Reported Decision: 195 A Crim R 208 New South Wales Court of Criminal Appeal CITATION: El-Ghourani v R [2009] NSWCCA 140 HEARING DATE(S): 5 May 2009 JUDGMENT DATE: 7 May 2009 JUDGMENT OF: Spigelman CJ at 1; James J at 46; Simpson J at 47 DECISION: 1 Leave to appeal granted. 2 Appeal dismissed. CATCHWORDS: CRIMINAL LAW – sentence – relevant factors – nature and circumstances of offence – need to focus on particular charge – role of offender relevant to sentence for possession charge. - CRIMINAL LAW - sentence - role of Judicial Commission statistics. LEGISLATION CITED: Customs Act 1901 (Cth) Criminal Code Act 1995 (Cth) The Queen v De Simoni (1981) 147 CLR 383; 5 A Crim R 329 The Queen v Olbrich (1999) 199 CLR 270; 108 A Crim R 464 R v Bloomfield (1998) 44 NSWLR 734 CASES CITED : R v Bousehjin [2003] NSWCCA 86; (2003) 140 A Crim R 310 R v Ferrer-Esis (1991) 55 A Crim R 231 R v Guiu [2002] NSWCCA 181; (2002) 129 A Crim R 387 R v Laurentiu & Becheru (1992) 63 A Crim R 402 R v Lawless (Court of Criminal Appeal, 24 June 1994, unreported) PARTIES: Bilal Khodr El-Ghourani (Applicant) Regina (Respondent) FILE NUMBER(S): CCA 2006/00014913003 COUNSEL: A C Haesler SC (Applicant) W Abraham QC (Respondent) SOLICITORS: Nedim Lawyers (Applicant) Commonwealth Director of Public Prosecutions (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2006/11/0851 LOWER COURT JUDICIAL OFFICER: Ainslie-Wallace DCJ LOWER COURT DATE OF DECISION: 16 May 2008 - 1 - IN THE COURT OF CRIMINAL APPEAL CCA 2006/00014913003 SPIGELMAN CJ JAMES J SIMPSON J Thursday 7 May 2009 Bilal Khodr El-Ghourani v R Judgment 1 SPIGELMAN CJ: The applicant pleaded guilty to a charge of attempting to possess a marketable quantity of an unlawfully imported border controlled drug, namely, 181.5 grams of pure heroin, contrary to s 307.6 and s 11.1(1) of the Criminal Code Act 1995 (Cth). The maximum penalty is imprisonment for 25 years and/or a fine not exceeding $550,000. 2 The applicant had originally been charged with an additional offence of importing a marketable quantity of a border controlled drug contrary to s 307.2(1) of the Criminal Code. The penalty for this offence is the same as that for the offence for which he was charged. The Crown did not press the importing charge. 3 On 16 May 2008 Ainslie-Wallace DCJ sentenced the applicant to nine years imprisonment to commence on 14 December 2005 with a non-parole period of six years to expire on 13 December 2011. 4 The applicant seeks leave to appeal on two grounds: (1) The learned sentencing judge erred in taking into account as an aggravating feature that the applicant had acted as a principal in the importation. (2) The sentence in all the circumstances is manifestly excessive. 5 The applicant's involvement with the drugs was the subject of detailed findings of fact by her Honour which are not in issue on this appeal: · In September 2005 the applicant told his girlfriend Ms Karim, that he was expecting to receive a package from Lebanon containing wooden frames. · In November 2005 the applicant asked a Mr Hawat to receive a package on his behalf in exchange for a payment of $300. The applicant took Mr Hawat's name and address. · On 3 December 2005 a package addressed to Mr Hawat arrived in Sydney from Lebanon. · The Australian Customs Service investigated the package and discovered that drugs were concealed in two timber frames. The police substituted powdered milk for the heroin and restored the package to its original condition. · Between 5 and 14 December the applicant, using the name Hawat, called the freight company making enquiries about the package. · On 4 December the applicant asked Ms Karim to call Customs and the freight company enquiring about the package. She did so on that day and subsequently. · On 5 December 2005 the applicant, Mr Hawat and a Mr Zreika went to the freight company and then to Customs. The applicant had provided Mr Hawat with the relevant documentation. Mr Hawat was told that he was unable to collect the package as it had not been cleared by Customs. · Some time after 5 December Mr Zreika, who had introduced the applicant to Mr Hawat, asked Mr Hawat to collect the package. Mr Hawat refused because the applicant had not paid him for trying to get the package on 5 December. · On 14 December the applicant was made aware that the parcel was available to be collected. He asked Ms Karim to collect it. The applicant gave Ms Karim a letter written in Arabic which purported to be from Mr El Sharbini, the sender of the package, to Mr Hawat. It said: "Please accept this small present from me", and went on to say that when the present was received he should call a number in Lebanon because "In the box that I will send you there is a present for my friend … I will tell you what to do … I want you to take the coffee trays now and next time I will send you a more beautiful thing …". · When giving her the letter purporting to be from Mr El Sharbini, the applicant told Mr Karim: "Just keep this here, I don't know, just like that, just like in case anything happens or anything like that … just keep it …". · The applicant asked Ms Karim to collect the parcel and told her he would wait outside to see whether she was followed. · Ms Karim collected the package. She was followed by police. The applicant telephoned her to ask her if she was being followed and arranged to meet. · The applicant took possession of the package and drove to an address in Lidcombe, where he dismantled one frame and discovered that the powder was not heroin. · There was a listening device in the package. The applicant made some telephone calls, in one of which he said: "They are not drugs … they took the drugs … You see all this time it was with them". · The applicant then telephoned Mr El Sharbini in Lebanon. · While dismantling the second frame the applicant was arrested. 6 After referring to the applicant's evidence that he was part of a drug smuggling syndicate with Messrs Zreika, Hawat and El Sharbini, Justice Ainslie-Wallace said (at 7): "The Crown relied on the statement of El Sharbini to demonstrate that this was not an isolated offence by the offender, to show that the offender knew that there was heroin in the parcel and that he had a greater role in the consignment of the drugs than his evidence would have the court accept. It is to be kept firmly in mind that the offender is not charged with importing the drugs either in this instance or at any other time. He was first charged with importation and attempt to possess the drugs. The importation charge was withdrawn because, apparently, the evidence could not support it. That the offender is not charged with importation shall mean his statement cannot be used to impose a penalty on him greater than is appropriate to the matter with which he has been charged." 7 After setting out the various statements which indicated the extent of the applicant's involvement in the overall transaction, as well as the evidence that this was not an isolated offence, her Honour added (at 7): "I propose to restrict the statements used to being evidence that the offender knew what was to be consigned was heroin and that he had a greater role in the enterprise of bringing this heroin into Australia than he said." 8 Her Honour went on to refer to the unchallenged statements of Mr Hawat and Ms Karim and Mr Zreika and said (at 7-8): "The unchallenged statements … persuade me beyond reasonable doubt that he was the person who arranged to receive the parcel. He produced the letter, ostensibly written by El Sharbini to Hawat and which he gave to Abdul Karim." 9 Her Honour went on to say (at 8-9): "I do not accept that he was merely to receive the package and then hand it on to others. His activities in relation to the consignment of the drugs started well before it left Lebanon, by obtaining Hawat's name and address for El Sharbini to put on as the consignee. He used Hawat's name as the person to whom the letter was to be written. The offender went to considerable lengths to distance himself from the parcel, from using Hawat to collect it and then when he refused, Abdul Karim, arranging for her to have an authority from Hawat to collect the parcel and to using Hawat's name when he rang the freight forwarding agent to enquire about the parcel. The parcel addressed to Hawat was consigned from Lebanon not long after the offender left and returned to Sydney. These findings persuade me beyond reasonable doubt that his role in this matter extended beyond that of being a mere cog in the importation, for example, like a courier. Whether he was a principal involved in arranging the importation is more difficult to find but that is the effect of El Sharbini's statement. With a degree of reluctance I find that I am not satisfied beyond reasonable doubt that the offender was the sole organiser of the importation from Lebanon or acted jointly with El Sharbini in Lebanon. I am satisfied beyond reasonable doubt that he was the person who was to receive the drugs on their arrival in Australia and remove them from the frames. There was nothing found during the search of the offender's home to suggest that he was going to cut the drugs there for sale in smaller quantities. He had the important role of arranging for the receipt of the drugs into Australia and was the person who was to retrieve them from the frames. I have no difficulty finding beyond reasonable doubt that he was acting as a principal in Australia in this importation to ensure its entry into the country." 10 Her Honour went on to note the offender's age, and that he had prior criminal convictions including one conviction in 1999 for possession of a prohibited drug. Her Honour stated that the prior convictions were not "particularly relevant to this offence, even though one relates to the possession of drugs" but, nevertheless, the applicant was not entitled to the leniency afforded to a first offender. Her Honour set out some of the offender's personal circumstances including the fact that he was married with children. Her Honour referred to evidence that he had a significant drug habit and an extensive gambling habit. However, her Honour did not accept the evidence that the drug habit, if there was one, was an explanation of the offending conduct, as the applicant asserted during the course of his evidence. Her Honour said (at 10): "If he was using drugs I am not satisfied that he was addicted nor that he was in some way driven to commit the crime through the need for money or drugs." 11 Her Honour referred to aspects of his evidence which she characterised as "contradictions and attempts to distance himself from the offence and to minimise his role" (at 11), which evidence she did not accept. 12 Her Honour referred to the applicant's statement that he was sorry and said (at 11): "That expression of remorse has to be tempered by his reluctance to admit his involvement and his lack of credit generally." 13 Her Honour indicated she had difficulty in determining his prospects of rehabilitation. Her Honour noted the guilty plea, but referred to the negotiations about an agreed statement of facts and the extent to which those facts were resiled from by the offender. This had necessitated an adjournment and a lengthening of the sentencing process. Because its utilitarian value had been diminished, her Honour reduced the discount for the plea, which may otherwise have been available, to 15 percent. 14 Her Honour also noted that the amount of the drug was "considerably more than the marketable quantity" (at 12), ie, 181.5 grams, as distinct from 2 grams. 15 The applicant's first ground of appeal is based on her Honour's observations about the applicant's role in the importation culminating in the last sentence of the passage set out in par [9] above to the effect that her Honour found that the applicant was "acting as a principal in Australia in this importation". In the previous paragraph her Honour had posed for herself the question which she indicated was attended with some difficulty as to "whether he was a principal involved in arranging the importation". 16 The applicant submits that he did not fall to be sentenced for his role in the importation but rather for his conduct in attempting to possess the drugs after their importation. The references to importation indicated that her Honour had proceeded on an incorrect basis and treated the applicant's role in the importation as a matter of aggravation of a possession offence. This was an error of sentencing principle. 17 The Crown submits that these observations were made in a context where the applicant contended that he was a "mere cog in the importation". The Crown relies particularly on the passage set out at par [6] where her Honour stated expressly that she intended to keep "firmly in mind that the offender is not charged with importing" and went on to say that "his statement cannot be used to impose a penalty on him greater than is appropriate to the matter with which he has been charged". This is clearly a reference to the sentencing principle identified in The Queen v De Simoni (1981) 147 CLR 383; 5 A Crim R 329. 18 There may be a typographical error in the passage set out at [6]. The passage refers to the use of "his statement" as if it were a reference to a statement made by the applicant. However, this paragraph comes immediately after a reference to the "statement" by Mr El Sharbini. The applicant does not seem to have made any "statement" to which this passage would be applicable. In any event, it was in this context that her Honour cautioned herself about the fact that the applicant was not charged with importing. 19 The applicant's submissions in this Court relied on the following observations of Hunt J, with whom Gleeson CJ and Lee CJ at CL agreed in R v Ferrer-Esis (1991) 55 A Crim R 231 at 238-239: "It has been submitted by the Crown that the judge was in error in refusing to sentence the respondent for the offence of possession upon the basis that he was also guilty of importing the drugs. That submission had been put to the judge upon the basis that the offence was therefore rendered more serious. The respondent was not, however, ultimately arraigned upon such a charge, and he certainly did not plead guilty to a charge of importing the drugs. It would have been quite wrong for the judge to have taken such a matter into account: De Simoni (1981) 147 CLR 383 at 389; 5 A Crim R 329 at 333. That does not mean that a particular circumstance which was relevant to both offences could not be taken into account by the judge on the possession offence to which the respondent pleaded guilty merely because it could also have been taken into account on an importation offence of which he had not been convicted. It means only that such a matter cannot be taken into account as an aggravating circumstance in relation to the possession offence where that matter would have warranted a conviction for a more serious offence." 20 It is also appropriate to set out the immediately succeeding passage (at 239): "The judge was thus correct in rejecting the Crown's argument upon that basis. He was correct also in refusing to accept a submission on behalf of the respondent that the offence of possession is necessarily a less serious offence than that of importing the drugs. It may or may not be, depending upon the circumstances of the particular case, and in particular upon the involvement of the individual prisoner in each. The maximum sentence is the same for each offence; and see Thiagarajah [(1989) 41 A Crim R 45] at 50; Lam (1991) 53 A Crim R 118 at 119-120." 21 Section 233B(1)(b) and (c) of the Customs Act 1901, considered in Ferrer-Esis, were, respectively, the equivalents of s 307.2 and s 307.6 of the Criminal Code. As with the provisions presently under consideration the two provisions in the Customs Act 1901 (Cth) considered in Ferrer-Esis had exactly the same maximum penalty. 22 A similar issue arose in R v Lawless (Court of Criminal Appeal, 24 June 1994, unreported) where the applicant had been found not guilty of being knowingly concerned in the importation, but guilty of an alternative charge of possession, of heroin. Hunt CJ at CL, with whom Gleeson CJ and Blanch J agreed, said (at 4-5): "The fact that the jury found the applicant not guilty of the charge of being knowingly concerned in the importation does not mean, as has been submitted, that the judge was restricted to the evidence of the admissions made by the applicant to the police. In Regina v Ferrer-Esis (1991) 55 A Crim R 231 at 239, this Court said that a particular circumstance relevant to both an importation offence and a possession offence may be taken into account upon the possession offence (to which the prisoner there had pleaded guilty) notwithstanding that it could also have been taken into account upon an importation offence (with which he had not been charged). In determining the nature of the applicant's possession offence for the purpose of sentencing the applicant, it was appropriate for the judge to have regard to the entire transaction: Regina v Laurentiu & Becheru (at 415); including what he expected to take possession of and what he was going to do with it when he obtained possession – whether, for example, the drugs were for his own use, or whether he was in possession of them in the course of a commercial narcotic venture in which he was taking part as a middleman attached to an organized distribution chain: ibid (at 415-416); In other words, whether the possession related to that of an intermediary or principal in the course of an enterprise or whether it was merely that of an end user: ibid (at 418). Nor are those facts upon which the judge relied denied relevance by the sentencing principle laid down in The Queen v De Simoni (1981) 147 CLR 383. A sentencing judge may taken into account all of the conduct of the prisoner, including that which would aggravate the offence, but may not take into account as matters of aggravation facts established in the evidence which would have warranted a conviction for a more serious offence or which would have rendered the prisoner liable to a more serious penalty than that which is prescribed for the offence of which he had been found guilty: ibid (at 389, 392). Both offences involved in this trial carry the same maximum sentence: Customs Act 1901, s 233B (Cwth). Moreover, as this Court also said in Regina v Ferrer-Esis (at 239), the offence of possession is not necessarily a less serious offence than that of importing the drugs; it may or may not be, depending upon the circumstances of the particular case, and in particular upon the involvement of the individual prisoner in each: and see Regina v Thiagarajah (1989) 41 A Crim R 45 at 50; Regina v Lam (1991) 53 A Crim R 118 at 119-120; Regina v Laurentiu & Becheru (at 419)." 23 In R v Laurentiu & Becheru (1992) 63 A Crim R 402 the Court was concerned with convictions for possession offences. In the course of the remarks on sentence, the sentencing judge referred to the participation of the offenders in the entire process including references to the importations. Further, an issue of parity arose with the sentence imposed on a co-offender, Mr Montenegro, for the offence of importation. Wood J, with whom Sharpe J agreed, said at 415-416: "It was entirely appropriate for his Honour to have regard to the entire transaction, and to the involvement of Montenegro, in order for a determination to be made as to the nature of the possession charge, and the circumstances in which it occurred. For example, it was essential for his Honour to determine whether the relatively small quantity of drug which came into the applicants' possession was for their own use, or was being received from a courier in the course of a commercial narcotic venture in which they were acting as middlemen attached to an organised distribution chain. Clearly, the latter was here the case, and any other approach would have called for an artificial and unduly blinkered assessment of the offence. For his Honour to have sentenced either applicant on the bare fact of possession of the cocaine, the substance of the controlled delivery, would have involved serious error. Without the context of the possession, no assessment could have been made as to where the offences fell in terms of objective seriousness, within the range of cases involving possession of not less than the trafficable quantity of cocaine: see Ibbs (1987) 163 CLR 447; 27 A Crim R 465. That this was the case appears from the following passage in Derbas [Court of Criminal Appeal, 7 October 1983, unreported] : 'It is a well-established course of practice to determine the sentence for possession of a drug by reference to the intention of the possessor as to the use which he intends to make of it, that is to say, either for his own use or for sale. This course of practice is, in my view, well founded. It imports also recognition of the legitimacy of evaluating the context and the background out of which the possession arose, and in relation to which the possessor has the drug, in order to determine the degree of criminality by which the sentence in due course will be measured.' In my view it is clear from the remarks on sentence that it was this exercise which his Honour undertook, and that in doing so he was considering the objective criminality of the applicants in relation to the cocaine delivered. …" 24 In R v Guiu [2002] NSWCCA 181; (2002) 129 A Crim R 387 the appellant was convicted on a charge of attempting to possess certain drugs and a parity issue arose with respect to the sentences imposed upon her co-offenders for the offence of importation. Greg James J noted that the sentencing judge who, as in this case, was Ainslie-Wallace DCJ, referred in her remarks on sentence to the applicant's role "in the importation" and words to similar effect (see at [15]) and in particular, in a passage set out at [16], her Honour made a finding "that the prisoner had a role in this importation which was of considerably more importance than that of [a co-offender] …", that she was "aware of the importation of the drugs", "clearly had knowledge of the importation as it was expected to occur", and that "her role was more than merely to collect the drugs". 25 Greg James J referred to the joint judgment of the High Court in The Queen v Olbrich (1999) 199 CLR 270; 108 A Crim R 464 and in particular to the analysis of the limited utility of categorising persons as "couriers" or "principals". His Honour went on to say with respect to these observations: "[34] That discussion emphasises the governing importance to the sentencing task of the precise crime charged against the person to be sentenced and also the necessity to avoid obscuring the culpability involved in what the offender did as so charged by referring to what was done by others in committing other offences." 26 After setting out the submissions of the applicant in that case, Greg James J said: "[36] Those submissions concede that it was open to the sentencing judge to refer to the entirety of what occurred (see Laurentiu (1992) 63 A Crim R 402 at 415-416 per Wood J) but as setting the context to the consideration of the culpability of the offender in her doing that which supported the charge against her." 27 His Honour then referred to the observations of this Court in Lawless which I have set out at par [22] above and added: "[38] … So far as those observations do not accord with the approach of the High Court in Olbrich, they are no longer to be followed. That portion of the judgment as might suggest that the principles in De Simoni cannot apply because the offences have the same maximum sentence and that all the conduct of the prisoner may be taken into account must be qualified by reference to the principles in Olbrich in which specific reference was made to De Simoni in the joint judgment as supporting the principles then enunciated." 28 His Honour went on to find that the evidence in the case did not support a conclusion that the applicant played "any more culpable part 'in the importation' than to seek to obtain possession of the drugs …" (at [39]). 29 Subsequently, in R v Bousehjin [2003] NSWCCA 86; (2003) 140 A Crim R 310, I observed: "[26] … Stewart ADCJ outlined in considerable detail the objective and subjective circumstances relevant to the exercise of the sentencing discretion. His Honour focused on the importation, manifest in the extensive reference he gave to this Court's judgment in R v Wong and Leung [(1999) 48 NSWLR 340; 108 A Crim R 531], which was concerned with sentences for importation offences. His Honour did fail to focus on the offence with which this particular applicant was charged in a way inconsistent with the reasoning of the High Court in R v Olbrich (1999) 199 CLR 270; [108 A Crim R 464]. This incorrect focus was the subject of comment by this Court in R v Guiu (2002) 129 A Crim R 387 (see especially at paragraphs 23, 32, 36 and 38)." 30 It is in this respect that Lawless may need to be qualified by the approach in Olbrich. Insofar as Lawless, like Ferrer-Esis and Laurentiu, accept that the circumstances relating to the process of importation may also be relevant to a charge of possession, there is no inconsistency with Olbrich. Indeed, in Guiu, Greg James J accepted at [36], as set out at [26] above, that the overall context was pertinent to an assessment of the culpability of the accused for the offence charged. 31 In Guiu Hodgson JA made the following observations: "[2] The sentencing judge noted that it would offend against the principle in De Simoni (1981) 147 CLR 383; 5 A Crim R 329 to have regard to criminality involved in crimes with which the applicant had not been charged, and undertook a very careful evaluation of the culpability of the applicant. Accordingly, when the sentencing judge found that the applicant's 'role in this importation' was 'of considerably more importance than that of Ferrer', that should not be understood as suggesting that the judge was proceeding on the basis that the applicant could be sentenced for her role in the importation: rather, 'importation' there must, in the light of the judge's reference to De Simoni , be understood as referring to the overall enterprise which included both importation and initial disposal within Australia. [3] But even so, it seems to me that there was error in the sentencing judge's analysis. In this case, it was important to have firmly in view that the applicant was not being sentenced in respect of any role whatsoever in the actual importation of drugs, so that any finding as to knowledge or even involvement in the importation could only be used to assess her culpability in relation to the limited involvement with which she was charged, namely her attempt to obtain possession of drugs already brought to Australia." 32 It is pertinent to note that Hodgson JA's terminology – "it was important to have firmly in view" – is replicated by the phrase "be kept firmly in mind" set out at [6] above. As Judge Ainslie-Wallace was the sentencing judge in Guiu, it is clear that her Honour intended to give effect to that focus. 33 As the authorities to which I have referred indicate, the act of possession can be attended by a wide range of moral culpability. The circumstances in which a person charged with a possession offence came into possession of the offending matter, and what it was that the person intended to do with that matter, can all be relevant to determining the degree of moral culpability attached to the act of possession itself. 34 In my opinion, her Honour made permissible use of the applicant's involvement in the overall transaction. Indeed, he himself gave evidence to the effect that he was involved in a drug smuggling syndicate. The issue her Honour had to resolve was the degree of his involvement. In assessing the evidence in this respect, her Honour did not lose the focus on the particular charge, namely that of an attempt to possess. 35 Her Honour's focus appears in the express statement her Honour made that she would keep the nature of the charge "firmly in mind". Moreover, the overall context of the remarks on sentence, particularly the passage set out at [9] above, indicates that her Honour did not fail to maintain the focus. The passage commences with a statement: "I do not accept that he was merely to receive the package and then hand it on to others" (emphasis added). The reference to "receive" maintains the focus on possession. Similarly, in the second last sentence of the paragraph her Honour said: "He had the important role of arranging for the receipt of the drugs into Australia and was the person who was to retrieve them from the frames" (emphasis added). The reference to "receipt" also maintains the focus on possession. 36 In both of the passages set out in the previous paragraph, the period in which an act of "possession" could be said to continue was identified by her Honour in the reference to the fact that it was the role of the applicant to "remove them from the frames" and to "retrieve them from the frames". The possession was continuing and indicated a greater degree of involvement than merely an act of 'passing the parcel'. 37 Her Honour was focused on the issue of possession as she said she would be and was concerned to identify the moral culpability of the applicant. His involvement in the overall transaction was not only relevant and material to this issue but was of determinative significance. Her Honour approached the sentencing task without any error of principle. 38 The second ground of appeal is that the sentence is manifestly excessive. In large measure this is determined by the answer to the first ground of appeal. 39 Although the observations in Olbrich about the limited utility of classification such as "courier" and "principal" must be borne in mind, nevertheless, as the joint judgment itself recognised, there are circumstances in which such characterisation is useful. (See Olbrich supra at [14] and [19]). The judgment in Olbrich is of particular significance for recognising the practical limitations upon the sentencing exercise, particularly for drug offences, in the light of the fact that the full range of relevant circumstances will often not be available to the judge for purposes of determining the degree of involvement of that person in the overall scheme. In the present case, however, a good deal is in fact known from statements by other persons, including from the source of the drugs in Lebanon. 40 In the light of this body of evidence her Honour made a careful analysis of the facts and came to a conclusion with which I agree, but which, in any event, I accept was open to her Honour. The applicant played a central role in the overall transaction. It was this role that identified the particular nature of the conduct constituting possession in the present case and which determined that his degree of moral culpability was of a high order. 41 Many of the cases with respect to charges of possession to which this Court's attention has been drawn by way of comparison, including the majority of the cases reflected in the statistics kept by the Judicial Commission, do not involve the high level of moral culpability indicated by the particular possession of the applicant in the light of all the circumstances. 42 It is wrong to treat the Judicial Commission's sentencing statistics as if they constituted some kind of tariff range. The Commission's statistics reflect the range of the particular and varied circumstances which come before the courts for purposes of sentencing. For many offences, including possession, culpability may vary over so wide a range that the statistics are of limited utility for a particular case. (See R v Bloomfield (1998) 44 NSWLR 734 at (v) and (vii).) 43 Where, as here, a particular sentence may be seen to be rare and at the high end of the sentences reflected in the statistics, a question does arise as to whether or not the particular circumstances of the case are such that the sentence imposed falls within the range of the permissible exercise of discretion in the circumstances of the particular case. (See Bloomfield supra at 739 E-F.) 44 In my opinion, the sentence imposed in this case does fall within the range appropriate for this case. In all of the circumstances that I have earlier outlined on the basis of her Honour's findings of fact, she was entitled to sentence the applicant with regard to the high degree of culpability involved in the particular act of possession with which he was charged. 45 Leave to appeal should be granted, but the appeal dismissed. 46 JAMES J: I agree with Spigelman CJ. 47 SIMPSON J: I agree with Spigelman CJ. ********** 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.