Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Mansour v R [2011] NSWCCA 28 Hearing dates: 23 November 2010 Decision date: 02 March 2011 Before: James J at 1, Hall J at 2, Price J at 3 Decision: 1. Leave to extend time to appeal be granted. 2. Leave to appeal be granted. 3. Appeal against sentence allowed. 4. Quash the sentence imposed for count 1. 5. In lieu thereof, sentence the applicant to imprisonment with a non-parole period of 4 years 3 months commencing 27 October 2007 and expiring 26 January 2012 with a balance of term of 2 years 9 months expiring 26 October 2014. 6. In all other respects confirm the sentences imposed by the sentencing judge. The applicant is eligible to be released on parole on 27 January 2012. Catchwords: CRIMINAL LAW - appeal - sentencing - ongoing supply of cocaine - whether error in taking into account aggravating factors - whether disregard for public safety inherent characteristic of offence - whether planning exceeded what ordinarily might be expected - whether material error established - whether offence of deemed supply can be part of an offence of ongoing drug supply - resentence. Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Crimes (Sentencing Procedure) Amendment Act 2007 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985 Weapons Prohibition Act 1998 Cases Cited: Baxter v Regina [2007] NSWCCA 237; (2007) 173 A Crim R 284 Elyard v Regina [2006] NSWCCA 43 Georgopolous v R [2010] NSWCCA 246 Regina v Cheikh; Regina v Hoete [2004] NSWCCA 448 Regina v Darrell Terry McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 Regina v Glen Alan Jackson [2004] NSWCCA 110 Regina v Hoon; Regina v Pouoa [2000] NSWCCA 137 Regina v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 Regina v Yildiz [2006] NSWCCA 97; (2006) 160 A Crim R 218 R v Badanjak [2004] NSWCCA 395 R v Kairouz [2005] NSWCCA 247 R v Le [2005] NSWCCA 162 R v Smith (1987) 44 SASR 587 Sivell v R [2009] NSWCCA 286 Tran v R [2007] NSWCCA 140 Ward v R [2007] NSWCCA 22; (2007) 168 A Crim R 545 Category: Principal judgment Parties: Bilal Mansour (Applicant) Crown (Respondent) Representation: Counsel: S Buchen (Applicant) J Pickering (Respondent) Solicitors: Gregory J Goold Solicitors (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2007/14509 Decision under appeal Date of Decision: 2008-07-04 00:00:00 Before: Bennett DCJ File Number(s): 2008/21/293 Judgment 1JAMES J: I agree with Price J. 2HALL J: I agree with Price J and the orders his Honour has proposed. 3PRICE J: Bilal Mansour, the applicant, applies for an extension of time for leave to appeal against the sentences imposed upon him in the District Court on 4 July 2008. He had pleaded guilty in the Local Court and adhered to his pleas in the District Court, to six offences concerning the supply of the prohibited drug, cocaine. The sentencing judge imposed a total effective sentence of imprisonment of 9 years with a non-parole period of 6 years 3 months. The notice of appeal identifies the following grounds: "1. The learned sentencing judge erred in the manner in which aggravating factors were taken into account in determining the sentences to be imposed. 2. The sentences imposed on the applicant are manifestly excessive." 4The Crown does not oppose the grant of extension of time as the Crown concedes there is some merit in the first ground of appeal. Furthermore, there is some explanation for the delay provided in the affidavit of Paige Mortimer, an employee of the applicant's solicitor. It appears that difficulty was experienced in obtaining sufficient material to enable the appeal to proceed but the applicant had within time instructed the solicitors to prepare an appeal. I propose in these circumstances to grant an extension of time to appeal. 5Before venturing further, it is necessary to detail each of the offences for which the applicant was sentenced. 6The first count was an offence of ongoing drug supply contrary to s 25A(1) Drug Misuse and Trafficking Act 1985. The maximum penalty for such an offence is imprisonment for 20 years or 3,500 penalty units or both. The sentencing judge was asked by the applicant to take into account four offences listed on a Form 1 when sentencing him on the first count. These offences are as follows: (i) Possession of a prohibited drug contrary to s 10(1) Drug Misuse and Trafficking Act 1985 being eleven vials of "Sustanon" steroids on 15 September 2006. (ii) Receiving stolen property contrary to s 188 Crimes Act 1900 being five pairs of sunglasses with an estimated value of $1,200 and various items of clothing. (iii) Possession of a prohibited weapon contrary to the Weapons Prohibition Act 1998 being two wall-mounted walking sticks to carry swords within their shafts. (iv) Organising or conducting a drug premises (first offence) contrary to s 36Z(1)(a) Drug Misuse and Trafficking Act . This offence was particularised as being the sale of cocaine organised by the applicant from his parents' home, where they lived with three of their young grandchildren. 7Taking into account the offences on the Form 1, the applicant was sentenced on the first count to imprisonment for 8 years consisting of a non-parole period of 5 years 3 months commencing 27 October 2007 and expiring 26 January 2013 with a balance of term of 2 years 9 months expiring 26 October 2015. 8Count two and counts four to seven were each offences of knowingly taking part in the supply of a prohibited drug, namely cocaine, contrary to s 25(1) Drug Misuse and Trafficking Act . For each of these offences, concurrent fixed terms of 2 years imprisonment were imposed commencing on 27 October 2006 and expiring on 26 October 2008. 9Count three was a "deemed supply" of cocaine contrary to ss 25(1) and 29 Drug Misuse and Trafficking Act . Section 25(1) Drug Misuse and Trafficking Act carries with it, when heard on indictment, a maximum penalty of 15 years imprisonment or 2000 penalty units or both. A fixed term of imprisonment of 3 years commencing 27 October 2006 and expiring 26 October 2009 was imposed for this offence. 10His Honour also sentenced the applicant for five related offences which were included on a certificate under s 166 Criminal Procedure Act 1986. These were four charges of driving whilst disqualified and one charge of dealing with the proceeds of crime in the sum of $42,800. The applicant was sentenced to terms of imprisonment of 12 months commencing 27 October 2007 and expiring 26 October 2008 for two of the driving whilst disqualified charges and 18 months imprisonment commencing 27 October 2007 and expiring 26 April 2009 on the remaining charges of that type. For the charge of dealing with the proceeds of crime, a fixed term of 12 months imprisonment commencing 27 October 2007 and expiring 26 October 2008 was imposed. 11All of the sentences for the related offences were wholly subsumed in the sentence imposed for count 1. 12A discount of 30 per cent for the utilitarian value of the pleas of guilty to the charges and offer of assistance to the authorities, in relation to the murder of the applicant's brother, was allowed by the sentencing judge. The applicant does not complain in this appeal about the quantum of the discount. 13Special circumstances, being the partial accumulation of sentences, were found by his Honour so as to permit a variation in the statutory ratio between the non-parole period and balance of term: s 44 Crimes (Sentencing Procedure) Act. The ratio of the non-parole period to the head sentence is 69 per cent. 14The applicant is eligible to be released on parole on 27 January 2013. Facts 15The facts of the offences were not in dispute and a statement of facts, together with some statements from police officers were tendered as part of ex A before the sentencing judge. There is no controversy about his Honour's recitation of the facts in his sentencing remarks, other than an incorrect calculation of a minor nature of the total amount of cocaine in count 1. Rather than repeat verbatim everything that his Honour said, it is sufficient for present purposes to summarise the facts as follows. 16Count 1: This offence (ongoing supply of cocaine) took place between 24 August 2006 and 7 September 2006. Police conducted a controlled operation and obtained appropriate warrants. On 24 August 2006, an undercover operative spoke with the applicant on a mobile telephone and arranged to purchase 3.5 grams of cocaine from him for $1,250. 17The applicant drove from his home to his parents' home where he met the undercover operative on the verandah and handed to him 3.5 grams of cocaine in exchange for $1,250. The cocaine was later analysed and found to weigh 3.42 grams, with a purity of 42.5 per cent. 18On 31 August 2006, the same arrangement took place and the applicant on the verandah of his parents' home handed to an undercover operative 3.5 grams of cocaine for $1,250. Later analysis established that the cocaine weighed 3.35 grams, with a purity of 43.6 per cent. 19On 7 September 2006, an undercover operative contacted the applicant and arranged to purchase 28 grams of cocaine for $6,500. They met on the verandah of his parents' home where the transaction was completed. Later analysis established that the cocaine weighed 27.3 grams, with a purity of 73.5 per cent. 20The total weight of the cocaine supplied in these three transactions amounted to 34.07 grams. 21Count 2 (Knowingly take part in supply of cocaine): On 14 September 2006, an undercover operative contacted the mobile telephone service and spoke with the applicant who directed him to a service station in Punchbowl. The undercover operative went to the service station where he met the applicant's de facto partner, Louise Elliott, who handed him 0.1 grams of cocaine in exchange for $50. Upon analysis the cocaine was found to weigh 0.09 grams. The purity of the drug was not determined by the laboratory. 22Count 3 (Deemed supply of cocaine): Police executed a search warrant at the applicant's home on 15 September 2006 where he lived with Ms Elliott and her two children, one of whom is the child of the applicant. Police found various items including 22.84 grams of cocaine in small plastic bags contained in a larger plastic bag. Amongst the items seized by police were electronic scales, resealable plastic bags and money totalling $22,070. 23Count 4 (Knowingly take part in supply of cocaine): On 20 September 2006, an undercover operative contacted the mobile telephone service and spoke with the applicant. Later that day, the undercover operative met with the applicant's father Naim Mansour on the verandah of his home and purchased from him one point of cocaine for $50. The total weight of the cocaine was found on analysis to be 0.11 grams with a purity of 71 per cent. 24Count 5 (Knowingly take part in the supply of cocaine): On 26 September 2006, an undercover operative contacted the mobile telephone service and spoke with the applicant. Later that day, the undercover operative went to the applicant's parents' home where he met the applicant's mother Nadia Mansour at the front door. The undercover operative handed Mrs Mansour $100. Mrs Mansour walked into a room inside the premises and returned a short time later handing the undercover operative two points of cocaine of a total weight of 0.20 grams with a purity of 55.5 per cent. Mrs Mansour's grandchildren were inside the house at the time. 25Count 6 (Knowingly take part in supply of cocaine): On 5 October 2006, an undercover operative contacted the mobile telephone service and arranged with the applicant to attend at his parents' home to purchase cocaine. Later that day, the applicant's father, on the verandah of his home handed the undercover operative one point of cocaine for $50. The point had a weight of 0.09 grams but the purity was not determined. 26Count 7 (Knowingly take part in the supply of cocaine): On 11 October 2006, an undercover operative contacted the mobile telephone service, spoke with the applicant and later attended the parents' home where the applicant's father handed over two points of cocaine for $100. The total weight of the cocaine was 0.07 grams but the purity was not determined. 27The proceedings on sentence for the applicant, his father, mother and Ms Elliott were conducted together. Ms Elliott was sentenced on 16 May 2008, Mrs Mansour on 30 May 2008 and Mr Mansour on 26 June 2008. Questions of parity of sentence do not arise in this appeal. Subjective Circumstances 28The applicant did not give evidence during the sentencing proceedings and his subjective circumstances were placed before the sentencing judge by way of the tender of a Probation and Parole pre-sentence report and two reports from Tony Awad, a psychologist. 29At the time of sentence the applicant was 33 years old. His record includes convictions for assault, malicious damage, drive in manner dangerous, break enter and steal, assault occasioning actual bodily harm and manslaughter. On 18 December 1996, he was sentenced to imprisonment for manslaughter to a minimum term of 4 years with an additional term of 2 years. 30When considering the applicant's criminal history the sentencing judge observed: "The options employed by the courts have been fines, recognizances and a bond, and imprisonment with parole. These various options have not dissuaded the offender from participation in criminal offences such as those that are present before the court." 31The applicant is an Australian born man of Lebanese origin. He has a longstanding relationship with Ms Elliott and they have two children. He has two brothers (one deceased) and one sister. His eldest brother was murdered in 2001. In a report dated 12 March 2008, Mr Awad, the psychologist, reported that the applicant had been recently diagnosed with a (L) kidney dysfunction. The psychologist stated that his impression was that the applicant's period of imprisonment had "provided a structured environment for effectively managing his vulnerability to drug dependency, acquiring adaptive insight into the seriousness and consequences of violating law-abiding in the community and appreciation for normal life outside prison life." Mr Awad considered that the applicant "seemed fully aware of possible adjustment difficulties post-release and the need of measures to facilitate such re-integration." When referring to the pre-sentence report and the psychologist's reports, the sentencing judge said (AB21-22): "A presentence report was prepared on 7 February 2008. It offers limited support for the offender. He has been supervised previously but whatever support was provided to him did not persuade him to change his ways. There is reference to the impact that his brother's murder has had upon his entire family and his close relationship with Louise Elliott and her children, one of whom was born from their union. The offender left school at fifteen and claims to have gained trade certificates in plumbing, panel beating, and concreting, but this could not be verified. He reported heroin use from the age of twenty years continuing until 2002 using up to one gram per day. His claimed method of ingestion was by inhaling smoke. He said he began using cocaine from the age of twenty-seven and was smoking up to 3 grams per day at a cost of $950. There is no evidence to support these assertions other than what is contained in these reports and it does not sit entirely well with other material tendered in the Crown case including intercepted telephone calls which represent that the offender denied having used other drugs for many years. The offender claimed that he completed home detoxification in 2000 through his local doctor but relapsed immediately. He said that he was admitted to a methadone maintenance program two years ago, and according to Justice Health he is currently prescribed 50 milligrams of methadone per day. The offender is attributed with the claim that he is in continuing need for help with his drug issues, but according to the report there is no record of him having sought assistance whilst in custody. He told the author of the report that he sold drugs only to a small number of prostitutes and that he sold drugs to support his own habit. It is said: "The offender did not acknowledge that there were any victims associated with his offence and he stated that the prostitutes were already addicted to the drug before he sold it to them. Mr Mansour continued to maintain that no one else was involved in the offence, despite records to the contrary. It is said that he was difficult to engage and was focused upon the death of his brother from which it is said he has unresolved grief. He complained that the police have set him up and have set up his family. His attitude, as attributed him in this report, reflects a significant lack of insight into his offending in my opinion. He is assessed to be unsuitable for community service or periodic detention." 32His Honour at a later stage referred in some detail to the psychologist's reports and said that he found them "to be of little assistance and the conclusions reached and the propositions attributed to the [applicant] do not sit comfortably with the facts that are before the court" (AB34). 33His Honour considered that there was no material before the court to enable him to come to the view that the applicant was unlikely to re-offend, had good prospects for rehabilitation or had shown remorse. He was not satisfied on the balance of probabilities that the applicant "was using drugs to such an extent that [the applicant] required this activity to fund his own addiction": (AB35) 34The applicant does not complain that the sentencing judge failed to have adequate regard to his subjective circumstances. Dealing with the appeal 35The first ground of appeal is that the sentencing judge erred in the manner in which aggravating factors were taken into account in determining the sentences to be imposed. 36The applicant complained that the sentencing judge had incorrectly taken into account when determining the appropriate sentences the following aggravating factors under s 21A(2) Crimes (Sentencing Procedure) Act 1999. the offences were committed in company: s 21A(2)(e); the offences were committed in the presence of a child under the age of 18 years: s 21A(2)(ea); the offences were committed in the home [or more correctly on the front verandah at the home] of his parents: s 21A(2)(eb); the offences were committed without regard for public safety: s 21A(2)(i); the offences were part of a planned or organised criminal activity: s 21A(2)(n); the offences were committed for financial gain: s 21A(2)(o) 37I interpolate here to note that his Honour said that he did not take into account the aggravating factor under s 21A(2)(o) in count 1 as it was an element of the offence of ongoing supply. His Honour expressly noted the prohibition in s 21A(2) against taking into account an aggravating feature that is an element of an offence. 38His Honour also found as a factor of aggravation that the applicant had a record of previous convictions: s 21A(2)(d). His Honour noted, that although the applicant did not have a prior record of drug offences, his extensive criminal history demonstrated "a disregard for his obligations as a member of the community" and that "sentences proportionate to the objective gravity of the offences should be imposed." His Honour cited Regina v Darrell Terry McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566. The applicant does not contend that the sentencing judge erred in making these findings. 39The Crown accepted that his Honour had erred in taking into account the aggravating factors in ss 21A(2)(ea), (eb) and (o). These factors were introduced into s 21A(2) by the Crimes (Sentencing Procedure) Amendment Act 2007 (No 50). Although the operation of the amending Act commenced on 1 January 2008, its application did not extend to an offence where "a court has accepted a plea of guilty and the plea [had] not been withdrawn,...before the commencement of the amendment": Schedule 2, Part 17, cl 57 Crimes (Sentencing Procedure) Act . 40The applicant pleaded guilty to the offences in the Local Court on 24 October 2007 and adhered to his pleas when sentenced in the District Court on 4 July 2008. The Crown's concession is properly made and his Honour incorrectly took these three factors into account as matters of aggravation. 41During oral submissions, the Crown informed this Court that he no longer wished to maintain an argument that there was no error in the sentencing judge taking into account as an aggravating feature that the offences were committed in company. The Crown pointed out that this aggravating feature had been specifically considered by his Honour in the offences of knowingly take part in the supply of cocaine (counts 2,4,5,6,7) and the Crown accepted it was an inherent feature of such an offence that it be committed in company as "it is impossible to knowingly take part in a supply by yourself". In view of the Crown's sensible concession it is unnecessary to pursue this topic. 42The Crown did not concede that his Honour erred in treating as aggravating factors that the offences were committed without regard to public safety and were part of a planned or organised criminal activity and it is necessary now to deal with the arguments advanced by the parties. 43The principal submission for the applicant so far as concerns s 21A(2)(i) is that a disregard for public safety should be regarded as an inherent characteristic of the ongoing drug supply contrary to s 25A(1). The applicant contended that the gravamen of the offence was the repetitive dealing for profit which is a concept so closely connected with concerns for public safety that the sentencing judge was obliged to carefully consider whether there existed a valid basis to have additional regard to the aggravating feature in s 21A(2)(i). It was submitted that his Honour did not do so and that there was no valid basis to justify his Honour's finding. It was further submitted that the objective circumstances of the offences of knowingly take part in and the deemed supply of drugs did not warrant the finding that those offences were committed without regard for public safety. 44The Crown argued that the gravamen of an offence of ongoing drug supply lies in the repeated acts of supplying the prohibited drug within a closed period and the concept of repetitive dealing for profit in an ongoing drug supply is not necessarily closely connected with disregard for public safety. The Crown pointed out that someone may be a street level supplier who only supplies small amounts to a small number of customers. 45Section 25A(1) Drug Misuse and Trafficking Act is as follows: "A person who, on 3 or more separate occasions during any period of 30 consecutive days, supplies a prohibited drug (other than cannabis) for financial or material reward is guilty of an offence." 46It is well established that a factor should not be taken into account as an aggravating factor under s 21A(2), if it is either an element of the offence for which the offender is being sentenced or an inherent characteristic of that kind of offence: see for example Elyard v Regina [2006] NSWCCA 43; Ward v R [2007] NSWCCA 22; (2007) 168 A Crim R 545. A factor, which is an inherent characteristic of the kind of offence for which the offender is being sentenced, cannot be taken into account as an aggravating factor under s 21A(2), unless its nature or extent in the particular case is unusual. As Simpson J observed in Regina v Yildiz [2006] NSWCCA 97; (2006) 160 A Crim R 218 at [37]: "...But this principle does not mean that the degree to which the 'inherent characteristic' exists in relation to a particular offence may not, where it exceeds the norm, be taken into account as an aggravating factor." 47A failure to have regard for public safety is not an element of an offence of ongoing drug supply. The question then to be answered is whether a failure to have regard for public safety is an inherent characteristic of the offence of ongoing supply of cocaine contrary to s 25A(1). In Ward , Howie J (with whom I agreed) pointed out at [28] that although Regina v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [172] is authority for the proposition that on a charge of supplying drugs an aggravating factor may be that the offence was committed without regard for public safety, the Court was not asked to consider whether acting without regard for public safety was an inherent characteristic of some offences of supply and, therefore, ought not to be considered as a separate matter of aggravation. 48Basten JA's judgment in Elyard , which was accepted by the members of the Court in Ward , provides a helpful analysis as to how a conclusion might be reached that "without regard for public safety" is an inherent characteristic of an offence. His Honour considered at [15] that a failure to have regard for public safety is an inherent characteristic of an offence of deemed supply of heroin. His Honour said at [12]: "It appears from the cases that the factor which has given rise to significant difficulty is para (i) dealing with offences committed "without regard for public safety". There has been limited consideration as to whether this factor involves an objective, or subjective test, and if subjective, what level of conscious or reckless disregard is required on the part of the offender. It may well be that this factor should be understood as encompassing both objective and subjective circumstances. However, the distinction can be helpful in order to avoid the danger of double-counting. Where the offence is of a kind which, objectively or abstractly, reflects a policy of prohibiting conduct which disregards public safety, it will be necessary, in order to engage the aggravating factor, to find some aspect of the specific conduct in question which goes beyond the objective element or underlying policy. " (Italics added) 49An offence of supplying cocaine on an ongoing basis requires an offender to supply the prohibited drug on three or more separate occasions during any period of 30 consecutive days. I do think, adopting the language of Basten JA, in the passage quoted in the preceding paragraph, that the offence is of a kind which objectively reflects a policy of prohibiting conduct which disregards public safety. It seems to me that a failure to have regard for public safety is an inherent characteristic of the offence of ongoing supply of cocaine. I also think that it is an inherent characteristic of the offence of actual supply and deemed supply of that prohibited drug. 50It follows that the sentencing judge could not take into account this inherent characteristic as an aggravating factor unless its nature or extent went beyond what ordinarily might be expected. In regarding as an aggravating factor under s 21A(2)(i) that the offences were committed without regard for public safety, his Honour said (AB82): "The offence was committed without regard to public safety, it matters not that these were undercover operatives who were taking these drugs off the street, the offender did not know that and there is obvious risk to the public by having cocaine and such drugs available for sale." 51In my respectful opinion, his Honour's remarks do not go beyond what is usually involved in an ongoing drug supply and is an inherent part of the offence. There is nothing in the facts which suggests otherwise. The applicant's complaint that his Honour incorrectly found an aggravating factor under s 21A(2)(i) has been made out. 52The next complaint was that his Honour erred by taking into account that the offences were part of a planned or organised criminal activity as an aggravating factor under s 21A(2)(n). The Court's attention was drawn by the applicant to the sentencing judge's acknowledgment that planning and organisation were inherent features of "the organised supply of drugs." The applicant argued that his Honour incorrectly found that the extent of the planning and organisation in the applicant's offending was a factor of aggravation. The Crown submitted that his Honour's findings were reasonably open to him on the evidence. 53When considering s 21A(2)(n), the sentencing judge said (AB26): "Of course implicit in the organised supply of drugs with which this offender is charged is planning and organisation. However, I do take this into account as an aggravating factor, noting the extent of the planning and the organisation involved in his enterprise. As I have already noted he negotiated the supply of these drugs to the undercover operatives by way of his mobile telephone but the actual transactions were completed at the parent's home away from where he was living, where there were stored on the premises stolen property that had been used to acquire drugs from him and where (sic) and quantities of cocaine and the paraphernalia available for its preparation for sale." 54It appears from his Honour's remarks that he found that all of the offences were aggravated under s 21A(2)(n) as the amount of planning and organisation exceeded that ordinarily expected of an offence of the kind for which the applicant was being sentenced. 55Planning and organisation are an inherent feature of supplying drugs on an ongoing basis: see for example Regina v Hoon; Regina v Pouoa [2000] NSWCCA 137. His Honour considered that the applicant's planning exceeded the norm as the transactions were completed at his parents' home which was away from where he lived and the cocaine was stored. I do not think, however, that the place of supply being away from where the drugs were stored, evidences an unusual degree of planning in an offence of ongoing drug supply or an offence of supply. What was unusual was that the transactions were completed at the applicant's parents' home but that by itself was insufficient for his Honour to be satisfied beyond reasonable doubt that the planning and organisation was more than ordinarily might be expected. 56The planning involved in the ongoing supply was not sophisticated. A call was made to a mobile telephone service, the undercover operative was directed to the parents' home where the deal was completed. In my respectful opinion, it was not reasonably open to the sentencing judge to be satisfied beyond reasonable doubt on the evidence that the planning and organisation exceeded the norm and his Honour was in error in finding that it did. 57The result of this consideration is that the sentencing judge erroneously took into account six factors of aggravation. I am satisfied that the errors are of such materiality as to justify the Court's intervention, having regard to the terms of s 6(3) Criminal Appeal Act 1912. I am satisfied that "some other sentence...is warranted in law and should have been passed." 58As material error has been established and I consider that some sentence other than that imposed by the sentencing judge is warranted in law and should have been imposed, the applicant is not required to show that the sentence was manifestly excessive: Baxter v Regina [2007] NSWCCA 237; (2007) 173 A Crim R 284. 59Before I leave the topic of aggravating factors, it appears that his Honour overlooked that the applicant had been convicted on 31 August 2006 at Burwood Local Court of assaulting a police officer in the execution of her duty and placed on an 18 month bond under s 9 Crimes (Sentencing Procedure) Act . Other than the first supply of cocaine in the ongoing supply to the undercover operative on 24 August 2006, all of the offences were committed on or after 31 August 2006. The commission of an offence while on conditional liberty constitutes an aggravating factor under s 21A(2)(j) Crimes (Sentencing Procedure) Act . His Honour did not find such an aggravating fact and this oversight operated in the applicant's favour. 60Although it is unnecessary to deal with the second ground of the appeal, I propose to briefly comment upon some matters raised in argument. The principal complaint of manifest excess was the sentence imposed for the ongoing drug supply. 61The applicant contended that the sentencing judge did not make an express finding as to the objective seriousness of the offence, by locating the applicant's conduct within the range of objective seriousness for offences of ongoing supply of cocaine. The applicant argued that as a consequence, inadequate reasons were given to justify a sentence at the top end of the range for offences of this kind. 62The sentencing judge did make a finding as to the objective seriousness of the applicant's offending. His Honour found that the applicant was the principal in a commercial operation for the supply of drugs for financial gain and assessed his level of offending to be "of a much higher order" as he expected both his partner and parents to minimise the risk of his own detection by having the transactions completed at his parents' home. 63As a standard non-parole period has not been prescribed for an offence of ongoing drug supply, the sentencing judge was not obliged to carry out a more detailed analysis of where the offence lay within the range of objective seriousness for an offence contrary to s 25A(1) : Sivell v R [2009] NSWCCA 286; Georgopolous v R [2010] NSWCCA 246. I am not persuaded that his Honour's assessment was inadequate. 64The applicant provided sentencing statistics from the Judicial Commission, comparative cases and a sentencing table published by the Public Defender's Office for offences of the ongoing supply of cocaine. It was submitted that the undiscounted starting point of 11 years 5 months was unduly high for the first count. I accept that the statistical material and the sentences imposed in other cases indicate that a stern sentence was imposed for this offence. 65The applicant put to the Court that counts 2, 3 and 4 fell within the thirty-day period which commenced on 24 August 2006 and could have been included in the s 25A(1) charge and the proper application of the principle of totality required that regard be had to that feature. 66This Court has emphasised that when sentencing for breaches of s 25A(1) and s 25 an offender should not be punished twice for common elements between offences. In Tran v R [2007] NSWCCA 140 McClellan CJ at CL (with whom Hidden J and Rothman J agreed) said at [13]: "However, when, as happened in the present case, a person is being sentenced at the same time for breaches of s 25 and s 25A the common law principles provided in Pearce v The Queen (1998) 194 CLR 610 and Johnson v The Queen (2004) 78 ALJR 616 must be followed. In Pearce McHugh, Hayne, Callinan JJ said (at 623): 'To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means the offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.'" 67The sentencing judge in the present case was, in my opinion, careful to ensure that the sentences were properly adjusted to reflect any commonality in the applicant's offending by imposing sentences for counts 2 to 7 that were wholly concurrent with each other and were partially concurrent with the sentence for count 1. The effective sentence for counts 2 to 7 was one year and there was no effective additional punishment for the related offences on the s 166 certificate. 68The Crown submitted that the offence of deemed supply (count 3) could not be part of the ongoing drug supply offence (count 1) and drew the Court's attention to what was said in Tran by Rothman J and Regina v Glen Alan Jackson [2004] NSWCCA 110 by Sully J. 69In Tran , Rothman J (with whose additional remarks Hidden J agreed) said at [20]: "An offence under s 25A of the Drug Misuse and Trafficking Act 1985 (NSW) is a serious offence carrying a maximum penalty of 20 years. It requires, as an element of the offence, an ongoing actual supply of drugs. Invariably, in order to perpetrate an offence under s 25A, the offender would need to be in possession of illicit drugs of a quantity which would, pursuant to the terms of s 25 of the Drugs Misuse and Trafficking Act , be deemed to be supply." (Italics added) 70In Jackson , Sully J (with whom Wood CJ at CL and Hislop J agreed) observed at [33]: "It seems to me that a fair reading of that material suggests clearly that at every stage of the legislative consideration of the proposed new section the intended target was not commercial drug dealing as an abstract generality, but rather the individual who was making a profit out of indulging, to the prescribed statutory extent, in specifically identified and demonstrated instances of commercial drug supply. It seems to me that if that view is correct, then it must follow that the reference in s 25A to "financial or material reward" is to be understood as referring to a financial or material reward to the person who is shown to have carried out the three or more supplies as defined in the section. " (Italics added) 71No good reason has been advanced by the applicant as to why this Court should not follow this line of authority and I would agree with the Crown's submissions. In any event, the sentences imposed for counts 2 to 7 were not manifestly excessive. Resentence 72The maximum penalty for an offence contrary to s 25A(1) is imprisonment for 20 years. This Court has previously stressed the seriousness of the offence of supplying drugs on an ongoing basis: R v Kairouz [2005] NSWCCA 247; R v Le [2005] NSWCCA 162. In assessing the objective seriousness of an offence under s 25A, it is relevant to consider the quantity of the drugs supplied and the magnitude of the business operation: Regina v Cheikh; Regina v Hoete [2004] NSWCCA 448. 73The applicant submitted that the drug supply business was a "small scale street dealing operation." 74The amount of cocaine supplied on 7 September 2006, namely 28 grams, for $6,500 and the amount of money seized by police indicate that the business was otherwise than a small operation. The total weight of the cocaine supplied in the three transactions between 24 August 2006 and 7 September 2006 amounted to 34.07 grams. Nevertheless, it was not a major enterprise but may be appropriately described as a mid-level drug supply business of which the applicant was the principal. 75The commission of the offence whilst the applicant was on conditional liberty is a factor of aggravation: s 21A(2)(j) Crimes (Sentencing Procedure) Act . It is an egregious feature of the applicant's offending that he arranged the second supply of cocaine on the same day he was sentenced in the Local Court and the drug supplies continued after the police executed a search warrant at his home on 15 September 2006. This behaviour and the applicant's prior criminal history indicates a continuing disregard for the law and a strong measure of specific deterrence is called for in the sentence. I also give weight to the need for general deterrence. 76In resentencing, I have regard not only to all of the material before the sentencing judge but to the applicant's affidavit sworn on 20 November 2010. Without detailing all of its contents, the applicant states that he continues to suffer from kidney dysfunction and has been prescribed medication which he understands to be "Interferon", a very potent drug, consistent with the level of medication required to deal with his illness. He has asked to be transferred to the Long Bay Prison Hospital but his requests have been denied. He continues to participate in a methadone program. The applicant expresses his sorrow for his offending and states that he has attempted to improve his attitude to compliance with the law. 77Although I accept that the applicant has a kidney dysfunction, the evidence neither establishes that he is not being provided with appropriate care and treatment for this condition nor that imprisonment will be a greater burden for him by reason of his state of health. The applicant's condition is not a mitigating factor: R v Smith (1987) 44 SASR 587; R v Badanjak [2004] NSWCCA 395. 78I am unable to find that the applicant is unlikely to reoffend: s 21A(3)(g) Crimes (Sentencing Procedure) Act . His disregard for the law in the past does not encourage such an assessment, nor am I able to assess his prospects of rehabilitation as being good: s 21A(3)(h) Crimes (Sentencing Procedure) Act . It seems, however, that he has developed some insight into his offending whilst in custody and now acknowledges the effect that his conduct has had upon his family and the community. I give modest weight to the remorse shown by the applicant: s 21A(3)(i) Crimes (Sentencing Procedure) Act . 79I adopt the discount of 30 per cent allowed by the sentencing judge for the plea of guilty and assistance. His Honour carefully considered the question of totality and accumulation of sentence and I would not disturb the sentences other than for count 1. I would also adopt the sentencing judge's finding of special circumstances. 80Taking into account the offences on the Form 1, I would reduce the sentence for count 1 by one year to 7 years imprisonment consisting of a non-parole period of 4 years 3 months with a balance of term of 2 years 9 months. The total effective sentence, I propose, is imprisonment for 8 years with a non-parole period of 5 years 3 months. Orders 81Accordingly I propose the following orders: 1. Leave to extend time to appeal be granted. 2. Leave to appeal be granted. 3. Appeal against sentence allowed. 4. Quash the sentence imposed for count 1. 5. In lieu thereof, sentence the applicant to imprisonment with a non-parole period of 4 years 3 months commencing 27 October 2007 and expiring 26 January 2012 with a balance of term of 2 years 9 months expiring 26 October 2014. 6. In all other respects confirm the sentences imposed by the sentencing judge. 82The applicant is eligible to be released on parole on 27 January 2012. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 March 2011