District Court New South Wales Medium Neutral Citation: R v Francis Orchard [2011] NSWDC 151 Hearing dates: 5 August 2011 Decision date: 12 August 2011 Jurisdiction: Criminal Before: Judge Norrish QC Decision: 1. Convicted. Sentenced to a non parole period of ten years and five months commencing 8 May 2008 and expire 7 October 2018. Balance of sentence of five years and one month expiring 7 November 2023. Matters on the Form 1 Certificate have been taken into account. 2. The short minutes of the confiscation orders in accordance with the Confiscation and Proceeds of Crime Act 1989 are made in accordance with paragraphs 1.1, 1.2, 1.3, 1.4. 3. I order that all drugs that were seized by police be destroyed, if that has not already been done. Any matters on any s 166 Certificate are remitted to the Newcastle Local Court for 24 August 2011. Catchwords: SENTENCING: supply not less than commercial quantity of methylamphetamine, special circumstances, standard non parole period. Legislation Cited: Drug Misuse and Trafficking Act 1985 Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v Fahda [1999] NSWCCA 297 R v Scognamiglio (1991) 56 A Crim R 81 R v Letteri (unrep, 18/03/92 NSWCCA) R v Engert (1995) 84 A Crim R 67 R v Hemsley [2004] NSWCCA 228 R v Wright (1997) 93 A Crim R 48 R v Smith (1987) 44 SASR 587 R v Bailey (1988) 35 A Crim R 458 R v Vachilec (1981) 1 NSWLR 351 R v Burrell (2000) 14 A Crim R 207 R v Todd (1982) 2 NSWLR 517 R v Mill (1988) 166 CLR 69 R v Postiglioni (1997) 198 CLR 295 Lowe v The Queen (1984) 154 CLR 606 R v Hamieh [2007] NSWCCA 277 R v Jimmy [2010] NSWCCA 60 R v De La Rosa [2010] NSWCCA 194 R v Way [2004] NSWCCA 131 R v Sellers [2010] NSWCCA 133 R v Knight (2007) 176 A Crim R 338 MLP v The Queen (2006) 164 A Crim R 93 R v Louizos [2009] NSWCCA 71 Mencarious v The Queen [2008] NSWCCA 237 Veen (No 2) v The Queen (1988) 164 CLR 465 R v Elyard [2006] NSWCCA 43 Category: Principal judgment Parties: Regina Francis Orchard Representation: Mr Marr - Accused Mr Thorpe - The Crown Director of Public Prosecutions - Crown R Cummins - Accused File Number(s): 2008/171277 SENTENCE 1HIS HONOUR: Francis Orchard today appears for sentence in relation to an offence for which he was found guilty by me after I conducted a trial by 'Judge alone' between late September last year and mid-May 2011. On 13 May 2011, I returned a verdict of guilty in relation to the prisoner in respect of an offence contrary to s 25(2) Drug Misuse and Trafficking Act 1985. I found him guilty of an offence that alleged that he between 10 January 2008 and 10 May 2008 at Belmont and elsewhere in the State of New South Wales did supply not less than the commercial quantity of methylamphetamine. It followed from that verdict that I found him not guilty of the charge particularising that he supplied not less than a large commercial quantity of amphetamine. The matter was conducted in front of me on the basis that the alternative count, if I might call it that, was statutorily available in this case. The accused was arraigned on 27 September 2010, the trial proceeded over a seven month two week plus period, less a seven week break over the Christmas period. My reasons for the verdict I gave were set out in the judgment delivered electronically to the parties by agreement on 20 May 2011 whilst I was sitting at Orange. 2Arising from the facts as I found them in the judgment that is already published, I am satisfied that the prisoner committed the subject offence for the purposes of supplying methylamphetamine as a business run by him to a network of regular clients, many of which purchased methylamphetamine in quantities for the purposes of on-supplying to others, as well as personal use. 3The prisoner had been in the business of supplying methylamphetamine over the period of time particularised in the indictment as was made clear by the telephone intercept material and had sufficient funds from the supply of methylamphetamine to provide AA with a sum of $110,000 on 8 May to purchase the methylamphetamine obtained from Mr Paxton and ultimately found in AA's possession. The prisoner also had $48,820 secreted at his parents-in-law residence at Tutor Street Belmont, which was available for future drug purchases if needs be. Clearly, the cash provided by the prisoner, or under the control of the prisoner, before, or at the time of his arrest on 9 May 2008, was money gained from his past drug dealing activities. 4It is clear from the evidence that at the time the police telephone intercept operation commenced, upon which the Crown case was substantially based, the prisoner had an established client base for the supply of methylamphetamine, contrary to the evidence he gave before me. 5The Crown case for establishing a link between the prisoner and AA, the prisoner as principal, and as agent was in material respects overwhelming. I was required to listen to many hundreds of telephone intercepts and other recordings of private conversations involving the prisoner where the prisoner was clearly directing his drug supply operation with singular purpose and what he believed to be singular cunning. As the case proceeded, sometimes shadowing the events of 2008 in real time, a disturbing picture emerged of a man prepared to use his friends, his children, his parents-in-law and others for his own purposes; a person who clearly was not prepared to brook any interference and quite prepared when his interests were threatened to foreshadow significant violence, as I discussed in the earlier judgment. He was locally known as 'Brother', an expression I am quite satisfied that reflected, at least amongst the drug using and other criminal milieu of the Belmont and nearby areas, considerable respect. To touch upon a matter I will deal with in some detail later, having regard to the submissions made by counsel for the accused, the prisoner was not mentally disabled or incapable of criminal acts. On a daily basis he acted in a cold and calculated way. He, even on his own admission in the context of the case he conducted, was prepared to under weigh the drugs he supplied with no concern for his customers, just concern for himself. 6The prisoner gave evidence in the trial which, in the context of the case conducted by the prosecution, is essentially a defence of "confess and avoid". What he confessed to, but for which he is not being sentenced, nor has he been charged, was that he over the relevant period of time covered by the indictment was engaged in the ongoing supply of methylamphetamine and other prohibited drugs. He admitted in his evidence to crimes which, on my understanding, would have attracted several charges pursuant to s 25A Drug Misuse and Trafficking Act 1985, which carries a maximum penalty of twenty years imprisonment, as well as other offences pursuant to s 25(1) Drug Misuse and Trafficking Act , depending upon the prohibited drug in question he was supplying. 7As I have earlier pointed out, as he admitted in his evidence and as clearly the Crown proved with the evidence it relied upon, the prisoner was generally supplying methylamphetamine on a daily basis when he had methylamphetamine at his disposal. He had it, as I understood the evidence, most of the time covered by the period set out in the indictment. Appreciating that the prosecution chose to conduct its case in a particular narrow way, if the matter had been pleaded differently, the enormous expense to the DPP, the Legal Aid Commission and the Court in conducting this trial may well have been avoided. The real issues that were for determination would have been addressed, the matter could have proceeded if needs be, as a disputed facts hearing. As it was, by the time the prisoner completed his evidence it was in reality a little more than that. In any event, although the prisoner made admissions of his substantial involvement in the supply of methylamphetamine, in relation to the matters central to the way in which the Crown pleaded its case, he gave on many occasions untruthful, misleading and self serving evidence. He was indeed a most unimpressive witness in a range of ways some of which are detailed in my judgment. In my view, on a number of occasions, he lied in a calculated but revealing way to try to limit the damage of the Crown case. There was absolutely no suggestion of thought disorder that permeated his evidence save, of course, for his claims about his skin condition, a manifestation of his claimed mental illness to which I will refer later. 8The details of the accused's supply of methylamphetamine are set out in the judgment; I refer for example to [402] to [480] and in the "Conclusion" including [491]. The precise amount of methylamphetamine relevantly supplied by the prisoner included the quantities in the possession of AA, secreted at AA's home or given to Mr Watt, at the time of his arrest. This included quantities of methylamphetamine purchased from Mark Paxton on 9 May 2008 with the $110,000 given to him by the prisoner. It also included the leftovers of the quantity of "bad ice" bought from 'Uncle" in early April and other methylamphetamine obtained from 'Uncle" in exchange for some of the "bad ice" and other considerations. There were other small quantities including very minute quantities in the possession of the prisoner in his car and in his house consistent with personal use by him. 9The methylamphetamine that had been purchased from Mr Paxton, in May 2008, averaged in quality from 58 to 60% purity. The "bad ice" was on average 18.4% pure and weighed 118.4 grams. The 10.3 grams of methylamphetamine, which was described as the "brown pasty substance", or an orange or red coloured methylamphetamine, had an average of 10% purity. I bear in mind in assessing what drug precisely existed as at the arrest of the prisoner, that the methylamphetamine recovered from AA's home had to, to some extent, been cut by the use of some number of grams of Epsom salts. The quantity of methylamphetamine purchased from Paxton on that day is difficult to measure with absolute precision. In the submissions of the parties before me, having regard to my findings of facts, the parties conceded that my findings indicated that the quantity of methylamphetamine relevantly recovered on 9 May comprised approximately 612 to 620 grams. 10I was satisfied, however, as my fact finding indicated, that what was recovered during the police investigation on 9 May was not the whole story. I was satisfied that the prisoner had arranged for AA to provide to him methylamphetamine on other occasions but that the precise quantities purchased cannot be proven beyond reasonable doubt. I bear in mind, of course, that the "bad ice" that was in his possession was left over from quantities of methylamphetamine that had been on-sold by the prisoner at least for a period of time before he came back to AA to complain about its quality. It is also to be borne in mind by reference to the objective evidence, that is the telephone intercepts and/or the admissions of the prisoner in his evidence, that throughout the period particularised in the indictment the prisoner, as I said, was supplying others with methylamphetamine, negotiating or dealing in hundreds of transactions of varying quantities including ounces and "eight balls" which naturally would not include quantities that were recovered by the police on the arrest of the accused and AA. 11It is clear from the evidence in the context of what I accepted from AA, that the prisoner was supplying methylamphetamine not only obtained from AA but obtained from unknown sources, particularly before he and AA came together in their commercial arrangement in early February 2008. Furthermore, apart from $110,000 the prisoner had provided AA on 9 May, police recovered the money at the home of the prisoner's parents-in-law. None of this money was from any legal exertion on the part of the prisoner. This is now conceded by other orders I am to make by consent. He was a pensioner on some sort of disability pension with no readily identifiable or traceable assets of substance at the time of his arrest, although it was clear that he was involved in some discussions with others about means of laundering money or spreading his assets. 12The precise circumstances of that need not be dwelt upon here and are really impossible to reach concluded views about. Any moneys in which he gave evidence left over from the bakery business he ran in Cessnock in the 1990s, or from the sale of his home, I am quite satisfied had nothing at all to do with the sum of cash found by the police, that is, if they ever existed. As I said in my earlier judgment, the prisoner gave quite unconvincing and misleading evidence about matters relating to that as it reflected upon the existence of the $48,820 recovered by police on 9 May, or the early hours of 10 May. 13I note that by consent the money found at the home of the parents-in-law is to be forfeited to the Crown as "proceeds of crime" on the application of the Crown. 14The prisoner, according to the criminal history provided to the Court, was born on 24 May 1957. That would mean on my understanding of the evidence he was fifty years of age at the time of the commission of the offence with which I am concerned, and is now fifty-four. The evidence of his background and his personal circumstances emerges from the evidence at trial and the histories he has given to various people including his general practitioner, Dr Aldridge, Dr White and Mr Watson-Munro, a psychologist, who has prepared a report for Court. From this material I understand that the prisoner's father is alive and is in his early eighties and his mother is alive and she is in her late seventies. I understand he has an older brother and a younger sister. The prisoner has four children, his wife is deceased. The prisoner indicated in the reports that I read that he did well at primary school claiming to be the Dux of his primary school, but completed high school at Cessnock at the age of fifteen attributing his early departure from school to a lack of application and poor concentration. 15I note in his criminal history that it is suggested he was committed to a 'Juvenile Justice' institution with what was then called a "general committal" just before his fourteenth birthday. What effect this had upon his education I do not know, because there is no information from him about it. He claims to have been a user of drugs since his teenage years telling Mr Watson-Munro that he became addicted to heroin at the age of seventeen, "Which has continued through to the present, apart from a period of some eight years when he claims he was drug free after completing a rehabilitation program." This is in part confirmed by his criminal history that shows a substantial break in his offending through the 1990s. The chronology is not entirely clear from the evidence, but I understood that to be the period of time that he had his own bakery business in Cessnock. 16He met his late wife when he was sixteen and they lived together off an on for thirty years. She sadly died in May 2007. As I said, they have four children, two sons I understand to be twenty-seven and eighteen, one with a serious mental illness and two daughters aged twenty-three and sixteen. His wife was a heroin addict, or was otherwise addicted to prohibited drugs. As best I can understand from the material she died from conditions relating to her addiction. The prisoner states that he is in "considerable grief" concerning her passing and "sustains himself because of his love of his children" according to Mr Watson-Munro. I have no reason not to accept that. 17It would appear from the report of Dr White, psychiatrist, prepared in February 1999, that in the late 1990s the prisoner did have a significant heroin addiction and at that time the three youngest children were living with their maternal grandparents and one child was subject to a 'Care Order'. The younger boy was said at that time to suffer from ADD or Attention Deficit Disorder, and even in 1999 was regarded as being "out of control" at the age of five. Clearly, having regard to the terms of the report and to whom it is addressed, there was in the late 1990s some DOCS intervention in relation to the care of that child, if not the others, well before the prisoner's wife passed away. As I understand the history contained in that report, the wife of the prisoner and himself were separated some time prior to Dr White's reporting, but reconciled, although the prisoner's evidence at the trial reflected upon some disruption to their marriage affecting their accommodation arrangements shortly before she died. The prisoner's disturbed behaviour upon which Dr White reported related to a belief he had that he had a serious fungal infection. This had emerged approximately two years before 1999. I will refer to the evidence of his medical condition shortly. 18The prisoner gave evidence before me that he and his wife, apparently with input from the prisoner's parents, opened up a bakery in Cessnock with at least two retail outlets and this was a successful venture at least for a period of time. The prisoner during this period of time was methadone maintained, his wife was either using methadone or prohibited drugs. Mr Watson-Munro reflects upon "codependency issues" at this time. The prisoner gave evidence at the trial that his wife and sister-in-law "bled the business dry" of money some time during the 1990s and that he secreted large sums of cash from the business apparently, it would seem, to defeat his creditors and/or to keep the money away from this wife and her sister. The sister gave evidence in the trial and was not asked a question about this. It is impossible to know the full truth of the situation except to reflect upon the fact that some time in the late 1990s the business failed, the prisoner and his wife I assume, part owners of the business, owed creditors a great deal of money and rather than pay his creditors, the prisoner allowed his home to be sold by the bank, the balance of the moneys left over being distributed I assume to the prisoner and his wife when the mortgagee was paid out. I note no documents were ever produced in relation to this and other claims in relation to his financial circumstances. His precise financial circumstances at the time of the collapse of the business are neither clear nor capable of final determination. I have not been assisted in relation to this matter in the sentence proceedings. 19The prisoner since that time has been living off, amongst other things, welfare benefits. As pointed out elsewhere, the medical practitioner who treated him between 2000 and 2008 describes the prisoner as having "genuine care for his family" and noted that in his contact with the Public Health Service the prisoner was "invariably polite and respectful." The doctor also noted the prisoner commanded "a great deal of respect and loyalty among the drug using community." The prisoner was described by the doctor as showing "benevolence...to those in need." The benevolence is not particularised, but if it was benevolence designed to assist people to get more drugs by discounts or extra portions and the like, not only is that not supported by the evidence, but the irony of that, given the case mounted on behalf of the prisoner, is self evident. 20If the prisoner's claimed psychiatric condition is related to his use of methylamphetamines commencing many years before the commission of this offence, one might have thought that that would have caused him to stop to ponder as to the effect of those drugs upon those he was supplying. Those who clearly would not have had, at the time of his arrest, the same cash resources as him and who, as the many calls I heard revealed, were very dependent upon him. What those persons had to do to obtain the funds to buy the methylamphetamine they purchased from the prisoner I can only speculate about. I note in relation to the issue of his "benevolence" that he quite frankly admitted in evidence at the trial that he underweighed methylamphetamine he was providing to customers who were either too afraid, too drugged or too stupid to challenge the weights that they were given. Then again, that claim may have been false simply to explain away uncomfortable aspects of his drug dealing revealed in telephone intercepts and listening device tapes. 21I accept the prisoner naturally is concerned about the welfare of his children and there is much to be concerned about. The difficulties of his sons are matters that require close attention. But his sons are both now adults and, notwithstanding to the conditions from which they suffered referred to in the evidence in trial and in sentence, particularly the mental illness of Denny, the prisoner continued with his lawless lifestyle knowing of these illnesses. In fact, two of his offspring were teenage children in need of his care when he was knowingly running the very risk that is now a reality, that is serving a substantial term of imprisonment as a result of which, for some period of time, he will be not present to assist them. 22In any event, the evidence reveals the prisoner's elder daughter was involved in his drug supply activities, on his version in the supply of cannabis, on the other evidence involved in the supply of methylamphetamine. As the tape recordings made clear, particularly the listening device material, his children were present, or some of his children were present, from time to time when the prisoner was supplying methylamphetamine to others on his own admission discussing those matters with them. His children must have been aware of his activities. Even on his version of events his house was a place regularly visited by persons involved in the drug trade in various ways, or for the sale of drugs to drug users. I have discovered in the material supplied by the prisoner on sentence, admittedly it is "hearsay" but it is tendered on his behalf, that his daughter, Stacey, was according to his general practitioner not allowed to live with Mr Orchard as a condition of her "parole." Whether this is completely correct is not to point. Whilst of course the circumstances of his family attract some sympathy as they always do in sentencing matters, their circumstances are not catastrophes that have arisen by reason of him being in custody or have arisen whilst he is in custody. The personal circumstances of his children, the death of his wife etc were all matters that pre-existed before he committed the offence for which he is now to be sentenced. Yet he continued in the business of drug supply notwithstanding. 23The prisoner's criminal history does not entitle him to any particular leniency, albeit there is an absence of significant convictions for drug supply. As I pointed out, he first appeared in the Children's Court in, according to the record, March 1973 just prior to his fourteenth birthday, charged with stealing offences and according to the record was apparently committed to an institution which is the wording of the order. This is not a matter adverted to in any of the histories the prisoner has provided or could be gleaned from the reports tendered on his behalf. I will ignore the matters in the Children's Court. They are quite old. The prisoner first appeared in the Local Court in April 1975 charged with smoking Indian hemp and was convicted again of possessing and smoking Indian hemp in 1976 on several occasions. In 1977, as I understood the record, he was sentenced to nine months imprisonment for using and possessing heroin and six months imprisonment for having goods in custody reasonably suspected of being stolen. This was his first term of imprisonment and, as I understand it allowing for time in custody pending the determination of other matters, it is the only term of imprisonment he has actually served, prior to the one that he will now serve. 24Two years later in the Local Court the prisoner received a 'deferred sentence', as it was then called, for twelve months for using heroin and in the 1980s he was convicted in the Local Court for cultivating and possessing Indian hemp for which he received a sentence of twelve months imprisonment with six months non-parole, which on appeal was converted to a community service order and a recognisance to be of good behaviour. He may have been in custody pending the outcome of the appeal. I accept the records are very incomplete for judges in relation to these matters. In 1987 he was convicted of assaulting police, for resisting arrest and offensive language. In 1988 he was convicted of assault occasioning actual harm for which he was given a three year good behaviour bond. He was also convicted of assaulting a female and fined $500. In 1989, consistent with his history of drug usage, he was convicted of administering a prohibited drug. He was also fined and convicted of the offence of mid-range PCA in 1990 and convicted of assault the same year. Then there was the nine year break in his appearances in court approximately, to which I have referred. In 1999 he was convicted of two counts of possessing a prohibited drug which is not described. In 2000 he was convicted of having in his custody a knife in a public place and sentenced to six months imprisonment, suspended pursuant to s 12 of the then recently introduced Crimes (Sentencing Procedure) Act . He was also convicted of possessing an unlicensed firearm for which he was fined and having goods in custody reasonably suspected of being stolen for which he was sentenced to three months periodic detention. That sentence was altered on appeal to a suspended sentence of imprisonment of six months on the same date as he received the suspended sentence for the knife charge. 25In August 2000 a sentence of periodic detention for "carrying a cutting weapon" was converted to a suspended sentence. In December 2000 the prisoner was convicted of driving under the influence of a drug and sentenced to twelve months imprisonment which was suspended. Subsequently in 2004 the prisoner was convicted of receiving stolen goods and fined and in 2005 with having goods in custody reasonably suspected of being stolen or unlawfully obtained for which he was again sentenced to a term of imprisonment which was suspended. 26The prisoner has a number of other convictions for possessing prohibited drugs, street offences and driving offences. The prisoner's last conviction, according to the criminal history I was provided, was in April 2007 for possessing a prohibited drug for which he was fined a modest amount. 27He was not subject to parole or probation supervision at the time of the commission of the current offence. I do note his criminal history does involve largely appearances in the Local Court. Such appearances as he has previously made in the District Court have been as I understand it on appeal from orders of the Local Court. On the other hand I note a number of terms of imprisonment have been varied on appeal and the prisoner clearly has been given a number of opportunities by way of a recognisance, good behaviour bond or community service order. He has had plenty of "chances". 28I turn now to the medical evidence. The major part of the prisoner's case on sentence was related to the material contained within a report from the two doctors to whom I have referred and the psychologist. The report from Dr Allan White was dated 1 February 1999 apparently addressed to the Department of Community Services. The report from Dr Outridge (?) was dated 4 August 2011 and the report from the psychologist Mr Tim Watson-Munro was dated 1 August 2011. I have had regard to the material contained in those reports which I will deal with in a moment. 29It was submitted by learned counsel for the prisoner that in the context of the prisoner having a number of continuing medical conditions that require treatment that was a matter I should take into account in a number of ways. Firstly, in assessing the objective seriousness of the offending and also in relation to the subjective circumstances. 30It was submitted specifically that the prisoner could not get "proper" medical treatment in custody. There is absolutely no evidence that he cannot get "proper" medical treatment in custody. I was told that one reason for adjourning a sentence proceedings five weeks ago was that there was a need to sift through what I understood to be, although I do not have a transcript of those proceedings, four volumes or four files of medical records held by Justice Health. This and other material reflects upon the fact that over the last three years the prisoner has been receiving a great deal of medical and related treatment. 31Although Mr Watson-Munro is not medically qualified he cites a range of medications currently provided to the prisoner in custody in respect of his treatment. 32In relation to Dr White's report he diagnosed the prisoner in 1999 as suffering from "chronic paranoid schizophrenia". Specifically he found that the prisoner suffered from "delusions that he and members of his family suffer from a fungus infection which comes from gum trees". This was the subject of evidence from the prisoner. The prisoner in fact gave evidence at the trial of selling the family home in about 1999 because of the fear of contracting these fungal infections. 33Dr White opined that schizophrenia is a "severe constitutional psychotic disorder which is usually so incapacitating that patients are unable to resume their pre-illness psycho, social and vocational functioning". At the time of that report the prisoner had been on long term methadone maintenance with various side effects including skin rashes which may explain the dermatological problems that the prisoner attributed to his fungal infection or his believed fungal infection. 34Dr White concluded in 1999 that the prisoner had no insight into his mental illness and resisted treatment. The prisoner had given him a history of heroin dependence, methadone maintenance for approximately eight years and treatment in 1997 for his delusion about his skin condition. Prior to the preparation of that report in 1999 the prisoner had exhibited "extremely disturbed behaviour" related to this belief concerning the fungal infection. In the report however there is no reference to any evidence of any other delusional belief. In fact the report reflects upon the fact that the prisoner had rational views about matters relating to the treatment of his family by DOCS, his relationships and other day-to-day matters. His "psychiatric symptoms" were treatable by modern anti psychotic medication. 35I was provided with some medical literature in relation to the condition described as "psychogenic parasitosis", the delusion that the prisoner suffers from of being infected by parasites. I also have been provided with a Wikipedia entry regarding a condition known as "opisthotonos", a condition of muscular spasm associated with severe cerebral palsy, traumatic brain injury or tetanus. I note that there is no evidence that the prisoner suffers from cerebral palsy, traumatic brain injury or tetanus infection, although he has given a history of sporadic spasms whilst in custody and before. He had none in court over many months. I was not aware of any frequency of such occurrences. No complaint was made over a very lengthy trial that that condition affected him in some way, but I understood of course the prisoner was justifiably exhausted through the trial because of the strains of coming to and from court, a matter I have taken into account. 36His general practitioner, as I understood his report, had known the prisoner for fifteen years and as I said was his methadone prescriber between 2001 and 2008. He was very familiar with the conditions of the prisoner's children, particularly the young man who suffers from a severe mental illness who has been hospitalised on a number of occasions, including during the period of time of telephone surveillance I accept the prisoner's genuine concern for his son as reflected in some of the telephone intercepts. 37The general practitioner describes the prisoner's medical conditions as "paranoid opioid dependence in remission whilst on methadone maintenance treatment, chronic amphetamine dependence, fluctuation "??" and inactivity, chronic psychotic disorder characterised by semantic delusions of parasitosis, exacerbated by amphetamine type substances, anti-social personality traits (with qualifications) and hepatitis B and C". The doctor provides some history of the prisoner's background of substance abuse, his family problems, the development of his parasitosis and the many struggles of his wife and her dependency on heroin. 38His son Denny, as I said, suffers from a chronic psychotic illness, frequently becoming paranoid and violent. The prisoner endeavoured to be his carer, particularly after his wife died. The doctor said in his report that: "during the latter years (before the prisoner's arrest in May 2008) living at Belmont with Denny it was not a healthy household with Denny being chronically mentally unwell due to ongoing substance abuse and Mr Orchard having fluctuating levels of psychosis himself (albeit with far less cognitive impairment and disordered thought form than Denny), but continuing delusions". The prisoner also gave a presentation of "depression" in part due to amphetamine use. 39I point out the doctor has not seen the prisoner for over three years, or certainly has not treated him for over three years. 40Mr Watson-Munro reviewed the medical material available to him, which apparently included some of the records of the Justice Health files, the prisoner's history of drug usage and other matters. The prisoner told Mr Watson-Munro that he started using amphetamines intravenously at the age of thirty-nine years, this having "a dramatic impact upon his judgment", progressing to use crystal amphetamine "ice" in 2007 on an intravenous basis. This part of the history is somewhat inconsistent with the case conducted on behalf of the prisoner concerning his lack of knowledge of the availability of ice in the Newcastle area and other matters. 41In any event Mr Watson-Munro said the prisoner gave a "reasonable, coherent account of himself" and denied experience "any delusions of reference or hallucinations in recent times" but acknowledged in the past that he had a "firm belief that he was infected by a parasitic organism". His primary symptoms according to Mr Watson-Munro in the present relate to "depression and anxiety referrable to the death of his wife and his concerns for his children against the backdrop of his appreciation of the gravity of the current matters before the court". 42Mr Watson-Munro seemed to apply very few psychometric tests. He did administer the Beck Depression Inventory which confirmed high levels of depression and anxiety which "by your client's account relate primarily to his concern for his children". 43The prisoner is still subject to high dosages of methadone. Mr WatsonMunro noted that despite the prior diagnosis of "schizophrenia" there was "no evidence of formal thought disorder". The prisoner denied ever experiencing auditory hallucinations but quite clearly suffers "high levels of paranoia and suspiciousness". The psychologist's opinions range across a survey of his history and he expressed the opinion that schizophrenia and drug use including the use of heroin and ice could affect "forward planning and decision making". 44He went on to say, "I hence hypothesise that the confluence of these issues have had a dramatic effect upon his capacity to make rational decisions and at best even when moderate relatively lucid, he is highly subjective in his outlook due to the cognitive intrusion experienced as a consequence of his symptoms. In saying this however, I am not suggesting that he is unaware of his criminality nor its consequences." 45He indicated that the prisoner was in need of ongoing psychiatric attention, although the prisoner's refusal to accept that he is unwell created difficulties. 46As I pointed out the medical evidence is relevant in a range of ways. Firstly, the prisoner's circumstances of custody with a medical condition that mean he will suffer some hardships not ordinarily experienced by the general prison population, in part too because he is an older prisoner and I have taken this into account. 47As I have earlier indicated there is no evidence that he cannot receive appropriate medical treatment in custody so long as he is co-operative with that. I fully appreciate that prison medical services are not the same as available at the St George Private Hospital, for example, but I have not any evidence to show they are inadequate for the purposes of the prisoner's needs. 48It was submitted on the prisoner's behalf by reference to R v Fahda [1999] NSWCCA 297, particularly by reference to the judgment of Simpson J, that lesser weight should be given to general deterrence because the prisoner was at the time of the commission of the offence suffering from a "mental abnormality" or "disability". Her Honour cited well known authorities providing a line of discussion about this issue, including the judgment of Grove J in Scognamiglio (1991) 56 A Crim R 81, the judgment of the late BadgeryParker J in R v Letteri (unreported 18 March 1992 - NSWCCA), the judgment of the learned Chief Justice of the Supreme Court in 1995, Gleeson CJ, in R v Engert (1995) 84 A Crim R 67 and a later judgment of the Court of Criminal Appeal R v Wright (1997) A Crim R 8. I am familiar with these judgments. I have considered them in this matter. I have applied and/or considered them in the past many times. 49In addition to Fahda , R v Hemsley [2004] NSWCCA 228 may be mentioned particularly the summary of principles brought together by Sperling J at [33]-[36]. In fact, as I mentioned in argument in about 2006, I was required to apply Hemsley principles to Ms Hemsley when she appeared in the District Court charged with a similar crime to that for which she was the subject of Sperling J's wisdom. I appreciate, as flows from Dr White's general summation of the condition, that schizophrenia is a severe constitutional disorder and may be susceptible to aggravation by abuse of alcohol and drugs. 50I understand the evidence that this condition can, or might, even be described as usually capable of incapacitating a patient and preventing them returning to pre-illness functioning. In this case there is some evidence of some anxiety expressed by the prisoner in private conversations that were the subject of telephone intercepts and reference was made in the submissions to a particular conversation, or particular conversations, the prisoner had with his mother-in-law late one night. 51It might be said that some conversations hint at, or expressly refer to delusions, but there is absolutely nothing in the many many calls that I listened to particularly pertinent to his criminal activities that suggest that the prisoner's planning and scheming and drug dealing over three months was delusional, driven by delusions or was impacted upon by his mental illness directly. 52Of course, his own use of methylamphetamine may have been prompted by his mental illness. There may have been a relationship between the two, but it is to be borne in mind that the prisoner had been a drug user for many years before he started using methylamphetamine, a regular user of heroin and cannabis. It is the fact that over the last ten to fifteen years the drug of methylamphetamine has arisen as a drug of choice by those addicted to prohibited drugs because of its greater availability over that of heroin. Of course, this prisoner was a drug user long before he had any delusions about parasites on his skin. 53It was submitted on his behalf by his counsel, most eloquently and vigorously, that the prisoner's judgment was diminished by his mental illness. In this matter, notwithstanding what was reported upon by Dr White, and even allowing for the qualified opinions of Mr Watson-Munro that are within his expertise, there is no evidence of this directly in this case and frankly no suggestion of this being the fact directly in the opinions such as they are expressed that are relevant to this matter. 54In fact, I note particularly by reference to the one fully qualified opinion expressed, that is Dr White, that the opinions are careful to isolate the extent of the delusional thinking. Mr Watson-Munro's cursory clinical examination, within his expertise, does not reflect any formal thought disorder as I pointed out. 55I discussed this matter at length with counsel in submissions and I have taken into account of course everything that he has put. In fact, as I have said earlier, I have without a transcript listened again to all the submissions to ensure that I fully understood what was said. I point out in passing I have taken into account all the submissions that have been made by counsel including the written submissions of the learned Crown and given them very close consideration as my remarks on sentence reflect as I speak. 56The facts of the matter are that the prisoner's conduct relevant to this charge was methodical and practical. It was calculating and it was undertaken, by the very words he expressed and the way he expressed them, with a full understanding by the prisoner of what he was doing. He had an arranged network and a modus operandi of supply and the prisoner believed he had organised this very cleverly. 57It is quite clear from the evidence that the prisoner was not incapacitated to make the plans and give the directions required to commit the very crime for which I am concerned. In fact there is no evidence of relevant incapacities. 58Of course he may have a damaged mind, or a genetic brain malfunction, as his counsel said on several occasions, but it does not demonstrate itself in the prisoner's day to day drug dealing activities and his contact with AA of which I am satisfied. 59As I said, in some calls he was anxious but not psychotic as I would understand that term. I note, although it is not relevant to this matter, no issue of mental illness was ever raised relevant to his defence, nor was there any suggestion that the prisoner was incapable of instructing his counsel. 60I accept that there is evidence that the prisoner had suffered from delusions about his serious skin condition and that a psychiatrist in 1999 diagnosed this as a symptom of chronic paranoid schizophrenia. However, as I have said both in that report and in the commentary of Mr Watson-Munro, there is no evidence of other delusional thinking that affects his day to day functioning and his capacity to reason or anything of the like. 61Most importantly, even if the prisoner was suffering these delusions exacerbated by methylamphetamine usage over a period of time at the commission of the offence for which I am concerned, the evidence in the trial relating to the intercepted telephone conversations involving the prisoner as I said showed no evidence of the prisoner being incapacitated. He had rational beliefs that the police were pursuing him, which they were, he rationally criticised those who he believed had let him down or done stupid things, such as Julie Montserrat, Tristan Lightfoot and the like and rationally plotted and planned to source methylamphetamine for himself and his business. 62Of course he expressed what might be described as "paranoia" to AA, about which AA commented in telephone intercepts, but the paranoia was about rational matters, being arrested, losing access to his considerable cash resources, losing control over his drug "stash". They were beliefs solely concerned with his self preservation and his interests. They did not affect his capacity to commit the crime in any way. 63There is no evidence that the delusional beliefs caused him to take up methylamphetamine usage or prompted him to be a drug supplier or guided his planning in any way. I note of course in the trial there was evidence that when he believed that he was under some threat, which he in fact was as the case has revealed, he was able to, with considerable cunning and rational thought, divest himself of his drugs, his money and even a weapon, to avoid detection, shifting some of those items to AA and to his parents-in-law and other places unknown. 64I appreciate there may be a connection between his thought disorder and his use of amphetamines, but such thought disorder as he had and as particularised in the reports could be exacerbated by the use of methylamphetamines. Of course, on the other hand, he knowingly supplied these same drugs to other people for profit without regard to the consequences for them and solely for the purposes of enriching himself. 65Another feature of this matter was that the prisoner's condition had existed for many years before the current offending. The prisoner resisted any attempts that were made to receive appropriate treatment for it and this is commented upon by Dr White and his general practitioner. He was aware of his condition. He would have been aware of the contents of Dr White's report. Hence its production here at this Court. Yet he persisted with drug usage and I would assume that he did that knowing that it exacerbated his health difficulties as the direct evidence in the trial makes clear. Again, he was more than happy to expose others to the same risks as himself to which he was exposed. 66By reference to what I might summarise as Hemsley principles, whilst there could be an indirect relationship between his mental illness, as it might be described, and the offending, it could not in any way be categorised as contributing to the commission of the offence "in a material way". Clearly the condition does not reduce the prisoner's moral culpability given the various aspects of the matter I have referred to, including the calculated way in which the prisoner committed the relevant offence and the period of time over which it was committed. This is not an offence committed fleetingly, but over many days. 67Neither the character of the mental illness nor its relationship with the offending renders the offender an inappropriate vehicle for general deterrence, or moderates that consideration. Even if it could be argued that it could be moderated in some way, in this case the prisoner's mental illness, if it could explain in part his offending behaviour left untreated as the prisoner allowed it to be, increases the level of "danger" in the general sense which the prisoner presents to the community. Particularly as one must acknowledge the danger of the use of methylamphetamine presents to the wider community, both users and those who have to deal with them. Of course ironically the prisoner argues he is such a person. 68I have earlier acknowledged the prisoner will have greater difficulty in custody given his conditions but he is not so mentally ill as to require seclusion, segregation or incarceration in the prisoner hospital or anything of the sort. He is amenable for treatment by medication and that is available to him. I point out of course the contemporary medical evidence in reality is almost non existent in this matter. Mr Watson-Munro's commentary is not really sufficient and his GP has not seen him for three years. 69In dealing with the circumstances of his custody I have had regard to judgments such as R v Smith (1987) 44 SASR 587, R v Bailey (1988)35 A Crim R 458 , one of the early "AIDS cases" from 1988, R v Vachilec (1981) 1 NSWLR 351(at 353 - 354). A person's medical condition may be relevant to consideration of the need for medical treatment, hardship in prison and the likelihood of the offender's reasonable needs not being met whilst in prison. Of course, ill health cannot be allowed to become a licence to commit crime. Nor should offenders expect to escape punishment because of the condition of their health. 70Generally ill health will be a factor tending to mitigate punishment only when it appears the imprisonment will be a greater burden on the offender by reason of his or her state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health. That latter matter definitely does not apply here. There is no evidence that the prisoner's reasonable medical needs cannot be met whilst in prison. 71I have already referred to the somewhat a greater burden upon the prisoner that this sentence will be, but it is not a case such as someone suffering bowel cancer or HIV infection or something similar. Of course, I am mindful of the fact that this was discussed in Burrell (2000) 14 A Crim R 207 per Mason P at [27], that the realities of prison life should not be overlooked. 72The prisoner was arrested on 9 May 2008 and has been in custody since that date. Any sentence imposed will date from that date. A verdict of guilty was not delivered until three years and four days after his arrest. Counsel for the accused submits that delay is a relevant matter in sentencing in the sense discussed in R v Todd (1982) 2 NSWLR 517 and the High Court decision of R v Mill (1988) 166 CLR 69. I have already referred to the decision of Fahda and I note the judgment of Simpson J at [16]-[22]. 73For the purposes of this judgment I am prepared to adopt the view submitted by counsel for the accused and "hesitatingly", in her own words expressed by Simpson J, that the exercise of a right to plead not guilty and put the Crown to proof does not operate to exclude "Todd Principles". 74I am mindful of delays over which prisoners have no control. But discussions about delays in the criminal justice system generally speaking have little pertinence in this jurisdiction given its record of proceeding with trials usually in a timely fashion achieved after more than a decade of incredibly hard work by the chief judge and other judges of the court. 75In my own experience I have conducted trials in one case while a jury was deliberating a trial for armed robbery over five days whilst awaiting for a verdict in the previous trial. Judges of our court commonly take on an enormous burden of sentence work whilst waiting on verdicts in trials from juries, usually doing the work without the benefit of transcripts. No fault can be attributed to this Court in this matter, or generally, although there will be obviously some exceptions to that. 76In Todd , Street CJ said that where there had been "a lengthy postponement whether due to an interstate sentence or otherwise fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence for the circumstance he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on a subsequent occasion and to the fact that sentencing for a stale crime long after committing the offence calls for a considerable degree of understanding and flexibility of approach." 77He said in relation to the Todd case that the "present situation" may play a "dominant role in the determination of what should be done in the matter of sentence. At times this may require what might otherwise be "undue degree of leniency being extended to the prisoner" (at 519). That is what happened in Todd . 78Putting aside the "inter-stateness" of the sentencing exercises in Todd and Mill , the observations were pertinent in the context of a case where a prisoner having already served a lengthy sentence, came back for sentencing for a stale crime having progressed in his rehabilitation whilst in custody. It came to pass that what might otherwise have been an appropriate sentence for the stale crimes was not appropriate having regard to these other circumstances. I acknowledge the general principles require a flexibility of approach, however there are certain features of this matter that need to be pointed out. 79In my view the crime could not be categorised as "stale", although I do note in Fahda there was a delay of slightly less than three years between the commission of the offence and the sentencing ( Fahda at [16]). Fahda of course had pleaded guilty. There had been two months of pre-sentence custody but he had been on bail most of the time. The victim was the prisoner's wife and there had been some reconciliation apparently between victim and prisoner. For reasons that are not fully explained the sentencing proceedings had commenced on 10 February 1998 and the prisoner was left in uncertainty up until September 1998 for various reasons [20]. There was some delay arising in that matter from the particular circumstances of the prisoner's psychiatric condition. Those features do not apply here. 80In any event in this matter there is no evidence of the so called "progress of the rehabilitation" of the prisoner. Certainly there is absent any contrition, and as pointed out elsewhere, assuming the prisoner's version of events in his evidence was always his instructions, notwithstanding the charge pleaded in the indictment. The prisoner well knew that he was guilty of multiple supplies of methylamphetamine and other drugs that were capable of establishing at least two or three offences contrary to s 25A Drug Misuse and Trafficking Act and/or other multiple crimes of supply of different prohibited drugs. 81As it is, in his trial he gave quite false evidence concerning his relationship with the money that was found at his parents-in-law place, his dealings with Julie Montserrat and other matters. I did not accept his evidence either in relation to his relationship with AA and the circumstances of AA sourcing drugs from third parties. 82In this matter, in relation to the issue of his progress and rehabilitation, no Probation and Parole Service report was sought by the prisoner and/or his legal representative to reflect upon such matters from the perspective of the Probation and Parole Service. Neither is the matter addressed in the psychologist's report, so that as far as it goes within that man's expertise, except reflecting upon aspects of the prisoner's medical conditions. The prisoner's medical conditions were long standing before he committed the crime for which he has been found guilty. 83When at large the prisoner has been reluctant to receive what was deemed to be appropriate medical assistance. The evidence he has produced confirms this. Whilst he receives medical treatment in custody what co-operation he provides to that I am not informed. On the evidence in the trial, given the course of conduct the prisoner exposed through the telephone intercepts, it is clear the prisoner's antisocial and criminal attitudes were well entrenched and there is little or no reason to believe that they have been renounced. Certainly there is no evidence from the prisoner to that effect. 84Further the prisoner is not being left in a great state of uncertainty of the character discussed in Todd , or even Fahda . True it is he has been in a state of uncertainty as to the verdict in respect of the matter for which he was arraigned, insofar as he believed that he may be found not guilty, but he knew of his criminality in relation to the systematic supply of drugs over an extended period of time, including the supply of methylamphetamine and cannabis on his own admission. He knew that he was not "innocent" as such. It really was a question of the character and extent of his guilt. Of course he has the right to put the Crown to proof on the matters pleaded by the Crown. But at the same time there are other charges awaiting determination in the Local Court I was informed, three of which have found their way into a Form 1, but which are really of minor importance and are directly concerned with the facts of the offending in a range of ways. 85I was not given any information when I asked directly of his counsel, as to whether any attempt was made to negotiate an early plea, assuming that his legal advisers were aware of the version he was going to give a trial before the trial started, to bring a conclusion to the proceedings consistent with his instructions. Of course, the accused is under no obligation to do that. He put the Crown to proof and the State must bear the considerable burden of proving his guilt. But in the course of this matter, revealed in the court file, with adjournments being granted at various times, including to the accused to prepare his case, having regard to the manner in which it was conducted before me over an incredibly lengthy period of time, it is quite clear that such delay as has occurred is not the fault of the Crown entirely and certainly not the fault of this Court. Indulgences have been granted to the accused and the Crown by the Court on their various applications throughout 2010. I held the hope that on the part of both sides the case could either be better prepared, or alternatively better pleaded, or negotiated, or conducted in a timely and appropriate fashion. 86I am mindful of the fact the prisoner's legal representatives had many difficulties getting access to documents. I do not wish to say anything more about this matter other than the fact that I found it quite astonishing that nearly three years after the event documents were being produced that really should have been earlier made available. I appreciate the Crown might itself not have been aware of those documents. I realise the case was "leviathan". I realise it had the complexity of the type of operation that we see in television shows such as 'The Wire' and the like. However, there was really no reason for much of the material that was eventually made available to the prisoner to be withheld. This case brings into very sharp focus the need for those that control the material that may be made available to the defence to ensure that the material is made available in a timely fashion. Much of it should not have required the issue of subpoenae. 87So far as the present situation of the prisoner is concerned, on the evidence available to the Court, the only matter now of substance different from the circumstances of the prisoner when he went into custody on 9 May 2008, is the fact that he is getting medical treatment in custody that he may have avoided when he was at large in the past. Although on that matter the evidence is not clear because Dr Outridge seems to suggest in his lengthy plea on behalf of the prisoner the prisoner was receiving treatment from him. 88Part of Dr Outridge's treatment was to continue methadone maintenance, which on some of the evidence was counter intuitive for the prisoner's health problems. The prisoner's continued high methadone intake in custody shows an entrenched drug dependence for which, it seems, there is no prospect of abating. This will continue for perhaps the rest of his life. 89Of course I do not propose to ignore the delay. I will take into account to a limited extent, but it is not a significant issue in the sentencing exercise, except and insofar as the effluxion of time provides some opportunity to assess how the prisoner has progressed since his arrest. In terms of his rehabilitation I would have to say not at all. In terms of his medical treatment to some extent. However even there the evidence is entirely unsatisfactory given that the medical records of Justice Health were left to analysis by a psychologist whose qualifications to comment on medical matters are limited. 90I turn to another relevant issue and that is the issue of the relevance of the sentencing of AA and of the issue of supposed "parity". The Crown submitted that the sentence imposed on AA was not relevant. I reject that submission, if that is what the learned Crown was submitting. Clearly, it is of some relevance in this proceeding and ultimately I have determined that it to some extent constrains the appropriate penalty to be imposed. 91The Crown's written submissions deal with a number of judgments that justify some disparity between the offender and AA. The principles set out there I naturally accept and the general proposition put by the Crown I accept in that regard. I note Postiglioni (1997) 189 CLR 295, at 301 per Dawson and Gaudron JJ, R v Hamieh [2007] NSWCCA 277 and R v Jimmy [2010] NSWCCA 60. Whilst in Lowe v The Queen the High Court recognised that unjustifiable disparity in sentences would give rise to a justifiable grievance, Jimmy and Postiglioni acknowledge that like should be treated alike, but where there are relevant differences, due allowance should be made for such differences. To quote Aristotelian principles cited by Justice Rothman in Jimmy , "to the extent of their unalikeness". 92While the two accused, as I understand it, have been convicted of the same offence, the sentence imposed on AA involved a substantial discount for assistance of a plea guilty and there was recognition of contrition and prospects of rehabilitation. I note the starting point that Judge Coolahan hypothesised. I note that AA was an informer. To some extent that prisoner was required to serve his sentence in some circumstances of hardship beyond that of the general prison population. 93The prisoner claimed that material was put on his behalf that he was at risk both in gaol and in the wider community. Consistent with all the facts as I have found them and as relevant to the supplies to which AA pleaded guilty, it is clear that the supply to which AA pleaded guilty was one that the prisoner relevantly directed and financed. Those purchases of prohibited drugs and much of the criminal activity that AA admitted in that regard, arose from his relationship with Mr Orchard. Clearly the prisoner had dominance over AA. AA was sentenced on the basis that Mr Orchard was the dominant person in their criminal relationship. 94Here, as I said, there is no remorse or contrition. There are nowhere near the same prospects of rehabilitation. Both men both suffer from health problems, I understood AA suffered from hepatitis C which requires medical treatment. I appreciate that this prisoner's medical condition is more significant and may make his circumstances of custody more difficult for him than the general population as I have earlier indicated. As I have pointed out elsewhere, the prisoner had those medical conditions by and large when he was committing the current offence. I note as it is relevant to the fact finding in this matter, the prisoner clearly had greater access to funds than AA and the prisoner's network of ongoing supply was considerably greater than that of AA's, demonstrated by the exhaustive crossexamination of AA conducted by his counsel. 95Although this prisoner had a far more substantial network of drug purchasers than AA, as was pointed out in my judgment and the Crown's submissions, that is not strictly a relevant matter for parity purposes, directly being more a matter of criminal activity for which neither prisoner was charged. It should be pointed out of course that AA was never sentenced for all the criminality that the police investigation revealed. Some of it completely unrelated to the prisoner. Such as AA "supplied" indian hemp arising from his purchase of a significant quantity of that from Mark Paxton, AA's dealing in stolen goods, his various traffic offences and the like. 96It was submitted by counsel for the accused on the basis that AA admitted in his plea to suppling 990 grams of methylamphetamine, and I cannot be satisfied beyond reasonable doubt in respect of more than approximately 620 grams of methylamphetamine, this marked some distinction in the criminality of the two men. This submission was very limited and placed far to much emphasis on quantity. It completely ignored the real relationship between the two men as I have found and the manner in which AA acquired the methylamphetamine he admitted possessing. 97I note in the decision of De La Rosa [2010] NSWCCA 194 at [68] [135], that it was held that whilst quantity is a relevant matter, it does not dictate the seriousness of the offence and the range into which it will fall. I point out in passing that it was never submitted to me by the Crown, in fact never mentioned in submissions by anyone during the course of the trial, that because AA had pleaded guilty to supplying a certain quantity of methylamphetamine that that by itself was a relevant fact in determining the relevant quantity for the purposes of determining the guilt of the prisoner. 98As a matter of logic, if that was so, it would have been open to me to find the accused guilty of the offence upon which he was arraigned, particularly given the proximity of 990 grams to one kilogram that the Crown was required to prove for the aggravated offence. I am not suggesting for one moment that that would have been an appropriate way to resolve the matter, but the point is that the logic of the submission made by Mr Marr is that noting the admission made by AA for sentencing purposes, it would not have been difficult to conclude beyond reasonable doubt that the prisoner relevantly supplied a further 10 grams or more of methylamphetamine such as to make a minimum quantity of 1 kilogram. That could have been concluded from the telephone intercepts preceding 5 February 2008, if it was pertinent. 99The facts of the matter are that AA pleaded guilty to supplying methylamphetamine on the basis that he sourced the relevant methylamphetamine that he admitted to having possession of, on behalf of the prisoner, was financed by the prisoner and directed by the prisoner. I must say he was sentenced on a quite artificial basis. On the evidence he gave before me he should have been sentenced in relation to supplying a large commercial quantity. Although of course as I have found, he played a significant or substantial role in finding people who could provide methylamphetamine, and a substantial role, on fact the crucial role in a number of occasions of obtaining methylamphetamine for the prisoner. 100There is no doubt that he was significantly assisting the prisoner but he would not have been able to do so with his own funds. I note for comparative purposes that the offending of AA occurred largely whilst he was on parole, a matter absent as an aggravation here. But the dominant role of the prisoner, the absence of a number of mitigating factors relevant to AA, the direct consideration required after trial of Part 4 Division 1A of the Act and the fact that neither man is entitled to leniency by reason of his criminal history, amongst other matters that differentiate them, dictates that whilst the sentence imposed on AA has some relevance as a reference point and does constrain this Court, direct parity does not arise, because there is substantial unalikeness even making allowance for common features. 101This brings me to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999. This is directly relevant here because the prisoner has been sentenced for an offence carrying a standard nonparole period after trial. I am required to ask myself the question are there reasons for not imposing the standard nonparole period? I am required to have regard to that question, noting the objective seriousness of the offence considered in the light of the facts which relate directly to its commission, including those which may explain why it is committed, so as to determine whether it answers the description of one that falls within the midrange of seriousness of an offence of a relevant kind and also the circumstances of aggravation and mitigation which are present in the subject case (see R v Way [2004] NSWCCA 131 [118]-[122]) 102In assessing the objective seriousness I am required to take into account the actus reus, the consequences of the conduct and those factors which might properly have been said to have impinged upon the mens rea of the offender. Of course, some of the relevant circumstances which can be said objectively to effect the seriousness of the offence will be personal to the offender at the time of the offence, but become relevant because of their causal connection to its commission. Factors also relevant to the assessment of the objective seriousness of the offender's motivation, whether there was any mental illness or intellectual disability causally related to the commission of the offence by affecting the offender's capacity to reason to fully appreciate the rightness or wrongness of a particular act, or the acts performed, given the mental state of the offender. 103I have concluded that the mental illness of the prisoner was not causally related to the commission of the offence in the way in which I have described. In assessing where the offence relates to the middle of the range of objective seriousness "the court is required to consider what constitute an abstract midrange offence in that a meaningful comparison could be made between the offence at hand and the offence for which the standard non parole period is prescribed, an exercise which does not differ in any material extent from what was always necessary in evaluating the objective seriousness of the subject offence" ( Way [73][77]). It is not to be assumed of course that the middle range occupies a narrow band, but it does not necessarily mean that such a category of offence represents a common or typical offence ( Way [101] [102]). 104I am required to specify the extent or degree to which the offence departs from a notional offence in the middle range of objective seriousness ( R v Sellers [2010] NSWCCA 133 at [11], R v Knight (2007) 176 A Crim R 338). Some precision is required when as offence is to be found outside range (see R v Sellers at [13]). Of course, I am not required to openly hypothesise about what constitutes an offence in the middle range of seriousness. Section 54B (2) of the Act permits a departure from the standard nonparole period where the objective seriousness is either less or greater than the offence in the middle range of seriousness. 105The steps suggested in the judgment of Justice Kirby in MLP v The Queen (2006) 164 A Crim R 93 [33] - [34] have been approved in several authorities including the Louizos [2009] NSWCCA 71 [97] and Mencarious v The Queen [2008] NSWCCA 237. In sentencing this prisoner I have approached the matter as suggested by Justice Kirby in MLP at [33] noting the requirement to intuitively synthesize constituent elements and the like. 106Having regard to the statutory maximum and the assessment of the objective seriousness of the offence and other relevant matters to the circumstances of the offender, noting the prisoner has not entitled the benefits in anyway for a discount for his plea of guilty, I have determined the head sentence. I am unaided by the statistics provided and not assisted by comparative cases produced by either party. 107I have determined that the offence is one of greater seriousness than an offence in the middle range of seriousness, in fact it is substantially above the midrange, although it is not the worst offence committed by the worst offender (see Veen (No 2) v The Queen (1988) 164 CLR 465). It is a very serious offence of its type concerned with multiple deliberate and well planned acts by the prisoner, designed to maintain his business of the supply of drugs to others for profit for his own financial need and greed. 108Relevant matters in assessing the objective seriousness include the time over which the offending occurred, in the context of the prisoner having already established a client base as of mid January 2008, the financing of the ongoing acquisition of methylamphetamine for the purposes of supply from profits made from supplying methylamphetamine, numerous acts, as I have said, over an extended period of time contributing to the commission of the offence, including the provision of money to source other supplies of methylamphetamine and the acquisition of methylamphetamine on a number of occasion culminating with the events of 8- 9 May 2008 which led to the arrest of the prisoner and others. 109I am satisfied that the prisoner sourced methylamphetamine from a number of sources in early February, at Raymond Terrace between 23 and 28 February, from Mr Paxton on or about 16 and 17 March 2008, the "bad ice" from 'Uncle' in early April 2008, the further purchase and/or swap of the bad ice for the "orangey ice" on or about 15 April, a purchase from Paxton on 16 April and a final purchase from Paxton by AA on behalf of the prisoner on 9 May. Leading up to the last purchase of course, there were other attempts by AA to purchase methylamphetamine thwarted by various events. These included unsuccessful trips to Sydney, both to see Paxton and to see people such as the supposed "Bra Boys". 110The sole motive for the crime was the desire for profit as submitted by the Crown. Of course the prisoner may have used methylamphetamine for himself, but the quantities purchased refect not upon a supply at street level but of a major player in the supply of methylamphetamine in the Newcastle area, who not only attracted purchases within Newcastle, but from much further a field including the North Coast and the Central West of New South Wales. 111It is to be borne in mind that AA, on behalf of the prisoner, was involved in a number of trips to Sydney and elsewhere to source the methylamphetamine that the prisoner wished AA to purchase, as I said without success in some occasions. The prisoner provided AA with a firearm on at least one occasion and in very graphic terms in early April, when AA went missing with a large sum of cash in an endeavour to source methylamphetamine from others unsuccessfully, the prisoner was prepared to make very dire threats because he believed his interests were compromised or threatened. 112So far as his moral culpability is concerned, his motivation is clearly relevant, as discussed in Way and Elyard [2006] NSWCCA 43 at [13] per Basten JA. The purpose for the supply for which the prisoner was found guilty was to source methylamphetamine for a well established customer base. He had a system of supply or 'modus operandi' with regular places for supply, a system of coded conversation to transact business. It was not of great sophistication of course. I am appreciative that in assessing the objective seriousness I am required to concentrate on the subject offence, not other criminality established out of the prisoner's evidence or otherwise. 113The prisoner used aliases in order to obtain telephone services which enabled him to conduct the business supply. The evidence also establishes that he used large sums of cash to pay what can only be described as a very significant telephone bills reflecting high activity on his phones over a period of time and also use large sums of cash, sometimes paying rent months in advance to acquire rental premises. In fact at one stage he was renting three premises in various ways. 114The prisoner throughout this was a mature man who conducted his business cunningly, deliberately and thoughtfully. The quantities that he acquired for the purposes of supply were not just for his personal use of his suppliers but I am quite satisfied to enable some of them at least to provide to others. He was able to provide others with methylamphetamine when available quickly, generally at all hours of the day. He was very quick not to communicate with or deal with people who were obviously seeking to purchase methylamphetamine over the phone or whose identities were not known to him, or for some reason he did not trust. On a number of occasions in telephone calls he cut short callers who spoke too obviously of the reason for their call, preferring only to deal with those who were "in the know" and able to speak in guarded or coded terms. 115It is clear by the regular references to him as "Brother" that he was significantly regarded amongst drug users in and around his community. This matter is confirmed directly by his general practitioner who wrote that he was referred to in the community as "Brother Orchard" going on to say that "this may have been due in part to fear but also I believe to the benevolence he often showed to those in need", to which I made earlier reference. Of course the doctor was never subjected to listening to hundreds of telephone conversations that I heard relating to the prisoner's drug dealing activities. There was little evidence of benevolence in those. If the prisoner provided any benefit to anybody else it was merely to keep the business going and to keep regular customers happy. 116I note in passing the irony of the proposition that the prisoner was helping his customers is that it was argued on behalf of the prisoner that his offending was relating to his mental illness, exacerbated by his use of methylamphetamines. One would have thought that if the prisoner's drug use was as devastating for him as was contended he would have been appreciative of the similar or potentially similar devastation would have caused his customers, many of them I have got no doubt living on welfare benefits, none of them seemingly making the profits that he was making out of the same activities. 117It was submitted on behalf of the prisoner that this fell in the "middle of the range" for the purposes of considering the standard non parole period, having regard to what was discussed in MLP and Way, on the basis that the minimum quantity for a commercial supply is 250 grams, the maximum quantity is 1,000 grams or 990 grams and the amount of 620 grams or thereabouts fell somewhere in the middle. This argument, as I have said, missed the complexity of the matters I have to consider as discussed in Way and De La Rosa . The quantity identified in any event is the bare minimum amount that the prisoner relevantly supplied given the way the charge was pleaded, and I have already reflected upon that. 118Moving to s 21A Crimes (Sentencing) Procedure Act , I note s 21A(1) requires me to take into account the aggravating factors under subsection (2), the mitigating factors available under subsection (3) and any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters which are required or permitted to be taken into account by the Court under any Act or rule of law. It can be assumed that the matters arising under s 21A(1) have been the subject of detailed previous discussion in my remarks. So far as the relevant aggravating factors arising under s 21A(2) of the Act are concerned and noting of course as I have said the terms of s 21A(1) of the Act, the matters found, having regard to my earlier observations, are as set out in s 21A(2)(m), the crime involved a series of acts and the matter set out at s 21A(2)(o), "the crime was committed for financial gain". Although it is to be noted that the character of the pleading and the context of the offending inevitably would produce these features as relevant to the consideration of where the offence fits in the range of objective seriousness without regard to s 21A(2). The real and relevant aggravations arise out of general principles arising from s 21A(1) of the Act. 119I cannot conclude, noting the caution expressed by the Crown, that "planning" was a relevant aggravating factor, given the inherent character of the offending pleading pleaded and, in that context, noting the requirement that the Court is not to have additional regard to any such aggravating factor in sentencing if it is an element of defence. Thus, it seems with respect that the issue of "vulnerability" of persons with whom he dealt, arising out of the offending, or the danger to the community or recklessness and the like are matters that I cannot take into account relevantly under s 21A(2), because that would involve some double-dipping. 120With regard to subjective matters and mitigating matters as relevant to considering a departure from the standard non parole period (see MLP [33]), I note the earlier findings I have made as to the seriousness of this offence lies in a range of offending. 121So far as matters in mitigation are concerned, arising particularly under s 21A(1), I have taken into account his age, his relationship with his children, his medical conditions, his circumstances of custody because of his health, some aspects of delay and other matters which ultimately in combination are relatively minor matters in mitigation. 122In relation to s 21A(3) of the Act I accept the prisoner was not part of organised criminal activity, as I understand that term. He was not directing a "criminal organisation". He had minions and he had some organisational system in place but it could not be compared to what I would understand to be organised crime, such as ethnically based groups, trans-national or trans-state criminal organisations. I note of course in the assessment of the objective criminality that he had no guaranteed source of supply as well, and this is also a matter relevant to concluding that he was not part of any organised group. 123In relation to other mitigating matters under s 21A(3), however I cannot make any findings positive to the prisoner. A finding under s 21A(3)(a) would be a matter of speculation in his favour. As to s 21A(3)(b), whilst I have not found planning as an aggravating factor, it is certainly not a "mitigating" factor as required to be proven under s 21A(3). The prisoner was not provoked by any victim. He did not act under any duress. He did have a record of previous convictions. He is not a person of good character. I cannot conclude that he is unlikely to re-offend and I cannot conclude he has good prospects of rehabilitation. He showed no remorse. There is no plea of guilty. There is no evidence of a pre-trial disclosure and no assistance to the authorities. Thus, the only matter arising under 21A(3) I find in his favour, as I have said, is the matter relating to not being part of organised criminal activity. 124In relation to the fixing of the non parole period I accept that there are "special circumstances" pursuant to s 44 Crimes (Sentencing) Procedure Act . In my view the prisoner will need an extended period of supervision to address his need for mental health and drug dependency treatment and counselling. There is an argument of course that the prisoner is so entrenched in his attitudes, having regard to his age and other matters, that the prospects of him addressing these matters in the future are grim or that supervision will not assist. 125I note of course he has never had parole before. He will need, in my view, professional assistance to adjust to community living after an extended period of custody. He will need assistance and direction in relation to medical treatment, as the reports suggest. Of course, I cannot predict the future, but I should not deny him some slightly extended period of supervision simply because now in 2011 he may be disinterested in responding to assistance. On the other hand he may not get parole at the expiration of the none parole period that I have determined. 126There are three matters on a Form 1. I note the requirement to deal with those matters in accordance with the guideline judgment of the Court of Criminal Appeal from 2002. I do not propose to dilate upon that judgment, because ultimately these matters are not of such significance as Form 1 matters may be from time to time. They are intimately connected to the facts of the matter upon which the prisoner has been sentenced in respect to the principal offence. One matter concerns dealing with the proceeds of crime concerning the cash found at his parent's-in-law place. 127The other two offences are offences of possession in his car and at his home of very very small amounts of methylamphetamine consistent with personal use. This is not a case where matters on a Form 1 may have significant salience in sentencing, such as sentencing an offender for an armed robbery as a principal offence, taking into account a number of other armed robberies or breaking, entering and stealing matters. I do not believe there is a need to cite in detail the judgment of the Court of Criminal Appeal. I am sentencing only for the principal offence. I am mindful of the fact that matters on a Form 1 in any event have a lesser salience. They may provide a context in the appropriate case. In this case they do not provide such a context adverse to the interests of the prisoner. 128Naturally I am required to have regard to s 3A Crimes (Sentencing Procedure) Act for purposes of sentencing. To ensure the prisoner is adequately punished I have got to prevent him and others from committing further crimes. I have got to protect the community from the prisoner, promote his rehabilitation, make him accountable for his actions, denounce his conduct. Recognising harm done to the community is not an easy exercise because I have no direct evidence of that. 129The purposes of sentencing, as was foreshadowed before the legislative provision came into existence, in the High Court judgment of Veen (No 2) v Queen , sometimes, like guideposts, point in different directions. It is a matter of balancing them all. The seriousness of the situation of the prisoner's crime however cannot be understated and the relevance of the general and personal deterrence and punishment are clear. I have already dealt with those matters. I have already pointed out that I have had close regard to the submission and my remarks on sentence of instruction to address the submissions of the parties. 130Having, I believe, covered all the relevant matters that I am required to cover, Mr Orchard if you could stand up. In relation to the offence for which you have been found guilty you are convicted. You are sentenced to a non parole period of ten years and five months. That will commence on 8 May 2008 and expire on 7 October 2018. In relation to that sentence I fix a balance of sentence of five years and one month. That will expire on 7 November 2023. Just take a seat. 131In fixing that sentence I have taken into account the matters on the Form 1. It will be a matter for the Parole Authority when the prisoner is released to parole. 132The short minutes of the confiscation orders in accordance with the Confiscation and Proceeds of Crime Act 1989 are made in accordance with paragraphs 1.1, 1.2, 1.3, 1.4. Those orders are that, pursuant to s 18(1) of the Act, cash in the sum of $48,820 found at the address of 48 Tudor Street on 9 May 2009 be forfeited to the State. Pursuant to s 18(1) of the Act cash in the approximate sum of $1,210 found on the person of the prisoner on 10 April 2008 be forfeited to the State, that is relating to the arrest concerning Julie Monserrat. Pursuant to 18(1) cash in the approximate sum of $435 found on the person of the respondent on 9 May 2008 be forfeited to the State. Pursuant to 18(1) proceeds of the sale of VT Holden motor vehicle with the VIN number supplied and registered number AA5009 as of 9 May 2008 together with all interest accrued and accruing be forfeited to the State. I make those orders. 133I order that all drugs that were seized by police be destroyed, if that has not already been done. Any matters on any s 166 Certificate are remitted to the Newcastle Local Court on 24 August 2011. oOo 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: 15 November 2011