Reported Decision : 168 A Crim R 237 New South Wales Court of Criminal Appeal CITATION: Walsh v Regina; Little v Regina [2006] NSWCCA 406 HEARING DATE(S): 15 August 2006 JUDGMENT DATE: 15 December 2006 JUDGMENT OF: McColl JA at 1; Grove J at 2; James J at 70 DECISION: Leave to Appeal Against Sentence ; Appeals Dismissed CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SENTENCE - MULTIPLE SERIOUS OFFENCES - INTER ALIA COMMERCIAL MANUFACTURE AND DISTRIBUTION OF AMPHETAMINES - LIFE SENTENCES AVAILABLE - POSSESSION OF WEAPONRY - ATTEMPT TO STEAL ATM WITH VEHICLES STOLEN FOR THAT PURPOSE - EXTREMELY HIGH LEVEL OF CRIMINALITY - SUBSTANTIAL BUT NOT INDETERMINATE SENTENCES IMPOSED - NO ERROR BY SENTENCING JUDGE NOR MISCARRIAGE OF SENTENCING DISCRETIONS Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Drug Misuse & Trafficking Act 1985 Firearms Act 1996 Weapons Prohibition Act 1998 Markarian v The Queen [2005] 79 ALJR 1068 Olbrich v The Queen (1999) 199 CLR 270 Pearce v The Queen (1998) 194 CLR 610 CASES CITED: R v Garforth, unrep, NSWCCA 23 May 1994 R v Kalache [2000] NSWCCA 2 R v Ngo [2003] NSWCCA 82 R v Redwood, unrep NSWCCA 19 March 1992 R v Simpson (2001) NSWLR 704 PARTIES: Richard James Walsh v Regina Todd Douglas Little v Regina FILE NUMBER(S): CCA 2005/2418; 2006/617 A. Francis (Apt: Walsh) COUNSEL: J. Stratton SC (Apt: Little) N. Noman (Crown/Respondent) SOLICITORS: Legal Aid Commission (Apts) S. Kavanagh (Public Prosecutions) LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 70005/03; 70209/03 LOWER COURT JUDICIAL OFFICER: Howie J LOWER COURT DATE OF DECISION: 28 February 2005 LOWER COURT MEDIUM NEUTRAL CITATION: Regina v Walsh & Little [2005] NSWSC 125 IN THE COURT OF CRIMINAL APPEAL 2005/2418 2006/617 McCOLL JA GROVE J JAMES J 15 December 2006 RICHARD JAMES WALSH v REGINA TODD DOUGLAS LITTLE v REGINA Judgment 1 McColl JA: I agree with Grove J. 2 GROVE J: It was convenient for applications for leave to appeal against severity of sentence imposed by Howie J by Richard James Walsh and Todd Douglas Little to be heard together as, in respect of respective major offences, a short summary of facts shows their interconnection. That is not to say, however, that there are not significant differences in the accumulation of crimes for which they stood for sentence. The effective imposition upon Walsh amounted to a head sentence of thirty two years with a non parole period of twenty four years and upon Little to a head sentence of twenty two years with a non parole period of sixteen years six months. In the light of the substantial lengths of these sentences, leave to appeal in each case should be granted. 3 Walsh, born 13 November 1971, was, until1995 "an honest and productive member of the community" when he joined the Newcastle Chapter of what was described as the Nomad Outlaw Motorcycle Club. Many members of that club were users of methylamphetamine supplied by one of them, Johnny Skyrus, who cut and sold the pure drug which he had obtained from another member, Tony Vizi. Walsh commenced to assist Skyrus in distributing the drug. In March 1997 Skyrus died in a motorcycle accident and Walsh took over the illicit business. He was aided in its conduct by his de facto partner, Melinda Love, who performed the day to day activity of cutting the pure drug which was initially continued to be obtained from Vizi. 4 Paul and Anne Chapman were recruited into the criminal enterprise, the latter having been a cleaner employed by Walsh and Love. She tested the quality of the mixture of pure drug and cutting agent which had been performed by Love. Paul Chapman acted as a courier. One of his tasks was to convey pure drug from the applicant Little after he became a supplier. Little was engaged in manufacture in northern New South Wales and Chapman ferried the drug from there to Walsh in Newcastle. 5 Walsh and Chapman fell out over the loss of a valuable shotgun belonging to Walsh which had fallen into the hands of police and thereafter an associate of Little named Quinnell took over the courier role. In May 2001 Quinnell died in a motor vehicle accident and thereafter Walsh transported the pure drug himself. His routine was to hire a car and use it to make a return journey from Newcastle to Little's manufacturing plant. 6 Following the arrest of Chapman for an offence of armed robbery, police investigation into Walsh's activities commenced. On 22 September 2001 he was arrested shortly after leaving Little's property near Murwillumbah. 510 grams of methylamphetamine was found secreted in the door of the vehicle which he was driving. Subsequent analysis revealed it to be of 77.6 percent purity. 7 In coordinated action, police on that day executed a search warrant upon Walsh's house near Newcastle. Equipment for the cutting, packaging and distribution of the drug was found as well as an indictable quantity of methylamphetamine. Also seized were records relating to customers. Love was arrested and immediately volunteered to assist police. As a result of her information a storage unit at Sandgate was searched and therein located a large cache of firearms, ammunition, glassware, chemicals and a small amount of methylamphetamine. Later two industrial sheds at Wallsend, one owned by Walsh and the other rented by him were also searched and further firearms and quantities of ammunition seized. 8 In addition to his drug trafficking activity Walsh continued his former legitimate business of concreting and excavation contracting, however, he had organized the theft of a number of vehicles which were variously used in the business or were cannibalized for replacement parts for damaged vehicles. Walsh also made fraudulent claims on insurers in respect of vehicles allegedly stolen whereas, in truth, he had, after disguising them by repainting and removing identifying numbers, passed them to associates. As Howie J observed, criminal behaviour descended to receiving a stolen wheelchair which Walsh used while he was recovering from a motor vehicle accident. 9 In April 2000 Walsh organized the theft of two trucks, one of which had a crane mounted on it, for the purpose of stealing an automatic teller machine located in premises used by a real estate agency. One truck was reversed into the premises thus destroying much of the contents of the office. Whilst hoisting the ATM with the crane, it fell from the sling. Walsh and his co-offenders decamped in his vehicle, leaving behind the two trucks and the ATM which, at the time, contained $53,000. 10 Two indictments were presented against Walsh. Count 1 in the first indictment charged supply of not less than a large commercial quantity of the prohibited drug methylamphetamine between 7 March 1997 and 24 September 2001. To this count he pleaded guilty on 9 February 2004. The large commercial quantity is set by statute at one kilogram and Walsh, (with Love) had supplied approximately seventy five customers. He had, during the period, acquired about 50 kilograms of pure drug and supplied about 450 kilograms of it to customers after it had been cut. The prescribed maximum penalty for this offence is imprisonment for life. 11 On 15 November 2004 Walsh pleaded guilty to the three further counts on the first indictment charging possession of, respectively, a Smith & Wesson six chamber revolver, a .303 calibre Bren machine gun and an Australian manufactured silencer. These were part of the weaponry found in the storage at Sandgate. Each of these offences carried a maximum prescribed penalty of fourteen years imprisonment. 12 The unit at Sandgate had been leased in the name of Rodney Williams, a former employee of Walsh, who had entered the lease upon his instructions. Williams thereafter had no association with it, although the lease remained in his name. The rent was paid regularly and in cash. When arrested, Walsh was in possession of the keys to the unit. 13 His Honour was asked to take into account a further twenty five offences in accordance with the Form 1 procedure. He did so when assessing sentence on the third count of the indictment, that is possession of the Bren machine gun. 14 Twenty one of these offences related to other items seized from the Sandgate unit and were punishable under either the Firearms Act or the Weapons Prohibition Act. There were five prohibited firearms, two 12 gauge Mossberg repeating pump action shotguns, two Ruger self loading rifles and one Sterling self loading rifle; possession of six further firearms, a .44 calibre revolver of Italian manufacture, a Norinco self loading rifle, a .22 calibre North American Arms five chamber revolver, two .308 calibre Remington repeating rifles and one BRNO repeating rifle; a charge of possessing a shortened firearm; three charges of possession of prohibited weapons, two silencers made in Australia and one silencer of unknown origin; a further prohibited weapon being a set of handcuffs and two prohibited weapons being box magazines to suit a Bren machine gun and a Ruger self loading rifle; two firearm barrels to suit a Mossberg pump action shotgun and a .22 calibre pistol. There was, finally in relation to the seizures at Sandgate, a charge of possessing ammunition described as 105 boxes of assorted types of .22 cartridges, 121 boxes of 7.62 x 39mm cartridges, 9 boxes of pistol ammunition, 2 boxes of .45 calibre cartridges, 1 box of .28 calibre cartridges, 1 box of .40 calibre cartridges, 2 full magazines, 9 full clips of .30 calibre cartridges plus assorted quantities of shotgun shells and ammunition of various other kinds. 15 The remaining four charges related to the seizures from the sheds at Wallsend which consisted of three charges of possessing a firearm, a 9 mm Walther self loading pistol, a 7.62 x 25mm Tokarev self loading pistol of Chinese manufacture and a 9 x 19 mm Norinco self loading pistol and a charge of possessing ammunition described as boxes of shotgun shells, 139 x 9mm cartridges, 239 x .22 cartridges, 8 x .303 cartridges and 11 x 30/30 cartridges. 16 The second indictment charged two counts. On 14 February 2005 Walsh pleaded guilty to both counts. The first charged aggravated breaking and entering with intent to commit an indictable offence and reflected the attempted theft of the automatic teller machine previously described. This offence carries a prescribed maximum penalty of twenty years imprisonment. The second count charged stealing a prime mover and articulated trailer for which the prescribed maximum penalty is ten years imprisonment. This offence related to the theft of a vehicle the property of Boral Limited at Tomago on 3 December 2000. 17 In respect of this indictment there was also a Form 1 document asking his Honour to take into account a further fourteen offences which he did when assessing sentence on the first count in the indictment. 18 The offences scheduled in the Form 1 were committed on various dates ranging between early 1999 and late 2000. They included thefts of equipment usable in Walsh's excavation business including a bobcat, an excavator and backhoe. It is some indication of the level of seriousness that these particular items were valued at $90,000, $50,000 and $116,000 respectively. These were ultimately recovered (although obviously depreciated at least by age) after Walsh's arrest. Trucks had been stolen and "rebirthed" as well as theft of the vehicles which were abandoned after the failed attempt to steal the ATM. Walsh was also charged as an accessory before the fact to fraudulent insurance claims which had resulted in payments of $28,500 and $5,500 by Zurich Insurance. 19 I have engaged in the foregoing lengthy recitation (and I note that there is even more elaborate detail of the offences set out in the Form 1 documentation) to give an indication of the extreme criminality in Walsh's overall activity. 20 The individual impositions by Howie J were as follows. On count 1 of the first indictment Walsh was sentenced to imprisonment for thirty two years with a non parole period of twenty four years. On each of counts 2 and 4 of that indictment to imprisonment for a fixed term of fifteen months and on count 3, taking into account the twenty five charges on the Form 1, to imprisonment for a fixed term of three years and six months. All sentences were directed to commence on 23 September 2001. 21 On the second indictment Walsh was sentenced on count 1, taking into account the fourteen charges on the Form 1, to imprisonment for six years nine months with a non parole period of five years and on count 2 to imprisonment for a fixed term of two years two months. These sentences were also directed to commence on 23 September 2001 resulting in the effective sentence being, as I earlier mentioned, that imposed on count 1 of the first indictment. 22 In reaching his determinations his Honour had, of course, regard to subjective matters concerning Walsh. He noted the absence of prior convictions and the commencement of criminality after joining the Nomad Motorcycle Club in 1995. He observed that the subjective case was largely to be found in a psychological report which recorded testing, which placed Walsh among those of low average intelligence, however, Walsh also told the psychologist that he was using $5,000 to $6,000 worth of amphetamine per week in the period prior to his arrest and had a "voracious gambling habit". In respect of the latter it was not unusual to lose $10,000 to $20,000 on a weekend's gambling. 23 Nevertheless he was, by the time of sentence, drug free and he claimed to be remorseful and regretful that he had joined the Nomad Club and began to use drugs. His Honour accepted that he was apparently determined to use his time in custody productively. 24 Three grounds of appeal were filed, expressed as follows: "Ground one. The sentencing Judge erred in concluding that life imprisonment was an appropriate starting point. Ground two. The sentencing Judge erred by failing to apply to the determinate sentences a discount for the utilitarian value of his plea of guilty for the supply offence. Ground three. The sentence is manifestly excessive." 25 Counsel for Walsh acknowledged that the grounds were inter-related and might be dealt with together and in a succinct statement in written submissions identified "the issue on this appeal is whether his Honour erred in concluding that the starting point should be life imprisonment". 26 An express submission had been made by the Crown to Howie J in these terms (with reference to the prescribed maximum penalty for the offence charged in count 1 of the first indictment): "16. The first issue therefore, given the quantities involved, is to determine if a life sentence is to be imposed. 17. On instructions, the Director does not seek one. This is not to suggest that the penalty should be anything other than a very lengthy determinate sentence. Indeed, the Crown will hereinafter argue for the partial accumulation of other sentences imposed for other offences. 17. The above view is taken for the following reasons: (a) The offender was, at a relevant time, a user. (b) The offender does not have a previous record. (c) The utilitarian value of the plea." 27 In his remarks on sentence his Honour made several relevant references. Included were these observations: "In the case of Mr Walsh a realistic assessment of the objective gravity of his conduct requires very serious consideration being given to imposing the maximum penalty notwithstanding that it is the harshest sentence that is available to the courts of this State. This is not simply because of the amount of drug involved in the offence, which was very great indeed, but because of the commercial nature of the enterprise and the period over which it was conducted. It is rare in my experience for a criminal at the top of the hierarchy of a drug supply organization to come before the courts. The organization over which the offender Walsh presided was not particularly large and there were not many tiers between him and the users he supplied. It could be described as a family business but it was a very profitable one and a very criminal one. I do not know of any case of supplying amphetamine as serious as this. Certainly in the cases, to which the Crown has referred me, the amounts of drug supplied are a mere fraction of that in the present case." 28 I interpolate that it is clear from the above statement that Howie J did not attribute chief importance simply to the weight of narcotic contrary to the ruling articulated in the joint judgment in Wong v The Queen (2001) 207 CLR 584 @ 609. That his Honour elsewhere in his remarks emphasized the criminality reflected by the enormity of the drug quantity does not demonstrate error. I would reject submissions by the appellant in this regard which are founded upon remarks which have been isolated from the overall context. 29 His Honour then made reference to R v Kalache [2000] NSWCCA 2 as possibly comparable but he determined that, for reasons which he gave, he doubted that it was of great assistance. His Honour continued: "The sheer enormity of the amount of drug supplied by Mr Walsh, his role in that distribution and the period over which the distribution took place indicates to me that a life sentence would have been warranted having regard only to the objective seriousness of his conduct and the harm occasioned to the community in general and those to whom he supplied in particular. Denunciation of this grossly criminal conduct and general deterrence alone would make that sentence an appropriate one. However, the Crown has submitted that a life sentence is not warranted for either of the offenders. In the case of Mr Walsh that concession is based upon the following matters: that the offender was a user of the drug, that he had no prior convictions and the utilitarian value of the plea of guilty." 30 He referred to the Crown concession: "Of course, I am not bound by the Crown's concessions but the fact that I am informed that it is made on instructions received from the Director of Public Prosecutions is highly significant and has been highly persuasive. In my view in the case of Mr Walsh, the most significant factor calling for leniency is the very substantial utilitarian value of the plea of guilty." 31 His Honour continued: "In Mr Walsh's case, had the offence been one to which s 61(2) of the Crimes (Sentencing Procedure) Act applied I would have felt myself obliged by the terms of that section to have imposed a life sentence on him notwithstanding any Crown concession and notwithstanding the plea of guilty. But in the present case I am prepared to accept the Director's concession and for the reasons that the concession was made that a sentence other than life imprisonment does fulfil the purpose of sentencing in the protection of the public. I do so despite some very substantial initial misgivings. I also take into account what evidence there is of Mr Walsh's remorse and contrition for his criminal conduct while a member of the Nomads. I want to make it perfectly clear that had it not been for the plea of guilty I would have imposed upon him a sentence of imprisonment for life. But having determined that the three factors relied upon by the Director and evidence of remorse allow me to impose a sentence on Mr Walsh of less than life imprisonment. I do not intend to give those factors substantial weight in determining the appropriate determinate sentences to impose upon him. They have mitigated the sentence from life imprisonment. If I took them into account again as reducing the objective seriousness of the offence or as justifying a further discount of the appropriate sentence, they would be given disproportionate weight by double counting. I make it perfectly clear that in Mr Walsh's case in respect of the offence of supply I am giving no further discount for the plea of guilty. The fact that he was a user of drugs and that he had no prior criminal record when he joined the motorcycle club are, however, relevant to a finding that he may be rehabilitated." 32 As already noted, the argument centred upon the selection by his Honour of a starting point of life imprisonment but for the plea of guilty. It is convenient to note now that it was conceded that the enveloping sentence, although lengthy, did not amount to a life sentence in practical terms because of the age of which Walsh would become entitled to consideration of release to parole. 33 It was submitted that Howie J "fell foul of the mischief" identified in Markarian v The Queen [2005] 79 ALJR 1068 in that he engaged in a "two tier" sentencing. Reference was made to the observations of McHugh J at par 53: "In my view, the judge who purports to compile a benchmark sentence as a starting point inevitably gives undue – even decisive – weight to some only of the factors in the case. Furthermore, the judge falls into the error of determining that notional sentence by reference to a hypothetical crime derived from some only of the circumstances of the case." 34 The other separate judgment in Markarian was delivered by Kirby J who remarked (at par 132): "I have previously suggested that some of the debates over the two-stage approach and instinctive or intuitive synthesis may be semantic, not substantive. That remains my view." 35 The joint judgment in Markarian (Gleeson CJ, Gummow, Hayne and Callinan JJ) expressly adverted to the use of the maximum prescribed penalty (at par 31): "It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick." 36 The error which their Honours detected in that case was, looking first at the maximum penalty, and then making proportionate deductions from it. It was contended that a similar error of approach was disclosed in the above quoted remarks of Howie J when he said: "….a life sentence would have been warranted having regard only to the objective seriousness of his conduct…." 37 It should not be overlooked that his Honour imposed sentence on these two appellants before the decision in Markarian was handed down by the High Court. 38 His Honour did not "look at" and then proportionately reduce the maximum. It is true that he said: "As a result of the pleas of guilty, a number of very short trials took place and the time taken to dispose of the matters could be measured in days rather than months. However, in each case it was not an early plea and a discount of about 15 per cent would be appropriate". 39 This observation conveyed a relevant estimate but it should be understood in the context of his succeeding estimate, quoted previously, that the objective gravity of the criminal conduct could have attracted the maximum penalty. His Honour did not engage in any arithmetical process (indeed, against an indeterminate term this would not be possible) and he did not "fall foul" of any mischief such as identified in Markarian. 40 It might be added that the appellant's submission was essentially founded on the remarks of McHugh J and it should not be overlooked that the majority joint judgment (Gleeson CJ, Gummow, Hayne and Callinan JJ) included: "Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden". 41 I would reject the appellant's argument. 42 It was further sought to support the grounds by noting that a life sentence, if imposed for an offence against the Drug Misuse and Trafficking Act 1985 results in custody for the term of natural life which is distinguishable from the possible practical effects of a life sentence imposed for "drug offences" pursuant to Federal offence regimes which are not necessarily so. 43 It was therefore contended that relevant assistance could be gained by reference to the culpability of offenders who have in fact received "natural life" sentences for murder and the Court was referred to a series of cases ranging from R v Garforth unreported NSWCCA 23 May 1994 to R v Ngo [2003] NSWCCA 82. 44 Contrast or comparison with such cases would be an unproductive exercise in this case in my opinion because they are cases where indeterminate sentences were in fact imposed. Obviously his Honour did not do so in this instance. 45 The ultimate question for this Court is whether the power of this Court to intervene should be invoked. 46 The observations of Spigelman CJ in R v Simpson (2001) 53 NSWLR 704 (at par 79) are apposite: "Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: 'If it is of the opinion that error has occurred in the sentencing process'. That is not the statutory formulation. By s 6(3) this Court must form a positive opinion that 'some other sentence …warranted in law and should have been passed'. Unless such an opinion is formed, the essential pre-condition for the exercise of the power to 'quash the sentence and pass such other sentence in substitution therefor' is not satisfied." 47 It is apparent that, in imposing sentence, his Honour not only assessed the individual terms for counts in the indictments and, where requisite, took into account Form 1 offences, but he was alert to the total effects and made orders for concurrency so as to avoid error which could result from cumulation when so many such serious offences called for punishment. I observe that, contrary to the Crown submission to him, Howie J did not order any cumulation of sentences and all penalties were subsumed within the envelope of the initial sentence constituted by a non parole period of twenty four years with a balance term of eight years. 48 As the above recounting of offences shows, Walsh's criminality was not confined to one form of such activity, but stretched from major drug trafficking to theft of vehicles of many varieties to a planned raid of an ATM to frauds on insurers. Such subjective factors as could be called upon for mitigation were not overlooked. 49 No less severe sentence than the imposition by Howie J was warranted and I would dismiss Walsh's appeal. 50 The appellant Little pleaded guilty to five counts in a joint indictment presented against him and Walsh. 51 The relevant counts were manufacture of a large commercial quantity of a prohibited drug (methylamphetamine) for which the maximum penalty prescribed was imprisonment for life (count 1); supplying a large commercial quantity of the same drug for which the same maximum penalty was prescribed (count 2); possessing an unlicensed firearm for which the prescribed maximum penalty is fourteen years imprisonment (count 12); possessing a shortened firearm, maximum penalty ten years imprisonment (count 19) and possessing a prohibited weapon, maximum penalty fourteen years imprisonment (count 20). His Honour was asked to take into account on a Form 1 twenty six further charges consisting of twelve charges of possessing an unlicensed firearm; nine charges of possessing an unregistered firearm; three charges of possessing a prohibited weapon and two charges of possessing ammunition. 52 The unlicensed firearms on the Form 1 comprised three shotguns, two handguns, one machine gun, one submachine gun, three repeating rifles, one self loading rifle and one select loading rifle. The unregistered firearms were two shotguns, two handguns, one machine gun, one submachine gun and three rifles. The prohibited weapons consisted of magazines of various types. Little held no licence to possess ammunition. 53 I have earlier set out the effective enveloping term which consisted of concurrent imprisonment for twenty two years with a non parole period of sixteen years six months imposed on each of counts 1 and 2. On count 19 including taking into account the charges on the Form 1, Little was sentenced to imprisonment for a fixed term of three years six months and on counts 12 and 20 to concurrent fixed terms of fifteen months imprisonment. All sentences were directed to commence on 24 September 2001 and those on counts 12, 19 and 20 are, of course, now expired. 54 There were agreed facts for the purpose of sentence on Little. As earlier recounted Little became the supplier of manufactured methylamphetamine to Walsh and Love subsequent to previous suppliers. 55 He commenced supplying in September 1999 and continued until his arrest two years later. The manufacture was carried out at his premises at Terranora and a search warrant was executed on those premises. Among other seizures were 590 grams of methylamphetamine, cutting agents and precursors for methylamphetamine manufacture, a loaded semi automatic handgun fitted with a silencer and documentation containing drug recipe and a link to storage units in Tweed Heads and Murwillumbah. PVC pipes were located buried in the ground for storing drug and cash. The latter, proceeds of drug sales, was $145,783, some of which consisted of numbered notes which had been provided to Anne Chapman to enable her to buy drugs from Walsh in a controlled operation. 56 Later search of the storage units disclosed chemicals, flasks and other equipment constituting a clandestine drug manufacturing laboratory as well as firearms and ammunition. 57 It was agreed that over the two year period Little manufactured and supplied to Walsh and Love 19 kilograms (41.8 lbs) of methylamphetamine of average purity of 75 percent. He received between $50,000 and $60,000 per lb for the drug, thus receiving in all between $2m and $2.5m. 58 A notice of appeal expressing three grounds was filed but at the hearing counsel for Little did not press ground 1. Those pressed were: "2. The sentencing judge erred in categorising the applicant's level of criminality. 3. The sentence imposed was manifestly excessive and some other sentence was warranted in law." 59 Senior counsel for Little referred to that part of his Honour's remarks on sentence when he said: "The criminality of the person who manufactures a drug so that it can be distributed is probably greater, generally speaking, than the person who distributes the drug. This is because the manufacturer has created the evil that is then spread into the community." 60 Introductory to that statement it should be observed that his Honour had stated that even absent the concession by the Director of Public Prosecutions that a life sentence was not warranted, he doubted that he would have so found. As I have recited, two of the counts on the indictment carried possible life sentences. His Honour continued that, in Little's case, the quantity of drug was a multiple of nineteen times an amount sufficient to constitute a large commercial quantity and therefore attract that available indeterminate sentence. 61 It was submitted that his Honour's proposition may be true but it was not necessarily correct as a general proposition. I detect no error in his Honour's observation. He was not articulating immutable principle. The submission was developed by reference to the situation of Walsh (by implication in respect of those of Walsh's crimes which involved drug trafficking) and his apparently greater relative criminality. It was argued that his Honour's comments suggested that Little was "someone higher up in the hierarchy than he in fact was." 62 In dealing with submissions on behalf of Walsh, I have pointed out why it is not demonstrated that his Honour did not erroneously attribute chief importance simply to the quantity of drug contrary to the authority of Wong and repetition is unnecessary. 63 Little was to be sentenced for what he had done not for his place in any hierarchy: Olbrich v The Queen (1999) 199 CLR 270. Whilst it is frequently the case that crimes of drug trafficking involve numbers, even sometimes large numbers, of participants in various phases, it is obvious that the chemist who brings a drug into existence is culpable to a high degree and his Honour's remarks were entirely justified. 64 It was acknowledged that there was insufficient data to support an argument that the sentence so exceeded the upper limit of any established pattern of sentencing that latent error should be inferred. The statistics kept by the Judicial Commission had a base of only three cases, one of which obviously would have been Little himself. I recognize that his sentence is more than thrice that received by the next most severely punished offender. There is, however, in my view, a strong indication that his Honour's assessment was not anomalous by reference to R v Redwood, unreported, NSWCCA 19 March 1992. In that case the charges were different in that the principal counts were of conspiracy to manufacture and conspiracy to supply amphetamines and there was an offence of shortening a firearm. The quantity involved was 41 kilograms and this was described as, at the time, "the largest amount of amphetamines seized in Australia." The report does not record any analysis of the purity of the total seizure. An appeal by the offender, whose effective sentence was assessed as the equivalent of a total of twenty years imprisonment with a non parole period of fifteen years (before a substantial discount for assistance to authorities) was dismissed. The assessment of sentence by the judge at first instance were described as "entirely appropriate". 65 It can be further noticed that Howie J ordered full concurrency for service of the sentences which he imposed against the availability of possible accumulation or partial accumulation. It is plain from those orders that his Honour "stood back" and gave appropriate consideration to questions of cumulation or concurrence as well as questions of totality: Pearce v The Queen (1998) 194 CLR 610. 66 In oral argument senior counsel for Little accepted that the stated discount of 15 percent for the utilitarian value of the plea of guilty was appropriate but contended that his meant that the starting point (of the non parole period) must have been nineteen to twenty years which was "way too high". That would represent a substantial impost for substantial crime. I do not detect error. 67 There was a long delay from the time of arrest until sentence but it was conceded that Little "bears some responsibility for that." It is not necessary to detail the procedural and negotiating incidents in that span of time. It suffices to observe that the delay offers no particular basis for further mitigation in this case. Reference was made to Little's subjective case and his status as a user of the drug which he was manufacturing. There is no reason to determine that Howie J failed adequately to take these matters into account. 68 I would reject Little's grounds of appeal. 69 In each of the applications by Walsh and Little, I would grant leave to appeal against sentence but dismiss the appeal. 70 JAMES J: I agree with Grove J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.