A. I did."
21 Both Mr Dhanji and the applicant, it is plain from this exchange, had turned their attention to the contents of the fact sheets. The applicant by the first answer acknowledges the accuracy in the facts of the arrangements to sell cocaine.
22 At the close of the applicant's case, Mr Dhanji tendered to the Judge written submissions saying; (POS at 28 L24-37):
"Your Honour I've prepared some written submissions, obviously enough they've been prepared prior to the evidence that's been heard and I may need to just put a line through something…"
"Perhaps I raise two matters, these submissions I must confess were prepared somewhat late last night and I picked up a piece of paper the supply matter that's on a Form 1. I have in fact had to put a line through it because the submissions were prepared under a misunderstanding in relation to that. I'll hand up the submissions and I apologise for the crossing out in texta."
23 It seems that Mr Dhanji then crossed out the reference in his submissions to a charge of supplying a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act as that charge had been included on a Form 1. Mr Lange points to the crossing out of the second charge and to the retention in the document of the statement that the amount of the drug was 392 grams.
24 The following paragraphs in Mr Dhanji's submissions are of particular relevance and are said by Mr Lange to support the submission that Mr Dhanji's understanding of the offence for which the applicant was being sentenced was confined to the actual supply of cocaine:
" The objective gravity of the offence
4. The primary offence involved the actual supply of cocaine to an undercover operative. The initial supply on 20 December 2005 involved 56g. Subsequent supplies involved 112g. The total amount supplied was 392g. The commercial quantity in relation to cocaine is 250g. The large commercial quantity is 1kg.
…
9. In addition, the amount of the drug, 392 grams, is at the lower end of the scale in relation to the commercial quantities
(250g - 1kg)."
25 The written submissions had been drafted the previous night. It appears that at the time of drafting Mr Dhanji understood the primary offence to be that of actual supply. Paragraph 4 contains errors of fact. 112 grams was the amount agreed to be supplied whereas subsequent actual supplies amounted to 329 grams.
26 In discussions with counsel which followed the tender of the submissions, the Judge referred to "the large amount", "the large amounts" and "the large quantities" of the drugs.
27 When oral submissions had been completed, the Judge sentenced the applicant. During his sentencing remarks, the Judge said that "the facts in this matter are set out in full in exhibit A3". His Honour then detailed the four occasions of actual supply and went on to say (ROS p 2):
"During that period on 17 January the offender also agreed to supply 112 grams but no actual supply in that amount was made or any money received for it.
In total during the stated period the offender supplied to the undercover police operative 383.1 grams which had a total purchase value of $91,600.00 and he agreed to supply 112 grams (emphasis added). The amount of $65,600.00 was not recovered."
And further (ROS at p 3):
"It is to be noted that for this particular charge the supply of 250 grams or more brings it into the not less than commercial quantity and the upper end of the range of commercial quantity is one kilogram or 1,000 grams. Accordingly the 383.1 grams which was supplied is a little below the halfway mark and about the halfway mark when you add the 112 which was not supplied but which he did agree to supply (emphasis added). The purity percentages are reasonably high."
28 His Honour's remarks, to my mind, made it clear that the applicant was being sentenced not only for the 383.1 grams which had actually been supplied but also for the 112 grams agreed to be supplied. It is not a reasonable possibility that experienced defence counsel could have understood the Judge to be referring to the 112 grams as demonstrating the factual scenario in which the offence occurred.
29 When the Judge had completed his ex tempore remarks on sentence, he asked Mr Dhanji:
"I take it there are no matters I should have mentioned or no corrections?"
to which Mr Dhanji responded that there was nothing to be raised.
30 It is not a reasonable possibility in the circumstances of the sentencing hearing that experienced defence counsel would not have raised with the Judge that his client had been sentenced on an incorrect basis if that had been the case. The written submissions, it is apparent, were prepared the night before with a degree of confusion and perhaps haste. I am satisfied that nothing was raised as defence counsel and the applicant were aware at the time of the proceedings on sentence that the offence for which the applicant was being sentenced included the agreement to supply 112 grams of cocaine.
31 The fact sheets detailed the actual supply of 383.1 grams of cocaine and the agreement to supply 112 grams of the prohibited drug. The particulars of the amount of the supply had been varied to 495.1 grams. His Honour was obliged to take into account on sentence the 112 grams of cocaine that the applicant had agreed to supply and the principle in R v De Simoni was not breached. No error has been established and the second ground of appeal fails.
32 I turn to the first ground of appeal.
33 The applicant contends that the sentence imposed upon his co-offender Wajde Hamid gives rise to a justifiable sense of grievance on his part.
34 Wajde Hamid pleaded guilty to three counts of supply of the prohibited drug cocaine contrary to s 25(1) of the Drug Misuse and Trafficking Act and was sentenced by the Judge on 20 July 2007 to a total effective term of imprisonment of three and a half years with an effective non-parole period of one year and nine months. The maximum penalty for an offence contrary to s 25(1) disposed of upon indictment is imprisonment for 15 years or 2,000 penalty unit fine or both. There is no standard non-parole period prescribed for this offence.
35 Mr Lange contends that during the proceedings on sentence the Crown took the view that any difference in the criminality of the applicant and Hamid arose from the nature of the charge. The applicant had been charged with one count of supply of not less than the commercial quantity of cocaine contrary to s 25(2) whereas Hamid had been charged with three counts of supply contrary to s 25(1). Mr Lange points out that the total quantity of cocaine, which was the subject of the three charges preferred against Hamid, amounted to 275 grams - itself over the commercial quantity. It would have been open to charge Hamid, Mr Lange contends, with one count of supplying a commercial quantity of a prohibited drug. Mr Lange cites what was said in R v Kerr [2003] NSWCCA 234 by Miles AJ (with whose judgment Beazley JA and Adams J agreed) at [13]: