Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Dang v R [2013] NSWCCA 246 Hearing dates: 16 August 2013 Decision date: 31 October 2013 Before: Basten JA at 1 Adams J at 42 Latham J at 65 Decision: 1. Leave to appeal granted 2. Appeal allowed 3. Quash sentences imposed on 15 June 2012 In lieu impose the following sentences: Counts 2-5 : On each, fixed term of 15 months to date from 19 December 2010 expiring 18 March 2012 Count 1 : Non-parole period 2 years 3 months to date from 19 April 2011, expiring 18 July 2013, with a balance of term of 18 months expiring 18 January 2015 Counts 9 and 10 : On each, fixed term of 18 months to date from 19 December 2011 expiring 18 June 2013 Count 8 : Non-parole period of 2 years 9 months to date from 19 June 2012 expiring 18 March 2015 with a balance of term of 2 years expiring 18 March 2017. The applicant is eligible for release to parole on 19 March 2015 Catchwords: CRIMINAL LAW - application for leave to appeal sentence - guilty plea - two counts of manufacture prohibited drug, five counts of possess precursor, one count of possess drug manufacture apparatus - offence primarily motivated by addiction not financial gain - whether individual and aggregate sentences manifestly excessive - whether degree of accumulation constitutes double punishment - whether moral culpability is diminished by fact of addiction - whether sentence adequately reflects finding of special circumstances - appeal allowed - sentence quashed - re-sentenced Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Cases Cited: AB v R [2013] NSWCCA 160 Bowden v R [2009] NSWCCA 45 Cicciarello v Regina [2009] NSWCCA 272 R v Day (1998) 100 A Crim R 275 Diesing & Ors v R [2007] NSWCCA 326 Elias v The Queen ; Issa v The Queen [2013] HCA 31 Elyard v R [2006] NSWCCA Fina'i v R [2006] NSWCCA 134 Hili v The Queen ; Jones v The Queen [2010] HCA 45 ; 242 CLR 520 Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 Hudson v R [2009] NSWCCA 59 Langham v R [2006] NSWCCA 306 Louizos v R [2009] NSWCCA 71; 194 A Crim R 223 McKibben v R [2007] NSWCCA 89 Pearce v The Queen [1998] HCA 57 ; 194 CLR 610 Petterson v R [2013] NSWCCA 133 R v AD [2008] NSWCCA 289; (2008) 191 A Crim R 409 R v Cheung ; R v Choi [2010] NSWCCA 244 R v Dang [2005] NSWCCAS 430 R v Dolman [2001] NSWCCA 99 R v Henry & Ors [1999] NSWCCA 111; 46 NSWLR 346 R v Holder (1983) 3 NSWLR 245 R v Kairouz [2005] NSWCCA 247 R v MMK [2006] NSWCCA 272 R v Tolley [2004] NSWCCA 165 R v Turkmani [2002] NSWCCA 388; (2002) 133 A Crim R 328 R v Williams [2005] NSWCCA 355 ; 156 A Crim R 225 Category: Principal judgment Parties: Hoang Thanh Dang - (Applicant) Regina - (Respondent) Representation: Counsel G Bashir - (Applicant) T Smith - (Respondent) Solicitors Legal Aid NSW - (Applicant) Solicitor for Public Prosecutions - (Respondent) File Number(s): 2009/233954 Decision under appeal Date of Decision: 2012-06-15 00:00:00 Before: RH Solomon DCJ File Number(s): 2009/233954 Judgment 1BASTEN JA : The applicant seeks leave to appeal against sentences imposed upon him by Judge Solomon in the District Court on 15 June 2012. The charges to which he ultimately entered pleas of guilty fell into two groups being events occurring on two days separated by some 21 months. Each group involved offences under the Drug Misuse and Trafficking Act 1985 (NSW). 2Before outlining the facts and the sentences, it is convenient to note that there are three matters which call for the consideration of this Court on the application, namely: (1) that by both imposing longer sentences in respect of offences committed whilst the applicant was at large on conditional liberty and increasing the level of accumulation the sentencing judge imposed double punishment for the breach of conditional liberty; (2) the finding of the trial judge that the manufacture of methylamphetamine on two occasions, for which he was convicted, did not involve "any level of commerciality regarding the supply of the methylamphetamine", and (3) the relevance of his addiction to the drug which he was manufacturing for his own use. 3The need to address these considerations warrants a grant of leave to appeal with respect to the various sentences. Background 4The offences of which the applicant was convicted and the sentences imposed appear in the judgment of Latham J. Nevertheless, it is convenient to set them out, with some background explanation, in order to assess the various factors raised by the appeal. 5On 14 July 2009, in the course of manufacturing methylamphetamine, the applicant caused a fire in a unit in Surry Hills where he was then residing. The fire brigade and police went to the unit. The following day, the police searched a car registered in a name used by the applicant which contained a diary with a formula for manufacturing methylamphetamine (commonly known as "ice") and two four litre tins containing acetone, a chemical used for manufacturing the drug. 6Count 2 on the indictment alleged possession of apparatus for the manufacture of a prohibited drug, whilst counts 3, 4 and 5 alleged possession of a precursor intended for the use and manufacture of a prohibited drug, all offences being referable to 14 July 2009. On each count, the applicant was convicted and sentenced to imprisonment for two years to date from 19 December 2010. These were fixed terms to be served concurrently. 7The applicant was also charged (count 1) with manufacturing methylamphetamine over a period extending from 19 May 2009 until 15 July 2009. The count in the indictment alleged manufacture of an amount being "not less than the commercial quantity for such drug". The period of two months was relied upon on the basis of the state of the premises when inspected by police on 15 July 2009, coupled with the fact that the premises had last been inspected by the real estate agent responsible for letting them on or about 19 May 2009. Although there were waste products found on the premises, the prosecution witness who had examined the waste products was unable to state when they had been produced. In the event, the trial judge was not satisfied beyond reasonable doubt that manufacture of a commercial quantity occurred within the period nominated. The trial judge, in a judgment dated 20 March 2012, noted that the estate agent who had carried out the inspection on 19 May recalled that the apartment was then "in an untidy and dirty state" and was not well looked after. Although there was no express finding in the judgment on sentence, the Director invited the Court to infer that being expressly satisfied as to all the other elements of the offence other than the relevant period, the trial judge must have been satisfied that an amount not less than the commercial quantity had in fact been manufactured. Nevertheless, the judge accepted a plea to the lesser offence of manufacturing a prohibited drug. That offence carried a maximum penalty of 15 years imprisonment and a fine. 8The trial judge allowed a discount of 25% with respect to the sentence on the manufacturing charge on the basis that the applicant had previously proffered a plea of guilty to the alternative count prior to the trial. The applicant was sentenced to a non-parole period of three years, with a balance of term of two years. The sentence was fixed to commence on 18 June 2011, being an accumulation of six months on the starting date of the two year fixed terms imposed for the other sentences. The balance of the term for the 2009 manufacturing offence was, in the event, immaterial as it was wholly within a subsequent non-parole period. 9Following his arrest on 14 July 2009, the applicant remained in custody until 4 November 2009, a period of almost four months. He was entitled to credit for that period which was effected by backdating the sentences to commence four months prior to the date of his second arrest. 10The second group of offences arose from a search executed on 11 April 2011 of a unit in Hurstville occupied by the applicant. He was engaged in a process of manufacturing methylamphetamine by reducing a precursor at the time that the police entered the apartment. Charges which became counts 8-10 on the indictment were laid in respect of the events of 11 April 2012. Counts 9 and 10 involved possession of precursors, namely red phosphorous and iodine, intended for the manufacture of methylamphetamine. Count 8 alleged manufacture of the drug, between 28 February and 12 April 2011, in an amount "not less than the commercial quantity", but a plea was accepted to the alternative offence of manufacturing a prohibited drug. 11Following the pattern of the earlier offences, the trial judge sentenced first for the two offences involving precursors, in each case imposing a fixed term of imprisonment of two years and three months. These terms were fixed to commence on 19 December 2011, thus being accumulated by six months on the sentence for the 2009 manufacturing offence. The result was that the applicant served a period of one year referable solely to the Surry Hills offences in 2009. 12On count 8 (the second manufacturing offence), the trial judge fixed a non-parole period of three years and seven months, with a balance of term of two years and five months, giving an overall sentence period of six years. That sentence was fixed to commence on 19 May 2013 and thus was accumulated by a period of one year and five months on the sentences for the 2011 precursor offences. Relationship of non-parole period and balance of term 13It is convenient to dispose first of the specific ground of appeal (ground 3) challenging the relationship between the balance of term for the final sentence imposed, when compared with the accumulated periods of mandatory custody. The balance of term was two years and five months (29 months) and the period of mandatory custody was six years (72 months). Absent a finding of special circumstances, the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act") requires that the balance of term of a sentence not exceed one-third of the non-parole period: s 44(2). Unhelpfully, but reflecting common practice, the submissions complained that "the ratio between the non-parole period and the total term" was decreased from 75% to 70.5%. (The figures are wrong in any event: the effective balance of term was 29 months, not 30, as appears to have been assumed.) 14The written submissions in support of this ground referred to (and set out in full) s 44(2B) of the Sentencing Procedure Act. This was based upon a misconception. Until an amendment to the Sentencing Procedure Act, which commenced on 14 March 2011, it was necessary to impose a sentence specific to each offence. With an accumulation of sentences, it is readily apparent that, if the balance of term on the final sentence is to approximate one-third of the total period of mandatory custody, it will need to constitute a much higher proportion of the final sentence. Thus it was (and remains) commonplace for a judge seeking to achieve a balance of term being at least one-third of the total period of mandatory custody to find special circumstances, even if only for that reason. 15The 2011 amendment permitted a judge to avoid this problem by imposing an "aggregate sentence of imprisonment" in respect of two or more offences: s 44(2A). If that approach were adopted, the judge would be entitled to set a single non-parole period and the proportion between the balance of the term of the sentence and the non-parole period is not to exceed one-third unless the court finds special circumstances: s 44(2B). In the present case, Judge Solomon did not impose "an aggregate sentence": accordingly, s 44(2B) was irrelevant. It is also clear that the judge found special circumstances in part to overcome the potential disparity between the balance of term and the total of the accumulated periods of mandatory custody. The balance of the final sentence was in fact 67% of the non-parole period for that offence (well in excess of one-third). It is also clear from the interchange with counsel following the imposition of sentences, that he appreciated that the effect would not be to impose a balance of term which was significantly in excess of one-third of the total of the periods of mandatory custody. 16What was done was appropriate and the result intended. The third ground of appeal should be dismissed. Manifest excess (a) the grounds of appeal 17Grounds 1 and 2 asserted manifest excess of the individual sentences and the consequential overall term of imprisonment, thus complaining in part as to the degree of accumulation. 18So far as the Surry Hills offences were concerned, the possession of apparatus for manufacturing a drug and various precursors were all fixed to run concurrently. There was no complaint about that. The sentence for manufacturing methylamphetamine was fixed to commence six months after the other Surry Hills offences; the next set of offences, relating to possession of precursors at Hurstville commenced six months after the Surry Hills manufacturing offence. Thus, the period of incarceration solely referable to the Surry Hills offences was 12 months. Whatever view is taken as to the appropriateness of the individual sentences, there is no basis for interfering with that aspect of the sentencing. No lesser period referable solely to the 2009 offences would be appropriate. 19The sentence for possession of two precursors at Hurstville (being a fixed term of two years and three months) ran for 17 months (concurrently with the Surry Hills offences) before the commencement of the second manufacturing offence. Thus, taken in isolation, the Hurstville offences gave rise to a period of mandatory custody of five years. If those sentences were excessive, the degree of accumulation might also be seen to be excessive. Indeed, the applicant argued that the increased sentences and the higher level of accumulation involved double punishment for the further offending. (b) motives - addiction v financial gain 20The primary basis for challenging the individual sentences was that the manufacture of drugs was primarily designed to feed an addiction which the applicant could not afford from his financial resources and, secondarily, to provide a source of drugs for his partner and friends. The moral culpability of that conduct was, it was submitted, quite different from that applicable in the case of manufacture for commercial profit. The authorities which support the level of sentences imposed on the applicant all involved commercial manufacture or possession of precursors or apparatus for commercial manufacturing purposes. Accordingly, it was submitted, the sentences imposed in the present case were excessive. 21In his careful reasons for judgment, the sentencing judge explicitly stated in respect of the 2009 manufacture, "I do not find any level of commerciality regarding the supply of the methylamphetamine" and, in respect of the 2011 manufacture, "there is no evidence of commerciality in the supply of methylamphetamine". These findings did not imply that the sole consumer of the drug was the applicant: the sentencing judge held that he supplied his girlfriend "and others", who were not identified as to relationship or number. 22In one sense, commerciality may best be seen as a surrogate for a more basic standard, namely the degree of harm to others, combined with an economic choice. The first element looks to objective consequences, the latter to factors personal to the offender. Addiction is a factor personal to the offender. It has been described as an explanation, but not a justification for, criminality: but that characterisation requires some degree of qualification. 23First, the most detailed discussion in the authorities in this State is to be found in the guideline judgment of R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [174]-[204] (Spigelman CJ), [215]-[277] (Wood CJ at CL, RS Hulme J agreeing) and [335]-[356] (Simpson J). The significance of addiction as a factor affecting the deterrent operation of a sentence may be different in a case of manufacturing a drug for private use, as compared with offences of armed robbery where the proceeds of crime are destined to feed the addiction. 24Secondly, if addiction is an explanation (in part) for criminal behaviour, it is necessary to identify why it is not "in part" an excuse, though not a justification. Thirdly, the distinction involves ideas of moral culpability, which invites a question as to the extent to which a sentencing court is required to assess levels of moral culpability. 25In this context, "moral culpability" engages two broad considerations, namely harm to others and freedom of the offender to choose another course. The law recognises the inappropriateness of convicting a person unable to distinguish right from wrong and, indeed, a person who is unable adequately to understand the process of a plea and trial. Further, even where the criminal law has run its course, the law recognises the relevance of mental illness in diminishing culpability for the purpose of assessing an appropriate sentence. But the distinction between mental illness and mental health is not a bright line, nor is the assessment of moral culpability based on freedom of choice transparent. One problem is that the assessment of a factor such as addiction to "ice" is largely beyond the capacity of the Court, at least on the evidence available on this case. 26Furthermore, "moral culpability" implies a choice between courses of conduct, some of which are criminal, others of which are not. The classification of that which is criminal and that which is not is a matter for the legislature and is not entirely dependent upon a calculus of harm to others, or even the cost of treatment, borne by the economy as a whole. It is also a matter for the legislature to indicate, by prescription of penalties, the seriousness of contravention. 27To conduct a criminal enterprise relating to prohibited drugs for profit is more reprehensible than pursuing personal satisfaction. Dealing with offences generally, the Sentencing Procedure Act treats it as an aggravating factor that "the offence was committed for financial gain": s 21A(2)(o). Thus manufacture for financial gain would have involved an aggravating factor which was present in other cases upon which reliance was placed by the prosecution, but not in this case. Further, although the sentencing judge accepted that those consuming the drug would extend beyond the applicant and his girlfriend, no figures or amounts were known. In those circumstances the Court must act on the basis that supply would be to a relatively small number, in small amounts. 28Within the parameters fixed by the legislature, the exercise of discretion by the court will reflect various purposes of the criminal law, including, perhaps primarily, general and personal deterrence. Punishment may involve an element of public retribution, although the role of the courts in that regard should be tempered so as to discriminate between expression of enduring values and the ill-considered emotive responses of the moment. Further, deterrence is not promoted by a sentence which is seen to be arbitrary, nor one which interferes with an expectation of rehabilitation. General deterrence is a large element of a condign punishment and will reflect a range of values. Drug use which causes limited harm to others should not attract as heavy a punishment as would actual supply to others. Where the legislature has determined that possession of a quantity from which supply may be inferred warrants a higher sentence, that factor becomes an element of the offence and care must be taken to avoid treating such matters as aggravating circumstances: Elyard v R [2006] NSWCCA 43 at [7]-[12], Bowden v R [2009] NSWCCA 45, AB v R [2013] NSWCCA 160 at [29]-[31] (Adams J). However, supply of drugs having addictive qualities to any other person may be treated as a serious offence, whether or not the supplier is motivated by financial gain. Manufacture is an essential prerequisite to both use and supply. The extent of the manufacturing operation, and hence the ultimate quantity of product for consumption is an important consideration. 29Even in respect of those who traffic in drugs a distinction is drawn between categories. As explained by Wood CJ at CL in R v Day (1998) 100 A Crim R 275 at 277, "The objective criminality of an offender who traffics in drugs to feed personal habit is somewhat less than that of a trafficker for greed...". 30The circumstance of addiction is also accepted as potentially relevant to moral culpability. A person in the grip of an addiction has less freedom of choice than would otherwise be the case. Moral culpability is a function of perceived freedom of choice. In Cicciarello v Regina [2009] NSWCCA 272 Allsop P, Fullerton and McCallum JJ noted at [15] that in Bowden at [55]-[60] "a distinction was drawn between selling drugs for commercial gain and for feeding a habit." The reasons continued at [17]: Whilst one should be careful about generalising in relation to such factors outside the circumstances of any particular case, here, quite clearly, when one understands the background of this young man and what he was doing, he was not selling for greed or for financial gain, he was selling to feed a drug habit that he had acquired. This does not detract from the fact that he committed a serious offence, but what it does mean is that it was an error, and an important one, to characterise this as selling for financial gain and thus to characterise it as an offence falling within the mid-range. (c) other factors 31Two other factors, adverse to the applicant, should be noted. First, the carrying out of drug manufacture in a residential apartment, with attendant risks of fire (which materialised in the Surry Hills apartment) and creation of obnoxious fumes (which occurred at Hurstville), being features of the manufacturing process, indicate the seriousness of the conduct. 32Secondly, the 2011 offences at Hurstville were undertaken whilst the applicant was on conditional liberty in respect of the first offences, which is an established factor of aggravation: s 21A(2)(j). In this context, it is convenient to deal with the first point noted at [2] above, namely that the applicant was punished twice for his breach of the conditions on which he had been released in 2009. The complaint that the sentences imposed for the 2011 offences were excessive will be addressed below: however, there is no basis for concluding that the sentences were disproportionately high when compared with the sentences for the 2009 offences. So far as accumulation was concerned, the first sentence commenced only 12 months after the beginning of the first sentence for the 2009 offences. This reflected no more than that the sentences for two entirely separate activities could not on any view be wholly concurrent. The complaint of double punishment is without substance. (d) conclusions 33Manufacture for financial gain would have involved an aggravating factor which was present in other cases upon which reliance was placed, but not in this case. Further, although the sentencing judge accepted that those consuming the drug would extend beyond the applicant and his girlfriend, no figures or amounts were known. In those circumstances the Court must act on the basis that supply would be to a relatively small number, in small amounts. That diminishes the culpability of the applicant. 34The fact that the primary purpose of the manufacture was to feed the applicant's addiction, rather than to supply any other person, again diminishes the applicant's culpability. These factors were missing from the cases which tend to support a range encompassing the sentences in fact imposed on the applicant. On that view, it may be seen that the sentencing judge fell into error and that less severe sentences were warranted in law. Accordingly it is appropriate for the Court to quash the sentences imposed and pass other sentences in substitution therefor: Criminal Appeal Act 1912 (NSW), s 6(3). Resentencing 35Applying the discount for the various pleas accepted by the sentencing judge, the starting point for the first manufacturing offence was six years and eight months (80 months), reducing to a five year sentence. The starting point for the second manufacturing offence was eight years, reducing to six years with the discount for the plea. Given that the Surry Hills offence was carried out primarily for personal use and not for commercial profit, the starting point was too high. Accepting that the second offence deserved a heavier penalty, a proportionate reduction of that sentence should follow. 36An appropriate starting point for the 2009 manufacturing offence is five years, being (as it happens) one-third of the maximum sentence, which, when reduced by 25%, gives a sentence of three years and nine months (45 months). In conformity with the proportion adopted by the sentencing judge, this should be formulated as a non-parole period of two years, three months (27 months) and a balance of term of one year and six months (18 months). 37The trial judge increased the starting point with respect to the 2011 manufacturing offence by 20%. In conformity with this approach, but not adopting a precise calculation, the starting point would be approximately six years which, reduced for the plea of guilty, should result in a term of imprisonment of four years, nine months (57 months). Again broadly adopting the same relationship between the parts of the sentence, there should be a non-parole period of two years, nine months (33 months) with a balance of term of two years (24 months). 38There is no ready equation between the sentences for the lesser offences and the manufacturing offences, except that the maximum term for the lesser offences is 10 years imprisonment, as against 15 years for the manufacturing offences. An appropriate sentence in respect of the lesser offences is, in each case, to impose a fixed term of about one-third of the sentence for the more serious offence. Thus, in respect of the Surry Hills offences, each would carry a sentence of 15 months imprisonment and in respect of the Hurstville offences, a fixed term of 18 months imprisonment. 39The final step is to achieve an appropriate degree of accumulation. The starting point adopted by the sentencing judge took account of a period of custody referable solely to the Surry Hills offences. The first sentences commenced on 19 December 2010: that starting date should be adopted. 40The period of one year which the sentencing judge imposed, solely attributable to the Surry Hills offences, was appropriate. That may be achieved by making the Surry Hills manufacturing sentence commence on 19 April 2011 and the lesser offences at Hurstville on 19 December 2011. The manufacturing offence at Hurstville should commence six months later, on 19 June 2012. The non-parole period on that offence will run for two years and nine months, rendering the applicant first eligible for parole on 18 March 2015, being an overall period of mandatory custody of four years and three months. 41That will allow a period of two years balance of parole, which will be an important test of the ability and willingness of the applicant to live up to his own expressed contrition and the hopes of the sentencing judge that he would avoid illegal drugs in the future, recognising the harm that he has caused not only to himself but also to those close to him. 42ADAMS J : I have had the advantage of reading in draft the judgment of Basten JA, with whose conclusions and reasoning I respectfully agree. However, I prefer to state my own reasons for agreeing with the orders his Honour proposes. 43One of the reasons for concluding that the overall sentence, as well as the individual sentences are manifestly excessive is the guidance to be derived from other judgments of this Court dealing with offences of the same kind, even if their objective seriousness is greater than those for which the appellant was sentenced. Of course, it is necessary to be cautious when considering the significance of sentences imposed in other cases: quite apart from the different facts, both objective and subjective, which led to those sentences, the judge in each case must apply his or her own views about the appropriate sentence, making a personal judgment of the way in which the various elements of the sentencing task lead to the particular discretionary conclusion. At the same time, it is an important feature of the administration of justice that, allowing for the variations between cases, the process of sentencing should aim at coherence and, to the extent it can be conscientiously done, like cases should be treated the same way: see the passages from the judgment of the plurality in Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520, helpfully set out in the judgment of Latham J. Taking the problem presented in this appeal, as I see it - with the qualifications to which I have already referred - less serious cases should have less severe consequences. 44In the present appeal, the most important feature of each set of offences, (in chronological order, the Surry Hills and the Hurstville offences) so far as their objective seriousness is concerned, is that the manufacture was not for "any level of commerciality". This consideration very significantly reduces the objective seriousness of both the manufacture of methylamphetamine and the possession of apparatus/precursor materials. (In respect of the latter, the possession of safrole does not, with respect, strike me as particularly significant if, as seems to be the case, it was not obtained for sale or to make ecstasy for sale.) So far as the Hurstville offences are concerned, the fact that they were committed whilst the appellant was on bail for the Surry Hills offences must be regarded as a significant aggravating feature. 45The Court's attention was drawn to a number of cases, to which I now turn. 46In R v Dolman [2001] NSWCCA 99 the offender appealed against a sentence of imprisonment for 3 years and 6 months with a non-parole period of 1 year and 6 months for the offence of knowingly taking part in the manufacture of methylamphetamine. He had no relevant prior record and was contrite with good prospects of rehabilitation. His plea was early. He was an industrial chemist and was paid at the usual hourly rate for legitimate work for the production of precursor drugs and training two other persons in the production of drugs which he was aware would be used to manufacture methylamphetamine. He suffered from psychiatric problems, significant cognitive impairment and pre-senile dementia. The Court concluded that the sentence, though severe, was not manifestly excessive. 47In R v Turkmani [2002] NSWCCA 388; (2002) 133 A Crim R 328, the offender appealed against sentences imposed for two offences, committed two years apart, of knowingly taking part in the manufacture of MDMA (ecstasy). For the first offence he was sentenced to imprisonment for 4 years with non-parole period of 2 years and 6 months and, for the second, 7 years with a non-parole period of 4 years and 6 months. The overall sentence was 8 years imprisonment with an aggregate non-parole period of 5 years and 6 months. Three relatively minor offences were taken into account on a Form 1. In relation to the first offence, the offender, who though only 18 years old and the nephew of a more significant participant, played "not an insignificant role" in the manufacture. The laboratory used for the second offence was rather more elaborate. The purpose was to manufacture as much of the drug as possible for the purpose of making as much profit as possible. In relation to the second offence, the offender's role was that of co-principal. He was on bail for the first offence when he committed the second. The discounts allowed for the pleas were about 14 per cent for the first offence and 12 per cent for the second. The principal complaints concerned these discounts. The Court upheld the appeal, largely though not exclusively on this ground, and resentenced the offender for the second matter to 6 years with a non-parole period of 3 years and 6 months. The sentence for the first offence was undisturbed. The Court noted that the fact that the second offence was committed whilst on bail "considerably aggravated" its seriousness. 48R v Tolley [2004] NSWCCA 165 was a Crown appeal against a suspended sentence of 2 years imposed following a plea of guilty to an offence of knowingly taking part in the manufacture of methylamphetamine. Another offence of manufacturing methylamphetamine and a charge of being in possession of two unregistered firearms were taken into account on a Form 1. The offender's involvement was permitting his premises to be used for the manufacture. It was committed whilst he was on bail awaiting trial for the manufacture offence later taken into account on the Form 1. The explanation that he cooperated because of threats was, in effect, rejected. He had a minor criminal record and his prospects for rehabilitation were good. The appeal was allowed and "the least sentence ... verging on the inadequate" was imposed, namely 2 years with a non-parole period of 1 year. (Although not specifically mentioned, it should be inferred that a discount of 25 per cent for the plea was allowed.) 49In R v Williams [2005] NSWCCA 355; (2005) 156 A Crim R 225 the appellant was sentenced for four offences: manufacture of methylamphetamine, (deemed) supply methylamphetamine, possess a precursor for the manufacture of methylamphetamine and possess a prohibited weapon (pistol). The offences involved a commercial enterprise of manufacturing and supplying methylamphetamine. The appellant suffered since childhood from severe psychiatric disorders involving lengthy periods in hospital where he was sexually abused. His family was dysfunctional and he left home at 14. He was the father of six children, four left in his care, one of whom had severe behavioural problems, seriously exacerbated by the appellant's incarceration. The appellant was described as having "made quite remarkable progress towards rehabilitation". Error having been demonstrated (for reasons presently immaterial), the Court resentenced the appellant. On each of the manufacture and supply charges concurrent sentences were imposed of a head sentence of six years with a non-parole period of 3 years and 3 months. On the possess precursor charge, a wholly concurrent fixed term of 2 years was imposed whilst, on the possess firearm offence a wholly concurrent sentence of 18 months was imposed. A discount for the plea of 20 per cent was allowed. Thus, the starting point was 7 years and 6 months. 50In Langham v R [2006] NSWCCA 306 the offender pleaded guilty to the offences of manufacturing and supplying methylamphetamine, asking that an offence involving a drug to be used in the manufacture of methylamphetamine be taken into account. For the manufacture, the offender was sentenced to 3 years 4 months imprisonment, with a non-parole period of 2 years 6 months. For the supply, the sentence was 2 years with a non-parole period of 1 year 6 months, adjusted to yield an effective sentence of 4 years with a non-parole period of 3 years and 6 months. The enterprise was commercial, the offender and his co-offender playing equal parts. Though not large, the volume of the expected product was not insignificant. The offender's record included three earlier drug-related offences but not so serious as the present charges. Subjectively, he suffered from post-traumatic stress disorder arising from very serious assaults on him. The sentences were held to be appropriate and the appeal dismissed. 51In McKibben v R [2007] NSWCCA 89 the appellant pleaded guilty to knowingly taking part in the manufacture of methylamphetamine, supplying methylamphetamine on an ongoing basis contrary, and two further counts of supplying methylamphetamine. Taken into account on the first offence were offences of supplying heroin and disposing of stolen property. In respect of that offence, the sentence was 5 years with a non-parole period of 2 years and 6 months. The appellant was closely involved over an extended period in the manufacture and supply of drugs. She was 58 years of age, with prior convictions for drug offences with little or no prospects of rehabilitation. The appeal was allowed on the ground that the discount for the plea should have been 25 per cent rather than 15 per cent. The resulting sentence for this offence was, therefore, 4 years and 6 months with a non-parole period of 2 years and 3 months. 52In Diesing & Ors v R [2007] NSWCCA 326, Diesing had pleaded guilty to one offence of conspiring to manufacture not less than a commercial quantity of methylamphetamine, carrying a maximum penalty of 20 years imprisonment. This was a commercial enterprise out of which the appellant hoped to obtain substantial profits. His criminal history included three convictions for the possession of drugs. He was on parole at the time of committing the index offence. There were no subjective features of any significance. On resentencing, the starting point was 11 years, which was reduced to 8 years and 9 months on application of a 20 per cent discount. A non-parole period of 6 years and 6 months was imposed. Hamilton had pleaded guilty to offences of supplying an indictable quantity of methylamphetamine, supplying a commercial quantity of methylamphetamine, conspiring to manufacture an indictable quantity of methylamphetamine and conspiracy to manufacture a commercial quantity of methylamphetamine. In respect of the third offence, he was sentenced to a head sentence of 5 years and 10 months with a non-parole period of 4 years. He was a principal in the commercial enterprise. His record included offences of possessing a prohibited drug. There was no evidence, except for the plea, that he was contrite or remorseful. His plea resulted in a discount of 15%, implying a starting point of six years eleven months, rounded down. His appeal against this sentence was dismissed. Czerwinski pleaded guilty to supplying an indictable quantity of methylamphetamine, conspiracy to manufacture an indictable quantity of methylamphetamine and conspiracy to manufacture a commercial quantity of methylamphetamine. For the second offence he was sentenced to a term of 5 years and 10 months with a non-parole period of 1 year and 10 months. The application of a discount of 15 per cent implied a starting point of 6 years 1 months, rounded down. His role was a major one in a commercial venture which engaged a number of people over two states, involving a deliberate and sustained period of criminal offending. For practical purposes he had no record. He was 62 years old, remorseful, with good prospects of rehabilitation. The appeal against this sentence was dismissed. 53In R v AD [2008] NSWCCA 289; (2008) 191 A Crim R 409, the respondent pleaded guilty to three offences comprising manufacturing methylamphetamine, conspiracy to manufacture not less than the large commercial quantity of MDMA (ecstasy) and the deemed supply of not less than the commercial quantity of LSD. He was on parole at the time with convictions for similar offences. The respondent arranged the supply of chemicals for a "cook" and also provided the premises owned by his brother where the manufacture was to take place. The respondent had assisted authorities and was genuinely contrite with good prospects of rehabilitation. The Crown appeal was allowed. Applying a combined discount of 55 per cent the respondent was resentenced to a fixed term of 4 years and 6 months. As Latham J points out, this sentence needs to be considered in light of the fact that this was a Crown appeal. I would add also that it is - for reasons it is unnecessary to discuss - impossible to infer the commencing point for the notional head sentence. 54In Hudson v R [2009] NSWCCA 59 the offender was convicted of attempting to manufacture a prohibited drug (ephedrine), attempting to manufacture methylamphetamine (in the alternative following acquittal for the completed offence) and conspiring to manufacture ephedrine. Each offence carried a maximum sentence of 15 years. He was sentenced to imprisonment for 5 years with a non-parole period of 3 years on each offence, to be served concurrently. His criminal record included 5 drug related convictions, including supplies. The relevant conduct was persistent and the offender's role was as a co-principal. There was no evidence of contrition and no good prospects of rehabilitation. In rejecting the complaint that the sentence was manifestly excessive, Blanch J (with whom Beazley JA (as her Honour then was) and Howie J agreed) observed (at [28]) that the sentences "had to take account of the need for general deterrence to be reflected in sentencing where drugs are being manufactured or attempts are being made to manufacture drugs which are to be sold for profit in the community. There are many statements in this Court to that effect ..." The details of the sentences imposed on the co-offenders were given, as one of the (rejected) grounds was parity. One of the offender's accomplices, Griffiths, pleaded guilty to two counts of conspiracy to manufacture ephedrine and was sentenced to 2 years and 6 months with a non-parole period of 18 months on one count and 3 years with a non-parole period of 2 years, adjusted to yield an overall sentence of 4 years with a non-parole period of 3 years. Another accomplice, Campbell, pleaded guilty to manufacturing methylamphetamine and, with two offences taken into account, was sentenced to 2 years and 4 months with a non-parole period of 1 year. 55In Petterson v R [2013] NSWCCA 133 the offender appealed on parity grounds against a sentence of 5 years 3 months with non-parole period of 3 years for knowingly taking part in the manufacture of methylamphetamine and a wholly concurrent sentence of 3 years 9 months imprisonment with a non-parole period of 3 years for attempting (the police having substituted an inert substance) to possess a precursor to use in the manufacture of methylamphetamine. The index offences were part of an organised criminal activity in which the offender who had been given the responsibilities of looking after the process of manufacturing and taking delivery of the pseudoephedrine. That the offender persisted in performing his role in receiving the precursor two days after escaping from police custody following his arrest for the manufacture offence was a further significant aggravating factor. He was on parole for an offence of armed robbery, having had four offences of supplying a prohibited drug taken into account when sentenced for that offence. He received a 25 per cent discount for his pleas. The implied starting points for the head sentences were therefore respectively 7 and 5 years. The appeal was dismissed. 56In weighing up the significance of these examples, it is necessary to bear in mind that, in some cases, the offender had a significant criminal record whilst in all he played a major role in a substantial, organised, commercial criminal enterprise involving the trafficking or proposed trafficking of drugs on a continuing basis. These cases, therefore, demonstrate a markedly higher degree of objective seriousness than the present case. It is also necessary to bear in mind the somewhat higher discounts in some cases. It should also be noted that the sentences for possessing precursors were concurrent. The commercial character of the criminal enterprises undertaken by the offenders is of considerable significance in assessing also the objective seriousness of the precursor offences. Where the precursor is obtained for the purpose of manufacturing drugs to be commercially trafficked, the objective seriousness of doing so must be considerably greater than when the purpose is to manufacture for a non-commercial purpose. Accordingly, the examples provide some helpful guidance in respect of all the offences with which we are concerned in this appeal. 57It is clear from the above that I regard the non-commercial character of the offences here as a most significant factor both of itself and as distinguishing this case from the examples. With respect, R v Kairouz [2005] NSWCCA 247 does not suggest otherwise. In that case the appellants were involved in a syndicate, comprising six other offenders, which undertook the large scale commercial supply of drugs over a lengthy period. One of the appellants contended that his subjective circumstances were not appropriately considered by the primary judge. Wood CJ at CL (the other judges agreeing) said - [98] It was submitted in substance that this Applicant's motivation to become a party to the enterprise arose in circumstances where he was a victim of the vicious cycle of use and supply and was not a trafficker for greed, thereby placing him at the lower level of criminality: R v Tulloh NSWCCA 16 September 1993. That proposition was specifically rejected by his Honour in the passage earlier cited, and while his drug use may have helped explain the reasons for his joinder of the enterprise it did not, in any way, excuse it for the reasons which I identified in R v Henry (1999) 46 NSWLR 346 at [236] to [259]. Moreover the decision in Tulloh does not provide a basis for a proposition stated in the bald terms submitted, as appears from the judgment of Hunt CJ at CL in so far as his Honour noted that each case depends on its own circumstances, and that a custodial sentence is normal in the case of trafficking to any substantial degree, whether or not a profit has been obtained. 58The matter being considered was the appellant's motive for being engaged in the commercial enterprise of which he was a part. With respect, the discussion does not suggest that the fact that the enterprise was of such a character was of little or no importance. 59The examples are, of course, a small sample and do not by themselves demonstrate that the sentences here under consideration are outside the discretionary range. Nor can they be regarded, in any sense, as setting a range or appropriate level of sentencing for these offences. However, they are not without significance. I respectfully disagree with Latham J's assessment of their consistency with the sentences under appeal. When making allowance for the factors to which I have referred, it seems to me, with respect, that the sentence of 5 years for the Surry Hills Offence is markedly inconsistent with the sentences imposed in Williams and Diesing. Of course, the true comparator is the combined sentence for both the manufacture and the precursor offences. In the former case, whilst the offender's subjective case was entitled to significant weight, the objective character of his offending was very much more serious than the appellant's. Moreover, the possession of the precursor attracted an entirely concurrent sentence. In the latter case, the objective seriousness of the offences of Hamilton and Czerwinski was substantially greater than that of the appellant. Furthermore, the former's subjective case was not as favourable as this appellant's. The same comments apply to the sentences imposed in AD and Petterson, where also the objective seriousness of the offences was much greater and the sentences for precursor offences were concurrent. 60In coming to my view of the first and second grounds of appeal, I found it helpful to take into account of the examples. I also found it useful, though in a much more qualified way, to consider the statistical information collated by the Judicial Commission. The statistics for the offence of manufacturing amphetamines involve only 16 cases. The top of the bell curve (seven cases) is a sentence of 2 years, with two cases receiving a sentence of 2 years and 6 months, four, 3 years and one, 4 years. Nine cases attracted a non-parole period of 1 year, four a 1 year 6 months period and one each 2 year and 6 months and 3 years. (Of course, the terms are rounded up.) Bearing in mind the likelihood that these offences involve manufacture for the purpose of trafficking, the statistics suggest that the sentences here are, at least, rather unusual. (It is interesting to note that, in respect of manufacturing a commercial quantity, of the 16 cases where the offender pleaded guilty, eight sentences were 5 years or less.) 61Of objective significance is the finding that the precursor present in the appellant's premises were capable of manufacturing a substantial quantity of methylamphetamine though, again, not for a commercial purpose. The judge also accepted that the appellant was unlikely to reoffend, especially if he remains abstinent of drugs of abuse, particularly crystal amphetamine. It was this addiction that, after a year of abstinence, drove the appellant to recommence manufacturing methylamphetamine. Generally, it is appropriate to accept the primary judge's findings as to the objective and subjective factors, to which no further reference needs be made. Conclusion 62In the end, it will often be the case that, whatever might be thought of the individual sentences, the crucial question is whether the overall sentence is manifestly excessive having regard to the criminality of the offences, considered as a whole. Here, this sentence was 8 years and 5 months with an aggregate non-parole period of 6 years. This implies a starting point of 11 years and 3 months, with slight rounding down, for an overall sentence otherwise appropriate before applying discounts. Had the manufacture been undertaken for the purpose of trafficking, an overall sentence of this order would, with respect, have been unremarkable. To my mind, however, where the methylamphetamine was manufactured for the purpose, essentially, of personal use, though some was given to his girlfriend and others, which also was the reason for obtaining the precursors, the overall sentence is manifestly excessive, making every allowance for the aggravation arising from its repetition whilst the appellant was on bail. 63Furthermore, I agree with Basten JA that each of the sentences under appeal is manifestly excessive. 64I agree with the orders proposed by Basten JA. 65LATHAM J : The applicant, Hoang Thanh Dang, seeks leave to appeal against the sentence imposed upon him on 15 June 2012 with respect to several charges arising out of the manufacture of methylamphetamine inside residential premises on two occasions in July 2009 (Surry Hills) and April 2011 (Hurstville). 66The applicant was found not guilty on 20 March 2012 after a trial by judge alone on a charge of manufacture a commercial quantity of methylamphetamine, on the basis that the Crown had not established beyond reasonable doubt that a commercial quantity had been manufactured between 19 May and 15 July 2009. The applicant was convicted of the statutory alternative, namely, manufacture prohibited drug, pursuant to s 24(1) of the Drug Misuse and Trafficking Act 1985 (the Act). That offence carries a maximum penalty of 15 years' imprisonment. 67The applicant entered pleas of guilty on 14 March 2012 to possess drug manufacture apparatus, pursuant to s 24A(1)(b) of the Act, and five counts of possess a precursor, pursuant to s 24A(1)(a) of the Act. Each of these offences carries a maximum penalty of ten years' imprisonment. 68The applicant also pleaded guilty on 21 March 2012 to a further count of manufacture prohibited drug, pursuant to s 24(1) of the Act. That plea was accepted in the alternative to a charge of manufacture a commercial quantity of methylamphetamine between 28 February and 12 April 2011. 69The following table sets out the individual sentences. Possess apparatus, possess precursor (3) On each, imprisonment for fixed term of 2 years, TDF 19 December 2010, expiring 18 December 2012. (Surry Hills) Manufacture prohibited drug (Surry Hills) Non-parole period 3 years TDF 19 June 2011, expiring 18 June 2014 ; balance of term 2 years, expiring 18 June 2016. Possess precursor (2) On each, imprisonment for fixed term of 2 years and 3 months, TDF 19 December 2011, expiring 18 March 2014. (Hurstville) Manufacture prohibited drug (Hurstville) Non-parole period 3 years and 7 months, TDF 19 May 2013, expiring 18 December 2016 ; balance of term 2 years and 5 months, expiring 18 May 2019. 70Thus, the aggregate sentence was 8 years and 5 months with an aggregate non-parole period of 6 years. The Offences 71At about 1 pm on 14 July 2009, a fire alarm was triggered in a residential unit in Oxford Street, Surry Hills. Fire Brigade officers attended. Water was seen to be leaking from the bottom of the door of unit 508 on level 5 of the building. A fire brigade officer knocked on the door, however no one answered. Fire Brigade officers forced entry to the unit where they found the applicant and his partner. The applicant appeared to be carrying items from the kitchen area to the bathroom / bedroom area. 72 The sprinkler system inside the unit had been activated and there was a strong smell of chemicals. There were containers of chemicals, plastic containers, glass bottles, broken glass and a portable electric heating element within the unit. It appeared that there had been a fire in the kitchen. The applicant and his partner were removed from the unit. 73A search of a Mitsubishi vehicle registered in the name of the applicant's sister and parked in the underground car park of the unit block revealed two four-litre tins containing acetone (a precursor in the manufacture of methylamphetamine) and a number of personal belongings including the applicant's diary containing a formula for the manufacture of methylamphetamine. 74Subsequent enquiries revealed that the unit had been leased in the name of the applicant's sister from July 2007. A detailed examination of the unit carried out on the morning of 15 July disclosed the following relevant items :- (a)Glassware associated with chemistry, such as flasks and beakers including a 1 litre glass twin reaction flask, purchased by the applicant's partner in December 2007. (b)Containers of chemicals including hydrochloric acid, acetone, shellite and xylene. (c)Gas stoves or burners, as well as electric hot plates. (d)Various containers of solutions that were subsequently analysed and found to contain by-products of methylamphetamine. 75D-methylamphetamine (methylamphetamine produced from pseudoephedrine) was found in more than 20 separate containers or places within the unit. 76The precursors found at the unit were safrole (3.4 kgs), red phosphorous (379 gms) and iodine (640 gms). Safrole is not a precursor used in the production of methylamphetamine ; it is used in the manufacture of a different drug commonly known as ecstasy. 77Following the applicant's arrest and charging, he remained in custody until 4 November 2009 when he was released to bail on strict conditions, including a daily reporting condition. 78 On 11 April 2011, the police executed a search warrant on the applicant's residential unit in Hurstville. A strong chemical smell was present. A two-burner hot plate near the balcony was in the process of simmering a brown liquid. The applicant admitted he was extracting pseudoephedrine. He was arrested and taken to Hurstville police station. 79 A subsequent examination of the unit found a number of containers holding waste products from the manufacture of methylamphetamine. In addition, a large quantity of glassware, such as reaction flasks, condensers, separating funnels, conical flasks, and vacuum flasks, was in the premises. Other equipment such as hotplates, a retort stand and air purifying respirators were also found. 80The chemicals found inside the unit included hydrochloric acid, caustic soda, sodium hydroxide, acetone, methanol, xylene, sulphuric acid and shellite. These are all consistent with the manufacture of prohibited drugs. 81The precursors found in these premises were iodine (415 gms) and red phosphorous (348 gms). 82The applicant's evidence, which was accepted by the judge, was that he "used part of the methylamphetamine manufactured during the dates contained in the respective indictments for his own use and that he supplied to his girlfriend .... and others a portion of the methylamphetamine manufactured by him." The judge did not find "any level of commerciality regarding the supply of the methylamphetamine." The Applicant's Subjective Circumstances 83The applicant was born in Vietnam, the eldest of five children. The family fled to Indonesia in 1984 when the applicant was seven years of age. The applicant ultimately migrated to Australia in 1984 with his father and one sister. The applicant's mother and younger siblings settled in Australia a short time later. 84The applicant had an unremarkable family history. He reported early educational difficulties due to his inability to speak English. However, he later performed extremely well in secondary school. He was class captain and a prefect at Parramatta Marist High School. He undertook a Commerce/Law degree. He was also for some years actively involved in the Police Citizens Youth Club in Parramatta, serving on the management board between 1999 and 2006. He also did pro bono work for Vietnamese refugees. The applicant was active in sports, boxing competitively between 1996 and 2000. He was the runner-up in the State finals on one occasion and acquired a trainers licence. 85The applicant's father died in 1998. The applicant took over the paternal role within the family. His younger sister was only four or five years of age at that time. He was completing his degree at the University of Technology, Sydney at the time. He completed the degree in four and a half years with honours. He was described by Dr Furst as "extremely bright and would more probably than not fall within the very superior range of functioning." 86The applicant worked in the area of accounting law and as a solicitor since 2000. He was in corporate employment for four and a half years, before opening his own beauty salon in Miranda which he ran for five and half years. He then bought a beauty salon in Epping for his mother in about 2003. 87When the applicant was about 27 years of age, within about a year of moving out of home, he had his first drug experience. He began using crystal methylamphetamine on a regular basis. His use steadily escalated to the point where he was using about 0.5 g per day. 88The applicant told Dr Furst that he committed the subject offences because he could no longer afford to support his habit from his legitimate paid employment. Following his arrest for the Surry Hills offences, he remained abstinent for approximately one year. However, in early 2011 he relapsed into a pattern of daily use which precipitated the commission of the Hurstville offences. 89The applicant gave evidence during the sentencing proceedings. He expressed his desire to undertake rehabilitation. The judge accepted that the applicant was remorseful and that he had made good progress whilst in custody. The judge accepted Dr Furst's opinion that the applicant was unlikely to re-offend if he remained abstinent from drug use. The Grounds of Appeal 90Grounds 1 and 2 are inter-related in that ground 1 alleges manifest excess in both the individual and aggregate sentences, while ground 2 complains of error in "failing to reflect principles of proportionality and totality". 91Ground 3 claims that the judge inadequately reflected the finding of special circumstances in the aggregate non-parole period. It is convenient to deal with this ground first. Special Circumstances 92His Honour found special circumstances on the basis that it was the applicant's first time in custody, that there was a degree of accumulation, and that the applicant required "ongoing rehabilitation in the community". The ratio between the aggregate non-parole period and the aggregate head sentence is 71%. 93Immediately after passing sentence, the Crown representative, the judge and the applicant's representative had the following exchange :- STANHOPE : Your Honour has made a finding of special circumstances. I with respect don't know that that's reflected in the totality - HIS HONOUR : It's impossible having regard to accumulation to reflect it accurately, and I have considered that. STANHOPE : You have considered that? HIS HONOUR : I certainly have considered that, yes. When I said nine years, that is not correct. It is eight years, overall sentence eight years and six months, non-parole period of six years. ["......."] WEBB : The only matter - and your Honour may well have considered it - is the overall sentence and the disturbance of the statutory ratio in light of your finding of special circumstances. Your Honour has dealt with that as I understand it, but for abundant caution if your Honour is of the view that that is considered I will say no more. HIS HONOUR : As I indicated to the Crown it was considered by me, and having regard to the accumulation of sentences, but in so far as the special circumstances are concerned he's given the benefit of the finding of special circumstances in respect of two of the components of the sentencing. WEBB : Being the fixed terms and the concurrency, and so forth? HIS HONOUR : No, in respect of counts one and in respect of count eight - just that the overall sentence does not reflect, well it's eight years and six months which is - its very close. ......... I'm not in any way going to change the sentences. I was fully aware of the situation. 94Counts 1 and 8 were the two offences of manufacture a prohibited drug. In each of the sentences imposed for these offences, a modest alteration of the statutory ratio was made (66% in respect of count 1 and 60% in respect of count 8). His Honour in fact imposed an aggregate sentence of 8 years and 5 months, not 8 years and 6 months. 95The applicant argues that, in spite of his Honour's insistence that he was "fully aware of the situation", there is patent error in the failure to translate the extent of the finding of special circumstances in respect of counts 1 and 8 into the aggregate non-parole period. In effect, the applicant maintains that the aggregate non-parole period ought to be in the order of 5 years and 4 months (63% of the aggregate sentence). 96Had there been no indication in the judge's remarks that he intended the result that was in fact achieved, the applicant may be on stronger ground. However, his Honour clearly and emphatically determined in the exercise of his sentencing discretion that the aggregate non-parole period ought not depart to any significant degree from the statutory ratio. This Court should be very slow to find error in the face of evidence that the result was intended. His Honour obviously considered that the aggregate non-parole period he imposed was the least time that the applicant should spend in custody in order to adequately reflect the objective gravity of the offences. 97There is no basis for assuming that the applicant's need for rehabilitation in the community cannot be met by a parole period of two years and five months. This case stands apart from those cases where this Court has found that an intention to provide for a lengthy period under supervision has not been carried into effect because of the accumulation of sentences: see the discussion at [31] - [41] in Fina'i v R [2006] NSWCCA 134. 98This ground of the appeal has no merit. Manifest Excess 99The applicant's argument on this ground begins with an acknowledgement that the Judicial Commission statistics for the subject offences may be of limited usefulness, particularly where there is a small sample available with respect to each type of offence. Nonetheless, the applicant asserts that on the basis of the limited statistics available, each sentence imposed upon the applicant is at the top or outside the statistical range. 100With respect to the aggregate sentence, the applicant maintains that it is higher than those sentences imposed for offences of objectively greater criminality, relying upon a submission relating to four cases of manufacture a commercial quantity of methylamphetamine discussed in R v Cheung; R v Choi [2010] NSWCCA 244 at [68] to [70]. 101In addition, whilst acknowledging that the sentences imposed for the Hurstville offences were necessarily more severe because of their commission while the applicant was on conditional liberty for identical prior offences, it is said that the extent of accumulation of these offences on the earlier offences was excessive. The applicant submits that the judge erred by imposing a form of double punishment on the applicant for his breach of conditional liberty, by way of the severity of the sentences on the individual Hurstville offences and by way of the extent of accumulation of the sentences for the offences at Hurstville upon the sentences for the offences committed at Surry Hills. 102Before proceeding to a consideration of these submissions in greater detail, it is helpful to re-visit what the plurality said in Hili v The Queen ; Jones v The Queen [2010] HCA 45 ; 242 CLR 520 at [47] - [49] and [53] - [55]. Reasonable consistency in sentencing, bearing in mind that discretionary decision making invariably gives rise to a degree of inconsistency, is not demonstrated by numerical equivalence. The variable nature of the circumstances of relevant offences and of the personal circumstances of the offenders render any statistical analysis of sentencing outcomes largely useless. Furthermore, information about sentences passed in other cases does not establish a "correct" range for a given offence. The information may provide assistance to a sentencing judge in identifying unifying principles, but it does not establish the upper or lower limits of a sentence that is appropriate to a given offence. 103The applicant's submission summarised at [99] above relies entirely upon the "bare statistics". Those statistics do not allow this Court to examine the whole of the circumstances that resulted in the sentences making up the asserted range. Moreover, the sample is small - only 16 cases are recorded for the offence of manufacture amphetamine under s 24(1) between July 2005 and June 2012, where the offender pleaded guilty. While the sentences range between 6 months and 4 years, according to those statistics, a brief reference to a number of decisions of this Court demonstrate conclusively that the "statistical range" does not accurately represent the actual range. 104In R v Williams [2005] NSWCCA 355 ; 156 A Crim R 225, this Court on 16 September 2005 re-sentenced an offender who had pleaded guilty to manufacture methylamphetamine, among other charges, to 6 years' imprisonment. The appeal was upheld on a manifest excess ground, taking into account the offender's psychiatric condition and the needs of his disturbed son. The offender was 39 years old with a drug related criminal history and an addiction to amphetamines. He was solely responsible for the manufacture of the drug from his home in Granville. 105In Diesing & Ors. v R [2007] NSWCCA 326, the Court confirmed a sentence of 5 years and 10 months imposed on each of two co-offenders following pleas of guilty to conspiracy to manufacture amphetamine, among other charges. Both offenders played a significant role in the offence. They were 35 and 59 years of age respectively, with minor criminal histories. 106In R v AD [2008] NSWCCA 289, this Court allowed a Crown appeal in respect of an offence of manufacture amphetamine, among other offences, where the offender supplied the necessary chemicals to a "cook" at premises made available by the offender's brother. The offender was 35 years of age with a prior criminal history. He was on parole at the time. He received a 55% discount for the plea of guilty and his assistance to authorities. The Court imposed a fixed term of 4 years and 6 months, which was partially concurrent (to the extent of 3 years and 6 months) with non-parole periods imposed on other more serious offences. Having regard to the discount and the fact that this was a Crown appeal, the sentence is less than the offence otherwise warranted. 107In Petterson v R [2013] NSWCCA 133, this Court confirmed a sentence of 5 years and 3 months imposed in the District Court on 7 August 2009 following a plea of guilty to an offence of knowingly take part in the manufacture of amphetamine, among other offences. The offender was 24 years of age with a prior criminal history. He was on parole at the time of the offence. He participated in the manufacture with two others at a property near Temora. 108It is trite to observe that comparison with other cases does not reveal manifest excess or manifest inadequacy, any more than a consideration of a notional "range" represented by statistics. It is possible however, to draw out from the cases some underlying principles which assist in undertaking that exercise. 109The role of the offender, the amount of the drug actually produced or capable of being produced, the age of the offender, the existence of a prior criminal history and the commission of the offence whilst on conditional liberty each play a part in the assessment of the offender's moral culpability and the objective gravity of the offence. It has also been held that prior good character is of less weight in the commission of drug offences generally. In cases of manufacture, the purchase of the necessary chemicals requires the offender to produce identification and complete a declaration. 110Where the offender is the principal, who is responsible for every aspect of the manufacture, from the purchasing of chemicals, glassware, and equipment, to the establishment of the laboratory within the chosen premises and the production of the drug itself, there is a high degree of moral culpability. It is submitted, in effect that the applicant's moral culpability was attenuated by the fact of his addiction, which indirectly also mitigated the objective gravity of the offences because he was manufacturing essentially for personal use. The synthesis of this factor in the sentencing exercise, both as to moral culpability and objective gravity, was an integral part of the exercise of the sentencing discretion. 111In my view, the commission of two drug manufacturing offences in order to feed an addiction voluntarily acquired by an adult (and in this case, a highly intelligent one), whilst providing some explanation, does little to mitigate the objective gravity of the offences or reduce the offender's moral culpability: R v Dang [2005] NSWCCA 430 at [32] per Howie J, (Studdert and Whealy JJ agreeing); R v Kairouz [2005] NSWCCA 247 at [98]; R v Henry & Ors [1999] NSWCCA 111 at [194] to [202] per Spigelman CJ (Newman and Hulme JJ agreeing). 112I acknowledge that it is an aggravating feature of an offence that it is committed for financial gain (s 21A(2)(o) Crimes (Sentencing Procedure) Act 1999). However, it is an error to convert the absence of such an aggravating factor into a mitigating one : Louizos v R [2009] NSWCCA 71; 194 A Crim R 223, per Howie J at [91] - [92], McClellan CJ at CL and Grove J agreeing. 113As to moral culpability, the judge expressly adverted to the absence of a commercial element and exercised his sentencing discretion with that concession in mind. I am not persuaded that any error has been demonstrated in this respect. 114Having regard to these factors and the guidance provided by the combination of the relevant statistics and cases, I am not persuaded that the sentences imposed for the manufacture offences are manifestly excessive. The sentence of 5 years for the Surry Hills offence is not inconsistent with the sentences imposed in Williams and Diesing. The sentence of 6 years for the Hurstville offence is not inconsistent with the sentences imposed in AD and Petterson. 115In terms of the objective gravity of these offences, I accept the Crown submission that their commission in built up residential areas, with the attendant increased risk of harm to others and/or damage to property, is a material factor. This risk was realised by the fire in the Surry Hills unit, yet the applicant chose to undertake the same activity with the same attendant risks whilst on bail for the same offence. 116Turning to the sentences imposed for the offences of possess apparatus and precursors, there can be no complaint of manifest excess on the basis of the statistics alone. The applicant points to a range of 18 months to 5 years' imprisonment for the 18 offenders sentenced between July 2005 and June 2012. Against this range, sentences of 2 years for each of the s 24A offences committed at Surry Hills and 2 years 3 months for each of the s 24A offences committed at Hurstville are entirely appropriate, particularly given the judge's finding that the chemicals were capable of manufacturing a substantial quantity of methylamphetamine. This was independent of the quantity of the drug that was the subject of the manufacture offences. 117The applicant's submissions with respect to the aggregate sentence focuses primarily upon the extent of the accumulation. It is argued that the offences relating to the possession of apparatus and precursors reflect "the same conduct and overall criminality" as the manufacturing offences, that manufacture is not possible without precursors and that such offences are commonly taken into account on a Form 1. 118The latter argument ignores the fact that the judge was required to impose an appropriate sentence for each offence to which the applicant pleaded guilty, having regard to the relevant maximum penalty, and then consider, in the exercise of his discretion, how best to structure the sentences in order to arrive at an aggregate sentence which appropriately reflected the totality of the applicant's criminality : Pearce v The Queen [1998] HCA 57 ; 194 CLR 610 at [45]. It is no part of a sentencing court's function or this Court's function to consider the imposition of sentence by reference to a different and potentially less punitive exercise of the prosecutorial discretion : Elias v The Queen ; Issa v The Queen [2013] HCA 31 at [26], [32] and [34]. 119Clearly, the judge was of the view that the possession of apparatus and precursors did not reflect the same conduct and criminality as the manufacture offences. A cogent reason for that approach was that the applicant had already manufactured a substantial quantity of methylamphetamine in the Surry Hills unit when the fire broke out, prompting the discovery of the laboratory, including the equipment and precursors necessary for ongoing manufacture. Moreover, one of the precursors related to the manufacture of an entirely different drug. Similarly, the precursors at the Hurstville unit were obviously intended for use in the manufacture of more methylamphetamine than had been made up to that point. 120The cases referred to in Cheung and Choi have little or no relevance, given that three of the four related to single counts of manufacturing not less than the large commercial quantity of methylamphetamine. All four cases were brought to the attention of this Court in Cheung and Choi by the respondents to a Crown appeal, in support of a submission that the respondents' sentences ought not be disturbed. They do not provide an adequate basis for comparison with an aggregate sentence imposed for different offences. 121I turn to the applicant's argument that there is error in the extent of the accumulation of the sentences for the Hurstville offences. 122Dealing with each discrete period of offending, the aggregate sentence imposed for the Surry Hills offences is 5 years and 6 months. The aggregate sentence for the Hurstville offences is 7 years and 5 months. The greater aggregate sentence for the Hurstville offences appropriately reflected the fact that they were committed whilst on bail. 123The applicant's submission that the effective accumulation of the Hurstville offences on the Surry Hills offences to the extent of one year constitutes a form of "double punishment" is, in my opinion, misconceived. The only question with which this Court ought be concerned is whether the sentencing discretion miscarried, in that the aggregate sentence manifestly exceeds an "appropriate relativity between the totality of the criminality and the totality of the sentences" : R v Holder (1983) 3 NSWLR 245 at 260 ; R v MMK [2006] NSWCCA 272. 124The sentencing judge in his discussion with the applicant's counsel before delivering sentence foreshadowed a degree of accumulation, which was accepted. The judge's assessment of the totality of the applicant's criminality must be considered having regard to the following findings, which were open to his Honour :- (a)The apparatus and precursors the subject of the Surry Hills and Hurstville offences were capable of manufacturing a substantial quantity of methylamphetamine. (e)The applicant manufactured not less than 250gms of methylamphetamine in the Surry Hills premises, although it was not possible to say over what period of time. (f)The applicant committed the Hurstville offences whilst on bail for precisely the same offending. 125Given the need for both general deterrence and a measure of specific deterrence to be reflected in the sentence, the maximum penalties for each of the offences, and the number and variety of the offences, I am unable to reach the conclusion that the individual or aggregate sentences are plainly unjust. It is not to the point that this Court might have taken a different approach. The applicant has not demonstrated that the individual or aggregate sentences were outside the judge's broad sentencing discretion. 126The orders I propose are :- (i)Leave to appeal granted. (ii)Appeal dismissed. 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: 07 November 2013