Reported Decision: 208 A Crim R 353 New South Wales Court of Criminal Appeal CITATION: Gore v R; Hunter v R [2010] NSWCCA 330 HEARING DATE(S): 28 October 2010 JUDGMENT DATE: 21 December 2010 JUDGMENT OF: Handley AJA at 1; Adams J at 9; Howie AJ at 97 2009/8982 - GORE 1 Application for leave be granted and the appeal allowed. 2 The sentence imposed in the District Court is quashed. 3 In lieu the applicant is sentenced to a term of imprisonment comprising a non-parole period of 3 years 4 months and a balance of term of 14 months. The sentence is to commence on 13 March 2009 and the non-parole period is to expire on 12 July 2012, the date upon which the applicant is entitled to be considered for release to parole. DECISION: 2009/8916 - HUNTER See R v Hunter [2010] NSWCCA 270 (i) Leave to appeal is granted; (ii) the sentences imposed in the District Court are quashed; (iii) in lieu of the sentences imposed, the applicant is sentenced, in respect of each offence, taking into account on the first offence the matter in the Form 1 document, a fixed term commencing on 13 March 2009 and expiring 23 November 2010. The consequence is that the applicant is to be released immediately. CATCHWORDS: Sentence appeal – offences under ss 24A, 25A and 36Z Drug Misuse and Trafficking Act 1985 – Inherent and aggravating features of offences – Significance of use of "fortified" premises – Whether offences committed in company – Assessment of objective seriousness – Whether applicable sentencing range – Significance of maximum penalty. Crimes (Sentencing Procedure) Act 1999 ss 9, 21A & 44 LEGISLATION CITED: Criminal Procedure Act 1986 s 166 Drug Misuse and Trafficking Act 1985 ss 24A, 25, 25A & 36Z Poisons and Therapeutic Goods Act 1966 ss 10, 16 CATEGORY: Separate Question Chen v R [2009] NSWCCA 157 Fitzpatrick v R [2010] NSWCCA 26 Hanza v R [2008] NSWCCA 288 Khaled [2001] NSWCCA 169 McCullough v R [2009] NSWCCA 94 Markarian v The Queen [2005] HCA 25 R v Barlow [2010] NSWCCA 215 R v Hoon; R v Pouoa [2000] NSWCCA 137 CASES CITED : R v Kairouz [2005] NSWCCA 247 R v MAK, R v MSK [2006] NSWCCA 381; 167 A Crim R 159 R v Morgan (1993) 70 A Crim R 368 R v Smiroldo [2000] NSWCCA 120; 112 A Crim R 47 R v Tadrosse [2005] NSWCCA 145; 65 NSWLR 740 Singh [2009] NSWCCA 129 Sivell v R [2009] NSWCCA 286 Smith v R [2007] NSWCCA 138 SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249 Tran v R [2007] NSWCCA 140 2009/8982 Robert Leslie Gore (Applicant) PARTIES: Regina (Crown/Respondent) 2009/8916 Tracey Lee Hunter (Applicant) Regina (Crown/Respondent) FILE NUMBER(S): CCA 2009/8982; 2009/8916 C Bruce SC (Applicant Gore) COUNSEL: C Loukas (Applicant Hunter) S Dowling (Crown/Respondent) SOLICITORS: S E O'Connor, Legal Aid NSW (Applicants) S Kavanagh, Solicitor for Public Prosecutions (Crown/Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2009/8916 LOWER COURT JUDICIAL OFFICER: McLoughlin SC DCJ IN THE COURT OF CRIMINAL APPEAL 2009/8916 2009/8982 HANDLEY AJA ADAMS J HOWIE AJ TUESDAY, 21 DECEMBER 2010 TRACEY LEE HUNTER v R ROBERT LESLIE GORE v R JudgMent R v HUNTER 1 HANDLEY AJA: I agree with Adams J. R v GORE 2 I agree with Howie AJ. In particular I agree, with respect, that the sentencing statistics appear to indicate an unduly lenient range of sentences for the offence under s 25A of the Drug Misuse and Trafficking Act 1985 of supplying prohibited drugs on an ongoing basis. I also agree that ongoing supply from fortified premises is a matter of significant aggravation. 3 The quantities supplied by Gore on the four occasions between 11 December 2008 and 2 January 2009 could only be a sample of his transactions during that period. It certainly indicates the range of quantities typically supplied and their degree of purity but they must have been only a small fraction of the total. However, as Adams J demonstrates, the evidence did not enable any firm conclusion to be drawn as to the turnover of the business. 4 However the applicant did agree that the business was "lucrative", that drugs were available 24 hours a day, and that supplies were "pretty much" on hand and available straight away. I do not regard the quantities later found on the premises when the search warrant was executed as establishing the general level of stock carried in the business. 5 The fortification of the premises and the continuous nature of the business give a reliable indication of the scope of the operation. Fortification of the nature established by the evidence represented a significant investment by the applicant. As such it was a reliable indication of the notoriety of his business and his long term commitment to it. 6 Nor, with respect, can I equate the position of the applicant on the scale of criminality with that of the street vendor. The street vendor cannot be a reliable source of drugs 24 hours a day seven days a week. Such a vendor is likely to have stock limited in range and quantity, and, unlike a supplier from fixed premises, to supply to casual rather than regular customers. 7 The "savings" of $3,800 over a six weeks' period are not a reliable guide to the profits of the business. Given the applicant's addiction to gambling and his habit of attending West's Leagues Club in the evening, it is remarkable that there were any savings at all. 8 I agree with the orders proposed by Howie AJ. ROBERT LESLIE GORE 9 ADAMS J: Introduction 10 Robert Leslie Gore seeks leave to appeal against the sentence imposed upon him in the District Court on 14 October 2009 for one count of supplying a prohibited drug on an ongoing basis an offence under s 25A of the Drug Misuse and Trafficking Act 1985 (the Act), the maximum penalty for which is 20 years' imprisonment. The court took into consideration 11 allied matters on a Form 1 and sentenced him to an overall term of seven years six months imprisonment with a non-parole period of five years seven months and 12 days commencing on 13 March 2009, the date of his arrest. The applicant pleaded guilty before a magistrate and maintained that plea in the District Court. Accordingly, the sentence which would otherwise have been imposed was reduced by 25%, implying a starting point of ten years' imprisonment. The ratio provided by s 44 of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act) was not varied, there being a finding that there were no special circumstances justifying such a variation. The charges 11 Gore and his partner, Tracey Hunter, were identified by police as being involved in the supply of methylamphetamine and an operation was mounted using undercover police to negotiate the purchase of drugs from them. The first transaction occurred on 11 December 2008 when an undercover police officer attended the applicant's home and purchased 0.43g methylamphetamine (9% purity) from him for $100. On 20 December 2008 an undercover officer purchased 0.91g of methylamphetamine (10% purity) for $200. The third occasion, on 24 December 2008, involved the purchase of 0.47g (6% purity) for $200. The final purchase took place on 2 January 2009 when 0.92g of methylamphetamine (5% purity) was purchased for $200. These facts supported the charge of supplying prohibited drugs on an ongoing basis under s 25A(1) of the Act. The transactions occurred at the applicant's home, which he shared with Ms Hunter and, it seems, her 17 year old son. 12 The additional charges taken into account were as follows: during December 2008 and January 2009 Gore used his residence to conduct the unlawful supply of methylamphetamine contrary to s 36Z(1)(a) of the Act (50 penalty units and/or 12 months' imprisonment); he was in possession of $3,880 in cash and a quantity of mobile telephones, computer and electrical items reasonably suspected of being stolen or otherwise unlawfully obtained (5 penalty units and/or six months' imprisonment); he was in possession of 5.5 Alprozalom tablets, a prescribed restricted substance, contrary to s 16(1) of the Poisons and Therapeutic Goods Act 1966 (20 penalty units and/or six months' imprisonment); and 0.32g Oxycodone, a prohibited drug contrary to s 10(1) of the Act (20 penalty units and/or two years' imprisonment); 0.2g Buprenorphine, a prohibited drug contrary to s 10 of the Act (20 penalty units and/or two years' imprisonment); 0.28g methylamphetamine, a prohibited drug contrary to s 10(1) of the Act (20 penalty units and/or two years' imprisonment); 40 Kapanal tablets, prescribed restricted substance under s 16(1) of the Poisons and Therapeutic Goods Act (20 penalty units and/or six months' imprisonment); 0.30g methylamphetamine, a prohibited drug under s 10 of the Act (20 penalty units and/or two years' imprisonment); 200 ml Ordine, a prescribed restricted substance under s 16(1) of the Act (20 penalty units and/or six months' imprisonment); 5.76g pseudoephedrine, intending that it be used in the manufacture of a prohibited drug, namely methylamphetamine, contrary to s 24A(1)(a) of the Act (2000 penalty units and/or ten years' imprisonment); and 13 tablets of Northisterone, a prescribed restricted substance under s 16(1) of the Act (20 penalty units and/or six months' imprisonment). The Ground of Appeal 13 The only ground of appeal was that the sentence imposed was manifestly excessive in that the starting point of ten years was above the upper limit of the range within a proper exercise of the sentencing judge's discretion. Objective circumstances 14 The police facts did not refer to the presence of Ms Hunter's son in the premises or at all. Nor did they suggest that the transactions occurred in the presence of Ms Hunter. Nor was there any evidence in the Crown case of any drug transactions other than those forming the basis of the charge except, of course, that it was patent that more had occurred. 15 The front door of the applicant's home was fitted with multiple locks and the premises contained a CCTV camera which fed images from outside, including images of the front door and the street frontage. The backyard was fully fenced with barbed wire across the top of the fence line and the yard was guarded by several dogs. A computer room was set up as an office where clients would purchase drugs in exchange for money or goods. The room also contained an elaborate security system from which the front yard and street could be viewed. 16 So far as the precursor (pseudoephedrine) was concerned, police located glassware which contained a white substance. That substance was not analysed and there was no charge of manufacture preferred. Prior Offences 17 The learned sentencing judge briefly summarised Gore's criminal history, which he rightly characterised as "not a record that would allow the Court to extend any leniency whatsoever". The applicant's first conviction was in the Maitland Children's Court in March 1986 for breaking, entering and stealing for which he was placed on probation. He was 16 at the time. Something over three years later came the first indication of his drug and alcohol problems, when he was fined in October 1989 for possessing equipment for using drugs and having a high range prescribed concentration of alcohol. The following year he was convicted of driving whilst disqualified for which he was placed on a bond. Then, in 1991, he was fined for having cannabis in his possession, his second offence relating to drugs. In 1994 and 1995 he was fined for stealing and then imprisoned on three counts of breaking, entering and stealing and, again in 1995, convicted of an offence of giving false information to a pawnbroker. These offences, he conceded, were committed to feed his drug addiction. Further offences of stealing and larceny and breaking, entering and stealing followed in 1997, 1998 and 1999. In 2001 he was fined for possessing equipment for administering and having drugs in his possession and placed on an 18 month bond for receiving stolen property and fined for cultivating a prohibited plant. In 2003 he was fined for having goods in custody suspected of being stolen and the following year imprisoned for six months for breaking entering and stealing, three months for making false instruments and eight months for an additional breaking, entering and stealing and other offences of dishonesty. In 2005 he was fined for driving with a low range proscribed concentration of alcohol and, more significantly, sentenced to 12 months' imprisonment with nine months non-parole period for forging and altering prescriptions. Finally, in April 2008 he was imprisoned for 14 days for failing to appear in accordance with bail undertakings and sentenced to two months' imprisonment for possessing a prohibited drug. 18 This is a troubling history, fairly typical of drug addicts, but none of his convictions approach in seriousness the instant offence. The evidence of the two offenders 19 Gore gave evidence in the sentencing proceedings, as did Hunter, his partner who was also charged with drug offences (to which I will come in due course). The prosecutor and, it seems, the sentencing judge apparently accepted that both were candid witnesses. 20 Gore testified that he first started to drink and use cannabis in 1989 after a woman with whom he was in a relationship was hit by a train and killed. He said that in 1995 he hurt his back in a motor vehicle accident and, despite having a spinal fusion, problems with his back continued. In 2000 he had a further operation on his back but this did not rectify his problems. He said that, other methods of pain relief having failed, he started to use heroin in 1995 or 1996 to manage his pain. It was because of his addiction to this drug that he committed most of the offences of which he was convicted since that time. In addition to heroin, he was using morphine and any other pain killers that he could obtain. After he met his partner, he stopped using heroin but started using other pain medications like morphine or Oxycodone. He also used amphetamines but frankly admitted that this did not have any analgesic effect. 21 Gore testified that he started to supply drugs to other people in a business that grew as time went on. He said that he was responsible for its day to day running, sourcing the drugs and controlling the money including fortifying the premises for fear of drug rip offs. He said that much of the money he received from the sale of drugs was gambled, but some was also used for obtaining other medications. Hunter used amphetamines as well. Gore purchased pain medication illegally and regularly exchanged drugs for pain medication. 22 Gore said that it was because of him that Hunter started taking drugs and found herself before the Court. He accepted that she had been hurt and other people as well because people who purchased drugs got money for them in a wide variety of ways from gambling up to armed robbery and he knew that he had been receiving goods stolen by his clients to pay for their drug supply. He said that the $3,880 found by the Police was "probably six weeks' worth of savings" after purchasing his own drugs, the black market sourcing of prescription drugs and gambling. He conceded that the business was "lucrative" and open for business "24 hours a day", when people placed an order for drugs it would be "available … pretty much … straight away" since it was "pretty much … on hand ready to supply". The learned sentencing judge (rightly, if I may say so) described Gore as in charge of the business. The objective circumstances 23 So far as the extent of Gore's drug trading was concerned, the four transactions with the undercover police officers did not suggest a major operation. The quantities involved were consistent with sales to users rather than, as it were, wholesale supplies to dealers. The extent of the business, on the Crown case, was left to be implied by the nature of the premises themselves, which suggested the possession of a quantity of drugs which might attract attention from other unlawful and unwelcome visitors. The amount of money and property found was not insignificant though, of course, much depended on the time frame over which it was collected. Savings of something like $300 a week could not fairly justify the inference that the drug business was substantial. The evidence which enabled the characterisation made by the sentencing judge of the scale of the business came voluntarily from Gore and Hunter who, as I have said, gave evidence in the proceedings. Both made admissions of matters which were not known to police or, at least, alleged in the Crown case. It is ironic that, although they gave evidence intending to mitigate their sentences, it had the overall effect – at least so far as Gore was concerned – of revealing a more serious level of criminality than that which could properly have been inferred from or had been alleged in the prosecution case. The reasons for sentence 24 The sentencing judge identified the following matters as aggravating the seriousness of the offence: "The offences were principally carried out in company"; The co-offender's 17 year old son who lived with the couple "was exposed to their conduct and criminality"; The business was conducted in a way which "indicates significant planning, business know-how". 25 His Honour added that the crimes were committed for profit with no thought as to the consequences for the people who would purchase the drugs and use them. His Honour measured the seriousness of the offence as "being well above the middle of any scale constructed for such offences and, when regard is had to the matters on the Form 1 Schedule, a lengthy prison sentence must be imposed". 26 The sentencing judge's identification of the aggravating matters is problematical. In respect of the exposure of Hunter's son, the police facts did not mention him at all and, in respect of the Form 1 charge of conducting drug premises, referred only to the occupation of the dwelling by Gore and Hunter. Nor do the accounts of supplying the drugs refer to the presence of the latter's son. The Crown case, therefore, provided no proper basis for inferring that the offences for which the offender was being sentenced, whether substantively or on the Form 1, had occurred in circumstances in which the youth was exposed to their conduct and criminality. Clearly enough, the source of this evidence came from Hunter's evidence in cross examination as follows – Q: How old is your son? A: 17. Q: Was he living with you at the time of these drug premises? Y: Yes, he was, yeah. Q: So you exposed him to drug supply? A: Yes. 27 There was no further elaboration of this evidence. In terms, it referred only to Hunter's conduct, not that of Gore. The evidence is ambiguous: it is one thing to know that drugs were being supplied and quite another to be "exposed" to it. Such a circumstance of aggravation must be proved beyond a reasonable doubt. This evidence did no more than raise the possibility. Nor was it part of the Crown case that the youth was exposed to Gore's drug activities. In respect of the Form 1 offence, s 36Z(2) of the Act provides for a specific offence of organising or conducting drug premises where "the person knows that a child has access to the premises and, as a consequence of that access, the child is exposed to … a drug supply process". This offence carries for a first offence a maximum penalty of 60 penalty points or imprisonment for 14 months (or both). Furthermore, s 36Z(5) provides for a defence to a prosecution under subs (2) "if the defendant establishes that the exposure of the child … to a drug supply process … did not endanger the health or safety of the child". The mere fact that the premises were provided with surveillance equipment for the purpose of being forewarned against the likelihood of a drug rip off might imply that this defence would not be made out. But the issue did not arise because Gore was not charged with the substantive offence and it was not part of the case against him. It is wrong in principle to regard as a circumstance of aggravation a matter which is a separate offence and the subject of a distinct and separate penalty, still more when there is a defence provided which in the circumstances cannot be litigated. 28 Section 21A(2)(ea) of the Sentencing Act refers to the commission of an offence "in the presence of a child" as a circumstance of aggravation but, as I have mentioned, there was no evidence which could have justified the conclusion that the substantive offences were committed in the presence of the youth. 29 The other matter of aggravation mentioned by the sentencing judge, namely that the offence was carried out in company, was not in my opinion an aggravating feature of the offences for which the offender was being sentenced. None of the circumstances of the sales which comprised the continuing supply were alleged to have involved or occurred in the presence of any other person than the offender. At all events, the fact that offences occur in company, whilst it is capable of being an aggravating feature, might or might not in fact be aggravating: it is still necessary for the judge to determine whether in all the circumstances the offence is made more culpable than otherwise, as where two robbers overawe a victim. Otherwise, a theft that takes place in the presence of an innocent stranger is made more serious than one that occurs when no one else is present. "Company" in this context must mean someone who is involved in the same criminal undertaking. In this case, it could not, with respect, be fairly concluded that the presence of Hunter in the premises (assuming her to have played some role in the transactions) at the time when the supplies occurred, increased the criminality of those supplies. 30 Although s 21A of the Sentencing Act regrettably introduces unnecessary complexity into the sentencing process, it does not make something more culpable unless it is in reality more culpable in the particular case: there are no legal fictions in sentencing and the mere fact that a particular feature is listed in s 21A(2) should not have a significant effect on a sentence unless, having regard to the ordinary principles of sentencing, it actually aggravates the particular offending in question. In the circumstances here, the mere fact that Hunter may have (in some unspecified way) been in the company of Gore at the time of the supplies to the undercover officers and, no doubt, in respect of the conducting of drug premises, her presence added no significant culpability to these offences and should not have been weighed in the scales. 31 Nor, with respect, was there evidence of greater planning or organisation than was inherent in the fact that Gore sold drugs as part of a business of doing so. To obtain drugs for sale, let it be known that drugs could be bought and then to sell them, does not require any "business know-how" additional to that implicit in the commission of the offences of supply. Though different language is used, the same applies to the possible application of s 21A(2)(n). This is especially so when the Form 1 offence charged the organising of drug premises. 32 The learned sentencing judge concluded his description of the objective circumstances of the offence in the following way – I regard this offence as being well above the middle of any scale constructed for such offences and when regard is had to the matters on the Form 1 Schedule a lengthy prison sentence must be imposed. 33 It is difficult to understand what his Honour was here explaining. There is neither a factual nor a hypothetical scale constructed for Gore's offences. It may be that his Honour was referring in a somewhat roundabout way to the types of offences of ongoing supply that come to the courts' attention and intended simply to state that, comparing this case to the general run of other cases, it was somewhat more serious than those whose seriousness fell more or less in the centre of the bell curve. In such a calculus, one would then need to consider the statistical evidence as to the range of sentences usually imposed in such cases. The usual assumption is that, considering the sentences imposed as demonstrated by the JIRS statistics, the sentences more or less in the centre of the bell curve of that measure are analogues for offences more or less in the centre of the bell curve of seriousness. Moreover, it seems to me to be self evident that it is not logical, let alone reasonable, to reason that a case which falls more or less in the centre of the bell curve of seriousness should attract a sentence halfway between zero on the one hand and (taking the present offence by way of example) 20 years on the other. Punishment does not work in a linear progression. 34 If the sentencing judge was merely describing a range of seriousness falling somewhere in the middle of the cases coming before the court, with respect, I think his Honour was mistaken. This is amply demonstrated by the cases discussed below and the JIRS statistics. If, on the other hand, his Honour was referring to the middle of the range of objective seriousness – which seems likely, since, having made the assessment he then went on to mention the subjective features of the case – then this was, with respect, an approach that was likely to (and in fact did) lead to error. The point is (if I may say so) succinctly made by McClellan CJ at CL in Sivell v R [2009] NSWCCA 286 – [2] The sentencing judge described the offence as lying in the mid range of "objective seriousness" but toward the lower end of that range. In so doing the language used by her Honour was that which is appropriate when sentencing for an offence which attracts a sentence which includes a standard non-parole period. The present offence does not attract a standard non-parole period. [3] Although a sentencing judge must always identify the seriousness of the offence, caution should be exercised when using language relevant to an offence which attracts a standard non-parole period. The relevant principles were discussed by this Court in R v Way (2004) NSWCCA 131; 60 NSWLR 168: see also R v AJP (2004) NSWCCA 434; (2004) 150 A Crim R 575. [4] When assessing where an offence lies in the range of objective seriousness when the offence attracts a standard non-parole period it is important to put aside considerations that do not have a nexus with its commission: Way [99]. Identifying whether an offence falls within the mid range of objective seriousness or otherwise is necessary so that appropriate consideration can be given to the standard non-parole period provided by the statute. The "objective seriousness" of the offence is of relevance only to the non-parole period to be imposed. [5] The "objective seriousness" of an offence is a different concept to the "seriousness of the offence", the latter expression being commonly used when determining the sentence, both total term and non-parole period (if appropriate) for that offence. Where a standard non-parole period is not provided for an offence, the objective seriousness of the offence does not, of itself, direct attention to any particular type of punishment or term of imprisonment which must both be determined after all of the relevant matters, both objective and subjective, which inform the seriousness of the offence have been considered. 35 The term "middle of the range of objective seriousness" is problematical both theoretically and practically. With respect, this Court's conscientious attempts to give it some substantive meaning and sensible application in the context of using standard non-parole periods have not been altogether successful and require a level of abstraction that is confusing rather than informative. It is most unfortunate to find it has been insidiously introduced into sentencing processes where it has no application and which should be approached straightforwardly by the common law method as outlined by the High Court in Markarian v The Queen [2005] HCA 25, most usefully (in my respectful view) by McHugh J, whose judgment not only sets out the theoretical and practical basis for sentencing but decisively shows why alternative approaches cannot, in principle, yield just outcomes. The following seems to me to be the most telling part of the judgment (references omitted) – [76] One reason why the idea of instinctive synthesis is apparently abhorrent to lawyers who value predictability and transparency in sentencing is that they see the instinct of a sentencing judge as entirely subjective, personal, arbitrary and unconfined. In fact, although a sentencing judge does ultimately select a number, it is not from thin air that the judge selects it. The judicial air is thick with trends, statistics, appellate guidance and, often enough these days, statutory guidance. [77] First, the sentencing judge almost never imposes a sentence for an offence that has been committed for the first time. A sentencing judge may have seen dozens or scores of such cases and develops, through experience, a sense of the relative gravity of offences and the relative circumstances of offenders that dictate the weighting of different factors in the sentencing process. The need to give greater weight to general or specific deterrence in response to crime trends is one factor to which a sentencing judge has special sensitivity. A sentencing judge also has the benefit of collegiate knowledge, both formally through reading the judgments of other judges and informally through interaction with other judges. [77] No one suggests that the judicial robe carries in its seams the wisdom of Solomon, but judicial experience in sentencing is a skill to be respected by the community and other judges. Repeated exercise in synthesising sentencing factors can only hone the instinct required to translate such factors into just numerical outcomes. That experience, combined with the special advantages of receiving sentencing material, including oral material, first hand, are the two most important reasons why appellate courts, and especially an ultimate appellate court which is national rather than local to the sentencing jurisdiction, must exercise restraint in reviewing sentencing decisions, especially on the basis of manifest excess or leniency. [78] A further source of information about the sentences imposed by other judges is the sentencing statistics produced by (in New South Wales) the Judicial Commission …. It is surprising that they did not cause the Court of Criminal Appeal to see that the sentence of eight years that it was imposing was disproportionate. Those statistics showed that the Court was imposing a sentence as high as any that had been imposed during a six year period dealing with 22 cases concerning the same offence, despite the subordinate role played by this offender and the context of a Crown appeal. The failure of the Court to act on those statistics suggests that its belief in the "logic" of its numbers caused it to overlook the significance of the statistics. If so, it shows the dangers lurking in an approach that concentrates on numerical components. [79] Second, a judge is sensitive to legislative trends. A change in the maximum penalty for an offence or in the elements of an offence may indicate a shift in the values to be applied when sentencing for that offence. In New South Wales there is also a statutory system of guideline judgments and standard minimum non-parole periods that give more specific guidance in common offences and operate as a starting point from which departure is intended to be the exception or at least require explanation. In recent times, both methods have been used to increase the prevailing median sentence for particular classes of offences. That does not mean that the judge must start with a specific number but knowledge of the median or the extent of the range guides the judicial "instinct". [Emphasis added.] [80] Third, a sentencing judge always knows that the sentence imposed is subject to judicial review by an appellate court. Whether or not that review takes place, he or she is conscious that the sentencing discretion and the reasons for arriving at a particular sentence will be considered by the advisers to the Crown and the offender. Error will be the subject of appeal. To avoid appealable error, a judge pays close attention to the guidance provided by appellate courts as to the impermissible paths of reasoning and the permissible factors which will be relevant to the sentencing process in a particular case. [81] Fourth, the role of open justice is also important. A judge's sentence and reasons are usually exposed to public scrutiny through publication or media reporting. Public responses to sentencing, although not entitled to influence any particular case, have a legitimate impact on the democratic legislative process. Judges are aware that, if they consistently impose sentences that are too lenient or too severe, they risk undermining public confidence in the administration of justice and invite legislative interference in the exercise of judicial discretion. For the sake of criminal justice generally, judges attempt to impose sentences that accord with legitimate community expectations. [82] Finally, in Veen [No 2] … as I have indicated, this Court affirmed that the ultimate control on the judicial sentencing discretion is the requirement that the sentence be proportionate to the gravity of the offence committed. In pursuit of other sentencing purposes, a judge may not impose a sentence that is greater than is warranted by the objective circumstances of the crime. Both proportionality and consistency commonly operate as final checks on a sentence proposed by a judge. They guard against hidden errors in the process, the kind later identified on appeal as manifest excess or leniency in accordance with the principles in House v The King … [83] The acceptance of the role of instinctive synthesis in the judicial sentencing process is not opposed to the concern for predictability and consistency in sentencing that underpins the rule of law and public confidence in the administration of criminal justice. The synthesising task is conducted after a full and transparent articulation of the relevant considerations including an indication of the relative weight to be given to those considerations in the circumstances of the particular case. The instinctive synthesis approach does not prevent the use of adjectives or adverbs or indications that this or these factors makes or make the case more or less serious than other cases or are the critical features of the case. And judicial instinct does not operate in a vacuum of random selection. On the contrary, instinctive synthesis involves the exercise of a discretion controlled by judicial practice, appellate review, legislative indicators and public opinion. Statute, legal principle and community values all confine the scope in which instinct may operate. The judicial wisdom involved in the instinctive synthesis approach is therefore likely to lead to better outcomes than the pseudo-science of two-tier sentencing. At all events, I am not satisfied that two-tier sentencing is a better method or process than the instinctive synthesis method that has been the traditional approach of common law judges. 36 As may be gathered from this passage, it is one thing to speak of "median sentences" and altogether something else to speak of "median circumstances" or, to use the statutory term, "middle of the range of objective circumstances". The former term is clear. Both approaches, of course, call for the accurate identification of the objective features of the offence. Before moving to that matter as I see it in the present case, I wish to say something more about the notion of the "range" of seriousness in the context of the maximum penalty. 37 The first and perhaps most obvious point is that the range of sentences available or usually imposed is necessarily a quite different notion to the range of seriousness of culpability, though of course, there is or should be a relationship between them. It is trite law (to take one end of the spectrum) that the maximum sentence is reserved for the worst class of case. The significance of the maximum sentence was explained in Markarian by Gleeson CJ, Gummow, Hayne and Callinan JJ – [31] Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. In their book Sentencing , Stockdale and Devlin … observe that: "A maximum sentence fixed by Parliament may have little relevance in a given case, either because it was fixed at a very high level in the last century ... or because it has more recently been set at a high catch-all level ... At other times the maximum may be highly relevant and sometimes may create real difficulties ... A change in a maximum sentence by Parliament will sometimes be helpful [where it is thought that the Parliament regarded the previous penalties as inadequate]." 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. That having been said, in our opinion, it will rarely be …appropriate to look first to a maximum penalty … and to proceed by making a proportional deduction from it. That … [is] to use a prescribed maximum erroneously, as neither a yardstick, nor as a basis for comparison of this case with the worst possible case. [Emphasis added.] It is vital, as it seems to me, to give full weight to the italicised phrase to avoid the tendency to give the maximum term too much, even determinative, significance. In referring to the rarity of appropriately starting with the maximum, of course, their Honours were not only referring to the order of reasoning but also the mode of applying it as a "yardstick". Of course, as a matter of logic, the problem of according the maximum penalty any primacy of significance over the other relevant factors to be taken into account is accentuated by the difficulties involved in comparing a case that is not in the worst category with (a necessarily hypothetical) one that is, and then attempting to make some adjustment – which must be itself highly impressionistic (or instinctive) – to apply the comparison in any useful way. 38 Accepting the maximum sentence as reflecting the Parliament's view of an appropriate sentence for a worst category case – this being in fact a necessary construction having as its basis constitutional theory rather than any actual historical reality – it does not follow at all that any inference can be drawn about the intention of Parliament as to what kind of case would fall into the category which should attract a sentence, say, halfway between zero and the maximum or a third or a quarter of the way and so on – which points to the inherent illogicality of the opposite approach. (I pass over the not insubstantial problem of what is meant by zero in this calculus and what would be a case falling into the least serious category.) Putting this in another way, it cannot be right to reason that, by virtue of the maximum sentence, any sentence in a case of significantly less culpability can be calculated, even broadly, by reference to the maximum. This is to give illusory measurement to essentially incommensurable factors. Thus, it simply cannot meaningfully be said of any given set of circumstances, that, for example, they are half (or nearly half or broadly half) as serious as a case in the worst category. By parity of reasoning (with unfeigned respect for those who take the other view) it cannot be right to either criticise or approve a sentence by reference to the proportion it bears to the maximum. All one can say is that the culpability in the former falls short by an indeterminate (but, say, major or minor) degree from that which would bring the case into the worst class. The greater the degree by which the instant case falls short of the worst category, so also must the sentence be short of the maximum but, since no comparison can give rise to an arithmetical proportion – or a range of proportions – in virtually every case the maximum can provide no more than a very broad perspective. 39 The very fact that the worst category case must, of necessity, be a hypothetical construction is also a substantial (indeed, to my mind insurmountable) difficulty in the way of using it comparatively for the purpose of any kind of calculation. 40 This discussion does not question the use of the maximum sentence as a broad guide to the attitude of the Parliament to the seriousness of the offence in question. Nor, of course, am I suggesting that the maximum penalty should be disregarded: I wish simply to point to the limitations in its appropriate use. 41 In R v Barlow [2010] NSWCCA 215 McCallum J (with whose judgment Allsop P and Price J agreed) gave apparent support to the reasoning with which the above takes issue. Her Honour said – [65] Ms Francis [for the applicant/offender] submitted that, having regard to those factors, it may be concluded that the Judge would have started (before taking them into account) at a total sentence in the order of six or seven years. Ms Francis noted that is roughly one third of the maximum penalty of 20 years, which is consistent with the premise that the offence fell in the lower one third of objective offending. She submitted that this analysis demonstrates his Honour did not fail to have proper regard to the maximum penalty. The Crown did not contend otherwise. [66] It must be acknowledged that Ms Francis' analysis implicitly assumes a linear relationship between the maximum penalty and the objective seriousness of the offence. It assumes that the worst offence will warrant imposition of the maximum penalty, the mid-range offence will warrant a term of imprisonment at the mid-point of the mathematical range and so on. That is a perfectly logical assumption, and one that is not uncommonly adopted in sentencing decisions. However, it does not accommodate the distorting effect of the standard non-parole prescribed for the present offence … Although these remarks were made in a case involving a standard non-parole period, their generality implicitly contradicts the reasoning I propose above. I respectfully suggest that the approach endorsed by her Honour (and apparently accepted by the other members of the Court) is mistaken. 42 Another key feature of sentencing which demonstrates the inappropriateness of the "proportionate-to-maximum-sentence" approach needs to be borne in mind. That is, that the severity of a sentence does not increase in a linear proportion with its length. This obvious proposition has recently been restated in this Court in R v MAK, R v MSK [2006] NSWCCA 381; 167 A Crim R 159 – [16] The severity of a sentence is not simply the product of a linear relationship. That is to say severity may increase at a greater rate than an increase in the length of a sentence. As Malcolm CJ said in R v Clinch (1994) 72 A Crim R 301 at 306: … the severity of a sentence increases at a greater rate than any increase in the length of the sentence. Thus, a sentence of five years is more than five times as severe as a sentence of one year. Similarly, while a sentence of seven years may be appropriate for one set of offences and a sentence of eight years may be appropriate for another set of offences, each looked at in isolation. Where both sets were committed by the one offender a sentence of 15 years may be out of proportion to the degree of criminality involved because of the compounding effect on the severity of the total sentence of simply aggregating the two sets of sentences. Accordingly, even if a case were able to be assessed as being more or less halfway in seriousness between zero and the maximum sentence, one half of the maximum sentence would represent a considerably harsher punishment than implied by the assessment. This point emphasises the inappropriateness of such calculations; nor does the appeal to a broad view increase its appropriateness. 43 I have already pointed to the features mistakenly identified by the sentencing judge as aggravating, which indicates, as I respectfully think, his Honour's assessment of seriousness was affected by significant error. Putting these to one side, and accepting that measuring seriousness is a matter upon which reasonable minds might reasonably differ and that the view of the first instance judge should be accepted unless demonstrably wrong, there are several factors that, to my mind, place this particular case well in the lower range of seriousness – (a) the relatively small amounts of drugs actually supplied; (b) the relatively small amounts of drugs found on hand when the premises were searched; (c) the fact that sales were of street level amounts, so that the offender was not trading as a wholesaler. 44 Whilst the suggestion that the premises were "fortified" was made, this language does not seem to me to take the facts themselves any further, namely, there were extra locks on the door and equipment installed which permitted video surveillance of the exterior of the building and barbed wire around the top of the fencing. If this is truly "fortified", it must be at the very lowest level of fortification: dogs, fencing and multiple locks are commonplace in many ordinary homes. Only the barbed wire and video cameras move it into the unusual category. Indeed, except insofar as it might reflect the continuing character of the offender's business, namely it was such as to justify the expenditure on the equipment – it does not seem to me in any practical sense amount to an aggravating matter. How can it make the offences more culpable? 45 I have mentioned that Gore contends that the sentence is manifestly excessive. His counsel, Mr Bruce SC, sought to establish this ground of appeal by referring to other decisions of this Court dealing with the offence for which the applicant was sentenced. At the outset, he acknowledged the qualified utility that such authorities have, derived mainly from two considerations: whether the facts (both objective and subjective) are truly comparable; and, at all events, the need to make proper allowance for the exercise of the wide discretion available to a sentencing judge. Mr Bruce brought our attention to the following passage in the judgment of Hunt CJ at CL in Morgan (1993) 70 A Crim R 368 at 371 – It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range. Mr Bruce pointed to the following cases as representing, as a whole and after making all just allowance, a range of sentences significantly out of kilter with the sentence imposed on his client. 46 The first is Fitzpatrick [2010] NSWCCA 26, in which the offender pleaded guilty to one count of supplying (deemed) 24.2g amphetamine (maximum 15 years) and one count of ongoing supply of amphetamine (maximum 18 years), comprising 51 separate occasions, recorded by listening device. The offender was on bail for the first count when she committed the offence which was the subject of the second. She was accorded a discount of 17% for her pleas of guilty. On the first count a fixed term of imprisonment of 16 months was imposed and on the second a sentence of four years ten months with a non-parole period of three years four months, giving an overall effective sentence of five years four months with a non-parole period of three years nine months. The offender's appeal against the severity of her total sentence was dismissed. In doing so, the Court noted the finding by the sentencing judge that the second offence concerned very substantial drug dealing from the offender's home and the magnitude of the operation was also very substantial, the motivation for both offences being financial gain. The offender's antecedents included drug and violence related convictions and the breach of bail was a significant aggravating factor. On the other hand, the offender had a disadvantaged background and had been a drug addict from a very young age. 47 In Chen [2009] NSWCCA 157 the offender pleaded guilty to one count of ongoing supply of methylamphetamine, intercepted phone calls indicating that he supplied or agreed to supply during the relevant period on 24 separate occasions, a total of at least 115.3g, having in all a minimum value of $28,800, one count of deemed supply of 23.48g of methylamphetamine, and the possession of a prohibited weapon, a taser gun (maximum penalty of 14 years' imprisonment with a standard non-parole period of three years). Two additional supplies of 10g and 7g of methylamphetamine were taken into account on a Form 1. The offender had no prior criminal record and was given a 25% discount for his plea of guilty. On count one the sentence was six years and three months' imprisonment with a non-parole period of four years, whilst on counts two and three he was sentenced to fixed terms of two years concurrently with count one. The offender had obtained the methylamphetamine from a number of alternative supply chains. He mixed it with cutting agents and then supplied the finished product to an established customer base from a shop front which had been established at his residential address. Drugs were supplied on a daily basis for financial gain. On his arrest police seized $4,885 in cash, which the offender said he had borrowed from people whom he would not identify. In searching his premises police seized, amongst other things, 54.6g of cannabis leaf and four ecstasy tablets. Drug paraphernalia, such as digital weighing scales, a large number of clear resealable bags, aluminium foil and various cutting agents were also found. The amounts sold were, on occasions unknown but otherwise varied between 0.5g and 28.4g, the bulk being between 1g and 3.5g. The sentencing judge concluded that the offender was selling the drugs as well as amphetamines "on a scale which is in the scheme of things, fairly large'". He also found that the offender "was running a regular business for the supply of drugs over a period which he said in evidence was up to six months and, although the quantity of drugs is perhaps not as great as has come before the courts on other occasions, it is still significant". In dismissing the offender's appeal, Buddin J (with whom the other members of the Court agreed), stated that the objective gravity of the ongoing supply offence was high since the offender was not a mere street dealer but, rather, part of an organised commercial operation, matters which were evident from the length of his involvement in the enterprise, the number of individual transactions in which he participated and the overall quantity of drugs supplied. 48 In Singh [2009] NSWCCA 129 the offender pleaded guilty to the offence of ongoing supply involving 100 MDMA (ecstasy) tablets (31.81g) for $2,000, 1,000 tablets (319.8g) for $17,500 and 700 tablets (205.4g) for $12,250 and supplying 2.25kg of cannabis for $16,500. Taken into account on a Form 1 when sentencing on the first count were also the supply of 1,000 MDMA tablets (241.92g) for $17,500, goods in custody comprising $5,400 in cash, and possession of 86g of cannabis. The offender had previous convictions for driving and minor drug related offences. His early plea attracted a discount of 25%. An overall sentence of seven years six months with a non-parole period of five years was imposed on each count, to be served concurrently. The period of supply was 22 September 2005 to 16 November 2005. The offender had been introduced to cannabis when a seven year old and admitted having been involved in the supply of drugs since he was 15 and had made "a large amount of money" from his recent drug dealings. In dismissing the appeal, Howie J noted that one of the matters "of very great significance in the ongoing supply offence" was that two of the supplies were for commercial quantities of the drug. The maximum penalty for supplying such a quantity of methylamphetamine is 20 years' imprisonment and, his Honour noted, "would have warranted cumulative sentences", observing (rightly, with respect) that the offender "was very fortunate to have been charged under s 25A and then to have another supply of a commercial quantity taken into account on a Form 1". His Honour went on to say that a starting sentence of ten years for the s 25A offence and the Form 1 matter, which included a supply of six times the commercial quantity, was not excessive. In rejecting a contention which relied on an even more lenient sentence passed on his co-offender, Howie J said that the offender "should accept that he is doing the least sentence that he could possibly have hoped for to reflect his criminality as a serious drug trafficker". 49 In Hanza [2008] NSWCCA 288, the offender pleaded guilty to two counts of ongoing supply; in relation to the second a further count of ongoing supply being taken into account on a Form 1. The first count involved the supply on each occasion of approximately 7g of heroin, in all 27.94g for a total sum of $10,080. In respect of the second count, three supplies were involved, being 28.13g for $9,500, 55.13g for $18,500 and 84.2g for $31,500, in all 167.46g of heroin for $59,500. Telephone intercepts revealed that, in a period of approximately nine weeks, over 150 phone calls were made in relation to the supply of drugs, revealing the further supply of 40g of heroin for $17,000. On the first count a fixed term of imprisonment of two years was imposed and, on the second, an overall sentence of five years with a non-parole period of three years, resulting in an overall sentence of six years with a non-parole period of four years. Each count covered a period of a little over four weeks approximately six weeks apart. The offender's appeal was dismissed since, aside from some technical fault, the Court considered that no less severe sentence was warranted in law and should have been passed. 50 In Tran [2007] NSWCCA 140, the offender pleaded guilty to one count of ongoing supply and one count of supply (deemed). The first count involved four transactions of approximately 5g each of heroin and, on the fifth occasion 56g of heroin. The second count involved possession for the deemed purpose of supply of 75g of heroin. In all the amount of heroin involved was 151g. After a 25% discount for early pleas, sentences were imposed on the first count of three years nine months with a non-parole period of two years three months and, in respect of the second count, two years six months with a non-parole period of 12 months. The overall sentence was one of four years six months with a non-parole period of three years. The offender was found to have been involved in a commercial business operating "above the street level of sales", indeed some street sellers were involved in the ongoing supply matters. McClellan CJ at CL, after noting that there was no appeal (and could be no appeal) against the individual sentences, concluded that the total sentence was appropriate. 51 Smith [2007] NSWCCA 138 is perhaps a more useful judgment since the sentence under appeal was varied and the Court made (if I may say so with respect) some useful observations on the relevant principles. The offender had pleaded guilty to one count of ongoing supply over a two week period at the end of 2005 involving about a dozen supplies of amphetamine, in all 35g, and an offence of supplying a prohibited drug between the same dates, being cannabis, involving about half a dozen supplies, totalling between 10g and 15g. The sentence for the first offence took into account four offences of supplying cannabis, supplying amphetamine, goods in custody and possessing a prohibited drug (cannabis). For the first offence an overall sentence of four years with a non-parole period of two years was imposed partly accumulated on the sentence for supply comprising an overall sentence of two years with a non-parole period of one year. The effective sentence was a term of four years with a non-parole period of two and a half years. The sentencing judge regarded the offences as serious, they were planned and organised and committed for financial gain. The ultimate sentences reflected discounts for early pleas but also assistance to the authorities described as "genuine and valuable". Subjectively, it was accepted that the offender was contrite and had reasonable prospects of rehabilitation. The starting point identified by the sentencing judge for the first count was eight years and, for the second, four years. A number of grounds of appeal were advanced, but the only presently relevant one was that the sentences were manifestly excessive having regard to the starting points. Referring to a number of decisions of this Court concerning the principles to be applied in sentencing for an offence under s 25A of the Act, James J (with whom the other members of the Court agreed) cited with approval the following passage from the judgment of Dunford J in Hoon and Pouoa [2000] NSWCCA 137 – [39] The section is directed to the concepts of repetition, system and organisation, and the objective criminality of any offence under the section should be determined by reference to those features, and not merely to the number and quantities of individual instances of supply. 52 His Honour also referred to Khaled [2001] NSWCCA 169 where Wood CJ at CL said (at [19]) that higher sentences are appropriate for bigger and more organised dealers and lesser sentences for those at the bottom of the distribution chain. James J went on to characterise the offender's activities in the instant appeal as follows – [53] Repetition, system and organisation were present in the applicant's activities but at a level much below that of certain other offenders, who have, for example, had employees working in shifts in the business of supplying drugs. The applicant was at or near the bottom of the distribution chain. Although, as the authorities indicate the quantity of the drug supplied by the offender is not the only relevant fact in sentencing, it remains a factor of some relevance. In the present case, the total quantity of the drug supplied by the applicant during the 30 day period was only about 35g. One of the aggravating features of the case was the fact that the offender was on conditional liberty on a bond at the time of committing the offence. 53 James J referred to the statistics of sentences for offences under s 25A of the Act and repeated the caution that has often been stated must be used in considering such statistics. But his Honour added – [56] … However, the statistics would indicate that out of a quite large number of sentences for supplying the drug amphetamine on an ongoing basis between July 1999 and June 2006, there is only one sentence exceeding six years in its total length. [57] The conclusion I have reached is that, notwithstanding the seriousness of the ongoing supply offence, the sentencing judge's starting point of eight years was above the upper limit of the range within a proper exercise of his Honour's discretion and, hence, the sentence imposed by his Honour, after allowing the discount … was manifestly excessive. … 54 The last case cited by Mr Bruce SC is SZ (2007) 168 A Crim R 249. In that case the offender had pleaded guilty to four offences, two of which comprised the ongoing supply of amphetamine, the third the deemed supply of amphetamine and the fourth the possession of a prohibited weapon. In addition, 13 charges of goods in custody and three charges of receiving were taken into account on a Form 1 document and he was also sentenced, pursuant to s 166 of the Criminal Procedure Act 1986 for an offence of conducting drug premises (maximum 12 months imprisonment). For the first offence, which occurred in mid 2005, the offender was sentenced (taking into account the Form 1 offences) to a total term of four years and six months with a non-parole period of two years and six months. For the second offence, which occurred very shortly after the first, the offender was sentenced to an overall sentence of three years and nine months with a non-parole period of two years. For the third offence he was sentenced to a fixed term of two years, to be served wholly concurrently with the sentence imposed on the second offence and, in respect of the fourth offence, he was sentenced to a fixed term of six months' imprisonment and for the last six months of 12 months' imprisonment, the sentences wholly concurrent with each other and with the sentence imposed for the first offence. The overall effective sentence was therefore four years and nine months with a non-parole period of three years. (It is evident that the maximum penalty for the s 166 certificate offence was inappropriate but as it had no practical impact upon the overall sentence, it was unnecessary to deal with it.) 55 So far as the volume of trade was concerned, in respect of the first offence the offender sold small quantities of amphetamine to a police officer on five separate occasions, amounting in all to 0.9g. In respect of the second offence a total of 3.6g of amphetamine was sold on six separate occasions. The sales took place at the applicant's premises occupied by his father (who lived in the main house) and the offender (living in the granny flat). A 10 metre high observation tower attached to the roof of the house with a tilt pan camera on it and a number of surveillance cameras placed around the house linked to a monitor in the granny flat occupied by the offender. The fence had been cut to produce jagged and serrated edges, the side gate had sharp metal rods protruding upwards from it and a large dog, unleashed, patrolled the premises. When the premises were searched by police, 9.7g of amphetamine were found together with two cases of pepper spray, giving rise respectively to the third and fourth offences. A large number of other items were found identified as being the proceeds of break and enters or otherwise having been unlawfully obtained and which appeared on the Form 1 document. The applicant was conducting a drug house, of course, which gave rise to the s 166 offence. The learned sentencing judge described the offence – This is a very serious offence. It is quite clear now that amphetamines are to be regarded as being as pernicious as heroin and cocaine, which are regarded as very serious drugs. I must say that the events demonstrate to me that [the offender] was, at the time of these offences, a well established and well organised commercial supplier of amphetamines. He was doing this on a continuing basis. That is not an aggravating factor, because it is an element of the charge, but it was clearly a commercial operation designed to bring him money. …… This is, in my view, the most serious example of ongoing supply of drugs that I have encountered and it is compounded by the fact that the supply extended over a long period. It is an offence which, in my view, is at least at the middle of the range of seriousness and probably well towards the upper end of the scale of seriousness of these offences. 56 There were a number of criminal convictions on the offender's record, ranging from possessing a weapon without a licence to offences of dishonesty, including breaking and entering. He had served several short terms of imprisonment. The ultimate sentences reflected the offender's early plea of guilty (25%) together with a further reduction of 50% to reflect assistance to the authorities, thus an overall discount of 62.5% from a sentence of 12 years imprisonment which his Honour would otherwise have imposed. Buddin J (with whom the other members of the Court agreed) pointed to the purpose served by s 25A of the Act as designed to target "the business of supplying prohibited drugs and it is the magnitude of that operation, rather than the individual supplies which is of importance" citing, amongst other authorities, R v Kairouz [2005] NSWCCA 247. Buddin J pointed out that the offender had been engaged in a professional commercial operation, the way in which the premises from which he operated having been fortified, serving "to emphasise the steps to which [the offender] was prepared to go in order to protect his illicit business". His Honour then referred to the offences on the Form 1 document pointing out that they were far from trivial, relating to the discovery of a large number of items, difficult to value but estimated as likely to be worth hundreds of thousands of dollars. In addition, the offender was on bail at the time of his arrest. Buddin J went on to say – Notwithstanding these features of the case, I accept the submission that the starting point or notional sentence for the first two offences, and particularly the first offence, was too high. Although as the authorities may claim, the quantities of drugs involved in any particular matter does not of itself determine the objective gravity of the offence, it is pertinent to observe that the total quantity of drugs supplied as a result of the two offences was 4.5g, which is not in the scheme of things, a particularly large quantity … In the result, however, it was considered that, although the starting points of 12 and ten years respectively were too high, since the combined effective discount of 62.5% was excessive, there was no room to reduce the sentence. Additionally, the Court took into account that the various sentences were structured in a way that resulted in a significant benefit to the offender by virtue of the very substantial degree of concurrency. 57 I should also mention R v Smiroldo [2000] NSWCCA 120; 112 A Crim R 47, (which was the first s 25A sentence to be considered by this Court and which I discuss below for other reasons). On 28 January 1998 an undercover officer went to the garage area of the premises in which the offender lived and negotiated the purchase for $50 of 0.37g (4.5% pure) of amphetamine, which was produced from a waist bag containing a number of packets of white powder. The offender invited the officer to return at any time and "I'll fix you up with anything", indicating he was open seven days a week. About ten days later the officer returned and purchased another $50 packet of 0.49g of methylamphetamine (3% purity). About two weeks later the officer went again to the garage and bought two packets of powder, weighing 0.86g, for $100, indicating that he would like to purchase a larger quantity. The offender offered to supply 10ozs for $3,500, at a purity that could be cut to make up make up 12ozs which could be sold at $1,000 an ounce. Arrangements were made for the purchase of 1oz for $900. Two days later this supply of 26.7g (5% purity) was effected. 58 The sentencing judge (Howie DCJ, as his Honour then was) found that the offender "was engaged in the business of supplying drugs [for profit although he was incidentally supplying his own drug addiction] to whomsoever might approach him at his garage". His Honour sentenced the offender "on the basis that he was involved in the ongoing supply of amounts which might be described as street deals, that is packets of the drug for $50, being about 0.3, or 0.4 of a gram, depending upon the drug's purity … [and] was … the middle man in disseminating this drug into the community to users … [being] prepared to supply a larger amount of the drug when requested to do so by the undercover operative … [although it was not] his usual practice to supply drugs in amounts of more than these street deals to which I have referred". In short, the offender was involved in "small scale, yet systematic drug dealing". Subjectively, the offender turned 23 on the day of his sentence. He had a criminal record, of which the most severe offence was breaking, entering and stealing for which, on one occasion, he had been sentenced to three months imprisonment, and no convictions for drug matters. It was accepted that he became addicted to cocaine, amphetamines and alcohol consequent upon the death of his son, then aged six weeks, in November 1994. His Honour also accepted that the offender had resolved to try to change his lifestyle and had taken steps in that regard. He pleaded guilty at the earliest opportunity. His appeal from his sentence of an overall term of four and a half years with a minimum term of two and a half years was dismissed. 59 R S Hulme J (with whom Sheller JA and Dowd J agreed) made the following point in respect of the sentencing statistics – The details of these 72 cases are not before this Court but when one has regard to the fact that the maximum penalty prescribed in the Drug (Misuse and Trafficking) Act for the supply of a commercial quantity of amphetamines is 20 years imprisonment, and the maximum penalty for the supply of an indictable quantity, i.e. between not less than 5 and 250 grams is 15 years imprisonment, one can understand Judge Howie's surprise at the leniency of the sentences which have been imposed for the offence. Indeed, when one recognises that not one offender was given a sentence as great as half the maximum prescribed by Parliament, and only 10 were given sentences more than one quarter of that maximum, (or more than one third of the maximum for the lower offence) it is difficult to avoid the conclusion that there had been systemic inadequacy in the sentencing for this offence. I would respectfully observe that many of the cases in the statistics may well have been at all events very much at the lower end of the scale of seriousness. It is a sadly notorious fact that the big operators are rarely caught. I discussed above the limitations in assessing by reference to the maximum penalty the appropriateness of sentences for cases falling significantly short of the worst category. For myself, I would not be prepared to accept that the statistics to which reference was made suggest any systematic inadequacy. I would respectfully point out that the Judges of the District Court are far closer to the everyday sentencing of offenders for this (and other offences) and have available in their own experience a much greater database, as it were, than the Judges of this Court to provide a context of reference. I am not prepared to accept that the Judges of the District Court suffer from a widespread unwillingness, let alone refusal, to apply the ordinary principles of sentencing to the cases before them. It is important to bear in mind also that only a tiny proportion of sentences come to this Court and, of those, only a small proportion of appeals succeed. I would agree that, because of the conceptual relationship between the offence of supplying a commercial quantity of drugs and the offence, in substance, of the commercial supplying of drugs, it was not unreasonable to have regard to the statistics of sentences imposed in the former class of case, though it is necessary of course to make allowance for the fact that the latter cases almost always involve much less quantities. Of course, we now have a substantial sample of cases of s 25A offences and reference to very roughly analogous offences is not necessary. 60 Mr Bruce SC also pointed to the fact that the Judicial Commission's statistics for the period January 2002 to December 2008 in respect of s 25A offences show that the sentence imposed on Gore is greater than any other sentence imposed during that period, as regards both the total sentence and the non-parole period. Seventy per cent of sentences of imprisonment (of a large sample of 218) were three years or less with eighty five percent of non-parole periods being two years or less. On the assumption that all these sentences had been reduced by 25% for early pleas (plainly an overstatement) the sentence passed on Gore exceeded even the median sentences (30 to 36 months terms, 12 to 18 months non-parole periods) by a very considerable margin. Even for a case above the "middle of the range", this points to a marked and unexplained disparity. For a case of less seriousness than the "middle", the disparity is, with respect, unjustifiable. Discussion 61 The question whether the sentence was manifestly excessive requires that attention be focused on the objective seriousness of the offence committed by the offender. This is also necessary to enable some comparison – albeit in a broad way – with the other cases of similar offences dealt with by the courts. Comparison also requires consideration of the subjective features of the various offenders who were dealt with. Taken together, the guidance that the other cases provide can then be assessed. 62 As has already been mentioned, the essence of the offence is the nature and scale of the business being operated by the offender involving the sale of the drugs identified in the charge over the relevant period which subjects him to the provisions of s 25A. Although the number and quantity of the individual identified supplies are not the only relevant factors, they are plainly significant since they indicate, to a greater or lesser degree depending on the evidence, the nature and scale of the business being operated. 63 In R v Smiroldo, supra, R S Hulme J, (with whom Sheller JA and Dowd J agreed) said – [14] … [Quantity] is a matter to which regard should be had in sentencing for an offence under s25A. Thus, it would be relevant to consider whether an offender, convicted of an offence under the section had sold 3 lots of 1 kilogram each or 3 lots of 1 gram. [15] On the other hand, it would be wrong to look merely at the quantity supplied on the occasions which led to a conviction and attempt to judge an offender's conduct by that quantity and those provisions of the Act which impose penalties for supply and grade those penalties by reference to quantity. The persons at whom s25A is directed are those who appear to be indulging in a practice or business of supplying prohibited drugs. It must, it seems to me, be relevant to consider the magnitude of such an operation. As great a quantity of a prohibited drug may be supplied by a series of small transactions as by a few large ones and one may anticipate that most offenders charged under s25A will have been involved in the supply of far more than the particular quantities the subject of the occasions which have inspired the charge. [16] But there are likely to be constraints on how far it is permissible to go in any assessment of any overall quantity supplied in an offender's operation. Any conclusion that he or she had supplied a specified quantity, or at least that quantity, on occasions other than those relied on in the particular charge would run against the principle for which R v De Simone (1980-1981) 147 CLR 383 is commonly cited that, in sentencing, it is not appropriate to take into account as factors of aggravation, circumstances which would themselves constitute another offence which has not been charged. 64 In this case, the total quantity of methylamphetamine supplied was 2.73g, which is significantly less than the traffickable quantity. The total price paid was only $700. There was no evidence that Gore had offered to supply greater quantities to the undercover officers than those actually supplied or suggested future supplies. From this point of view, the business operated by the offender was on a small scale to street level users. This assessment is consistent with the small quantities of prohibited drugs found on his premises, which included only 0.31g of methylamphetamine, one third of the small quantity. Adding the pseudoephedrine of 5.76g still leads only to the possession of a shade over an indictable quantity and very substantially less than the commercial quantity of 250g. The money found on the premises of $3,800 is also not substantial compared to many other cases. This case demonstrates markedly less frequency of dealing and in smaller quantities than those supplied in the cases to which I have referred above. The objective evidence for the scale and nature of the business does not, to my mind, suggest a different conclusion to that indicated by the identified supplies. I have already referred to the "fortification". It does not strike me as a particularly significant investment in security although, certainly, it indicates that the offender was concerned that criminal elements might think his business was sufficiently worthwhile to warrant a robbery or other attack. As is obvious, this gives not much more than a hint of scale. Though the "fortification" does indicate that the dealing from the house was not happenstance but an integral part of the way Gore conducted his drug business, I do not see how this makes the offence more serious. Would it have been less culpable if he had sold from a motor vehicle – and then, by extension, if the vehicle were fast or slow? Although selling drugs is undoubtedly criminal, fencing, barbed wire, dogs, and an exterior camera of themselves are completely lawful and add no element of impropriety. Nor, with respect, do I accept that it shows a degree of planning significantly more than that already implicit in the offender's using his home as his "shop". The purpose of not wishing to be "ripped off" does not increase the culpability of the offences with which he was charged. Gore was separately charged with organizing drug premises: to take the "fortification" into account on the principal charge is, I think, to double count. It does indicate something about scale, but no more than that already suggested by the circumstances of the offences themselves and Gore's own evidence about his activities. It is a relevant circumstance but adds nothing useful. 65 Significant evidence of the nature of the business came from Gore and Hunter (with whose sentence I deal in due course). As to the cash, he explained that it comprised the remainder of his income for six weeks following some gambling (to which it appears he is addicted) and the purchase of drugs, including prescribed drugs. If this be true – and there is no reason to suppose otherwise – it amounts to a little over $300 a week which, by any reckoning, is not a large sum. There is no way, of course, to rationally extrapolate from this sum how much income he had actually earned over the period, a question which (perhaps surprisingly) was not asked. There was no attempt to value the items found which may well have been stolen, or any evidence as to a period over which they had been collected. However, they do not strike me as especially valuable. It is true that that the applicant was prepared to accept property that was at least likely to be stolen, in payment for the drugs, but this is commonplace. In a sense it might be said that therefore he was willing to encourage theft, but this is to my mind rather artificial. An insistence on cash would merely require the interposition of a pawnbroker or some other person willing to purchase goods without close enquiry. It is a commonplace also that drug addicts use their own personal property to barter for drugs. 66 It is worth re-stating, perhaps, the important principle that, if the Crown relies on some adverse fact tending to demonstrate an increased culpability and thus justifying a heavier sentence than would otherwise be the case, it is necessary not only to articulate the particular evidence upon which reliance is placed but to establish the adverse matter beyond reasonable doubt. In this case, the Crown was content to merely rely upon the discoveries of the police to which I have adverted. Where additional information is necessary in order to assess the true significance of the material relied on, further evidence is necessary and it is not appropriate, in my view, that the court should speculate about the possible character of that evidence, still less that such speculation can be used adversely to an offender. 67 Two particular aspects of Gore's evidence appear, on the face of it, to suggest that his business was somewhat more substantial than the objective matters to which I have already referred. The first is the evidence in cross examination given by Hunter – Q: … You helped Mr Gore fund a fairly busy drug operation, didn't you? A: Yeah, I was aware of it, yes. …… Q: And this business was fairly prolific wasn't it, it operated 24 hours a day? A: It had at days yeah. …… Q: It was a sophisticated operation that you were assisting Mr Gore run? A: Yes. 68 Not much further information was sought, let alone elicited, from Gore – [In chief] Q: Do you tell the court today that you didn't profit at all from this enterprise? A: Very little. His Honour: Q: You mean long term but you did what you wanted to do with the money? A: Your Honour it was – we did have a gambling problem, yes, but it was more so other drugs and that I was getting the amphetamines more so than the money. [Cross examination] Q: It funded nights at West Leagues Club, didn't it? A: It did, it did, yes. Q: And lots of money through the machine? A: Yes no doubt yeah. Q: And when you put lots of money through a machine you also receive pay outs? A: Yeah. Q: And at the time that the police executed this search warrant on your home they found $3,800 cash? A: Yep. Q: That's indicative of the amount of money you were making at the time? A: That was probably six weeks worth of savings. Q: Savings? A: Yeah, money –– Q: Drug money savings? A: Yes, yes, yes. Q: So notwithstanding a raging drug habit, black market sourcing of prescription drugs? A Yep. Q: A gambling addiction? A: Yep. Q: Nights at West's? A: Yep. Q: You were still able to save $3,800? A: Yep. Q: This was a lucrative business wasn't it? A: Yes. Q: And you were open to business 24 hours a day? A: Yes. Q: People could place a call with you, place their order for drugs and it would be available? A: Pretty much yeah. Q: Straight away? A: Pretty much. Q: You had it all on hand ready to supply? A: Pretty much. Q: So it's not the case that you didn't profit at all? A: Well yeah you could say that. Q: Because apart from that I take it you were on a disability support pension? A: That's correct. Q: And your living expenses would've eaten that up? A: Yep. Q: It's not a lot of money is it? A: No it's not. Q: Can you just tell me how amphetamines helped with that pain? A: Well they don't really. 69 In my view these generalities do not indicate where on the scale of such businesses – small, medium or large – this particular business should be placed. If the Crown wished to use this evidence to suggest a truly substantial business, then it could and should have elicited evidence as to the actual scale. Suggestive material does not provide an adequate evidentiary basis for sentencing. The glaringly obvious questions as to the number of transactions, the usual quantities of drugs sold or the usual weekly income or the number of occasions upon which the business in fact sold supplies over a 24 hour period were not asked and they are not answered by generalities which are imperviously ambiguous. The mere fact that the offender was willing to do business 24 hours a day does not mean that in fact for the whole of the 24 hour period he was continually or frequently supplying drugs. This is self-evident. If the Crown wished to make more of this (at the least) indefinite description of the business, Gore could and should have been cross examined about it. The mere description of the business as "lucrative" means very little, so far as giving any real basis for assessing the extent of the offender's activities. 70 Nor does the fact that Gore held himself out to sell drugs "pretty much" whenever he was contacted and that he was "pretty much" able to supply when asked added significantly to his culpability for the offence. It is obvious that dealers have mobile telephones and, in the absence of any evidence suggesting that most keep business hours, the natural conclusion is that negotiations are invited and customers welcome without such artificial limits. Although it may well be that an ordinary street dealer might not be continuously available, I am, with respect, unable to accept that Gore's availability varied from the "normal". The hours of trade were material only to the extent of it, and shows no more than that he was prepared to trade to the extent of the demand and, presumably, to the extent to which he could supply. This is not, of course, immaterial to his criminality, but it does not, to my mind, take it out of the ordinary run of cases one rung above street dealing. Indeed, it seems rather likely that almost every drug dealer trades as much as he or she can get away with. No doubt thieves often wish that they could have taken more property than they managed to get away with, but they are not subjected to additional punishment because of their frustrated wishes. If we were to imprison for aspirations, the gaols would be even more grossly overcrowded than they already are. In my respectful opinion, a conclusion that placed Gore higher in hierarchy than at the lower end of businesses a rung above street dealing would need more evidence than the Crown attempted to elicit. And the failure to assay the attempt makes it unfair to draw a more severely adverse inference than strictly follows from the evidence. 71 In my view, there was no adequate basis for submitting, let alone concluding, that Gore's business was other than a small scale business, as indicated by the objective evidence to which I have referred. The assessment by the sentencing judge of the criminality of Gore's offence "as being well above the middle of any scale constructed for such offences" – apart from the uncertainty of the meaning of this phrase – was, with respect, significantly mistaken, giving due deference to the wide sentencing discretion reposed in the sentencing judge, and this characterisation led his Honour to error in fixing on a starting point of ten years' imprisonment. No doubt, his Honour's giving significant weight to the matters mistakenly identified by him as aggravating factors was a material element in the overall misassessment. 72 Even were his Honour's error not patent I would have found, with respect, that the sentence passed was so inconsistent with the clear trend – indefinite as it is – of the cases which have been mentioned, as to strongly indicate the manifest excess of the ten year starting point. 73 Having identified the objective features of the case and assessed their significance in an overall way, it was necessary for the sentencing judge to move to identifying the subjective factors of the offender's case and make an overall judgment of culpability and the other requirements of criminal justice. In this respect, the sentencing judge did not advert to the question of remorse and rehabilitation, of which there was not insignificant evidence, demonstrated not only by the plea but the offender's candour when he gave evidence concerning his business, answering without any attempt at either qualification or justification, the cross examination of the Crown prosecutor. Gore expressed, as it seems to me, some real regret both for the consequences to himself and Hunter certainly, but also for the effects on the community of his crimes – Q: Have you had a chance to think about what the consequences to others as well as yourself since you went into custody? A: Yeah I have, yeah. Q: And what do you say to his Honour about what you were doing? A: Obviously your Honour the cost to the community and to myself and what I put Tracey through I have no doubts that if I wasn't the one that went down this road she would not have found herself in front of you today, but yeah. Like I said I've had bad problems with pain and it's – I couldn't, the money, yeah, it was hard. …… Q: Well you said Tracey's been hurt by this? A: Yes that's right. Q: What about other people and what about –– A: Yes definitely but I understand that like people come to get drugs, they get money for them a wide variety of ways like gambling, anything up to armed robbery and I understand that the impact on the community has been –– Q: Well you were receiving some of these stolen good weren't you –– A: Yes. Q: –– that people paying for their drugs by –– A: Yes. Q: –– and the police seized a large number of items? A: Yes they did. Q: And some cash? A: Yes. Q: How old are you now? A: Thirty-nine. Q: What are your plans when you get out of gaol? A: Try and get into some decent pain management, pain management clinic and I'm on the methadone since I've come back into gaol. Q: Yes, if I stop you there, is that methadone used to assist you in not wanting to use drugs? A: It's probably both. Q: And pain management as well? A: Yes, yep. Q: Is it working? A: Yes but I think I'm going to have to look at other areas when I get out. 74 Although somewhat inarticulate, there is no reason to doubt the honesty of these answers (reflecting the apparent honesty of his answers in cross examination) as expressing both a realistic understanding of the social and personal impacts of his criminal conduct and a practical approach to dealing with the issues that were significant, if not the sole, reasons for his involvement in the offences. Of course, some scepticism as to his ability to remain crime free having regard to his record is justified but it was an error, as it seems to me, to sentence this offender, as was in effect done, without regard to these expressions of understanding and remorse and, concomitantly, the prospects for rehabilitation. In my view, those prospects for rehabilitation and the public interest in supporting the offender to maintain that rehabilitation were significant matters to be brought into account on the question of special circumstances, the learned sentencing judge saying in this regard – I do not find special circumstances, as I find no basis to do so. There is nothing in this man's history that would support a finding of any of the ingredients that would be required to find special circumstances. 75 With respect, Gore's conduct from the time of his arrest required real consideration to be given to the question whether a longer period on parole than that which would follow from the application of the "default" calculation provided in s 44 of the Sentencing Act to be undertaken. This was all the more so having regard to his problems with pain relief, which would be a continuing issue on his release. 76 It may be that, having regard to the sentence that the sentencing judge had decided to impose, his Honour thought that the application of the default ratio yielded a sufficient period on parole for this purpose so that no further adjustment was necessary, although his Honour did not mention such reasoning. This made it all the more important, in my respectful view, to consider whether Gore's remorse and contrition should have been significant elements in his sentence. 77 With great respect, I have concluded that, in light of the omission in his Honour's reasons for sentence of any discussion of these aspects of the case, that the sentencing judge did not apply his mind to them. This also is a significant error of law. 78 I am conscious of the fact that a number of the matters to which I have adverted as showing that the sentencing proceedings went awry were not the subject of submissions made on Gore's behalf in this Court. Those submissions concentrated on comparing the objective criminality of the offence with those demonstrated in the enumerated cases, which were referred to in support of the argument that the sentence was manifestly excessive. As I think I have made clear, I would have allowed the appeal on this ground alone, a course which would have required attention to be paid to the other matters for the purpose of resentencing the applicant. However, I mention them as also explaining why the sentence was manifestly excessive in its own terms, quite apart from the comparison with other cases. Conclusion 79 I propose that leave to appeal be granted, the appeal allowed and the sentence be quashed. It would thus be necessary that this Court resentence the appellant. 80 An affidavit was tendered on Gore's behalf in the event that it became necessary for the Court to consider resentencing him. It is sufficient to mention a case note report which, in relation to several programmes (in particular dealing with gambling) demonstrating excellent participation and input within the group, together with displaying "good insight" into all aspects of gambling addiction. This material supports the case for rehabilitation to which I have already referred. He also states that he is taking methadone and Avanzer daily, the former only for pain control, has seen the alcohol and drug counsellor, "occasionally", and has realised that he cannot "self-medicate because ultimately it doesn't help me and the drug dealing is generally a destructive activity for everyone". The self-serving nature of these statements of course excites scepticism but, having regard especially to the offender's conduct since his arrest as previously discussed, it seems to me reasonable to regard these statements as, at least, sincere. He will need some help when he is out in the community to make them effective. That Gore gave evidence on sentence with the candour to which I have referred (in which he did not seek to minimise his criminality and, indeed, provided material used to increase his sentence) is certainly unusual and shows, to my mind, that he has made substantial moves towards rehabilitation. His affidavit shows he has taken advantage of such programmes as have been available to him whilst in prison to deal with matters that contributed to his criminal behaviour. His record demonstrates, I think, that a substantial period of supervision is desirable if the course of rehabilitation upon which he has started is to continue in the outside world. The temptation to resort to illegal drugs to control his back pain will be a continuing problem for him. Accordingly, the sentence which I propose will provide for a parole period longer than that which would otherwise apply in light of the special circumstances constituted by the applicant's rehabilitative needs, in respect of which there is also, of course, an undoubted public interest. 81 It is important to bear in mind the limitations referred to in Smiroldo, set out in the passage above, and which are, I think, not controversial. Gore is to be sentenced for the offence of supplying a prohibited drug on three or more separate occasions during a period of 30 consecutive days. Although he did so as a retailer, he is not being sentenced for being a retailer of some unspecified quantity of drugs but for having supplied the quantities of the drugs specified in the charge. That he did so is more culpable than if he had simply sold them on the street, but a significantly greater sentence than that which I propose would, in my respectful view, be to punish him in reality for conducting the business, in short, for selling drugs with which he was not charged and not for the offence provided in s 25A. It would reduce to triviality the undoubted significance of the actual quantities involved in the charge, in effect, by a gloss, to ignore the criminal conduct provided by the section. 82 Weighing up the objective and subjective circumstances to which I have referred, bearing in mind the desirability of due recognition in a broad sense of the cases to which I have referred and the sentencing statistics, representing the conscientious judgment of other Judges dealing with this offence, and also the need to punish appropriately for the offences on the Form 1, I would propose, as a starting point, a sentence of six years imprisonment. After allowing a utilitarian discount of 25%, I would impose a term of imprisonment comprising a non-parole period of two years and six months commencing on 13 March 2009 and expiring 12 September 2011, the date, upon which the applicant is entitled to be considered for release to parole, and a balance of term of two years. TRACEY LEE HUNTER Introduction 83 On 23 November 2010 orders were made by this Court as follows – (i) leave to appeal is granted; (ii) the sentences imposed in the District Court are quashed; (iii) in lieu of the sentences imposed, the applicant is sentenced, in respect of each offence, taking into account on the first offence the matter in the Form 1 document, a fixed term commencing on 13 March 2009 and expiring 23 November 2010. Accordingly, the appellant was ordered to be immediately released. 84 The following are the reasons for those orders. Discussion 85 This applicant was charged with one count of supplying a prohibited drug, being the sale of 0.96g of methylamphetamine of 9% purity for $200 on 19 December 2008, having been the person with whom the undercover officer had negotiated, the sale having been effected by Gore, and one count of knowingly taking part in the supply of a prohibited drug, being the sales of methylamphetamine on 24 December 2008 (0.47g of 6% purity for $200) and 2 January 2009 (0.92g of 5% purity for $200), which had been negotiated with Gore and in respect of which the applicant assisted by directing the undercover officer to the room where the transaction actually took place. These were offences under s 25 of the Act in respect of which maximum penalty is 15 years' imprisonment. She pleaded guilty before the Magistrate and maintained these pleas in the District Court. The applicant asked the Court to take into consideration one related matter on a Form 1 document, namely using her residence to conduct the unlawful supply of methylamphetamine. 86 Briefly describing the offence the learned sentencing judge noted – These offences were carried out in company in the presence of the offender's teenage son and required a significant degree of planning, all matters of aggravation … The offender played a not insignificant role in the drug operation carried out by her and the co-offender , although I accept that the co-offender had the principal role. [Emphasis added.] I regard this offence at least at the middle of any scale constructed for such offences and must attract a fulltime custodial sentence. 87 The sentencing judge noted the following subjective features of the applicant's case. She was born on 4 August 1970 and was thus 38 years of age at the date of her offences and had been conviction free until 2005 when, on a charge of possessing a prohibited drug she was placed on a two year bond under s 9 of the Sentencing Act and fined for possessing unauthorised prohibited firearms and shoplifting. His Honour noted that "it is a record that will allow the Court to extend some leniency". Referring to the co-offender being the "major player in this quite significant drug operation", his Honour observed "however, this offender provided much assistance, including the taking of people into the drug room and on occasions supplying the drugs" (emphasis added). Whilst she had not worked for 15 years before the offences, his Honour accepted that when in prison, the applicant had applied herself to rehabilitation by completing many courses and was employed at the correctional centre as a clerk. His Honour concluded as follows – Only a sentence of imprisonment will satisfy the requirements for general and specific deterrence in this case. Taking into account the matter on the Form 1, conviction on trial in relation to the charge of supplying a prohibited drug result … in a sentence of some five years and four months imprisonment and for four years for knowingly taking part in the supply of drugs. I have taken into account the consideration of the offender's plea of guilty as a show of contrition and as having public utility, and I reduce those sentences by 25% to four years and three years imprisonment respectively. It has been submitted that I should find special circumstances because it is the offender's first time in prison. She has demonstrated through her efforts that she has excellent prospects of rehabilitation with little likelihood of re-offending. I accept those submissions and I find special circumstances. Because of the differences in nature of the offences and the organisation required I am of the view that such sentences should be partly cumulative and partly concurrent. The overall effective sentence was four years six months with a non-parole period of three years. 88 Two grounds of appeal were identified: (1) the first that the assessment of the objective seriousness of the offences as "at least in the middle of any scale constructed for such offences" was erroneous; and (2) the second, that the sentence imposed is manifestly excessive. 89 As to the first ground, counsel for the applicant, Ms Loukas, submits in substance that the sentencing judge, rather than sentencing the applicant for the charges laid against her, sentenced her for the "drug operation" jointly carried out by her and her partner although he accepted that the latter had the principal role. The passages which I have set out above, both in describing the criminal culpability for which the applicant was being sentenced and placing it in the middle of the scale of objective seriousness, in my view amply justifies this submission. The applicant could not be sentenced for the "drug operation" but only for the specific acts with which she had been charged, accepting, of course, that (in light of her own evidence in the sentence proceedings and not because of anything in the Crown case) these were not isolated aberrations. In particular, she was not charged with the offence under s 25A of which her partner was convicted and it was contrary to principle that she should be punished as though she had been charged with being an accessory to this offence. 90 Furthermore, the finding that the offences were carried out "in company, in the presence of the offender's teenage son" was not only not alleged by the Crown but was not justified by the evidence. In this respect the applicant said that her son was living with her "at the time of these drug offences" and agreed that he had been "exposed … to drug supply". I do not see that this was an admission that he had actually been present when drugs were supplied, still less that he was present when the offences for which she was charged had occurred. Nor did the Crown prosecutor question her about these possibilities. There is no mention in the police facts that her son was present at the time of the offences for which the applicant was charged. There was therefore no evidentiary basis for a finding under s 21(2)(ea) of the Sentencing Act that the offences were "committed in the presence of a child under 18 years of age". Had the applicant been charged with an offence under s 36Z of the Act of organising or conducting or (perhaps more appropriately) assisting in organising or conducting any drug premises then, if the child had access to the premises and, as a consequence of that access was exposed to a prohibited drug or "a drug supply process" two offences would have been committed and the offender would have been liable, for a first offence, to a maximum penalty of 60 penalty points and/or imprisonment for 14 months. However, the applicant was not charged with that offence and, even if there was evidence justifying conviction of it, could not be sentenced for it. 91 So far as the "significant degree of planning" is concerned, it seems to me with respect, that there was nothing in the alleged facts or, for that matter, in any admissions made by the applicant or other evidence in the sentencing proceedings that the offences with which she was charged exhibited any higher degree of planning than that necessarily or practically implied from the charges themselves, in respect of the first charge the negotiation of the purchase of the quantity of methylamphetamine at the specified price and, in respect of the second charge, on two occasions directing the police officer to the room where the drug transactions took place with the co-offender. For the first, all she needed to know was the price and, for the second, the layout of the house and the room occupied by Gore. It seems almost certain that the "significant degree of planning" to which his Honour referred was the "drug operation" to which earlier reference has been made. 92 I have already discussed, in connection with Gore's appeal, the possible significance of the sentencing judge's assessment of the seriousness of the offence by reference to the notion of "the middle of any scale constructed for such offences" and the difficulty I have with ascribing any clear meaning to this language. So far as the first charge is concerned, the drug supplied was less than a small quantity. The second charge involved two transactions, namely, on 24 December 2008 (0.47g methylamphetamine) and 2 January 2009 (0.92g methylamphetamine). In respect of the second charge therefore, each was less than a small quantity. Even considered as a total, the three offences involved a greater than small quantity but significantly less than the indictable quantity. Both of these charges could have been dealt with summarily with a maximum punishment in each case of two years' imprisonment and/or 50 penalty units. I do not see how the seriousness of these offences could be regarded as anything but relatively slight, so far as supplying prohibited drugs go. 93 As the Judicial Commission sentencing statistics show, in respect of a substantial sample of 805 cases of offences of supplying amphetamines of less than the commercial quantity (namely, less than 250g) only 47% of offenders were imprisoned and, in respect of those, just over half received sentences of two years or less, and 57% non-parole periods of 12 months or less. The starting point adopted by the learned sentencing judge, therefore in respect of the first offence of five years and four months and the second of four years, is so markedly out of kilter with the clear trend of sentencing as shown by the statistics as to strongly indicate error. Indeed, of all cases of sentences for these offences only 12% were of four years or more and only 5% five years or more, in a context, I repeat, of offences which necessarily included many involving quantities far greater than those involved in the applicant's offences. Non-parole periods for the same class of offence which exceeded two years or more were only 17% of the total. 94 Furthermore, the sentencing judge did not mention and, I infer (after closely reading his Honour's reasons), did not consider the evidence of remorse and contrition comprising the plea of guilty and her candid evidence in the sentence proceedings. 95 With respect, the learned sentencing judge's conclusion that the applicant's offences "must attract a fulltime custodial sentence" was incorrect. There was ample material which could have justified a non-custodial disposition of her case and, in my opinion, it was incumbent upon the sentencing judge to consider such an approach. Conclusion 96 It is the inevitable conclusion from his Honour's assessment of the seriousness of the applicant's offences that, as Ms Loukas for the applicant has submitted, he was not sentencing her in fact for the offences she to which she had pleaded guilty but for her participation in the drug operation in which her co-offender was the principal actor. It follows that this appeal must succeed. The applicant has been in custody since 13 March 2009 and has, therefore, already served over one year and eight months in prison. There is little point in considering whether a lesser sentence than this should be imposed although I am firmly of the opinion that, even if a non-custodial outcome were rejected, the sentence rightly to be imposed must have been markedly less than that which she has already served. In the ordinary case one might well have needed to consider the question of whether the sentences should be cumulative and, if so, to what extent but, in my view, that would in this case entail an inappropriate artificiality. R v GORE 97 HOWIE AJ: I have read the judgment of Adams J in draft. I gratefully adopt his statement of the facts and circumstances surrounding the sentencing of the applicant. I agree that the sentencing judge was in error in determining the sentence he imposed upon the applicant Gore. 98 So far as the applicant Hunter is concerned, I agree with the reasons given by Adams J which are those for which I joined in the orders already made in respect of her appeal. Misuse of aggravating factors 99 Although the only ground of appeal filed in the case of the applicant Gore was that the sentence was manifestly excessive, it is clear that his Honour erred in his finding as to aggravating factors. It is unfortunate in the extreme that these errors were largely the result of submissions made to his Honour by the prosecutor and acceded to by the applicant's representative at the sentencing proceedings. In company 100 This Court has frequently encouraged sentencing courts and, hence legal practitioners appearing before them, to take a principled approach to the provisions of s 21A(2) of the Crimes Sentencing (Procedure) Act based upon an understanding that generally the provisions were not intended to change the common law. In R v Tadrosse [2005] NSWCCA 145; 65 NSWLR 740 it was stated that, if a court takes into account an aggravating feature that was not available at common law, then the court is probably using s 21A(2) incorrectly. 101 That approach should have at least raised a question about whether a factor of aggravation that an offence was committed in company meant that the factor was engaged simply because another person other than the offender was present or engaged in the offending regardless of the nature of the offending or the purpose of the other person's presence. The common law understanding of "in company" should have informed an appreciation of the nature of the aggravating factor contained in s 21A(2)(e). It relates to the presence of one or more persons with the offender in order to convey a threat of violence to the victim by the combined presence of more than one person. That factor had no application to the applicant simply because he happened to use Ms Hunter to assist in his drug trade. The prosecutor should not have asserted that it did. Prosecutors should not be leading a sentencing court into error by a failure to understand the approach that is to be adopted to s 21A(2) in light of the numerous decisions in this Court in that regard: see McCullough v R [2009] NSWCCA 94. 102 I agree with Adams J that it is not sufficient for a court simply to refer to an aggravating factor in the section without considering whether, in light of a discernable policy making the factor aggravating, that it is truly aggravating in the context of the offence being committed. There was no policy that would make the applicant's offending more serious simply because it happened to be in the presence and with the assistance of Ms Hunter in the circumstances of this case. Again any understanding of the approach taken to s 21A(2) by this Court would make it clear that it is not to be used as a checklist without any regard to the particular facts before the court and the nature of the offence for which sentence is being passed. 103 Like conspiracy, an offence may be aggravated because the offender has employed others to carry out, or assist, in the commission of a crime. But this is not because the offender is in company with those he employs. Such a circumstance is aggravating because the offender has involved others, perhaps for reward, in carrying out his crime. But there was nothing to suggest that this was the case by the applicant's use of Ms Hunter. In presence of a child 104 The common law did not specifically identify as an aggravating factor that an offence was committed in the presence of a child, so no guidance is given to how the section should be interpreted from that source. However, it is not difficult to appreciate that the provision in s 21A(2)(ea) is principally aimed at the deleterious effect that the commission of a crime, particularly one of violence, might have on the emotional wellbeing of a child. The commission of the offence may also be deleterious to the child's moral values. It does not matter whether the offender is a parent of the child or not, although if it is a parent this will be particularly aggravating. I accept that generally the supply of drugs in the presence of a child would be a factor of aggravation. Again whether such a factor is aggravating in a particular case and how aggravating it is, will depend upon the nature of the offence charged and the likelihood that the child will be affected by it, having regard to all the circumstances including the child's age. No regard seems to have been given to such considerations in this case either by the parties or the court. 105 But attention must be given to the words actually used in the aggravating factor in the provision, the policy behind it and the fact that the Crown is to prove a matter of aggravation beyond reasonable doubt. As Adams J points out, there was no evidence that any offence had been committed in the presence of Ms Hunter's son. The evidence given by Ms Hunter, as set out in the judgment of Adams J, could not have supported the allegation and yet the prosecutor was prepared to leave the evidence in that state. 106 The aggravating factor in s 21A(2)(ea) was simply not made out on the evidence. This is notwithstanding that it could also be argued that the provision could not be applied where the prosecutor had not chosen to charge the aggravated offence under s 36Z(2) of the Drug Misuse and Trafficking Act. Profit and planning 107 His Honour also took into account generally that the offence was for profit and that it was planned. The first matter is an element of an offence under s 25A of the Drug Misuse and Trafficking Act because the offence must be committed for "material or financial reward". The simple fact that the offence was committed for profit, even at the risk of harm to the persons supplied with the drug, is not an aggravating factor. Of course the amount of the profit resulting from the offending might be a relevant matter, if it can be ascertained. But neither the prosecutor nor his Honour paid sufficient attention to this factor. On the evidence before the sentencing court there was material that a sufficient profit was made to permit the applicant and Ms Hunter to attempt to satiate their addiction to gambling. But the profit was commensurate with the evidence that they were suppliers at a street level, so far as quantity was supplied, and no more than that. 108 Planning is also at least inherent to some degree in an offence under s 25A. It is highly unlikely that it is an offence that can be committed opportunistically because of its repetitive nature. So consideration has to be given to whether the planning in the commission of the particular offence was of such a nature that it could be taken into account as an aggravating factor and the degree to which it aggravated the offending. This analysis was not undertaken. 109 It is in this regard that I believe that the nature of the premises from which the offence was carried out is a relevant consideration. The fact that the premises were "fortified", was significant in an assessment of the planning involved and the applicant's commitment to the drug trade. It is one thing to supply on the streets or at licensed premises where the supplier is liable to the risk of being "ripped off". It is quite another to be supplying in premises that have been adapted for the purposes of securely carrying out the trade. In my respectful opinion it is not to the point that it was lawful for the applicant to adapt his house as he did. The relevant factor is the purpose of the adaptation. It was an aggravating factor in the present case because it showed more than usual planning in the commission of the offence. It was planning to a very significant degree beyond what might be expected in the lower case of offending under the section. 110 It my opinion it was also a relevant factor that the applicant was prepared to supply drugs whenever a customer wished to purchase them. It shows a commitment to his offending that was beyond what would normally be expected. Those that supply from commercial premises are restricted to hours when the premises are open. Sometimes the supplier might not be available for some reason. But this was not the case for the applicant. The extent of his intention to offer to supply drugs was in my opinion a relevant and aggravating factor. This was so regardless of the lack of evidence about how often he actually supplied drugs on this basis. I also believe it to be a not insignificant factor that the applicant was prepared to supply drugs for, what were obviously, stolen items. Such conduct encourages further crime, just as does a receiver of stolen goods. Another sentence warranted? 111 Before addressing the real question that now arises, I should say something about the assertion that the sentence was manifestly excessive. Having read the sentencing remarks and the evidence before the judge, it did not appear to me that the sentence was excessive. This view was formed having regard to the maximum penalty for the offence, the matters on the Form 1, the nature of the offending and the subjective case of the applicant. It seemed to me that for offending that was neither of the most serious kind nor of the lowest form coming within the scope of the section, a sentence of half of the maximum penalty before discount was an appropriate starting point, or at least not outside the sentencing discretion of the judge. I would not have found, and still do not find, that the judge erred in not finding special circumstances. 112 But as is almost inevitably the case, the argument of counsel centred, not so much on the sentencing remarks or the material before the sentencing judge, but on statistics and other decisions on other offenders with different facts and subjective considerations. The attempt was to show that the sentence imposed on the applicant fell outside a range of sentences that had been imposed for offending of this type. However, whether the sentence was excessive or not is no longer the issue. The question is whether, having regard to material before the sentencing judge and that placed before this Court, some other sentence should be imposed. 113 Error has been established in the exercise of the sentencing discretion. In some cases, aggravating factors erroneously taken into account may have not been given any particular weight by the sentencing judge and the sentence imposed might indicate that in fact no more occurred than that lip service was paid to them. That is not this case. First the aggravating factors wrongly identified, especially the commission of the offending in the presence of the child, would normally substantially influence the sentencing discretion to the disadvantage of the applicant. As the statistics and cases referred to by Adams J show, the sentence is very much at the top of, if not exceeding, the available range having regard to the nature of the applicant's drug supplies. 114 Further, whatever his Honour meant by his description of the offence being "well above the middle of any scale constructed for such offences" that description is clearly wrong. The offence was not "well above the middle" of anything that I can ascertain. 115 While the amount of drug supplied is not determinative of the appropriate sentence, it is clearly a very relevant factor. This is because it will be the principal fact that identifies where the particular offender stands in the hierarchy of persons involved in the drug trade. Of course there are other factors that inform this decision including whether the offender employs other persons, the amount of profit made, the type of premises from which the operation is conducted and the availability of the offender to supply drugs. As I have indicated, the latter two factors operate in the applicant's case to remove him from the lower rung of the hierarchy. 116 But in the more serious offences that come before the courts, the offender either supplies, or indicates he can supply, amounts in excess of what are street deals. This was clear in the seminal decision on s 25A: R v Smiroldo [2000] NSWCCA 120. The applicant was supplying from his garage on a seven day a week basis. But the significant factor was that, although he usually sold in street deals, he offered to supply in larger amounts and did so. Overall he supplied six times the indictable quantity for the drug. The sentence imposed upon that applicant was regarded both by the sentencing judge (myself as it happens) and this Court as lenient. It is clear that the range of sentences imposed for this offence since that case was decided has increased significantly. 117 It seems to me, having regard to the decisions referred to by Adams J, that a sentence less than that imposed by the sentencing judge should now be imposed. I think that the most significant decisions are those of Smith v R [2007] NSWCCA 138 and SZ v R [2007] NSWCCA 19; 168 A Crim R 249. I reach that view reluctantly because it seems to me that a range has been developed that does not truly reflect the seriousness of the offending having regard to the maximum penalty prescribed. This is a relatively recent offence and, therefore, the maximum penalty is a true reflection of the seriousness with which Parliament considered this offence in the range of offences under the Act. As I have indicated, absent that range, I would not have found the sentence excessive. 118 Had it not been for the applicant's evidence both before his Honour and in the affidavit in this Court, I would have started with a sentence of 6½ years. However in light of that material I am prepared to start at 6 years less a discount for the plea of 25 per cent. I come to that view largely based upon the decision in Smith, even though the applicant supplied less drug than did Smith and was not on a bond. The Form 1 matters required a significant increase in the sentence for the s 25A matter alone. As I have indicated, I believe that the applicant was one step up from a person at the lowest rung of criminality for this offence even though he was supplying only street deals. Smith appears to have been a street supplier. The applicant has, unlike Smith, served previous sentences of imprisonment and his record affords him no ground for leniency. 119 This results in a sentence after discount of 4 years 6 months. I do not agree with Adams J that a finding of special circumstances should be made. I am not as confident of the applicant's prospects of re-offending as is his Honour, having regard to his record and long-standing drug addiction. The applicant has the onus in that regard. In any event, no less a minimum period of imprisonment should be imposed than 3 years 4 months to reflect general deterrence and the seriousness of the applicant's offending. Further a parole period of 14 months is adequate for the applicant's rehabilitation if he is genuine in seeking to address his drug problem while in custody. 120 I propose that the following orders be made: 1 Application for leave be granted and the appeal allowed. 2 The sentence imposed in the District Court is quashed. 3 In lieu the applicant is sentenced to a term of imprisonment comprising a non-parole period of 3 years 4 months and a balance of term of 14 months. The sentence is to commence on 13 March 2009 and the non-parole period is to expire on 12 July 2012, the date upon which the applicant is entitled to be considered for release to parole. ********** 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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