Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Bao v R [2016] NSWCCA 16 Hearing dates: 9 February 2015 Decision date: 19 February 2016 Before: Chief Justice Bathurst at [1] Hoeben CJ at CL at [2] Acting Justice RS Hulme at [78] Decision: Leave to appeal granted. Appeal dismissed. Catchwords: CRIMINAL LAW – sentence appeal – five counts of supplying a prohibited drug and one count of possessing a precursor with intent to manufacture – different discounts for pleas of guilty averaged over indicative sentences – error conceded by Crown – need for Court to re-sentence – no lesser sentence warranted in law. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 – s 10A Criminal Appeal Act 1912 – s 5(1)(c) Criminal Procedure Act 1986 – s 166 Drug Misuse and Trafficking Act 1985 – s 24A(1)(a); s 25(1) Cases Cited: Glare v R [2015] NSWCCA 194 Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 House v R [1936] HCA 40; 55 CLR 499 Kentwell v The Queen [2014] HCA37; 252 CLR 601 Knight v R [2015] NSWCCA 222 Miletic v R [2008] NSWCCA 74 Pham v R [2014] NSWCCA 115 R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 R v Chidiac [2015] NSWCCA 241 R v Morgan (1993) 70 A Crim R 368 R v SY and Anor [2003] NSWCCA 291 R v Wicks [2012] NSWCCA 208 Vandeventer v R [2013] NSWCCA 33 Wong v The Queen [2001] HCA 64; 207 CLR 584 Category: Principal judgment Parties: Ann Bao – Applicant Regina – Respondent Crown Representation: Counsel: Mr G Jauncey - Applicant Ms S Herbert – Respondent Crown Solicitors: Jack Rigg Solicitors – Applicant Solicitor for Public Prosecutions – Respondent Crown File Number(s): 2014/129170 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 13 March 2015 Before: Blackmore DCJ File Number(s): 2014/129170 Judgment 1. CHIEF JUSTICE BATHURST: I agree with the orders proposed by Hoeben CJ at CL and with his Honour's reasons. 2. HOEBEN CJ at CL: Offences and sentence The applicant pleaded guilty to two series of offences. The first occurred on 30 April 2013. The second series of offences occurred on 29 April 2014. His Honour imposed an aggregate sentence of imprisonment of 5 years and 3 months with a non-parole period of 3 years and 8 months in respect of all of the offences. In total there were five offences of supplying a prohibited drug and one offence of possessing a precursor with intent to manufacture. There were also a number of matters on two separate Form 1 documents attached to each of the series of offences. 1. The supply offences were contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty in respect of each of the supply offences was imprisonment for 15 years and/or a fine of $220,000. The possess precursor offence was contrary to s 24A(1)(a) of the Drug Misuse and Trafficking Act 1985 in respect of which the maximum penalty was imprisonment for 10 years and/or a fine of $220,000. There was no standard non-parole period applicable to any of the offences. 2. The details of the offences and indicative sentences are: COUNT OFFENCE INDICATIVE SENTENCE 2013 Supply prohibited drug (6.92 grams methylamphetamine) 3 years 6 months Count 1 Form 1 Three counts of possess prohibited weapon (knuckledusters and two Tasers) Deal with proceeds of crime ($11,005) Count 2 Supply prohibited drug (10.69 grams MDMA) 3 years Count 3 Supply prohibited drug (47.8 grams 1,4 –butanediol) 3 years Count 4 Supply prohibited drug (10.46 grams methylamphetamine) 3 years 2014 Supply prohibited drug (13.89 grams methylamphetamine) 3 years 9 months Count 1 Form 1 Possess prohibited drug (.29 grams MDMA, 0.88 grams heroin, 0.53grams ephedrine, 2.14 grams methylamphetamine; 3.77 grams ephedrine) Count 2 Possess precursor with intent to manufacture (hypophosphorous acid) 2 years 6 months 1. The applicant was also dealt with for various related offences which were before the Court on two certificates, pursuant to s 166 Criminal Procedure Act 1986. Arising from the 2013 arrest there were three charges of possess prohibited drug (5.23 grams cannabis, .73 gram pseudoephedrine and .47 grams heroin) and one charge of possess equipment for administering prohibited drug. From her 2014 arrest, there was a charge of dealing with property reasonably suspected to be proceeds of crime ($5,485). With respect to each of these offences, his Honour entered a conviction with no other penalty pursuant to s 10A Crimes (Sentencing Procedure) Act 1999. 2. The applicant seeks leave to appeal against sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) on the following grounds: (i) The sentencing judge erred in sentencing the applicant on the basis that she had some criminal history. (ii) The sentencing judge erred in combining and/or averaging the applicable discount referable to the applicant's pleas of guilty for the offences in question. (iii) The sentence imposed was manifestly excessive. FACTUAL BACKGROUND 1. At about 6.40am on Tuesday, 30 April 2013 police attended an address in Pyrmont Street, Ultimo and executed a search warrant. When police knocked on the door and identified themselves, there was no response and entry was forced into the unit. The applicant and co-offender, Pang Liu, were inside the premises. Pang Liu was the applicant's de facto partner at that time. The applicant informed the police that she was the sole occupant of the premises and that Mr Liu was only staying the night. Lease papers for the property identified Mr Liu as the only lessee. 2. During a search of the premises, police located two small resealable bags containing a white crystalline substance on a computer desk in the lounge area. They also located an ice pipe and other drug paraphernalia on the kitchen table. When asked about these matters, the applicant said "Because I have a back problem I have to use ice to wake up otherwise I can't stand up, my back, yeah my back problems". The applicant was then arrested but remained in the premises during the rest of the execution of the search warrant. 3. Police continued searching the premises and found two small resealable bags containing a white crystalline substance which were located in a black container on top of the speaker in the computer desk. Testing subsequently identified the substance to be 6.92 grams of methylamphetamine. Police found one black coloured set of knuckle dusters under a table in the bedroom, three resealable bags containing four half blue coloured tablets and one brown coloured tablet within a metal tin in a black bag under the computer desk. Police found two resealable bags containing white/brown coloured powder in the same bag, two resealable bags containing white/brown coloured powder under the television in the lounge room. One pouch and two sets of digital scales were found on the computer desk as were one black coloured torch shaped Taser on the computer desk and one black coloured Taser in a box under the computer desk. Police found one black coloured digital money counter on the table in the lounge room, one resealable bag containing a white crystalline substance in a blue coloured Swarovski box in the lounge room and five resealable plastic bags containing 43 brown coloured tablets in a container on a shelf in the dining room. Testing identified those tablets as 10.69 grams of 3, 4-methylenedioxyamphetamine. 4. Three resealable bags containing a clear crystalline substance were found in a sunglasses case in the dining area. Testing identified the substance as 10.46 grams of methylamphetamine. Police found a glass bottle containing a clear liquid on a shelf near the dining table. Testing identified the substance as 47.8 grams of 1-4 butanediol. Police found one resealable bag containing a brown coloured tablet on the table in the dining room and one resealable bag containing brown powder on the dining room table. Testing identified the substance as 0.47 of a gram of heroin. 5. Police found one resealable bag containing a white crystalline substance on a table in the dining room and four resealable bags containing vegetable matter. Testing identified the vegetable matter as 5.23 grams of cannabis leaf. Police found $9,220 in Australian cash under the bed in an envelope in three bundles and a further $800 in cash was found in other parts of the unit. Police found a black notebook and three Apple iPhones and an iPad near the cash underneath the bed and two resealable bags containing white/brown powder. Testing identified this as 0.73 of a gram of pseudoephedrine. 6. The applicant was charged and read her rights. A total of $1,185 in US currency was located in her purse and this was also seized by police. The applicant voluntarily participated in an electronic interview with a Mandarin interpreter present. 7. In the statement, the applicant said that she was unemployed and was not receiving any form of income. She was renting the premises for $580 a week. She allowed friends and other people unknown to her to sleep in the apartment for a small fee. She used ice to self-medicate her back pain. She admitted possession of the cannabis, heroin and what was initially believed to be cocaine but subsequently analysed to be pseudoephedrine. She denied any knowledge of MDMA, methylamphetamine and what was initially believed to be GHB, but subsequently turned out to be 1-4 butanediol. She was in a de facto relationship with Mr Liu. She said that the cash which was located came from him and that he gave her the money to cover a debt and to pay her rent. 8. Mr Liu was searched and three mobile phones were found. His motor vehicle was searched and a quantity of drugs were found. He was charged in relation to the matters arising out of the search of his car and in relation to the drugs and other items located in the apartment. 9. On 17 November 2014 a lawyer representing Mr Liu advised the Court that he had returned to China where he had been arrested and was in custody for drug offences. The court was told that Mr Liu would be unable to return to Australia until his court matters in China were resolved. 10. The applicant obtained bail in relation to this first series of offences in October 2013. 11. The second series of offences occurred on 29 April 2014. On that day police executed a search warrant in respect of premises in Forest Road, Hurstville. The applicant was the sole lessee and resident of those premises. The premises comprised an apartment with one small bedroom, a laundry, bathroom, open kitchen and a combined lounge and dining room. It was necessary for police to force entry into the apartment. 12. When entry was obtained, three persons were in the premises – the applicant, a Mr Silik and a Ms Cruise. Mr Silik tried to prevent the officers from entering by placing a shopping trolley against the door and when entry was obtained he was observed to throw a glass bottle containing brown liquid into the toilet. The bottle smashed and the brown liquid covered the toilet floor and the wall. 13. At the time of entry, the applicant was seated on a couch with a small table in front of her. On the table was a computer and a set of keys attached to a security swipe card. The swipe card belonged to the applicant and provided access to the lift area of the apartment complex. There was a small table to the left of the applicant. On that table was a book entitled 'Paper Planes'. Police conducted a search of the premises. 14. In the lounge room police found a storage box which contained identification in the name of the applicant and two clear resealable bags containing 2.42 grams of methylamphetamine and one clear resealable bag containing a single 3, 4-methylenedioxyamphetamine tablet, i.e. an ecstasy tablet, weighing 0.29 grams. In other parts of the lounge room police found a clear resealable bag containing 0.88 of grams of heroin and a clear resealable bag containing 0.53 of a gram of crystalline ephedrine. The police located numerous empty resealable bags as well as mobile phones and digital scales in the premises. 15. Police searched the applicant's purse and located $1,385 in Australian currency in $50 notes. Concealed within a cushion, police found a bundle of Australian currency totalling $1,000 consisting of $50 and $100 notes. Within the bedroom police located a further bundle of $3,100 in Australian currency consisting of $50 and $100 notes concealed within a wrapped up curtain. In total the amount of money seized was $5,485. The applicant said that this money was the proceeds of sex work which she had carried out. 16. When police inspected the 'Paper Planes' book on the table in the lounge room they found that it contained a small concealed lockable compartment. Police used a key attached to the applicant's swipe card to open the compartment. It contained four resealable plastic bags which held 13.89 grams of methylamphetamine. 17. Police took swab samples from the dark brown liquid in the bathroom and located four bottles containing a similar brown liquid. The total weight of the liquid was 3.77 kilograms. This liquid was analysed and found to contain ephedrine. Police also located one litre of xylene in the premises. 18. Police located a 1.25 litre bottle containing 1.364 kilograms of a clear liquid which was later found to contain hypophosphorous acid. These substances, in conjunction with ephedrine and iodine, produce methylamphetamine. 19. On this occasion the applicant declined to participate in a record of interview. Sentence proceedings 1. Having reviewed the agreed facts, his Honour found that the offences were serious as was demonstrated by the maximum penalties attaching to them. He found that it was clear that the applicant was dealing in drugs to some significant extent and as a consequence, the appropriate penalty would be one of fulltime custody. His Honour noted that no submission to the contrary had been made. He found that the applicant and Mr Liu in relation to the first series of offences, were running a significant drug supply business. 2. His Honour found that the fact that the applicant was prepared to continue her drug supply business while on bail for the first series of offences was a serious aggravating factor. In that context, his Honour said: "I note that the offender has little by way of prior criminal history and is entitled to a finding that she is a person of prior good character. These episodes appear to be out of character for her. She is entitled to be treated with some leniency as a result of this finding." (Sentence judgment 8.7) 1. His Honour had regard to the applicant's subjective case and in particular to a report of Dr Richard Furst, psychiatrist, dated 10 February 2015. The applicant gave evidence in the sentence proceedings. 2. His Honour found that the applicant started using drugs in 2009 when she met Mr Liu. Mr Liu had returned to China and was not expected back in Australia for a lengthy period of time. It was after meeting him that the applicant became involved in using the drug ice. She had not been a drug user before this. 3. The applicant had a son from an earlier relationship but because of her drug use, her mother came from China and took the child back to China where he currently remains. 4. The applicant continued to use drugs, principally ice and ecstasy. Due to her need for cash, she started working as an escort and sex worker in 2012. Before her involvement with Mr Liu, the applicant had been working for Vodafone for three years. His Honour concluded that the drugs consumed by the applicant had put her into a downward spiral in her life. 5. The applicant in evidence and in the psychiatric report, said that she would like to rehabilitate from drug use and go back to China to retrieve her son. At the time of the sentence proceedings he was aged eight and the applicant wanted him to be educated in Australia. She no longer had any connection with Mr Liu and her son was her major incentive to continue rehabilitation. 6. His Honour concluded that the applicant had reasonable prospects of full rehabilitation. His Honour also found that the applicant had shown some contrition by her plea and he took that into account. 7. It was at this point in the sentence judgment that his Honour said: "Given the seriousness of the offending overall had these cases gone to trial a sentence of seven years imprisonment would have been applied. I note in relation to the first series of offences the offender pleaded guilty just before trial, that is it was a late plea of guilty. In relation to the second series of offences she pleaded guilty in the Local Court. I will allow a combined discount of 17.5% in respect of her pleas of guilty." (Sentence judgment 9.8) 1. His Honour found special circumstances and proceeded to impose the sentence set out earlier in these reasons. THE APPEAL Ground 1 – The sentencing judge erred in sentencing the applicant on the basis that she had some prior criminal history. 1. The applicant submitted that his Honour made a factual error when he referred to her having "little by way of prior criminal history" when she in fact had no criminal history. She submitted that even though his Honour gave her the benefit of a finding of previous good character, he did so in the context of a finding that she did have some previous (albeit limited) criminal history. The applicant submitted that once clear error is established the Court should not assess whether and to what extent the error influenced the outcome but should proceed to re-sentence. 2. The Crown accepted that the applicant had no criminal history. It submitted that although this was a factual error by his Honour, it did not cause the sentencing discretion to miscarry in that the sentencing judge treated the applicant as a person of good character. The error had no practical consequences and as a result, did not amount to the sort of error identified in House v R [1936] HCA 40; 55 CLR 499. Consideration 1. In relation to the first series of offences his Honour was clearly in error and at that time the applicant had no criminal history. In relation to the second series of offences, however, the situation is different. At that time the applicant did have a criminal history and the fact of the earlier offending of a similar kind was relevant to the sentence process. 2. In any event, it is clear from the sentence judgment that his Honour's error produced no practical consequences in the sentence which was imposed and that this is not the sort of error which would entitle this Court to intervene and re-sentence the applicant. This ground of appeal should be dismissed. Ground 2 – The sentence judge erred in combining and/or averaging the applicable discount referable to the applicant's pleas of guilty for the offences in question 1. The applicant submitted that his Honour erred when he averaged or combined the applicable discounts as between the first and second series of offences. The applicant submitted that the pleas in each series of offences were of significantly different utilitarian value in that the 2013 pleas were early and worthy of a 25% discount whereas the 2014 pleas were late, coming the day after the date set for trial, and were probably worth in the order of 10%. 2. The Crown accepted this submission and agreed that where there were multiple offences and pleas at different times, the utilitarian value of the plea needed to be separately considered with respect to each offence (R v SY and Anor [2003] NSWCCA 291; R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 at [32].) The Crown also accepted that the discounts suggested by the applicant in her submissions of 10% and 25% were appropriate. 3. The Crown identified an error in the applicant's submissions in that it was the first series of offences in 2013 which were subject to a late plea of guilty and it was the series of offences which occurred in 2014 which were early pleas and thus entitled to a discount of 25%. 4. The Crown having accepted that the sentencing judge was in error by applying a combined discount, also accepted that it would be open to this Court to find that his Honour's discretion miscarried and that it was necessary for this Court to exercise the sentencing discretion afresh. Consideration 1. As the Crown properly conceded, his Honour was in error in applying an average discount to the indicative sentences. For the reasons set out by both the applicant and the Crown, the correct procedure was for his Honour to apply the appropriate discount to each of the indicative sentences. The correct approach was set out by Hamill J (Leeming JA and Fagan J agreeing) in Glare v R [2015] NSWCCA 194: "12 Where a sentencing judge imposes an aggregate sentence under s 53A Crimes (Sentencing Procedure) Act 1999 (NSW), the Judge must record the individual sentences that would have been imposed on each count. These individual "indicative" sentences should represent the sentence after the application of a discount for a plea of guilty or similar: s 53A(2)(b); R v Cahill [2015] NSWCCA 53. In R v Cahill Johnson J (with whom Leeming JA and Schmidt J agreed) said: "107 The indicative sentences here constituted a series of head sentences. The indicative sentences should have factored in the discount for the Respondent's pleas of guilty: s.53A(2)(b); JM v R [2014] NSWCCA 297 at [39](3). 108 The sentencing Judge did not comply with the requirements of s.53A(2)(b) and s.54B(4) Crimes (Sentencing Procedure) Act 1999. Compliance with s.53A(2)(b) would have seen indicative sentences assessed by taking into account such matters in Part 3 (ss.21-43) or elsewhere in the Crimes (Sentencing Procedure) Act 1999 as were relevant. These included, amongst other things, the Respondent's pleas of guilty and any factors under s.21A Crimes (Sentencing Procedure) Act 1999 which applied. 109 It was erroneous to select an aggregate sentence and then apply a 25% discount for the Respondent's pleas of guilty to that sentence. The purpose of s.53A should be kept in mind. In the course of a valuable summary of principles surrounding aggregate sentencing, RA Hulme J (Hoeben CJ at CL and Adamson J agreeing) said in JM v R at [39](1): 'Section 53A was introduced in order to ameliorate the difficulties of applying the decision in Pearce v The Queen [1998] HCA 57; 194 CLR 610 in sentencing for multiple offences: R v Nykolyn [2012] NSWCCA 219 at [31]. It offers the benefit when sentencing for multiple offences of obviating the need to engage in the laborious and sometimes complicated task of creating a 'cascading or 'stairway' sentencing structure' when the principle of totality requires some accumulation of sentences: R v Rae [2013] NSWCCA 9 at [43]; Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 at [231]; Behman v R [2014] NSWCCA 239; R v MJB [2014] NSWCCA 195 at [55]-[57].'" 1. Since this error was of significance and may well have affected the aggregate sentence to the detriment of the applicant, it is necessary for this Court to exercise the sentencing discretion afresh in accordance with the High Court's decision in Kentwell v The Queen [2014] HCA37; 252 CLR 601 at [40] – [43]. Ground 3 – The sentence imposed was manifestly excessive 1. It is not necessary to further consider this ground of appeal given the applicant's success in establishing error in respect of ground 2. Submissions on re-sentence of applicant 1. The Court was advised that during her time in prison the applicant had completed the EQUIPS Addiction Program which comprises 20 sessions. The applicant had advised her solicitors that she would also be willing to participate in any further drug and alcohol rehabilitation programs which were available to her while in custody. 2. The Court has taken these matters into account in re-sentencing. 3. The applicant submitted that although she was on both occasions of offending found in possession of drugs and other illicit substances, the supply offences were deemed rather than actual. She submitted that the quantities of methylamphetamine, which made up all but one of the supply offences were well below the applicable commercial quantities (250g) and fell towards the bottom of the indictable range. The applicant submitted that it was clear that at least some of the drugs were for her personal use. She accepted that while this latter matter was not a mitigating factor per se, it did inform the Court of her motivation for the offending under consideration. 4. The applicant submitted that she was aged 42 at the time of the 2013 series of offences and had no criminal history before that time. Before meeting the co-offender, Pang Liu, and her introduction through him to illicit drugs, she had been gainfully employed and had otherwise led a law abiding life. 5. The applicant submitted that she should not be characterised as a "principal" in relation to either the 2013 or 2014 offences although her involvement was by no means insignificant. She submitted that the drug enterprise on the available evidence could only be described as a relatively unsophisticated street level operation. She submitted that as such her drug addiction as the motivation for the offending was important. 6. In proceedings before this Court (although not raised in the sentence proceedings below) the applicant submitted that the Court should take into account her "relative vulnerability" in relation to the co-offender, Pang Liu. The applicant referred to her evidence that not only did her drug use commence relatively late in life, following the commencement of her relationship with him, but she had lied to the police in relation to the 2013 offences telling them that everything was hers because she was "very scared about this man" (T.13.2.2015 at p5.50). The applicant submitted that her vulnerability to Pang Liu and her exploitation by him was relevant to the objective seriousness of the offending. The applicant also referred to what she had told Dr Furst "that Pang changed and was not treating her well in 2012". 7. The applicant noted that although his Honour had on several occasions referred to the offending being serious and had indicated that had matters gone to trial a sentence of 7 years would have been likely, he made no specific finding as to the objective seriousness of the offending. The applicant submitted that taking everything into account the objective seriousness of the offending fell comfortably below the midline of objective seriousness for offences of this kind. 8. The applicant placed before the Court a summary of 50 decisions handed down by the courts between 1993 and 2015 where the supply of amphetamines in a less than commercial quantity had been involved. She submitted that by reference to the sentences imposed in those cases, the aggregate sentence imposed in this matter was towards the top of the range. In making that submission, the applicant conceded that there were significant limitations in the use of that statistical material, particularly because of the abbreviated information available in respect of each of the matters. 9. The applicant relied specifically on two decisions as providing a useful guideline to the Court when re-sentencing. The applicant submitted that in R v Wicks [2012] NSWCCA 208 the offender had pleaded guilty to two offences of supply methylamphetamine attracting a 25% discount (the quantities being 28.9g and 26.9g). There were four further supply matters taken into account on a schedule. The offender was involving in the supply of drugs with others, including members of his family. He was of prior good character before the offending. It was the offender's first time in custody. The sentence imposed (affirmed on appeal) was one of 3 years and 3 months with a non-parole component of 1 year and 9 months. 10. The second case relied upon by the applicant was Miletic v R [2008] NSWCCA 74. There the offender had pleaded guilty (25% discount) to multiple counts of supply (10) including one count of ongoing supply. There were a further eight offences on a schedule of a similar nature. The weights involved were less than a commercial quantity. Except for two of the offences, the drug involved was cannabis. The offender had a prior record although not for drug offences. The offender was the main participant in the enterprise. He received a head sentence of 4 years and 8 months with a non-parole period of 3 years. 11. In summary, the applicant submitted that even allowing for the limitations of such statistics and the fact that only two cases were referred to in detail, this material supported the proposition that the overall offending in this case was such that a lesser sentence was warranted in law. This was particularly so because of her strong subjective case. 12. The Crown submitted that the applicant failed to have regard to the findings made by his Honour, i.e. "that the offender was dealing in drugs to some significant extent" and that the applicant and Pang Liu "in relation to the first series of offences were running a significant drug supply business. The fact that the offender was prepared to continue her supply business while on bail for an earlier series of offences is a serious aggravating factor on sentence". (Sentence judgment 8.3) 13. The Crown submitted that neither of the cases relied upon by the applicant involved offences committed while on bail for earlier serious offences for which the offender was to be sentenced which was a serious aggravating factor in this matter. The Crown also noted that the utilitarian discount for the plea of guilty in each of R v Wicks and Miletic v R was 25%. 14. In relation to R v Wicks the Crown submitted that the offender was a young man aged 24 at the time of sentence whose offending was out of character in that he had otherwise been a good parent and citizen and had not used any prohibited drugs following his arrest. There was evidence before the court of a significant change for the better on his part after his arrest. Importantly, the only ground of appeal was one of parity. 15. In relation to Miletic v R the Crown submitted that there was no evidence that the offender was involved in a large network. He was conducting a small scale drug supply enterprise involving small quantities. He did not have the benefit of good character due to a criminal record for offences other than the supply of prohibited drugs. The offences on the Form 1 in his case were less serious than either of the Form 1 schedules in this case. The only grounds of appeal considered by the Court were the degree of accumulation and parity. 16. The Crown submitted that neither case could demonstrate that the sentence imposed in this matter was beyond the wide discretion available to his Honour and that the applicant was entitled to a lesser sentence. 17. The Crown submitted that by the time of the commission of the first series of offences, the applicant was aged 42 and was using methylamphetamine daily. She no longer had the care of her child and with Pang Liu was in joint possession of a variety of prohibited drugs. There were indicia of supply and of drug usage, a number of prohibited weapons and more than $11,000 in cash being the proceeds of crime. The Crown submitted that these were matters which supported his Honour's conclusion that the applicant was dealing in drugs to a significant extent at that time. 18. The Crown submitted that in accordance with what Dr Furst was told the applicant was drug free at the time of her release on bail in October 2013 after having spent more than five months in custody. By this time, Pang Liu was in China and played no role in the 2014 series of offences. The Crown noted that in breach of her bail conditions, the applicant had not only resumed using drugs In January of 2014, but had also resumed drug supply by the time of her arrest on 29 April 2014. The Crown noted that on this occasion the applicant was not only involved in the supply of prohibited drugs, but was in possession of precursor chemicals from which it could be inferred that she was involved in the manufacture of prohibited drugs. 19. The Crown submitted that because the applicant was a user of methylamphetamine and MDMA, the finding of a "plethora and variety of small quantities of different drugs" was consistent with them being for supply rather than personal use. The Crown submitted that the $11,005 found in the premises on 30 April 2013 was accepted as being as the proceeds of crime and provided some indication of the extent of the drug supply operation being conducted by the applicant and her co-offender. 20. The Crown took issue with the applicant's submission that her aggregate sentence was towards the top of the range of sentences imposed for drug supply involving less than a commercial quantity. The Crown submitted that the comparison was between an aggregate sentence imposed for multiple offences and the sentence imposed for a principal offence. This was to compare quite different things. On that issue, the Crown relied upon the observations of RA Hulme J (with whom Macfarlan JA and Garling J agreed) in Knight v R [2015] NSWCCA 222 where his Honour said: "7 Selection of the variable "multiple offences" is of no real utility in this context either. It does not confine the database to multiple instances of the offence of knowingly taking part in the supply of amphetamines in less than the commercial quantity. The "multiple offences" variable simply selects cases in which an offender was sentenced for a particular offence as well as one or more offences of any type. Comparing a case such as the present where a person was sentenced for four counts of drug supply with cases which might involve one drug supply offence and other possibly unrelated offences not necessarily of the same level of seriousness is of no utility. 8 Then there is the problem identified by Garling J that the Judicial Commission does not maintain statistics for overall or aggregate sentences imposed in multiple offence sentencing exercises. The statistics only relate to what is identified as the "principal offence" in any sentencing exercise. …" 1. In summary, the Crown submitted that no lesser sentence than that imposed by his Honour was warranted in law because the criminality engaged in by the applicant was serious, she was a woman of mature years and one who appeared to be of above average intelligence when she embarked upon these offences. She was running a significant drug supply business with her co-accused in April 2013 involving a variety of different prohibited drugs in quantities comfortably over trafficable quantities. When considering the sentences imposed for that series of offences and for those which took place in 2014, the matters on the Form 1 had to be taken into account. The Crown noted that having been arrested and imprisoned for a period of more than five months, the applicant upon her release, again started using prohibited drugs and again became involved not only in the supply of prohibited drugs but also their manufacture. It was a significant aggravating factor in relation to the 2014 series of offences that they were committed while on bail for similar offences. 2. The Crown submitted that the aggregate sentence was one which was wholly warranted in law on the given facts. Consideration 1. In re-exercising the sentencing discretion this Court has to make its own assessment of the applicant's offending. In doing so, I accept the thrust of the Crown's submissions which in my opinion accord with the available evidence and the findings by the sentencing judge which have not been challenged. 2. Little assistance is provided by R v Wicks and Miletic v R upon which the applicant relied. This Court has emphasised on numerous occasions (applying R v Morgan (1993) 70 A Crim R 368) that it is impermissible to reason by reference to the result in a limited number of cases that do not form a comparable range of sentences. In Pham v R [2014] NSWCCA 115 at [57] with the agreement of Adams and Hall JJ, I said: "57 There are, however, considerable limitations in relying upon a series of individual cases to establish some kind of range of sentences. In that regard, the observations recently made by Adamson J (with whom Simpson and Davies JJ agreed) in Dang v R [2014] NSWCCA 47 are apposite: "55 Care must be taken in drawing direct comparisons between sentences passed, those to be passed and those which are, or have been, the subject of appeal: see generally, Hili v The Queen; Jones v The Queen [2005] HCA 45; (2010) 242 CLR 520 at [53]- [56] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. Sentencing requires the exercise of discretion. The factors that are germane to the exercise of the discretion include deterrence, both general and specific, rehabilitation and punishment. The exercise of the discretion requires consideration of objective circumstances (the seriousness of the offending conduct) as well as subjective circumstances pertinent to the offender. The number of factors to be taken into account as either mitigating or aggravating under s 21A of the Crimes (Sentencing Procedure) Act 1999 provides an indication of the complexity of the exercise and the concomitant difficulty of identifying "comparable cases". Although it is orthodox for such cases to be identified for the benefit of the sentencing judge, they can be no more than a guide."" 1. In Vandeventer v R [2013] NSWCCA 33 at [45] Adamson J (with whom McClellan CJ at CL and Rothman J agreed) observed: "45 One cannot adjudge whether a sentence falls within an appropriate range by reasoning from particular instances. Applicants will always be able to find cases where offenders appear to have been dealt with more leniently. So, too, will the Crown be able to find cases where offenders have apparently been dealt with more severely than the applicant for leave to appeal on sentence. This is not, however, the way in which this Court determines whether a sentence is manifestly excessive." 1. The summary of fifty cases provided to the Court is of little assistance because of the paucity of information in relation to each case. In any event, eight of those cases involved sentences significantly higher than that imposed in this case. The cases do not appear to form an applicable range because of the different factual circumstances and subjective features in each of them. None of the cases had the seriously aggravating feature of similar offences being committed while on bail. 2. As the applicant accepted, the statistics from the Judicial Commission in support of her submissions are a "blunt tool" given the lack of particularising details about both the offences and the offenders. Statistics show a range of sentences actually imposed in the past, not the correctness of that range nor its applicability to a given case: Wong v The Queen [2001] HCA 64; 207 CLR 584 at [59]. As was observed in Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [48], [54] – [55] with respect to consistency of sentencing, what is sought is consistency in the application of relevant principles not some numerical or mathematical equivalence. 3. In R v Chidiac [2015] NSWCCA 241 by Price J (with whom Bathurst CJ and Beech-Jones J agreed) said: "40 Little weight can be placed on the Judicial Commission sentencing statistics referred to by the applicant. In offences involving the manufacture and supply of amphetamines (less than the commercial quantity), there is a broad range of weight and purity of the drug that is not identified by the statistics. Furthermore, the role of offenders in the commission of such offences can vary greatly. The statistics do not identify whether other offences on a Form 1 were taken into account on sentence or whether there were aggravating features, such as being on conditional liberty at the time of the offending, that were factors in the sentencing exercise." 1. Given the circumstances of the applicant's offending and notwithstanding the errors to which reference has been made, I am not persuaded that any of the indicative sentences were excessive. Furthermore, the circumstances surrounding the commission of the 2014 series of offences render them significantly more serious than those which occurred in 2013. Not only was the applicant on bail at the time, but she was on bail for offences of a similar kind. Indicative sentences imposed for the 2014 supply offence should be substantially higher than those imposed for the supply offences of 2013. Similarly, the sentence imposed for the possession of the precursor should be significant. This is despite the fact that the applicant would have been entitled to a 25% discount in respect of those sentences. Moreover, indicative sentences imposed in respect of the 2013 series of offences would have been discounted by no more than 10%. 2. Taking all those matters into account I am satisfied that in the re-exercise of the sentencing discretion in respect of both series of offences, no lesser sentence than the aggregate sentence imposed by his Honour is warranted in law. 3. Accordingly, the orders which I propose are as follows: 1. Leave to appeal is granted. 2. The appeal is dismissed. 1. RS HULME AJ: I agree with the orders proposed by Hoeben CJ at CL and with his Honour's reasons. *********** 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: 19 February 2016