets were located in a safe in the appellant's bedroom. Minor amounts or traces of other drugs were found or detected at the home but were not the subject of the indictment, and their presence not directly relevant to the sentencing hearing or this appeal except as part of the surrounding circumstances.

26 The co-accused, when interviewed, claimed ownership of the money and all drugs found at the home, other than those recovered from the safe in the appellant's bedroom. Andrew Wisniewski told police that he had been supplied with the MMDA tablets by the appellant and that some $7,000 of the money located at the house represented the profits from the previous sale of the MMDA tablets, with the balance of the money being accumulated savings.

27 The appellant was re-interviewed and the sentencing court was told that during that interview he told police:

"• That all the drugs found in the safe were his for personal use and that some of the MMDA tablets were obtained by him from Sydney.

• That all the MMDA he obtained was to be given to his brother for sale.

• In relation to the drugs located upon him at the airport this accused said that he had paid fifteen dollars per tablet for the MMDA tablets.

• That he travelled to Sydney on commercial flights to obtain the drugs.

• That he did use some of the money to support his drug habit.

• That he owed money to his Sydney drug suppliers and when asked how he would cover that debt he said, "I'll work it out", but denied that he would fund this from further drug sales.

• The number and weight of the MMDA tablets, that is the 639 tablets which weighed a 167.9 grams, seized from Daniel Wisniewski at the airport pursuant to s3A(1)(b) and schedule 1 of the Misuse of Drugs Act 2001 has this accused in possession of more than a trafficable quantity of MMDA."

Both men were charged and bailed.

28 On 1 February 2006, investigating officers inspected a post package addressed, presumably to a fictitious person, at the Kingston Beach Post Office. It was found to contain 1,000 MMDA tablets. The package was monitored and on the same day the appellant was observed to collect the package and return to his home. Police followed the appellant and recovered the tablets in his presence at his home. At the home they located a further 25 MMDA tablets, digital scales, a sachet containing crystal methamphetamine, and documents indicating that large sums of money had been transferred to a person in Sydney. The appellant denied collecting the post package or any knowledge of the addressee and declined to be further interviewed. Evidence independent of the appellant showed a link between the money, the tablets, a person in Sydney, and the appellant. Documentation showed that some $28,000 had been transferred by the appellant through a commercial cash transfer facility. An email recovered from the appellant's computer stated that the appellant had been "a busy boy, somehow turned three thousand into eighteen thousand in 3.5 weeks, should be twenty five thousand by the end of next week ... just trying to get to my target first, five thousand ea a week ... getting 8 Bs for four hundred dollars of pure very nice stuff, stinky wet stuff but I'm not really paying for it ...". In a second recovered email, the appellant had said "I'm on a plane at the moment going to Sydney. It's been a working trip but it's making me rich - well not rich but I can buy all those things I've been talking about for years." On the basis of the material collected by investigating officers, counsel for the State asserted at the sentencing hearing that the appellant "... has sold some one hundred and fifty thousand dollars worth of the drug MMDA and the accused, Andrew Wisniewski, some sixty thousand dollars worth of the drug" and sought a final pecuniary penalty order against the appellant in the sum of $149,635. An order for a lesser sum was sought against the co-accused.

29 At the sentencing hearing, counsel for the State accepted that the co-accused Andrew Wisniewski had ceased any involvement in the trafficking of the illicit substance following the interception in November 2005, but understandably claimed that the continued involvement by the appellant in trafficking between November 2005 and February 2006 constituted a significant aggravating factor. No issue was taken with the factual material presented to the court.

30 No issue of parity of sentence arises as between the two offenders.

31 Each accused was represented by the same counsel. The court was told that the appellant had a long history of substance abuse since the age of 15 and that he used his trafficking in drugs in part as a means of funding that addiction. However counsel did not take issue with the extent of the commercial activity of the appellant.

32 Differing penalties were imposed on the co-offenders. Andrew, aged 23, had no prior convictions and was sentenced to a term of imprisonment for a period of 15 months, but declared not to be eligible for parole until he had served ten months of that sentence. He was ordered to pay a pecuniary penalty of $50,000. No challenge is made to any comparison between the sentences imposed on the ground of parity. There were appropriate reasons why the learned sentencing judge was permitted to distinguish between the offenders. The appellant had played a far more significant role in the acts of trafficking, had been involved over a longer period of time and had initiated the commercial activities. In addition, the learned sentencing judge observed that the appellant's case:

"... is quite different from that of your brother. Your attitude towards the law and the commission of this crime is apparent from the cocky e-mail you sent to an acquaintance in April 2005 in which you said with respect to your unlawful conduct:

'But it's all good, I'm kick'n arse, mooven on with my not so legit career. My Torana, final scratch and doin up the cruiser are on my to do list. Just trying to get my target first (5000ea a week) should be about 12 day's away. Nice! Might go to NZ snowboarding in the winter [sic].'

Further, you demonstrated breathtaking arrogance and contempt for the law by continuing your criminal career after being charged with the same crime in November. Aged 27, you have only one minor relevant prior conviction. I take into account your plea of guilty, but the aggravating circumstances to which I have referred, and the quantity of the drug trafficked, call for the imposition of a substantial term of imprisonment."

"1 The Learned Sentencing Judge erred in finding that the appellant's crime of trafficking was aggravated by:

(a) The appellant's continued trafficking after his arrest for the same offence in November 2005; and

(b) His 'attitude to the law' as evidence by the content of his email to another person in 2005.

2 The Learned Sentencing Judge imposed a sentence which was manifestly excessive in all the circumstances.

3 The Learned Sentencing Judge erred in ordering that the appellant not be eligible for parole until he has served 3 years of a 4 year head sentence.

4 The Learned Sentencing Judge erred in making a pecuniary penalty order."

34 There is no merit in this ground. The indictment covered the period from 1 March 2005 until 1 February 2006. The appellant continued with his trafficking in a controlled substance for some months after the initial interception. Continued involvement was for commercial gain, with only a portion of the supply being retained for personal use. The evidence established that there had been a conscious decision to continue with a commercial activity as distinct from a person driven through addiction or circumstances beyond his control. The reference to the email is appropriate, it indicated an intention to engage in, and continue with, a lucrative and illicit form of criminal activity. The primary contention of the appellant was that since the indictment covered the period between March 2005 and February 2006, conduct occurring between November 2005 and February 2006 could not be regarded as aggravating, since it was subsumed into the indictment itself. Counsel for the appellant urged the Court to pay significant regard to the approach taken by the Full Court of the Supreme Court of Victoria in R v Gray [1977] VicRp 27; [1977] VR 225 when, in their joint judgment, McInerney and Crockett JJ stated, at 229:

"As to the circumstance that offences were committed whilst the applicant was on bail, it is, we think, permissible for a sentencing judge to take this into account at least to the extent of assessing the prospects of the applicant's reformation. The circumstance that an applicant has committed offences while on bail is, of course, a circumstance justifying a court in making an order for revocation of that bail ¾ see R v Hill [1967] VicRp 59; [1967] VR 556. Bail is granted on the supposition that the applicant will answer to his bail and is most certainly not granted to enable the offender to commit further offences whilst on bail. Indeed, it has often been said that the commission of offences whilst on bail is an abuse of the privilege of bail. Whether or not bail is to be regarded as a privilege or as a right need not here be determined, though the weight of history is, we consider, in favour of the first view. The real point is that the commission of offences whilst on bail indicates contempt for or disregard of the system of law under which bail was granted to the offender; it suggests that the offender has small regard for the law and little intention of obeying its commands.

Furthermore, it may be said that the person who commits an offence on bail has abused or betrayed the confidence reposed in him by the tribunal which granted him bail. The fact that a crime has involved a breach of confidence or trust, eg by a solicitor or bank manager or member of the police force, has always been regarded as a matter relevant to the question of sentence ¾ cp R v Wright (No 2) [1968] VicRp 17; [1968] VR 174 at p 181. Prima facie the quantum of sentence is dependent on the circumstances of the commission of the crime and its immediate consequences, and should not be increased by reference to events occurring after the offence has been committed. But just as conduct subsequent to the commission of the offence which indicates a clear intention to reform is a matter which the offender is entitled to have taken into account in his favour, so also conduct tending in the other direction, ie showing that the offender is unlikely to reform, or has at least not yet reformed, is a matter relevant to the sentencing discretion, if or in so far as it suggests that to extend clemency would serve no useful purpose or that lenience is likely to be abused.

It follows, we consider, that the sentencing judge was entitled to take into account the fact that all the offences except those the subject of counts 1 and 2 were committed whilst the applicant was on bail or on probation. What weight the sentencing judge was to assign to that circumstance was a matter for him. But whether he was entitled to increase the sentence which he would otherwise have awarded by reference to the circumstance that the applicant was on probation or on bail is a matter which we find unnecessary to decide on this application. It must not be overlooked that breach of a recognizance for bail exposes the accused to proceedings under s 5 of the Crown Proceedings Act 1958 (as amended by Acts Nos 7900 and 8124) with the possibility of imprisonment if the amount of the recognizance be not paid ¾ cp Re Baker [1971] VicRp 87; [1971] VR 717; Re Condon [1973] VicRp 40; [1973] VR 427."

35 Whilst there might be some degree of logic in the appellant's argument, it ought be rejected. The learned sentencing judge was not using subsequent conduct as a basis for concluding aggravation. He was paying regard to the fact that the appellant had been intercepted, drugs seized and an opportunity afforded for him to quit commercial involvement. He chose not to, and continued with a course of conduct which was the subject of the indictment. His Honour was entitled to have taken into account that the conduct in continuing to traffic in the controlled drug after detection showed indifference to the law. The indictment represented a continuation of conduct beyond November 2005.

36 Considered alone, this ground ought not succeed. The sentence of four years' imprisonment was at the high end of the range of sentences imposed for this form of criminal conduct. But alone it does not demonstrate error. However, when considered with the fixing of a non-parole period and the imposition of a pecuniary penalty of $150,000, the overall penalty, as distinct from the "head sentence", I accept that the ground is made out.

37 The Sentencing Act 1997, s17, relevantly provides that where a sentencing court does not specify a non-parole period (or eligibility for parole), the offender is not eligible for parole. However in exercising a discretion in specifically ordering that the offender is not eligible for parole, either at all or in part, it provides by subs(4) that the court may have regard:

"... to such matters as it considers necessary or appropriate and, without limiting the generality of this, may have regard to all or any of the following:

(a) the nature and circumstances of the offence;

(c) any other sentence to which the offender is subject."

38 Subsection (7) requires the court to give reasons for making any such order. Here, no such reasons were given. In some cases failure to do so might not require intervention by an appellate court. But, here, given the length of the head sentence, the amount of the pecuniary order, and the subjective characteristics of the offender, failure to provide reasons in accordance with s17(7) provides a basis for upholding the appeal. (R v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR 740; R v Novakovic [2004] NSWCCA 437; R v Walker [2005] NSWCCA 109.)

39 Material provided to the court in the form of references, work history and an assessment by counsellors of the Department of Community and Health Services showed that there were prospects for rehabilitation. The continuance of a course of criminal conduct and the attitude evidenced in the emails had been taken into account and were reflected in the determination of the "head sentence". The offender had no relevant prior convictions, had not previously been to prison, and the effective result of the non-parole period was to significantly increase the custodial period. It was more appropriate that future disposition remain with the Parole Board and to at least allow the appellant to demonstrate reform of attitude and conduct (Bugmy v R [1990] HCA 18; (1990) 169 CLR 525; Deakin v R [1984] HCA 31; (1984) 58 ALJR 367). I would uphold this ground of appeal.

40 Here there was some basis for the claim that rehabilitation was possible. Favourable references had been tendered to the court and material supplied to the court which suggested that the appellant was not without skills, had some family support and could, at some time in the future, engage in productive economic activity. There was the prospect of future income. The amount of the pecuniary penalty was relevant to the determination of the sentence of imprisonment (Stocks v R [2000] TASSC 106; (2000) 9 Tas R 210; Director of Public Prosecutions v Delaney 29/1998; R v Hoar [1981] HCA 67; (1981) 148 CLR 32). The enforceability or otherwise of a pecuniary penalty is relevant and cogent. In turn, that penalty can impact on the determination of the length of an otherwise appropriate sentence of imprisonment, a course taken by Blow in State of Tasmania v B T M, 5 February 2007. The Crime (Confiscation of Profits) Act 1993 ("the Act") provides for both forfeiture orders (Div2) and pecuniary penalty orders (Div3). The Act, s21, relevantly provides:

"(1) If a person has been convicted of a serious offence and an application is made to a court under section 11(1)(b) for an order in respect of the offence, the court may ¾

(a) assess in accordance with section 22 the value of the benefits, including any commercial benefits, derived by the person from the commission of the offence; and

(b) order the person to pay to the State a pecuniary penalty equal to the value so assessed.

...

(4) An amount payable by a person to the State under a pecuniary penalty order made under this section is, for all purposes, taken to be a civil debt due by that person to the State."

Section 22 relevantly provides:

"(2) For the purposes of an application for a pecuniary penalty order against a person (in this subsection called 'the defendant') the value of the commercial or other benefits derived by the defendant from the commission of a serious offence or serious offences is to be assessed by the court having regard to the evidence before it concerning all or any of the following:

(a) the money, or the value of the property other than money, that came into the possession or under the control of ¾

by reason of the commission of the offence or any of the offences;

(b) the value of any other benefit provided to ¾

(ii) another person at the request or direction of the defendant ¾

by reason of the commission of the offence or any of the offences;

(c) if the offence or any of the offences consisted of the doing of an act or thing in relation to a raw narcotic, narcotic substance, prohibited substance or prohibited plant ¾

(i) the market value, as at the time of the offence, of similar or substantially similar narcotics, substances or plants; and

(ii) the amount that was, or the range of amounts that were, ordinarily paid for the doing of a similar or substantially similar act or thing;

(d) the value of the defendant's property ¾

(i) if the application relates to a single offence - before and after the commission of the offence; or

(ii) if the application relates to 2 or more offences - before, during and after the offence period;

(e) the defendant's income and expenditure ¾

(i) if the application relates to a single offence - before and after the commission of the offence; or

(ii) if the application relates to 2 or more offences - before, during and after the offence period.

...

(6) In calculating, for the purposes of an application for a pecuniary penalty order, the value of benefits derived by a person from the commission of a serious offence or serious offences, any expenses or outgoings of the person in connection with the commission of the offence or offences are to be disregarded.

(7) At the hearing of an application for a pecuniary penalty order, an inspector within the meaning of the Poisons Act 1971 or a police officer who is experienced in the investigation of narcotics offences may give evidence ¾

(a) with respect to the amount that, to the best of his or her information, knowledge and belief, was the market value of a controlled substance at a particular time or during a particular period; and

(b) with respect to the amount, or the range of amounts, that, to the best of his or her information, knowledge and belief, was the amount, or range of amounts, ordinarily paid at a particular time or during a particular period for the doing of an act or thing in relation to a controlled substance."

41 Here counsel for the appellant effectively conceded, possibly following discussions with the prosecution, that the appropriate amount for a pecuniary penalty order was $150,000. It may be that the concession was warranted but, given the extent of personal use, the fact that some of the drugs had been on-sold to the co-accused, that no allowance was made for the amount of the pecuniary order made against the co-offender, and that there was significant material placed before the court as to the means and prospects of the appellant, it might have been more appropriate for counsel for the appellant, at the sentencing hearing, to have considered the matter in more detail. Although the penalty amounts to a civil claim, it can, as counsel for the appellant suggested, constitute a significant and serious impediment to the prospects of rehabilitation.

42 The provisions of the Act, ss21 and 22, and their operation have not yet been the subject of detailed examination by this Court. But, together, they do not operate as a mechanistic vehicle requiring the imposition of a fine calculated, without consideration of other matters, on the basis of a notional gross value of the substance trafficked. The Act, s22, provides a method of assessment based, depending on the nature of the crime, on profit or gross value. But it does not operate as a mandatory penalty in the sense of that to be applied in cases involving the Living Marine Resources Management Act 1995. The income and expenditure of the offender, both before and after the date or period of the offence, remains a relevant factor (s22(2)(e)). A discretion is preserved by the wording of s21(1). When a significant penalty is to be imposed, there ought be some statement or exposure of the basis on which it was made. Here the sum was effectively agreed but its imposition suggested that the provision of some reasons as to why an additional non-parole period was apposite. That alone would not, in the circumstances of this appeal, warrant intervention. But taken together with the non-parole period actually imposed, it provides an additional basis for the upholding of this appeal. The non-parole period prevented the Parole Board from considering conditional release until the appellant had served 75 per cent of the head sentence. Assuming that, through his conduct in prison, the appellant was to earn the right to a statutory remission, he would have been released in any event after three years and nine months (Corrections Act 1997, s86, Corrections Regulations 1998, reg23). Future control of the conduct of the offender would have been a desired outcome of the sentencing procedure and could have been achieved by imposing the minimum non-parole period. Here the appellant had real prospects of earning income which would enable recovery or enforcement of the fiscal penalty of $150,000. That capacity means that the pecuniary penalty was a real one and not a symbolic exercise. The totality of four years' imprisonment, a non-parole period of 75 per cent, and liability for the payment of $150,000, establishes in my respectful opinion, ground 2, namely that the sentence was manifestly excessive.

43 Counsel agreed that in the event of the appeal being upheld it is preferable that this Court determine sentence rather than remitting the matter back to a single judge. I would re-impose the original sentence of four years and, given the concessions by the appellant as to the amount of the pecuniary penalty during the sentencing hearing, assess the pecuniary penalty in the amount of $149,635. I would fix the non-parole period at one half of the sentence.

File No CCA 69/2006

44 I have had the advantage of reading the reasons for judgment prepared by Crawford J; I agree with them and the orders that he proposes.