District Court New South Wales Medium Neutral Citation: R v Pincham [2014] NSWDC 363 Hearing dates: 17/07/2014 Decision date: 17 July 2014 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: Sentenced to a term of imprisonment of 5 years and 1 month with a non parole period being 2 years and 4 months. s166 related matter - Sentenced to a term of imprisonment of 12 months. Catchwords: Criminal - Sentence, supply commercial quantity of prohibited drug, early plea, on conditional liberty. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985 Cases Cited: R v Lim, R v Tan [2013] NSWDC 327 DPP (Cth) v De La Rosa [2010] NSWCCA 194 R v Hemsley [2004] NSWCCA 228 R v Henry (1999) 46 NSWLR 346 Markarian v R (2005) 228 CLR 357 Muldrock v The Queen (2011) 244 CLR 120 R v Buttrose [2011] NSWCCA 35 The Queen v Pincham [2000] NSWCCA 478 R v Thomson and Houlton [2000] NSWCCA 309 Category: Sentence Parties: Director of Public Prosecutions Paul John Pincham - Offender Representation: Counsel: Mr Bowers - Crown Ms C Davenport - Offender File Number(s): 2012/106373 SENTENCE 1. HIS HONOUR: Paul John Pincham appears today for sentence in relation to two offences. One matter involves a sentence for an offence to which the offender pleaded on arraignment in this Court. The charge to which he pleaded guilty on indictment alleged that he between 19 July 2011 and 4 April 2012 at Boambee in the State of New South Wales did supply not less than the commercial quantity of a prohibited drug, namely 271 grams of methylamphetamine. That particular offence is an offence contrary to s 25(2) Drug Misuse and Trafficking Act 1985. It carries a maximum penalty of 20 years imprisonment and/or a fine expressed in a particular number of penalty units that equates to $385,000. There is a standard non-parole period, I am informed by the Crown, of 10 years imprisonment. 2. There is also a related offence on a s 166 certificate for which the prisoner is to be sentenced pursuant to s 167 Criminal Procedure Act. This is an offence of dealing with certain property, to wit, $3,520 in Australian currency, for which there are reasonable grounds to suspect that it is the proceeds of crime. To that offence, an offence contrary to s 94C(1) Crimes Act 1900, the offender pleaded guilty in this Court. That carries a maximum penalty of two years imprisonment and/or $5,500 by way of fine. 3. The offender was charged in relation to the matters generally with which I am concerned in early April 2012. He was charged with a number of offences, and I will deal with that aspect of the matter when I come to the question of the discount to be given for the utilitarian benefit of the plea of guilty. 4. He has been in custody for various periods of time. Initially from 4 April 2012 until mid-September 2012, and then again between mid-February 2014 and early March 2014. The total period of time that he was in custody directly referable to the current matters in their various forms as they have moved their way from the Local Court to the District Court is expressed as "five months 35 days". As we know, there are no months in the calendar that extend beyond 31 days, a matter I had not picked up when I was looking at the prosecution's "case summary". But it is agreed between the learned Crown Prosecutor and learned Senior Counsel for the accused that, in reality, the totality of the time in custody would appear to take the commencement date of any appropriate sentence, all other matters taken into account, as about 13 January 2014, and I have determined that the commencement date should be 12 January 2014, to avoid any mathematical error. 5. In relation to the discount for the utilitarian benefit of the plea of guilty (getting ahead of myself in one sense because there were matters raised specifically in the submissions directed to this matter that need to be take into account) there will be a transcript no doubt prepared of the proceedings before me which will show that learned Senior Counsel for the accused and myself had a detailed discussion and various particulars on this issue were provided to me. The Crown assisted too. I am required to give a discount in accordance with the guideline judgment of Thomson and Houlton v The Queen. The 'guideline judgment' in relation to discounts for pleas of guilty, delivered in 1999 by the Court of Criminal Appeal. It was submitted by both the parties that the range of discount should be somewhere between 10% and 15%. The Crown thought it might be slightly less than 15%. I somewhat light-heartedly suggested perhaps 13 and a fraction per cent, but not to make light of the situation. I have ultimately concluded, having regard to some of the complexities concerning the background of this matter, that it would be appropriate, in recognition of what has been assessed as the character of utilitarian benefit, to give a discount of 15%. I do not propose to go into the detail of why I have come to that conclusion beyond noting that although the plea of guilty was entered after the matter was actually listed to commence for trial. It is to be pointed out this accused was one of 12 co-accused. 6. The way the court list is managed in the District Court, as is well known, the Chief Judge permits the parties to enter into negotiations and sort out difficulties before a matter is allocated to a judge. It is clear from the information given to me by the Crown that those discussions were very fruitful, saving the court and the community many weeks of trial, even if only in relation to the accused before me today. Ten of the 12 pleaded guilty to various offences. Two persons are awaiting trial. I accept, without recounting the detail, the accused ultimately pleaded guilty to one count when he was facing a number of counts for which he had been committed for trial, and there was considerable uncertainty as to precisely the quantity of drug for which he should be responsible for supplying. The detailed agreed facts reflect a quantity of the drug considerably less than the quantity that was particularised in one of the committal charges relating to the accused. As was pointed out, there were many, many telephone intercept calls that would have been required to be played. Ultimately I have concluded that the plea of guilty, timed as it was some time after the date of the proposed commencement of the trial, reflected a considerable - in the circumstances and notwithstanding a committal for trial - saving to the community. Thus I have accorded the prisoner a discount of 15%. 7. I have told the offender what the sentence is I propose to impose. I do not believe that prisoners should be sitting waiting with bated breath for a Judge to deal with all the things that a judge is obliged to deal with, given the complexity of our sentencing law. The ultimate sentence that I have foreshadowed to the prisoner represents that discount applied to a commencement or a starting point, before the discount, of six years imprisonment. 8. The facts of the matter are set out in an agreed statement of facts. There are some pertinent matters to extract from the agreed statement of facts, but no need to repeat all of them. 9. An investigation was commenced into the activities relating to members and associates of a group of persons as members of what was described as the "Lone Wolves Outlaw Motorcycle Gang" which was located in Coffs Harbour. The agreed facts state that the offender, who was born in July 1967 and appears today before this Court as I would understand it aged 46 years, was a member of that club and became a target of the investigation. Various mobile phones used by individuals within the group were the subject of surveillance and there were listening devices used as well. I am provided with various details relating to conversations that are said to be pertinent to the scope of the joint criminal enterprise in which the offender was concerned, both concerning other members of the joint criminal enterprise and the offender. The offender, if I have not already mentioned, was known as "Bull" within the organisation or the group. It is clear from the very limited detail of the conversations that a code was used to describe particular activities, which is obviously commonplace in drug supply matters. 10. Ultimately the evidence reveals that a particular person, Michael Why, was giving instruction and direction in relation to the provision of other members of the club, including this offender, of particular drugs, particularly methylamphetamine, for them to sell on to other people. This occurred over a period of time between early January and the arrest of the offender on 4 April 2012. Various details were provided as to matters concerning earlier conversations in October 2011 when conversations between the offender and other persons related to the sale of methylamphetamine and related activities. 11. The Crown case is, in the context of the information provided to the Court, that the offender was supplying other people two eight-balls of methylamphetamine, or a total of seven grams per week, an eight-ball representing 3.5 grams. The total amount he supplied over the period covered by the indictment, as the facts state, of 31 weeks was 217 grams based upon that calculation. There is a specific supply that is also to be taken into account taken on 21 March 2012. On this occasion the offender supplied 54.66 grams of methylamphetamine to an associate, a person as I would understand it was an associate of the group or a member of the group that I have earlier referred to known as the Lone Wolves Motorcycle Gang or Club. This supply, occurring on the afternoon of 21 March 2012, was arranged by Mr Why at the request of the 'President' of the club, and the details of the supply are set out in the facts. I need not reflect upon those with any particularity. 12. The reason that the facts refer, and the prisoner admits, to the "actual supply" of 54.66 grams, is that that quantity of the drug was recovered from the person to whom the accused had supplied the rugs on the arrangement of Mr Why and at the direction of a man known as Neville Luck, the President of the club. The drugs taken from Mr Horn, the man who was provided the drugs by the prisoner, was analysed. Their weight was identified. They had a purity of 15.5%. I accept if I might anticipate matters I will deal with relating to the submissions, that the drugs that were being supplied by the offender over the period of time contemplated by the indictment of the context of the agreed facts were of about this percentage. Certainly the 54.66 grams by reference to the analyst's certificate was of that purity. This is in accordance with what could be called street levels of purity. I have seen in my experience over a number of years a range of purity at street level between 3% up to 15 or 20%. It is clear on the facts available to the Court that the offender, to use the expression of his learned Senior Counsel, was a 'middleman' in the sense of the person obtaining the drugs from someone within the club who was giving directions as to the supply of drugs from time to time. Certainly the prisoner was given directions in relation to the particular supply on 21 March. Earlier supplies are suggested by the telephone intercepts to be by the offender to people that he had connected with for the purposes of providing them with methylamphetamine, some people associates of the club, others outside the club. 13. There is no suggestion of the prisoner corrupting other people, forcing them into the use of prohibited drugs. It is quite clear that he over a period of time had an established group of persons who could obtain drugs from him for their own use, and I accept, if it is an adequate expression, that the prisoner was a "user/dealer" in the sense that he himself was a user of drugs. There is no doubt just by reference to his possession of the amount of cash at the premises where he lived on the execution of a search warrant on 12 April 2012 that apart from obtaining prohibit drugs for himself from his activities, he also obtained some cash. But the only evidence of any financial enrichment, if I could use that expression in a very loose way, was the particular cash the subject of the related charge, but no doubt over a period of time he obtained cash that he may have used for a range of circumstances. Certainly I accept the essential submissions of learned Senior Counsel for the accused about that aspect of the matter. 14. I will come back to dealing with the objective facts when I come to the question of the 'standard non-parole period' and its relevance in this sentencing exercise. 15. The prisoner is a person with prior criminal convictions. They go back over a period of time to 1986. He is, as I understand it, a person who is a native of, or certainly grew up in, the town of Narrabri, south of Moree. He has convictions in Narrabri Court, some of considerable seriousness. I note in fairness to him, and it was adverted to in one specific sense by his counsel, that after a period of offending between 1986 and 1999, which included the imposition of some terms of imprisonment and required the prisoner to serve at least a minimum term of three years from 1999 onwards, there was a break in the prisoner's offending to 2009 when he was convicted at Coffs Harbour, where he was then presumably living, of a relatively minor matter of damaging property, for which he was fined $300. Then there was a break to the commencement of his involvement in the supply offence and other offending which is reflected in the criminal history. 16. He has convictions in the Local Court for street offences, possession of drug, violence in the sense of an offence of assault occasioning actual bodily harm, and driving with a high range PCA. I accept the criminal history shows a use of prohibited drugs that goes back at least 25 years. He was convicted of having an unlicensed firearm in 1999 for an offence for which he was charged in June 1997 which appears to have been dealt with at the same time as he was dealt with in relation to other serious offending. That other serious offending included conviction at the same time in November 1999 of shooting with intent to cause grievous bodily harm for which he was sentenced to a minimum term of 15 months, that sentence partly accumulative upon another sentence imposed, and other offending was taken into account. He appealed against his sentence in relation to that matter but the appeal was dismissed. 17. He was also convicted on that date, 11 November 1999, in relation to an offence for which he was charged in January 1999. In other words, when he was finally dealt with in the District Court at Narrabri he was sentenced for a range of offences for which he had been charged over a period of time. The offence for which he was further sentenced in November 1999 was an offence of manufacturing a prohibited drug, to wit, methylamphetamine, for which he was convicted and sentenced to a minimum term of three years imprisonment commencing on 9 November 1999, that non-parole period concluding in 2002. That gives sense to the character of the sentence that was imposed for the shoot with intent to cause grievous bodily harm matter. The Crown has in fact provided me with a copy of the judgment of the Court of Criminal Appeal in relation to the appeals the prisoner brought in respect of the sentences imposed at Narrabri. That judgment is The Queen v Pincham [2000] NSWCCA 478. Although it very briefly deals with the facts the subject of concern in the appeal, the sole purpose of the appeal was to deal with the issue of backdating of the sentence, I have taken that judgment into account to the extent that it sheds some further light on that offending. 18. When the offender was released, I take it from the criminal history and the custodial record, he successfully completed the parole supervision required of him. However, as I said, in 2009 he was convicted of destroying property whilst in Coffs Harbour. I take it this was at a time close to, or including, when he was involved with the motorcycle group to which I have referred. 19. More disturbingly was the fact that prior to being charged in relation to the current matters with which I am concerned, on 25 January 2012, he was charged with and then, on 11 October 2013, convicted of three offences, being assault occasioning actual bodily harm, destroying or damaging property, and stealing from a person. In relation to those three matters in October 2013 he was sentenced to various terms of imprisonment to be served by way of Intensive Correction Order. For the assault occasioning actual bodily harm he was sentenced to 19 months imprisonment commencing on 11 October 2013, for the damaging of property he was sentenced to five months imprisonment commencing from the same date, and he was also sentenced to 14 months imprisonment in respect of the steal from a person matter commencing from the same date. 20. The Community Corrections Service has reported to the Court that he has up until this point completed that ICO satisfactorily. That is a relevant matter to consideration of an important issue advanced on behalf of his counsel. There has been some progress the prisoner has made in his rehabilitation in a number of ways reactive to his charging with the current matters. The sentences imposed of course by way of Intensive Correction Order are in place. I would assume the Parole Authority will revoke those sentences because of the sentence I impose. They would of course need to do that if I imposed any term of full time custody because that interrupts the ICOs. 21. I have considered the issue of what relevance those sentences have in framing the sentence with which I am concerned. The offences have relevance in the sense that to some extent the offender was on bail in relation to those offences when committing at least a number of the activities that give rise to the principal charge with which I am concerned. Thus, there is the aggravating factor, militated in the way advanced by his counsel as to the limited period of time over which the offending with which I am concerned occurred, of committing an offence whilst subject to conditional liberty. 22. There is the question too of backdating the sentence that I am imposing to give effect to the time spent in custody solely referable to the current matters. In my view, I should not diminish that period of time simply because the prisoner has been serving some other sentence. I have of course the discretion made clear, for example, in a case like Callaghan dealing with a separate situation where one is sentencing an offender who has had his or her parole revoked, to adjust the commencement date to give effect to the issue of totality by reference to other sentences imposed or required to be imposed for other offending. 23. I have concluded that I should give the prisoner full benefit of the time spent in custody for the offences with which I am concerned, or the principal offence with which I am concerned, and this means as a third consideration that there is a partial accumulation upon those sentences. This is a matter relevant to the fixing of the non-parole period in itself, is a 'special circumstance', pursuant to s 44 Crimes (Sentencing Procedure) Act 1999. 24. When the Sentencing Act was passed in the early days of the Greiner government in 1989, the Court of Criminal Appeal recognised in a number of early judgments that the partial accumulation of one sentence upon another which required the fixing of a non-parole period reflected a "special circumstance" requiring the adjustment at least to that limited extent of the effect of that accumulation to give proper effect to what was sometimes called mistakenly the "statutory ratio" of non-parole period to total sentence. In this particular matter I have concluded that that itself of course is a special circumstance, as are the other matters that have been referred to by Senior Counsel for the prisoner, which I will come to in a moment. 25. The Community Corrections Department, as it is now known, of Corrective Services, confirms a number of matters that emerge from the other evidence in the case: the psychologist's report based upon information provided by the prisoner and the character references that the prisoner has made a number of changes in his life since his arrest in relation to the current matters in early April 2012. It was true that he was bail refused apparently for some period of time. He was granted bail. He went back into custody for a period of time because of a belief that he had been in breach of a bail condition, which turned out either to be unsatisfactorily established or not correct, then whilst on bail the prisoner has been subject to substantially restrictive bail conditions at least for eight months of the time he was on bail. These conditions included requirements for him to report daily, which in the circumstances is not itself an onerous condition given the alternative that was available of him remaining in custody, but also being subject to curfew. It has been put to me from the bar table, and I accept it without question, that he was subject to a number of curfew checks, and I have taken that matter into account. It is a relevant matter to the extent that it may be considered as an additional restriction upon the liberty of the offender whilst awaiting sentence in relation to the current matters. 26. The Community Corrections officer has reported on the satisfactory performance of the ICO that I have already referred to. In relation to previous supervision, on one occasion his supervision was terminated early due to satisfactory response. Although, of course, this is in the circumstance where, as I understood the chronology from the report, the offender had previously been on parole. There is not much detail about his previous conduct during parole but there is no evidence of revocation. 27. From the histories that are provided to me through the psychologist's report and the pre-sentence report, the offender grew up in Narrabri. He was educated to year 10. He obtained a qualification in plastering. He worked in the shearing industry and as a general labourer in a range of ways, and I accept after his release from gaol, after the sentence imposed in 1999, he suffered an industrial accident of some description which left him incapable of doing work that he formerly did. He has been receiving a disability support pension for a number of years because of a substantial injury to his back. 28. I have already reflected upon the fact that there is evidence of him being a user of prohibited drugs for a lengthy period of time. He was a regular user of cannabis and amphetamines over a period of time. In 2012 he was diagnosed with hepatitis C. He also injected himself intravenously during the time that he used prohibited drugs, particularly amphetamines. He successfully completed, to his credit, the Interferon Program which is an abstinence based program. There is one minor relapse recorded, but otherwise he has remained abstinent. He has used some cannabis on occasions to reduce anxiety. What has emerged, and I did not realise that it was possible for this to occur, but I am told through the information available to the Court and the submissions of Senior Counsel for the accused that the offender is clear of hepatitis C by reason of the treatment. 29. The Community Corrections Service deem him to be at "low-medium" risk of reoffending. This is a matter that might be taken into account to militate against a finding of special circumstances, in the context of the consideration of the relevant issue to such a matter as to whether an adjustment of a non parole period was required to assist in the rehabilitation of the offender. Given his previous criminal history and given his previous dependence upon the use of prohibited drugs and his previous associations, it is clear to me that he does need an extended period of supervision to assist him to adjust to community living and to assist him in a material sense in obtaining guidance in relation to matters that might lead to relapse. 30. The offender impressed the Community Corrections Service as being a person who was seeking to change his ways, and that he was "prepared and resolved" to receiving a term of imprisonment, but was also anxious to have the opportunity to redeem himself in the wider community. This is something that comes from the referees. A number of people that have dealt with him have spoken highly of his loyalty, of his "honesty" in his dealings with other people. One referee refers to him as a person who has exhibited a "great deal of remorse and a strong desire to repay" for his past errors. The referee's exuberance for his character refers to him as a "fine, upstanding, reliable and honest citizen." I appreciate of course that is meant in good faith to represent the impression that the offender makes upon the referee, but of course aspects of his criminal history suggest otherwise. 31. He has displayed support for others in times of need that is attested to in the references that I have. One particular referee, who first met him in 2009, has written through that referee's observation of him since that time of the considerable change that has occurred since his arrest in April 2009. This referee has spoken of his honesty, about his past, his membership of the motorcycle club, the need for him to change his approach to life to avoid further offending, taking responsibility for his previous conduct, and endeavouring in fundamental ways to change what is described as his "mindset and outlook." The referee, a business consultant and workplace trainer, and I take it from that a person of substance within her community, speaks of his remorse and accepting responsibility for his conduct, and his behaviours and attitudes had provided him with the instruments to maintain pro social connection with the community. 32. One other document that was produced, and I have taken it into account, is an affidavit prepared for one of the bail applications from a former National Serviceman and Vietnam veteran for whom the prisoner has been a carer. I have taken that material into account. It shows again, as often is the case with people who are to appear for sentence in relation to serious crimes, that there is another side to the character of that person. The prisoner has provided considerable support to a man in strong need of that support given his own conditions of depression and post-traumatic stress disorder, and has shown him sympathy and compassion, which I have taken into account. 33. I have also taken into account the evidence by way of urinalysis reports that the prisoner has been effectively drug-free since his release from custody on bail and whilst subject to bail conditions. 34. If I can just briefly deal with the psychologist's report. That sets out a number of details about the prisoner's background beyond what's in the pre sentence report. I appreciate the prisoner did not give evidence. Much of the history that he has given to others has not been subject to test by the Crown. I am very mindful of the need for the Court to be circumspect in many instances about the histories that are provided in such circumstances. But I am prepared to accept essentially what is set out in the histories provided by the prisoner. He has a daughter aged 23 and a son 20. He has during the course of time on bail re-established contact with his family or his children at least, particularly his daughter. 35. He has no history of mental health treatment but he has had traumas in the past. Some reflection in the history upon his convictions in 1999, or some of them, reveal the fact that he has a scar on his face from where the barrel of another man's shotgun was rammed into him. Since that event and his sentencing whilst in custody in the early part of the century he had a number of flashbacks and nightmares about his experiences. It would appear as though without all the facts available to me that some of the matters for which he was sentenced in 1999 involved some acts of violence, not by him alone, but by others towards him. He saw many terrible things in custody, of which I have no doubt. People committing suicide or being found dead after having committed suicide and acts of violence. I bear in mind the opinion of the psychologist that these traumas in the past are still having an impact upon him. 36. That having been said, and I do not mean this unkindly of the prisoner or in criticism of him, but the reality is, as I explained to his counsel, that a reasonable person might think that the terrible things that he has endured and seen may have been some incentive for him to avoid offending. I appreciate the difficulty, as Justice Simpson made clear in Henry, for people who are dependent upon prohibited drugs not being able to make many conscious decisions about their circumstances. This is a matter also confirmed to some extent in the judgment of Justice Wood in the same decision. I particularly refer to his observations at [273] of that judgment and the fact that people who are dependent upon drugs do not make considered decisions. 37. The prisoner was intensely surveilled by the police. I am told that 20 25% of the telephone intercepts involve the offender over a period of a number of months. I raised in a questioning way whether there are any statements of regret about his conduct or expressions by the prisoner of the effect upon him of the prison as he discussed the plans for the criminal conduct with which I am concerned. As I understood it, no such statements were made by him. It has to be fairly said that these unguarded conversations really provide 'the proof of the pudding'. In other words, whilst I accept the prisoner has been affected by his previous experiences in custody, they did not deter him from endeavouring, at least, to reconsider his involvement in the current offending. 38. I also appreciate, in fairness to him without suggesting it is an excuse, that he was a member of a group of men for whom I expect living outside the law was something of a norm. I am appreciative of the pressures arising out of a group mentality of that type. But there is no suggestion that he was an unwilling member of that group. As he appreciates by what he actually said to the Community Corrections officer, he has to take responsibility for his conduct. He has also made that clear to his referees. 39. The psychologist reports, which the Community Corrections Service seems to confirm, that the prisoner has sought to turn around his life whilst on bail. He sought to cease his association with what are described by the psychologist as "criminal elements." He has taken steps to address his health over the period of time since his arrest in April 2012. 40. He gives an account of his involvement in the offending with which I am concerned. He notes the severe impact of his own drug use on himself over a number of years, the cost to him of his family life, of employment opportunities, and of course his freedom on occasions. He indicated insight in relation to his offending, which I believe is a positive matter. He finds the prospect of going to prison again a much harder matter to bear now that he is older, and I accept that, and he is very concerned about the need for vigilance. 41. There was some psychometric testing undertaken so far as assessment of depression and anxiety and stress. His anxiety is assessed as 'severe'. His current state of depression was assessed as moderate, and stress was within normal limits. These are matters as the summary states that are reactive to his current circumstances. With regard to matters of distress that might be diagnostic of post-traumatic stress disorder, he has an elevated score in that regard, the post-traumatic stress disorder arising from his experiences prior to going to gaol and also within custody. 42. The psychologist noted that he believed from the information available to him that the prisoner was successfully rehabilitated from years of drugs. Past conduct would have attracted a diagnosis of substance use disorder, but it no longer exists. His risk of post-traumatic stress disorder symptoms is high, particularly going back into custody as a possible trigger. The conclusions the psychologist reaches, in the context of the history that I have outlined and the positive steps the prisoner has taken, are that the prisoner has made steps in his rehabilitation, but there are risk elements for him and he demonstrated a clear commitment to rehabilitation. 43. He was apprehensive about sentencing. He was vulnerable to symptoms of post-traumatic stress disorder whilst in custody. The future rehabilitation and treatment of the prisoner was a matter that had reached a point where it was important to consolidate the gains he had made and that the prisoner's motivations in the context of the psychometric testing were "sufficiently intact." The psychologist recommends continuing psychological and/or psychiatric intervention. 44. I have taken all those matters into account in the prisoner's favour. I am mindful of the fact that there will be stresses in custody, although this is not a matter that gives rise to any direct consideration of those principles that are satisfied in Hemsley v The Queen, the decision of the Court of Criminal Appeal from 2004, or in the 2010 decision of De La Rosa. 45. If I may just turn briefly to the submissions of the Crown, because although the defence did not reply to the Crown's submissions directly, many of the matters that came from the learned Senior Counsel of the accused provided a reply to the matters the Crown submitted. 46. In the context of the consideration of the standard non-parole period, the Crown said that the offending fell within the lower end of the middle range, noting particularly the "ongoing supply" characteristic of the offending over a period of time, and the system of distribution involving the use of code and the like. The Crown agreed that the prisoner was a middleman within the relevant "syndicate." This is a middleman in the context of people within the club, of which he was a member, providing him with drugs for him to either supply to targeted people known to the club or other people who were customers of him. The Crown submitted that there were several aggravating factors that arose under s 21A(2). These included the fact that the offending was part of organised criminal activity, that the prisoner's criminal history was an aggravating factor, and at least on one view of it the partial breach of conditional liberty was an aggravating factor. 47. Learned Senior Counsel for the accused dealt with the issue of the discount for the plea, and I have already dealt with that matter, and the Crown submitted that it was clear that a full term of custody was required. Learned counsel for the prisoner did not in her submissions, that came first of course, acknowledge the aggravation of an offence committed as part of organised criminal activity. Of course, if aggravation required to be established under the Act, particularly under s 21A(2), is one that needs to be established beyond reasonable doubt. I had a discussion with the learned Crown about this matter, which obviously is recorded, and to summarise my conclusion in relation to the matter, I cannot conclude that this is particularly an offence that was committed as part of organised criminal activity. I am mindful the prisoner was a member of a group of men that could be described as a gang. But this was an organised group, sometimes described as an 'outlaw motorcycle group', that was involved in a range of activities, obviously in relation to the supply of methylamphetamine, some criminal, others more social. The truth of the matter is the wider context of the commission of the offences was through the prisoner's association with the group. Through his dependence upon methylamphetamine which, as I understand the evidence, pre-dates his membership of the group. 48. It seems to me that there needs to be in this matter, in the context of what I am required to be satisfied of beyond reasonable doubt, some consideration of the distinction that may be drawn as a reasonable possibility between organised criminal activity and criminal activity of an offender in the context of his membership of an organisation that is not solely in existence for the purposes of committing crimes. I know there are members of the community that might regard outlaw motorcycle gangs as solely being in existence for the commission of crime. I have got no evidence in this matter to suggest that this is the case here. 49. I am also mindful too of the caution in what Justice Howie has said in a number of decisions about the character of supply offences of this type given the inherent organisation and planning required in order for the offence to be committed in any form. Thus, I am not satisfied to the requisite degree of that aggravating factor. Of course, learned Senior Counsel for the prisoner addressed her submissions to what she anticipated may be the relevant aggravating factors that arise under s 21A(2) of the Act. She specifically dealt with the issue of criminal history and the breach of conditional liberty. This is acknowledged as an aggravating factor. But it is mitigated it is said because of the uncertain period during which the prisoner was on bail. 50. I accept that the prisoner was on bail in relation to unrelated criminal activity as I understand it, certainly not in relation to drug supply matters. Although it is an aggravating factor, here it is not as serious an aggravating factor given the temporal connections and other features as might be an offence committed of a similar type whilst on parole, which obviously would be far more serious. 51. As to the matter of the criminal history, that is a matter that has caused me some difficulties I confess. Certainly the prisoner's wider criminal history does not entitle him to any particular leniency and that is acknowledged in the submissions. I have had regard to the conviction in 1999 for the offence the subject of an appeal in 2000. I have concluded that the offending with which I am concerned represents offending of a type, by reference to the conviction for manufacturing methylamphetamine, that would render that conviction an aggravating factor as such. However, again the strength of that aggravating factor may vary in each case. Here it is not a significant aggravating factor, primarily for the reason advanced by learned Senior Counsel for the prisoner, that it was an offence committed quite some years in reality before the offending with which I am concerned. It does not seem to be directly connected with the offending with which I am concerned. It has to be acknowledged as an aggravating factor given its character, but again in the sentencing exercise it is not to my mind a significant or serious aggravating factor as may be the case from time to time. 52. Picking up on some of the other submissions that were made by learned Senior Counsel for the prisoner, I have already noted acceptance of her categorisation of the offending. I have already acknowledged the submission she made about the steps the prisoner has made in his rehabilitation. I certainly could not conclude of course that he is "rehabilitated." He is obviously a man at considerable risk. His criminal history suggests this is so as does his past drug dependency suggests that and his past association suggests that. But, I am mindful of the real steps that he has taken and I have taken that matter into account to his credit. 53. In terms of the assessment of the offending by reference to the standard non-parole period, I have concluded that the offending is below the middle range of objective seriousness. I pause for a moment to point out that I am unaware of any decision, even the High Court's judgment in Muldrock, that has addressed the issue of what Chief Justice Spigelman said in Way about the mid-range or middle range of objective seriousness being not necessarily a narrow band. But in this matter there are a number of features of it that I feel compel me to the conclusion I have reached. I am not saying of course it is at the lowest end of criminality. The prisoner's role as a middleman makes that clear and the period of time over which the offending occurred makes that clear. It is not a one-off 'brain snap' or anything of that type. But it is to be said that the quantity of drug involved is just over the minimum amount required for a commercial quantity to be considered under s 25(2) Drug Misuse and Trafficking Act. 54. The prisoner's role was that of a middleman, himself being a user of the drug. I am mindful of the fact that the prisoner was being directed on occasions as to persons to whom he would supply. That is clearly the case in relation to the last substantial supply. Ultimately, the issue of the standard non-parole period falls to be considered by consideration of the legislation that is in force now. 55. Section 54A(2) Crimes (Sentencing Procedure) Act now provides that for the purposes of sentencing an offender, the standard non parole period represents the non-parole period for an offence in the Table to the Division, the taking into account only the objective factors affecting the relative seriousness of that offence is in the middle of the range of seriousness. Furthermore, s 54B(2) of the Act provides that the standard non parole period is a matter to be taken into account by the Court in determining the appropriate sentence for an offender without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender. Of course, in that regard, as many commentators have noted, including Mr Donnelly for the Judicial Commission and of course judges of the Court of Criminal Appeal, the new provisions reflect in effect the practical effect of the decision of Muldrock v The Queen, even where an offence does fall within the middle range of objective seriousness. If the Court, for example, makes a finding of special circumstances and then takes into account other matters in mitigation that may arise, could require the Court to settle upon a non-parole period that may be below or well below that identified as the standard non-parole period. 56. In that regard I have taken into account what the High Court said in the decision of Muldrock (2011) 244 CLR 120 and particularly the Court's conclusion in that matter that in fixing the non-parole period in a case involving a standard non parole period, the standard non-parole period is one part of the larger part of the process of passing sentence. The Court is required to exercise a discretion to sentence consistent with the approach to sentencing described by McHugh J in the earlier decision of Markarian v R (2005) 228 CLR 357. The Court is required to identify all relevant factors including those at common law to determine the appropriate sentence to be imposed. I generally refer to in the majority decision of Muldrock in the passages, at [20]-[30]. The Court is not required to attribute particular mathematical value to matters regarded as significant to the formation of the sentence that differs from the standard non parole period. It provides the Court with a guidepost, but many matters are to be taken into account and many of them to which I have already referred. 57. I am prepared to accept, amongst other things, that the prisoner's plea of guilty is an indication of contrition on his part. I believe that also the evidence available as to the steps that he has taken in his rehabilitation reflects some contrition on his part and the taking of responsibility by him of his conduct. He has, it is clear on the evidence, over an extended period of time sought to change at least, if not undo, the effect of the past conduct to which he admits. In sentencing the offender I have had regard to the general material that has been provided in submissions about comparative sentencing. I have had regard to sentences I have imposed in other cases in relation to offences involving the same provisions. One such judgment is Cheng Lim and Yong Tan, a decision that is not in the database but which I gave on 9 May 2013. 58. I have also had regard to decisions that I have been required to consider in the context of dealing with that and other matters including decisions such as the decision in R v Buttrose [2011] NSWCCA, particularly those passages in the judgment between [40] and [46]. Is it to be fairly said, of course, that the judgments there cited in that judgment in Buttrose itself are concerned with a large commercial quantity which carries a maximum penalty of life imprisonment and a greater standard non-parole period. It is by reference, for example, to matters of quantity to be seen that the quantity of prohibited drug with which I am concerned is considerably outweighed or overwhelmed by the quantities that were the subject of discussion in that particular judgment. 59. Other judgments that might be considered are cases of Lui, Huyn, Sciberras, Chen, Lawson and others that I have cited in the judgments of Lim and Tan to which I earlier referred. 60. Learned Senior Counsel for the prisoner did refer to one particular judgment, conceding given the personal circumstances of that offender, there were considerable distinctions between that offending and this, also noting that it was a Crown appeal that was dismissed in exercise of discretion. That certainly underlines the obvious matter in this case that, notwithstanding s 5 Crimes (Sentencing Procedure) Act, a full term custody order must be made. 61. One other decision I might mention in passing, again involving sentencing of an offender for committing an offence contrary to s 25(2), is a judgment I gave on 29 November 2012 in the sentencing of Christian Cuzman and George Bucataru. I hasten to say that the sentence I am imposing on the prisoner is less than imposed upon Mr Cuzman and Mr Bucataru or Mr Lim and Mr Tan. 62. The sentences I imposed there, which as I understand it have not been the subject of appeal, involved sentences for offending far more serious than that with which I am concerned here. In both cases they were principals in significant supply of heroin or other prohibited drugs covered by the legislation. In the case of Lim and Tan two offenders although charged under State law very very close to the circumstances of importation who would, as would Mr Cuzman and Mr Bucataru, profit far more than this offender would appear to have profited. 63. I have had regard to s 3A Crimes (Sentencing Procedure) Act, as I must. This offending is serious offending, as the Crown pointed out. There is a need for both personal and general deterrence. I do not believe that the community requires protection from the offender. I have to make him accountable. I have to denounce his conduct and recognise any harm that may have been done by the supply of these drugs, although I do note, as I said earlier, he was not supplying to novices or ingénues but what I would understand people well entrenched in the drug usage scene and it may well be of course, given the provision of eight balls and the like, that people to whom he supplied themselves were going to supply to others. I do not find that as an aggravation against the prisoner. It is the fact that he was dealing with experienced drug users. But I am also here to try and promote his rehabilitation. 64. With regard to the aggravating, mitigating and other factors, I have referred to the relevant aggravating factors and I do note that the Court is not to have additional regard to any such aggravating factors in sentencing if it is an element of the offence and particularly s 21A(5) that any such aggravating or mitigating factor that is relevant and known to the Court does not require the Court to increase or reduce the sentence of the offence. 65. If I may turn to the mitigating factors; I could not conclude, without other evidence, that any injury, loss or damage was substantial. On the other hand, given what I have said about planning and organisation, I could not find on balance that the offence was not part of planned or organised criminal activity. Of course, the prisoner cannot get the benefit of the mitigating factor that he has prior good character or does not have a record of previous convictions. I cannot conclude without the aid of a crystal ball that he is unlikely to re-offend. But I have determined, ultimately, that he does have good prospects of rehabilitation in the context of his age and of course the matters to which I have earlier referred. I have concluded that he has exhibited remorse through his plea and his actions although he has not given evidence. 66. His plea of guilty is a mitigating factor, of course. I have taken that into account to accord him a discreet discount. I have taken into account everything else that has been put to me by his counsel, most of those matters I adverted to either directly or indirectly in the earlier observations that I have made. 67. The truth of the matter is that, by reference to the maximum penalty and any guidance the standard non-parole period gives, that the offending with which I am concerned is substantial offending. I bear in mind, of course, that the offender since he committed this offence has been dealt with with terms of imprisonment in relation to offending for which he was in part on bail at the time of the commission of these offences. 68. Thus, it has been determined by me in relation to the indictable matter that the appropriate starting sentence, all relevant matters taken into account before any relevant discount, is six years imprisonment. I have accorded the prisoner the 15% discount that I have identified. I have made a finding of special circumstances. 69. I have concluded, having rounded down I must say the head sentence from 61 and a half months to 61 months, five years and one month, that the appropriate non-parole period reflecting special circumstances should be as I have earlier identified. 70. Could you stand up, thanks very much, sir. In relation to the offence on the indictment you are convicted. You are sentenced to a term of imprisonment by way of non-parole period of two year four months. That term of imprisonment shall date from 21 January 2014 and will expire on 11 May 2016. The balance of sentence in relation to that sentence I have imposed will be two years and nine months and that will expire on 11 February 2019. You can take a seat. 71. In relation to the related offence you are convicted. You are sentenced to a term of imprisonment of 12 months. Because that offending is intimately connected to the offending for sentence in relation to the matter on the indictment, I propose to impose a term of imprisonment that is wholly concurrent with the principal sentence. That term of 12 months imprisonment will date from 12 January 2014 and expire on 11 January 2015. 72. HIS HONOUR: Any other matters from you, Mr Crown? 73. BOWERS: No, thank you, your Honour. 74. HIS HONOUR: You understand the sentence that's been imposed? You're eligible for release to parole on 11 May 2016, it'll be a matter for the Parole Authority as you probably know. But the issue is, as you know from your past experience, how you go in custody will determine that matter. I'm appreciative of the past experiences that you're going to have to perhaps confront again but I have got no control over the management of the prison system. But I can only wish you well on your release so that we do not have to see you back in court again. ​******** 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: 13 November 2015