Reported Decision : (2002) 128 A Crim R 44 New South Wales Court of Criminal Appeal CITATION : R v MacDonnell [2002] NSWCCA 34 FILE NUMBER(S) : CCA 60690/01 HEARING DATE(S) : 4/2/02 JUDGMENT DATE : 5 March 2002 PARTIES : Regina Glen Lawrence MacDonnell JUDGMENT OF : Wood CJ at CL at 1; Sully J at 60; Dowd J at 61 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0321 LOWER COURT JUDICIAL Woods DCJ OFFICER : COUNSEL : R A Hulme (Crown) S J Odgers SC (Respondent) SOLICITORS : S E O'Connor (Crown) Watsons (Respondent) CATCHWORDS : CRIMINAL LAW - Crown appeal against sentence - supply of heroin, methylamphetamine and cocaine - manifest inadequacy of sentence due to significant role played by respondent in supply - trial judge incorrectly assessed respondent's level of contrition, and the utiilitarian value of late plea of guilty - discount for asssitance erroneously applied wholly to the non parole period - excessive weight given to subjective circumstances - accumulation of sentence more appropriate than concurrency due to duration, frequency and volume of drug supply - appeal allowed - respondent resentenced. Crimes (Sentencing Procedure) Act 1999; s 23, 44(2) LEGISLATION CITED : Criminal Appeal Act 1912 ; s 5D Drug Misuse and Trafficking Act 1985; s 32, 33(3a) AB v The Queen (1999) 198 CLR 111 Cameron v The Queen [2002] HCA 6 Dinsdale v The Queen (2000) 74 ALJR 1538 Everett v The Queen (1994) 181 CLR 295 House v The King (1936) 55 CLR 499 Pearce v The Queen (1998) 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295 Regina v Allpass (1993) 72 A Crim R 56 Regina v Cartwright (1989) 17 NSWLR 243 Regina v Charles Michael Cassar [1999] NSWCCA 152 Regina v Ceissman [2001] NSWCCA 73 Regina v Darwiche [1999] NSWCCA 297 CASES CITED: Regina v Giam (No. 2) (1999) 109 A Crim R 348 Regina v Glasby [2000] NSWCCA 83 Regina v Khaled Hamzy (1994) 74 A Crim R 341 Regina v Syed Tareq Hameed [2001] NSWCCA 287 Regina v Laurentio and Becheru (1992) 63 A Crim R 402 Regina v Qing Quan Liang NSWCCA, 2 June 1995 Regina v Paul Kon Lim, NSWCCA 28 September 1993 Regina v Lowe (1984) 154 CLR 606 Regina v Reid [2000] NSWCCA 166 Regina v Thomson and Houlton (2000) 49 NSWLR 383 Regina v Williams, NSWCCA 24 July 1990 Vogel v Anderson (1967) 120 CLR 157 Wong and Leung v The Queen (2001) 76 ALJR 79 DECISION : Appeal allowed. Sentences in respect of counts 1 and 3 quashed. Respondent resentenced. See para 56. - 1 -IN THE COURT OF CRIMINAL APPEAL 60690/01 WOOD CJ at CL SULLY J DOWD J Tuesday 5 March 2002 REGINA v GLEN LAWRENCE MACDONNELL Between 1997 and 1998, police officers conducted a covert investigation into the suspected drug activities of the respondent and his nephew. A large quantity of Heroin, Methylamphetamine and Cocaine was seized. His Honour concluded that the respondent was a substantial dealer, whereas his nephew played a limited role. The respondent initially pleaded not guilty to all charges laid against him, but changed his plea during the trial, pleading guilty to the charges of supply not less than large commercial quantity of heroin, supply not less than a large commercial quantity of methylamphetamine, and supply of cocaine. The maximum penalty for the respondent's offences is a fine of 5000 penalty units, life imprisonment or both. On 23 Aug 2001, sentence was passed in the following terms: 1 Supply not less than large commercial quantity of heroin: imprisonment for 9 years with a non-parole period of 4 years 6 months. 2 Supply not less than a large commercial quantity of methylamphetamine: Imprisonment for 7 years with a non-parole period of 4 years. 3 Supply cocaine: Imprisonment for 2 years. The sentences were ordered to be served concurrently because his honour held that each offence was part of one continuous exercise. The effective overall sentence was 9 years with a non-parole period of 4 years 6 months. This sentence incorporated a discount of 25% for the respondent's plea of guilty. The crown now appeals the leniency of the sentence. Held: (Allowing the appeal on all grounds): Ground 1: The sentence was manifestly inadequate The role of the offender is more important than the quantity of drugs when sentencing drug offenders. This is subject to the fact that supply offences under state law have an increased penalty as the quantity of drug moves to the level that answers a description of a commercial, or large commercial quantity. When proper attention is given to the need for consistent sentences to those who are significantly involved in the supply chain of drugs such as heroin and amphetamines, then the conclusion is that there must have been a misapplication of principle. Wong v. R (2001) 76 ALJR 79 Applied ; R v. Dang, NSWCCA, 7 Nov 1997 , R v. Laurentio and Becheru (1992) 63 A Crim R 402, R v. Lim, NSWCCA, 28 September 1993 , R v. Hamzy (1994) 74 A Crim R 341 , R v. Liang, NSWCCA, 2 June 1995, R v. Cassar [1999] NSWCCA 152, R v. Hameed [2001] NSWCCA 287 cited. Ground 2: The plea discount of 25% was not one which was properly available upon the evidence The respondent should have received a modest discount in the order of 10% for his displayed willingness to facilitate the course of justice. This is because the pleas of guilty were made over three years after the respondent was arrested, they came after a jury had been empanelled, and they directly followed a ruling made by the trial judge in relation to the admissibility of evidence that was adverse to the respondent. The case was not one where the first reasonable opportunity to plead depended on that ruling. R v. Thomson and Houlton (2000) 49 NSWLR 383 cited; Cameron v. R [2002] HCA 6 applied. Ground 3: The sentence adjustment made by reference to the respondent's assistance, led to a non-parole period which was unreasonably disproportionate to the nature and circumstances of the offence The sentence imposed, particularly the non-parole component, was disproportionate to the objective criminality involved. The respondent is entitled to have the court take into account the assistance he gave to the authorities, and it is also proper to take it into account as a special circumstance. However, it was erroneous to apply the discount for assistance wholly to the non-parole period. The approach taken was likely to skew the whole sentencing exercise, particularly after a large discount had been given for the pleas of guilty. The combined discount for the pleas of guilty and for the assistance should have been in the order of 40%. R v. Cartwright (1989) 17 NSWLR 243, R v. Darwiche [1999] NSWCCA 297 cited. Ground 4: Error in directing that the sentences be served concurrently The correct approach in determining whether sentences should be served concurrently is to first fix the appropriate sentence for each offence, and then to consider questions of accumulation, concurrence and totality. Here, his honour first ordered that the sentences be served concurrently, then determined the sentence for each offence. In any event, having regard to the duration of the criminality, the quantity of drugs in which the respondent dealt, and the fact that the charges relate to an extended period of time, not merely to the seizure of drugs made by the police on March 1998, the present case called for some accumulation of sentence, in order to reflect the criminality involved. Pearce v. R [1998] HCA 57 applied. R v. Williams , NSWCCA, 24 July 1990, R v. Allpass (1993) 72 A Crim R 56, Everett v. R (1994) 181 CLR 295, Dinsdale v. R (2000) 202 CLR 321, R v. Rose , NSWCCA, 23 May 1996, R v. Giam (No. 2) (1999) 109 A Crim R 348, R v. Ceissman [2001] NSWCCA 73, R v. Lowe (1984) 154 CLR 606 at 610, Postiglione v. R (1997) 189 CLR 295, R v. Reid [2000] NSWCCA 166, R v. Glasby [2002] NSWCCA 83 cited. Orders: 1 Appeal allowed; 2 Sentence in respect of counts 1 and 3 quashed; 3 Respondent sentenced in relation to supply large commercial quantity of methylamphetamine to imprisonment for 8 years with a non-parole period of 5 years. 4 Respondent sentenced in relation to supply large commercial quantity of heroin to imprisonment for 9 years with a non-parole period of 5 years, to be served partly concurrently, and partly cumulative upon the sentence for supply large commercial quantity of methylamphetamine. 5 Total sentence of 11 years, with non-parole period of 7 years. In passing sentence, allowance has been given for the pleas of guilty and for assistance given. IN THE COURT OF CRIMINAL APPEAL 60690/01 WOOD CJ at CL SULLY J DOWD J Tuesday 5 March 2002 REGINA v GLEN LAWRENCE MACDONNELL Judgment 1 WOOD CJ at CL: This is an appeal by the Director of Public Prosecutions, pursuant to s 5D of the Criminal Appeal Act 1912 against sentences imposed upon the respondent by his Honour Judge Woods QC in the District Court at Sydney on 23 August 2001. 2 On 30 April 2001 the respondent appeared for trial before his Honour and a jury. He was arraigned upon an indictment containing a charge of supply not less than a large commercial quantity of heroin, (in the alternative supply commercial quantity of heroin); a charge of supply not less than a large commercial quantity of methylamphetamine, (in the alternative supply commercial quantity of methylamphetamine); and a charge of supply cocaine. The respondent pleaded not guilty to each count. 3 In the absence of the jury, and before any evidence had been called, his Honour made a number of rulings in respect of the admissibility of certain listening device evidence. Following his Honour's rulings on 3 May 2001 that the material was admissible, the respondent pleaded guilty to the two counts of supplying not less than the large commercial quantity of a prohibited drug (heroin and methylamphetamine respectively) and to the count of supplying cocaine. 4 The maximum penalty under s 33(3)(a) of the Drug Misuse and Trafficking Act 1985 for each of the offences relating to the supply of a large commercial quantity of a prohibited drug, is a fine of 5000 penalty units or imprisonment for life, or both. S 32 of the same Act provides that the maximum penalty for the supply cocaine offence is a fine of 2000 penalty units, or imprisonment for a term of 15 years or both. 5 On 23 August 2001, his Honour passed sentence in the following terms: - "Count 1: SUPPLY NOT LESS THAN THE LARGE QUANTITY OF HEROIN Imprisonment for a term of 9 years, commencing from 23 August 2001. A non-parole period of 4 years and 6 months, to expire on 22 February 2006. Count 3: SUPPLY NOT LESS THAN THE LARGE COMMERCIAL QUANTITY OF METHYLAMPHETAMINE Imprisonment for a term of 7 years and 6 months, commencing from 23 August 2001. Non-parole period of 4 years, to expire on 22 August 2005. Count 5: SUPPLY COCAINE Imprisonment for a term of 2 years, commencing from 23 August 2001 ." 6 It is necessary to add, in relation to the ultimate sentencing order made, that initially the sentence imposed for the heroin offence had been one of nine years, with a non-parole period of six years, while that for the methylamphetamine offence had been one of seven and a half years, with a non-parole period of five years. 7 After it was drawn to the attention of his Honour that he may have overlooked certain material, provided on a confidential basis, which was of relevance pursuant to s 23 of the Crimes (Sentencing Procedure) Act 1999, his Honour reduced the respective non-parole periods for the two offences to four and a half years, and four years respectively. The head sentences were not altered. The effective overall sentence, by reason of the fact that the sentences were directed to be served concurrently, was accordingly one of nine years, with a non-parole period of four and a half years. FACTS 8 Between September 1997 and 9 March 1998, police officers attached to Operation Canfield conducted a covert investigation into the suspected drug activities of the respondent and a co-offender, the respondent's nephew Kieron MacDonnell. During the course of the operation it became apparent that both men were regularly visiting a flat at Croydon Park, which was leased by a seventy four year old woman named Doris Curtis. 9 On 9 March 1998, the respondent was arrested, and police executed a search warrant at the flat. There they located a number of bags containing drugs, which were tested and found to comprise: "HEROIN 3164.9 grams, 83% purity, street value $6,156,970.00 METHYLAMPHETAMINE 9032.2 grams, above average purity, street value $1,432,890.00 COCAINE 63.8 grams, street value $21,673.00" 10 The large commercial quantity for both heroin and methylamphetamine is 1kg, a quantity which, in each instance, was well exceeded. Moreover, of significance in the present case was the fact that the heroin and methylamphetamine were of considerable purity. 11 Ms Curtis initially denied any knowledge of the drugs, but later provided a number of induced statements outlining her knowledge of the respondent's activities, which were consistent only with extensive and long standing dealings in drugs on his part. She was granted an immunity, and gave evidence at the committal proceedings against the respondent and his nephew, by which time she was aged 75 years. 12 His Honour found that in order to avoid detection, the respondent and his nephew had procured the use of her flat to store the drugs. It was apparent from the evidence, as found by his Honour, that she was being paid money for the use of her premises, and that she had supplied the respondent with keys to them. Surveillance showed the respondent or his nephew, or both of them, going to the premises from time to time, and collecting drugs, which were then offered for sale on the street. The premises, his Honour found, were "used for storing, breaking up and preparation for the on-supply of the drugs". 13 Ms Curtis' statement, a number of listening device transcripts, and a chronology of the police operation, were tendered as part of the Crown case on sentence, together with a number of analyst's certificates and statements relating to the value of the drugs seized. His Honour found, by reference to this material, that the respondent was "substantially involved in the selling" of heroin and methylamphetamine, and possibly other drugs. The listening device material, his Honour said, was "damning of (the respondent). It clearly shows (him) actively supplying heroin and the methylamphetamine, it shows his involvement with various criminal associates with drugs, and it shows his active pursuit of drug deals". 14 In summary, his Honour drew the conclusion that the respondent was "in relation the heroin and the cocaine (sic) [presumably a slip of the tongue for methylamphetamine] a substantial dealer consistent with his possession and control with associates of large commercial quantities of heroin and methylamphetamine." In addition, his Honour said "as to the cocaine, I have no doubt that he himself had a habit and used it, and that in part his drug dealing in heroin and methylamphetamine was aimed at financing his own drug habit." 15 It is apparent from these findings that his Honour accepted that the drugs seized during the search were merely part and parcel of an ongoing activity or venture for the supply of the drugs in question. Accordingly, it is not the case that the offences charged and proved by the pleas of guilty, were confined to charges of deemed supply referable merely to the quantities of drugs found by the police. 16 On 20 October 2000, Judge Woods sentenced Kieron MacDonnell, after he had pleaded guilty to one count of supplying heroin simpliciter, that is, without reference to the aggravating circumstances involved where the offence was one of supply in a commercial or large commercial quantity. In the course of the remarks on sentence his Honour referred to the basis upon which Kieron MacDonnell had been sentenced in the following terms: "… I accept that Kieron MacDonnell played only a limited role in the operation. He was a driver for Glen MacDonnell. He tied elastic bands around plastic bags on occasions when Glen MacDonnell was breaking up larger heroin blocks, and he occasionally would assist Glen MacDonnell getting out an esky from the linen press where some drugs were kept. That Kieron MacDonnell was part of the operation was exemplified by the fact that he was paid money by Glenn on a regular basis. Precisely how much is not clear, but he was certainly a paid employee in the exercise. " 17 The sentence imposed upon him was one of imprisonment for two years and three months, with a non-parole period of one year. There has been no appeal by the Crown in relation to it. 18 His Honour expressly gave consideration to the question of parity noting that there were "powerful points of distinction" between the two offenders in that: (a) The respondent was to be sentenced for three offences of supply, two of which involved a large commercial quantity; (b) Kieron MacDonnell had no prior adult convictions, whereas the respondent had an extensive record, including a prior drug conviction; (c) Kieron MacDonnell was in his early twenties, whereas the respondent was a mature man in his mid forties; and (d) Kieron MacDonnell pleaded guilty at a much earlier point in the proceedings. 19 His Honour came to the conclusion, which appears to me to have been the only one properly open upon the evidence, that as between himself and his nephew, the respondent was the principal. His Honour added that this was not to say that others were not also involved, including in all probability, one other named person who may have supplied drugs to the respondent and to his nephew for on-sale. 20 As I understand his Honour's findings, which would appear to me to be supported by the evidence, the respondent was significant in the distribution chain, being the recipient from others of substantial quantities of drugs, which he then packaged and prepared, preparatory for on-sale to consumers. The significance of his role in this regard, was indicated by the fact that he was dealing in substantial quantities of drugs and by the fact that they were of high purity, the expectation clearly being that they would be cut before finding their way eventually to end users. In my view his role was far more significant than that of a street dealer, or even of a lower level distributor. It was, no doubt, less than that of those who had arranged the importation of the drugs, or the manufacture of the methylamphetamine, if it was produced locally. However, whatever be the case in that regard, it remains clear that he was a significantly involved player in the commercial supply of the substances heroin, methylamphetamine and cocaine. SUBJECTIVE FEATURES 21 A psychologist's report, prepared by Ms Megan Macdonald, and a pre sentence report, were tendered. 22 These documents showed that the respondent had been born on 23 February 1954. He had a number of prior criminal convictions, the most significant being a charge of supplying heroin, which was dealt with in 1993, and in respect of which he had served a minimum term of eight months' imprisonment. 23 The material also showed that he was the oldest in a family of seven siblings; that his parents had divorced when he was twelve years old; and that he had thereafter assumed a position of responsibility in the household. 24 The respondent, it was disclosed, had spent most of his working life involved in the harness racing industry as a professional form analyst and punter. He married at the age of forty one, and reported that he had become emotionally and financially burdened by the responsibility of providing for his family, which included two children. It was said that it was at this time that he became acquainted with others in the drug trade, and commenced drinking, and using cocaine. His Honour noted, correctly, that while the personal and financial pressures were regrettable and understandable, they did not provide any excuse for his criminality. 25 Positive character references were tendered, which painted him as a loving husband and father. This was a somewhat curious observation on the part of the persons who provided those references, since they were given in relation to a man who had become significantly involved in the drug trade, that being a trade which creates such pernicious risks for the young. His Honour however, accepted him to be a person who had a sincere concern for his own family, and who was not violent by disposition. 26 The psychologist reported that the respondent was "suffering from a long standing severe clinical depression (with suicidal ideation) whose content at least partly refers to catastrophic, personal and material losses resulting from his criminal activities." His Honour appropriately noted that depression was to be expected in a person facing imprisonment for serious criminal misconduct. He went on to find however, that his depression had contributed to the lateness of his plea. That is a finding for which neither I nor counsel can find support, in the material placed before his Honour. It was not a finding properly open. STRUCTURE OF THE SENTENCE 27 In sentencing the respondent, his Honour said that he intended to impose concurrent sentences " because it seems to me that it is one continuous exercise which was being embarked upon by those involved, the drugs were different, but they were part of the one continuous exercise, and indeed in the evidence of the listening devices it is sometimes difficult to distinguish between the heroin and the amphetamine." 28 For the plea of guilty his Honour allowed a discount of 25%, finding that it involved contrition, and had a utilitarian benefit, and also finding, as I have already noted, that the respondent's "mental state" would have contributed to the lateness of the plea. But for it, his Honour indicated, the sentence for the heroin offence would have been one of twelve years' imprisonment. Upon the assumption that the same approach was taken in relation to the amphetamine offence, the starting point for it would presumably have been one in the order of ten years' imprisonment. 29 Special circumstances were found, referable to the respondent's need for rehabilitation and drug treatment; and presumably, although his Honour did not specifically say so, by reason of the assistance which he had initially overlooked. THE APPEAL 30 The Crown submitted that his Honour fell into error in that:- (a) the sentence did not adequately reflect the objective gravity of the offences for which the respondent was to be sentenced; (b) the discount given for the plea was not one which was properly available upon the evidence; (c) the adjustment which was made to the sentence by reference to the respondent's assistance, led to a non-parole period which was unreasonably disproportionate to the nature and circumstances of the offences. (d) the approach taken, in directing that the sentences be served concurrently, contravened the principle established by the decision of Pearce v The Queen (1998) 194 CLR 610; and 31 In my view, each of these submissions has been made good. (A) MANIFEST INADEQUACY 32 In relation to manifest inadequacy it is to be accepted that appellate intervention is not justified simply because the result arrived at below is markedly different from sentences imposed in other cases; or because it is less than that which the Court of Criminal Appeal would have itself imposed if sentencing at first instance. As Gaudron, Gummow and Hayne JJ pointed out in Wong and Leung v The Queen (2001) 76 ALJR 79 at para 58: " Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons." See also House v The King (1936) 55 CLR 499 at 504-505 and Dinsdale v The Queen (2000) 74 ALJR 1538. 33 It is also to be accepted that the mere quantity of the drugs is not the sole, or even the principal, determinant for sentencing in relation to drug offences. What is more important is the role of the offender, and the level of his or her participation in the offence; subject of course to the fact that, in relation to supply offences under State law, there is a gradation of seriousness reflected by an increase in penalty as the quantity of drug involved moves into those levels which answer the descriptions of a commercial quantity, or of a large commercial quantity. 34 What was important, in the present case, was that the heroin and the amphetamine offences did not relate solely to the drugs found at the time of the search, which, in any event, themselves had a street value in the order of $7.6 million. They related to offences of supply over at least the period covered by the listening device tapes; and, upon the basis of Ms Curtis' evidence, there was an involvement over a somewhat longer period. On any view, the venture to which the respondent became a party was one of considerable proportions, and one in which he occupied a significant role. The evidence showed, moreover, that he elected to maintain his involvement in this activity, even though he suspected at one stage that he had come under police notice. 35 The Courts have long stressed the need, in cases such as the present, for sentencing Judges to impose condign sentences which appropriately reflect the elements of retribution, punishment and deterrence, both personal and general: see Regina v Quang Vinh Dang, NSWCCA, 7 November 1997 and Regina v Laurentio and Becheru (1992) 63 A Crim R 402. 36 When the objective criminality of the respondent is compared with the maximum available sentence; and when proper attention is given to the need for condign sentences in relation to those who are significantly involved in the supply chain for the substances of heroin and amphetamines; then I am left with the firm conclusion that there must have here been some misapplication of principle. 37 In particular, I am satisfied that the starting points for the heroin and methylamphetamine offences which his Honour identified were lower than a proper application of principle required. That this is so is indicated by the five decisions cited in argument by the Crown, in three of which assistance had been given by the offender. Those cases were Regina v Paul Kon Lim, NSWCCA 28 September 1993, Regina v Khaled Hamzy (1994) 74 A Crim R 341, Regina v Qing Quan Liang NSWCCA, 2 June 1995, Regina v Charles Michael Cassar [1999] NSWCCA 152, and Regina v Syed Tareq Hameed [2001] NSWCCA 287. 38 In each of those cases, with the exception of the last mentioned case - where there was an extremely high level of immediate assistance given, which required that the respondent go into protection, and which was likely to require a change of identity, and or continued protection post-release - the overall sentences or minimum terms which were either confirmed or increased on appeal exceeded that imposed by his Honour. 39 In the present case the material provided also discloses that assistance was offered by the respondent, albeit some years after his arrest, and that such assistance has continued. It has been assessed as being reliable and of considerable value, and it may have potentially adverse effects for the respondent. I see no reason to disagree with that assessment having read the material. To its significance I shall return. (B) DISCOUNT FOR PLEAS OF GUILTY 40 I am of the view that there was error disclosed in his Honour's approach to discounting the sentence for the pleas of guilty. Those pleas were made over three years after the respondent was arrested. They came after pleas of not guilty had been entered and a jury empanelled; and they followed a ruling adverse to the respondent in relation to the admissibility of the listening device material. They also came after committal proceedings had been held, in which a seventy five year old woman had been required to attend for cross examination, and in circumstances where there was a risk that she may not have survived until the trial. 41 In no circumstances could the pleas be properly regarded other than as pleas offered at the last moment; and as such they involved a very late acceptance of responsibility on the part of the respondent. 42 It was also not open, in my view, for his Honour to have regarded the plea of guilty in this case as one reflecting contrition, when it was only entered after failing to have the trial Judge exclude the listening device evidence. Such contrition, as was otherwise noted in the presentence report or the psychologist's report, was more related to the personal predicament in which the respondent found himself, to his own embarrassment; and to the consequences it has had for his family, than it was for the community, which is placed at such great risk by those who trade in drugs. No insight whatsoever, in this respect, can be discerned in the material placed before his Honour. For that reason I cannot see why it was open to his Honour to provide anything other than a modest discount for the respondent's displayed willingness to facilitate the course of justice (Cameron v The Queen [2002] HCA 6), or for contrition. 43 In Regina v Thomson and Houlton (2000) 49 NSWLR 383, after indicating an appropriate range for discount for what was there identified as utilitarian reasons, alone of 10-25%, Spigelman CJ said at para 154:- " There are.. two circumstances which will generally affect the appropriate level of discount in a particular case: (i) The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial. (ii) The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea ." 44 This decision needs now to be considered in the light of Cameron v The Queen [2002] HCA 6, a decision handed down after the sentence was imposed. It does not, however, call for any different value to be attached to the willingness of the Respondent to facilitate the course of justice in this case. In that regard, the ruling on the admissibility of the listening device evidence did not delay the time which should be considered as having been the first responsible opportunity to plead. Its admission was not as essential to the Crown case which already was strong. Nor did the fact of the late plea demonstrate much, if anything, by way of contrition. 45 In case there should be a misapprehension that a discount of 25% is routinely to be extended for pleas of guilty, either by reference to the Cameron factors, that is, for their display of an acceptance of responsibility and a willingness to facilitate the course of justice, or for the additional fact of contrition, then that notion should be rejected. It does not reflect the result of the decision in Thomson and Houlton or Cameron. In my view, the discount in this case, properly considered, should have fallen markedly towards the bottom end of the range to which the Chief Justice referred. (C) DISCOUNT FOR ASSISTANCE AND SPECIAL CIRCUMSTANCES 46 The Court is necessarily constrained in relation to any disclosure of the contents of the material provided to it in the sealed envelopes, beyond recording the assessment which I have previously noted as to its reliability and value. Clearly, the respondent was entitled to have that assistance, taken into account in his favour, in accordance with the decisions of this Court in Regina v Cartwright (1989) 17 NSWLR 243 and Regina v Darwiche [1999] NSWCCA 297. 47 It was also properly a matter to be taken into account as a special circumstance; as was his Honour's assessment that the respondent was in need of an extended period of conditional release, subject to supervision, in order to foster his rehabilitation. Although his Honour also saw a post-release need to deal with his earlier history of drug abuse, the evidence in that regard tended to point somewhat in the opposite direction, since both the presentence report and the psychologist's report suggested that he had overcome his habit and was unlikely to return to it. Nevertheless, I would be prepared to assume that reinforcement of his need to avoid drugs in times of personal stress could be beneficially addressed during a period of release on parole. 48 The error, as I see it, in this regard, lies in the fact that the discount referable to the assistance was applied wholly to the non-parole period, an approach which was only likely to skew the whole sentencing exercise, particularly after an excessive discount had been given for the pleas when fixing the head sentences. 49 In my view, if a two stage sentencing process was to be undertaken, the combined allowance, for the pleas of guilty and for the assistance, should have been in the order of 40%. 50 The sentence imposed, and particularly the non-parole component, when taken as a whole was, in my view, disproportionate to the objective criminality involved, and was one which gave excessive weight to the subjective circumstances of the offender. The error thus arising was compounded by the consideration to which I next turn. (D) CONCURRENT SENTENCES 51 Contrary to the correct approach indicated in the judgment of McHugh, Hayne and Callinan JJ in Pearce v The Queen (1998) 194 CLR 610 at 624 – to first fix the appropriate sentence for each offence, and then to consider questions of accumulation, concurrence and totality - his Honour first considered it appropriate to order the sentences to be served concurrently, and then determined the sentence appropriate for each offence. 52 The reason why his Honour took this approach appears also to have involved error, in as much as it failed to pay regard to the fact that the respondent was trafficking in a substantial way, in particular in two separate drugs, heroin and methylamphetamine, over an extended period; and that the charges were not confined to the events of 9 March 1998. In that regard, the terms of the intercepts, as well as the sheer monetary value of the drugs which were still on site after a period of time in which drugs had clearly been taken from the premises and sold, indicates that this was not a case of the type that involves a single episode; or one that involves several connected, but substantially contemporaneous, offences, such as that considered for example in Regina v Williams, NSWCCA, 24 July 1990 – see also Vogel v Anderson (1967) 120 CLR 157 at 158. 53 Having regard to the duration of the criminality, and the considerable quantities of separate drugs in which the respondent dealt, and which he had in his possession when arrested, the present was a case which, in my view, called for some accumulation of sentence, in order to reflect the total criminality involved. 54 In all of these circumstances I am of the view that error has been shown, and that, subject to the principle of double jeopardy, and to the residual discretion of the Court in Crown appeals which was noted in Regina v Allpass (1993) 72 A Crim R 56, Everett v The Queen (1994) 181 CLR 295 and Dinsdale v The Queen, the Court should intervene. If it does so, then it is additionally necessary to note that the sentence imposed should be the least which should have been set below: see Regina v Rose NSWCCA, 23 May 1996, Regina v Giam (No. 2) (1999) 109 A Crim R 348 and Regina v Ceissman [2001] NSWCCA 73. 55 Additionally, it should not be one which would lead, by reference to parity with the sentence imposed upon Kieron MacDonnell, to a justifiable sense of grievance on the respondent's part: see Regina v Lowe (1984) 154 CLR 606 at 610 and Postiglione v The Queen (1997) 189 CLR 295. This further consideration is, however, subject to the qualification that there is no obligation to apply the principle of parity, where the earlier sentence was manifestly inadequate, or where the differences between the two offenders justifies a different result: see Regina v Reid [2000] NSWCCA 166 at para 16 and Regina v Glasby [2000] NSWCCA 83. The present case, particularly for the reasons identified by his Honour, in relation to the respective roles of the two offenders, and the different number of offences proffered against them, comes within the qualification. 56 In my view, the inadequacy of the sentences for the offences involved was such that this Court should resentence the respondent, notwithstanding the residual discretion which it has; and after taking into account the additional material which was tendered on his behalf. That material, which was in the form of a report from the alcohol and drug officer, noted that the respondent had made contact with the service on 11 October 2001, and has been demonstrating a willingness to continue to address his drug addiction and his descent into criminal activity. It also shows that he has maintained abstinence while in custody. 57 Taking this material into account, and having regard to the principles which govern Crown appeals against leniency, I would propose the following orders:- (1) appeal allowed; (2) sentences in respect of counts 1 and 3 quashed; (3) the respondent be sentenced, in relation to count 3 (supply large commercial quantity of methylamphetamine) to imprisonment for 8 years, to date from 23 August 2001, and to expire on 22 August 2009, with a non-parole period of 5 years, also to date from 23 August 2001, and to expire on 22 August 2006; (4) the respondent be sentenced in relation to count 1 (supply large commercial quantity of heroin) to imprisonment for 9 years, to date from 23 August 2003, and to expire on 22 August 2012, with a non-parole period of 5 years, to date from 23 August 2003, and to expire on 22 August 2008, such sentence to be served partly concurrently with and partially cumulatively upon the sentence for count 3; (5) the earliest date upon which the respondent would be eligible for release on parole would accordingly be 23 August 2008. This would result in a total sentence of 11 years, with a non-parole period of 7 years. 58 In fixing those sentences I have given allowance for the plea of guilty and also for the assistance which I have noted. I would leave the sentence for count 2 unaltered; and I would find special circumstances in relation to the assistance provided, and the need to further the respondent's rehabilitation, as well as the need to address his earlier drug addiction and earlier issues which led to his descent into serious criminality. Those special circumstances are such as to vary the proportion which the non-parole period bears to the head sentence for each count, and also for the overall sentence, from that specified in s 44(2) of the Crimes (Sentencing Procedure) Act 1999. 59 I observe that, in this case, his Honour adopted the two-stage sentencing process which has been criticised in particular by McHugh and Hayne JJ (in AB v The Queen (1999) 198 CLR 111; see also, Wong and Leung v The Queen (2001) 76 ALJR 79 at para 64 per Gaudron, Gummow and Hayne JJ.), despite the transparency which it brings to the sentencing process, as noted by Kirby J in Cameron v The Queen [2002] HCA 6. I would not find error, on his Honour's part, in following that approach and in giving consideration to an appropriate starting point, against which the factors of assistance and of the plea could be considered. Unless they are given separate consideration, whether specifically quantified in the reasons or not, it is difficult to understand how the "instinctive synthesis" approach can be applied, or how it can result in a "single appropriate sentence". However, even if that approach is taken, with its recognised advantage of ensuring a proper balance of the objective and subjective factors, without any overlap in discounts for individual factors, which might skew the outcome, I am confirmed in my view that the sentences here imposed were so manifestly lenient as to require appellate correction. 60 SULLY J: I agree with Wood CJ at CL 61 DOWD J: I have read the judgment of Wood CJ at CL in draft form. I agree with the proposed orders and with his Honour's reasons. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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