Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: YY v Regina [2016] NSWCCA 124 Hearing dates: 20 April 2016 Date of orders: 24 June 2016 Decision date: 24 June 2016 Before: Harrison J at [1]; RA Hulme J at [67]; Schmidt J at [68]. Decision: (1) Allow the appeal. (2) Quash the sentence for Count 3 imposed by this Court in March 2011. (3) In lieu of the sentence imposed by this Court for Count 3 in March 2011, sentence the appellant to a term of imprisonment of 8 years and 3 months commencing on 26 August 2009 and expiring on 25 November 2017 with a balance of term of 2 years and 9 months expiring on 25 August 2020. (4) The first date upon which the appellant will become eligible for release on parole is 26 November 2017. Catchwords: APPEAL – criminal appeal – sentence – large commercial quantity of prohibited drugs – where Muldrock error identified – strong post-sentence subjective case Legislation Cited: Crimes Act 1900 Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Drug Misuse and Trafficking Act 1985 Cases Cited: House v The King [1936] HCA 40; (1936) 55 CLR 499 Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 Louizos v R [2014] NSWCCA 242 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Category: Principal judgment Parties: YY (Applicant) Crown (Respondent) Representation: Counsel: T Game SC with J Roy (Applicant) H Baker (Respondent) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2015/359325 Publication restriction: Nil Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: March 2010 Before: Sorby DCJ File Number(s): 2015/359325 Judgment 1. HARRISON J: The appellant pleaded guilty to three counts of supplying a prohibited drug contrary to s 25 of the Drug Misuse and Trafficking Act 1985. He was sentenced in March 2010 in the District Court of New South Wales. He successfully appealed against that sentence to this Court and was re-sentenced in March 2011 as follows: Count 1: supplying a prohibited drug, namely 8.02 grams of cocaine, contrary to s 25(1) of the Act - imprisonment for 12 months commencing on 26 February 2009 expiring on 25 February 2010. Count 2: supplying a prohibited drug, namely 85.15 grams of cocaine, contrary to s 25(1) of the Act - imprisonment for 2 years commencing on 26 August 2009 expiring on 25 August 2011. Count 3: supplying a large commercial quantity of a prohibited drug, namely 5.9573 kilograms of cocaine, contrary to s 25(2) of the Act - taking into account the Form 1- imprisonment for a non-parole period of 9 years commencing on 26 August 2009 expiring on 25 August 2018 with a balance of term of 3 years expiring on 25 August 2021. Form 1: two charges of supply prohibited drug and two charges of possess unlawfully obtained goods were taken into account in accordance with ss 32 and 35 of the Crimes (Sentencing Procedure) Act 1999. Section 166 Certificate: deal with property suspected to be proceeds of crime, namely $1,313,700, contrary to s 193C(1) of the Crimes Act 1900 - a fixed term of imprisonment of 18 months commencing on 26 February 2009 expiring on 25 February 2010. 1. Counts 1 and 2 attracted a maximum penalty of 15 years imprisonment with no standard non-parole period. Count 3 attracted a maximum penalty of life imprisonment with a standard non-parole period of 15 years. 2. Following a somewhat complicated appellate history thereafter, the precise details of which it is presently unnecessary to recite, the appellant's case was referred to this Court pursuant to s 86 of the Crimes (Appeal and Review) Act 2001. In those circumstances, this Court is required to approach the present proceedings "as if the Court of Criminal Appeal's sentence [in March 2011] was itself the subject of an appeal under s 5(1)(c) of the Criminal Appeal Act 1912, such that if error be detected, it is for this court itself to impose the appropriate sentence pursuant to s 6(3)": Louizos v R [2014] NSWCCA 242 at [6]. Leave to appeal is not required. 3. The appellant appeals upon a single ground as follows: Ground 1: The sentencing judge at first instance and then the Court of Criminal Appeal in the appellant's initial appeal erred in their consideration of the standard non-parole period in light of the principles identified in Muldrock v The Queen (2011) 244 CLR 120. 1. Section 6(3) 0f the Criminal Appeal Act 1912 provides as follows: "6 Determination of appeals in ordinary cases (3) On an appeal under section 5 (1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal." 1. The Crown concedes the error contended for by the appellant. However, the Crown submits that after exercising its own independent sentencing discretion, this Court would conclude that no lesser sentence is warranted in law. The single issue in this appeal is therefore that arising under s 6(3) of the Criminal Appeal Act. Details of the offending 1. In August 2008, Rose Bay detectives commenced investigations into the supply of prohibited drugs by the offender in the eastern suburbs of Sydney. On 23 September 2008, a controlled operation was undertaken. Count 1 1. On 24 December 2008, an undercover operative arranged to meet the appellant at the Paddington Bowling Club car park at the end of Quarry Street, Paddington. The undercover officer handed the applicant $2,500 in pre-recorded buy money, and received thirteen small resealable plastic bags containing a quantity of white powder. A subsequent analysis of the white powder by the Division of Analytical Laboratories revealed the substance to be cocaine, with a total weight of 8.02 grams. 2. The facts in relation to the first offence on the Form 1 concern similar events that occurred on 30 December 2008. The total weight of cocaine was 8.1 grams. 3. The facts in relation to the second offence on the Form 1 were as follows. At approximately 9.45am on 25 February 2009, police commenced surveillance of the appellant. At approximately 11.40am, the appellant drove from his home address in Sutherland Street, Paddington. He was followed to the Phoenix Hotel at the corner of Moncur and Wallis Streets, Woollahra. A man got out of the front passenger seat of the vehicle. The vehicle drove about a further fifteen metres before stopping, and another person got out of that vehicle. The vehicle then drove off and the person who got out was stopped and searched. Located in his sock were two small resealable plastic bags containing a quantity of white powder. A subsequent analysis of the white powder by the Division of Analytical Laboratories revealed the substance to be cocaine with a total weight of 1.44 grams. Count 2 1. The facts, in part, in relation to Count 2 on the indictment and offence number 3 on the Form 1 are as follows. At approximately 11.50am, the appellant was stopped in a motor vehicle in Ocean Street, Woollahra. He was arrested and cautioned. When he was removed from the motor vehicle, a silver-blue and white metal canister fell onto the roadway and was recovered by police. Located inside it were forty-six resealable plastic bags containing a quantity of white powder. These items were seized. Also located in the vehicle was a spiral notepad containing names and figures and two mobile telephones. The offender was searched and found to be in possession of $3,740. A subsequent analysis of the white powder by the Division of Analytical Laboratories revealed the substance to be cocaine with a total weight of 34 grams. 2. The further facts in relation to Count 2 in the indictment and offence number 4 on the Form 1 are as follows. Police executed a search warrant at the appellant's residence in Sutherland Street, Paddington. During the search, the police located a black backpack containing an A4-sized envelope with nine bundles of cash totalling $50,000. This money was seized. The black backpack contained another A4-sized envelope that was sealed. This envelope contained two vacuum-sealed bags with numerous smaller resealable plastic bags containing quantities of white powder. A subsequent analysis of the white powder by the Division of Analytical Laboratories revealed the substance to be cocaine with a total weight of 51.15 grams. Count 3 1. On 26 February 2009, the police received information that the appellant owned premises in Sutherland Crescent, Darling Point, where he kept prohibited drugs. Police executed a search warrant at these premises and located the following things: 1. A cardboard box containing fifty bundles of $50 notes bundled into $5,000 amounts totalling $250,000. 2. A cardboard box containing one hundred bundles of $50 notes, bundled into $5,000 amounts totalling $500,000 and fifty bundles of $100 notes bundled into $10,000 amounts totalling $500,000. 3. Two bundles of notes totalling $18,700. 4. A Nokia mobile telephone box containing nine bundles of $50 notes bundled into $5,000 amounts totalling $45,000. 5. 350 resealable plastic bags and seven packages containing 255 grams of cocaine. 6. 2,000 resealable plastic bags in forty packages containing 1.47 kilograms of cocaine. 7. Two compressed blocks of beige substance being cocaine weighing 992.2 grams and 994.5 grams respectively. 8. Six lots of five plastic bags in a heat-sealed package containing 2.2456 kilograms of cocaine. 9. A total of $1,313,700 in cash and 5.9573 kilograms of cocaine was located on the premises. 10. A number of unused resealable plastic bags similar to those containing the cocaine, and an electronic money counting machine. 1. On 27 February 2009, the appellant attended the Rose Bay Police Station and was arrested. He declined to be interviewed. Appellant's submissions 1. These submissions sought to emphasise the appellant's strong subjective case, particularly in light of developments since March 2011. The matters referred to are supported by recent affidavits upon which the appellant relied in this Court. These are referred to below. Subjective features 1. The appellant was born in September 1972. He was 36 years old at the time of the offending and is now 43 years old. The uncontested evidence reveals the following things about him. 2. The appellant had an ambivalent relationship with his parents, particularly his mother, and a distant relationship with his father. He had a good relationship with his aunt and uncle, the latter being a police officer who gave evidence on his behalf in earlier proceedings. He had a long history of employment, starting when he was 15 years of age. He acquired and successfully operated his own restaurant business and was involved in modest property development. 3. The appellant had a minor criminal record of no present significance. He demonstrated remorse. 4. The appellant began using cocaine as a stimulant to boost his energy levels while operating restaurants from 2000 to 2007 and while caring for his chronically ill father from 2003 until his death in 2008. The appellant then became involved in selling cocaine initially as a source of funds to pay his business suppliers. His own cocaine problem began to erode his wealth and began to affect his health and judgment. He was not motivated by greed and did not cut or dilute the cocaine that he on-sold. His hyper manic style of socialising and energy led to his wide acceptance in the Eastern Suburbs of Sydney, which he found extremely rewarding as a motivation for continuing to supply cocaine. 5. Although his supply operation was of a significant size, the appellant was not involved in an organized supply chain and he had no one beneath him in any hierarchy. The scale of his supply operation was instead said to be a product of his engaging personality. 6. The appellant's offending was consistent with what Dr Rowe described as "an impulsive, careless, poorly considered thought process." One example of that consisted in the fact that a tin full of cocaine fell out of his car when he was pulled over and arrested by the police. Dr Rowe considered that the appellant was not a "seasoned drug dealer" but rather an "impulsive, careless and disorganised individual with an inattention to detail…suffering the effects of a hyper manic episode together with other psychiatric symptoms" who "did not consider the potential consequences of his actions or the potential dangers to himself and his family or the community members who were using the cocaine." Assistance 1. The appellant has been required to serve his custody in protection. He was originally given a 25 percent discount for his early plea of guilty and a further 20 percent discount for his assistance to authorities. Matters relevant to the appellant's assistance have been referred to in the affidavit of his former solicitor, Wayne Vincent Annis-Brown, sworn 9 December 2010. That affidavit deals with the appellant's conditions in custody in protection, and the fact that his family have had to leave Australia as the result of direct threats made to them. Education and personal circumstances 1. The appellant's first child was an infant at the time of his arrest, and his second child was born while he was in custody. Mr Annis-Brown's affidavit also details the appellant's progress towards a Bachelor of Business degree while in custody, as well as additional courses undertaken by him in literature and technology. 2. The appellant was moved from a Sydney gaol to a correctional centre in country New South Wales on 8 June 2011, where he remained on protection. Although that move was in some respects an improvement for him, the appellant received far fewer visits there from his friends and family. The appellant unsuccessfully sought a prison transfer to the United Kingdom to be closer to his family. The appellant's wife commenced proceedings for divorce in 2014 as a result of the strain associated with the length of his sentence, associated uncertainties for her and the children, and her anxiety about the future and the appellant's release. The appellant has not seen his children since 2014 although he maintains weekly telephone contact with them. 3. These circumstances notwithstanding, the appellant has continued to make significant progress in custody. He completed his university degree in June 2013 with distinction. He then completed his Masters of Business Administration from Charles Sturt University in December 2015. Remorse 1. The appellant contends that he has demonstrated significant and continuing remorse. This has been amplified as the result of his experiences with drug affected inmates. He has cut all contact with his former social group, and undertook the Getting Smart Drug and Alcohol Programme in gaol in August 2013. The appellant's active participation in this group and his mentoring of younger offenders prompted gaol staff to request that he undertake a TAFE programme in mentoring, which he completed in December 2013. The appellant has acted as a Peer Support Inmate and has been elected to the Inmate Delegate Committee in three years. The appellant has worked in custody whenever possible, and held senior positions as Manager of Industries, Activities Clerk and Clerk to the Kitchen/Laundry overseer. 2. The appellant has progressed to minimum security classification. He was permitted to work off premises. He has incurred no infringements of prison rules during his seven years in custody. The appellant was moved to a Sydney gaol in February 2016. Delay 1. The sentence that this Court is required to impose has been significantly delayed by reason of matters beyond the appellant's control. 2. The offending occurred in 2008 and 2009. The appellant has been in custody since February 2009. He was immediately cooperative and pleaded at the earliest available opportunity. He was first sentenced in March 2010. That sentence was quashed on appeal to this Court in March 2011 and the appellant was re-sentenced. Following the High Court's decision in Muldrock, the appellant applied for a referral to this Court on 27 August 2013. Disposition of the appellant's application was significantly delayed by the time required to identify and review cases potentially afflicted with so-called Muldrock error. The appellant's Part 7 application was determined in June 2014 and was erroneously refused. The appellant commenced proceedings seeking declaratory relief in the Court of Appeal on 17 November 2014. That relief was granted in July 2015, upon the basis of a finding of jurisdictional error. The appellant once again applied to have his matter referred to this Court on 11 September 2015. That application was successfully determined in December 2015. Argument in this Court in the present appeal was heard on 20 April 2016. 3. The appellant submitted by way of summary that he has facilitated the course of justice from the point of his arrest and has so far served a sentence that was imposed contrary to law. That is despite all of the procedural steps referred to above. The appellant submitted that the delay has been extraordinary and that the number of proceedings that he has been required to commence in order to correct multiple errors, together with the enduring uncertainty that he has had to confront, are matters that should be taken into account in resentencing. Respondent's submissions 1. In the way of things, this appeal was effectively conducted around competing contentions concerning the objective seriousness of the appellant's offending. In that respect, the respondent emphasised the following matters. 2. The offences were characterised as very serious drug offences involving a high level of criminality. The respondent submitted that Count 3 in particular should be assessed "as falling well above the middle range of objective seriousness." That is said to be for a number of reasons. 3. First, the appellant played an exclusive and singular role in the supply of almost six kilograms of cocaine. He was a very active and significant retailer to what appears to have been an extensive and eager clientele who would appear regularly to have purchased from him. The appellant had been operating a large scale retail drug supply operation to a large network of Eastern Suburbs drug users for some years. 4. Secondly, the operation was patently highly profitable. 5. Thirdly, the background to Count 3 concerned the supply of one or two 0.75g bags of cocaine up to as much as 8g at a time. This included supply in a public place with a brazen disregard for the law. The supply was to a previously unknown recipient through a mobile phone introduction. No prior assessment or check of the purchaser would appear to have been made by the appellant. 6. Fourthly, Count 3 involved almost six kilograms of cocaine (5.9573kg) or six times the large commercial quantity, capable of being sold as 7,943 separate 0.75g deals. When apprehended by police the cocaine was made up of 2,350 resealable bags containing a total of 1.72 kilograms of cocaine ready for sale together with a further 4.23 kilograms of cocaine in various bulk forms apparently awaiting division into smaller quantities for sale. 7. Fifthly, the purity of the cocaine in small retail bags was in the order of from 31 percent to 39 percent and the purity of the cocaine in the two 1 kilogram bags was 49 percent and 52 percent respectively. 8. Sixthly, the appellant was in possession of a blender, a bulk quantity of small resealable plastic bags, an electronic money counting machine, two mobile phones used in the appellant's drug supply activities and a drug sales ledger. These items were together said to be indicative of a large scale supply operation. 9. Finally, the amount of money discovered at the appellant's premises was very high, being $1,313,700 in cash. That money was an indication of the extent of previous supplies by the appellant. Further evidence in this appeal 1. For the purposes of this appeal, the appellant relied upon three further affidavits that were read without objection. The first was an affidavit affirmed by the appellant on 17 March 2016. In that affidavit the appellant sought to focus upon his progress in custody since the date of his previous affidavit in December 2010. The appellant's affidavit is detailed and expansive and it is not convenient to recite it verbatim in these reasons. I have taken the whole of the affidavit into account. 2. The appellant has now served just over 7 years of his 9.5 year non-parole period that is due to expire on 25 August 2018. He has continued during that period to use his time in custody as productively as possible, enthusiastically performing the various roles in which he has been employed, improving his skills and knowledge by undertaking education courses and contributing to the gaol community as an inmate delegate and peer support inmate. 3. After his previous appeal, the appellant remained housed at a maximum security gaol in Sydney. On 8 June 2011 he was moved to a gaol in country New South Wales. That move came without warning. The country gaol houses inmates who had been on the witness protection programme, as well as former police officers and correctional officers. The appellant indicated that he did not wish to be taken out of protective custody. He held fears that he could be violently assaulted. The uncertainty of his new environment made him feel anxious and disoriented. 4. Whilst the appellant's time out of his cell increased, he received fewer visits from friends and family in the country. While there, these numbered about four visits per year. On 26 February 2016 he was returned to a Sydney gaol where he expects to remain for the duration of his sentence. The appellant remains fearful that other inmates will discover that he has provided assistance and has been held in protection. 5. The appellant described his great sadness about the breakdown of his marriage and the separation from his children. 6. In August 2013, the appellant undertook the Getting Smart Drug and Alcohol Treatment Programme. A large part of that course involved sharing his experiences with drug use and engaging with other inmates who had fallen into drug related lives of crime. In group sessions, the appellant shared his personal experiences of loss that he has suffered as the result of his own drug use. As a result of his contribution to this programme, the appellant was encouraged to undertake a TAFE course in mentoring which he completed in December 2013. He has since then used his acquired skills in various roles counselling and supporting other inmates. He has also acquired impressive tertiary qualifications to which earlier reference has been made. 7. The appellant has been supported by his relatives and friends since his arrest and incarceration. He maintains regular contact with them. His mother is now 72 years old and in frail health. The appellant plans to assist in her care upon his release. He has indicated that he wishes once again to become a productive member of the community. 8. Next, the appellant read the affidavit of Stephen Eccleshall affirmed on 29 March 2016. That affidavit annexes documents in support of matters deposed to by the appellant which are not challenged in this appeal. It is therefore unnecessary to refer to that affidavit in detail. 9. Finally, the appellant read the further affidavit of Stephen Eccleshall affirmed on 19 April 2016. That affidavit deals in thorough and commendable detail with the circumstances attending the delay of almost four years since 2 July 2012 when the appellant first requested Legal Aid to seek a review of his sentence upon the basis of perceived Muldrock error. The respondent does not take any issue in this appeal with respect to delay, and it is unnecessary for present purposes further to trace the historical events that bring the present proceedings to this Court. 10. Mr Eccleshall also refers to the assistance given by the appellant to authorities and to a letter dated 5 April 2016 from Commissioner Peter Hastings QC from the New South Wales Crime Commission. The appellant contends that even though he received a discount of 20 percent for assistance to authorities when originally sentenced, and when resentenced by this Court on 10 March 2011, the outcome of cases prosecuted with the benefit of information supplied by him ought now to inform a second look at that discount. As senior counsel for the appellant put it in the course of argument, "there is further material and it would be open to [this Court] to assess [the discount for assistance] in a different way." The further evidence reveals that since preparation of a letter dated 10 November 2011 by Acting Commissioner Singleton, upon which the original discount was assessed, a confiscation order has been made and satisfied to the order of $43,330. Consideration 1. The appellant's offending has been variously described since his original sentencing in the District Court. Sorby DCJ initially described Count 3 as "objectively a very serious offence" but later characterised it as "well above the midrange of objective seriousness for such offences." He described count 1 as "towards the mid-range of objective seriousness for such offences, but below it" and Count 2 as in the midrange of objective seriousness. In this Court, McClellan CJ at CL considered that Sorby DCJ's assessment of the objective seriousness of Count 3 was "inappropriate." He preferred to characterise that Count as "above the mid-range but modestly so." Hall J agreed with the Chief Judge. Garling J agreed with the ultimate outcome in the appeal but indicated that he "would not have been disposed to find that the sentencing judge's description of the criminality in count 3…was an error." 2. It will be apparent that these various opinions cannot any longer be utilised in this Court as an aid to the assessment of the objective seriousness of the appellant's conduct. That is for the obvious reason that it is not possible to extract from these expressions of opinion the extent to which if at all they were influenced by an erroneous consideration of subjective factors of the type referred to by Garling J at [62]. I hasten to observe that his Honour expressly disavowed the notion that any such factors in the particular circumstances of this case "warrant[ed] a reduction in the objective seriousness of the criminality involved." 3. After the decision in Muldrock, s 54B of the Crimes (Sentencing Procedure) act 1999 was amended to read as follows: "54B Consideration of standard non-parole period in sentencing (1) … (2) The standard non-parole period for an offence is a matter to be taken into account by a 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." 1. In these proceedings, error is relevantly conceded by the respondent. In accordance with Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601, it therefore now falls to this Court to resentence the appellant without the need to assess whether the error was "material" or whether it relevantly "infected" the sentence before the duty to resentence in accordance with s 6(3) of the Criminal Appeal Act arises. This Court is required independently to exercise its sentencing discretion, as the following paragraphs from Kentwell v The Queen make clear: "[42] Spigelman CJ's analysis in Baxter should be accepted. When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be 'warranted in law'. A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not 'warranted in law' unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence. This is not to say that all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion. By way of example, s 44(1) of the Sentencing Act requires the court when sentencing an offender to imprisonment to first set the non-parole period and then set the balance of the term. Prior to 1 February 2003, a court was required to first set the term of the sentence and then specify the non-parole period. A court which sentences an offender to imprisonment after 1 February 2003 by first setting the term of the sentence commits legal error. Without more, the error does not affect the exercise of the sentencer's discretion. [43] After having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, that a lesser sentence is the appropriate sentence for the offender and the offence. This is a conclusion that that lesser sentence is warranted in law. The result of the Court of Criminal Appeal's independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the Court required to re-sentence. Nor is the Court required to re-sentence in a case in which it concludes that a lesser sentence is appropriate for one or more offences, but that a greater sentence is appropriate for another or other offences, with the result that the aggregate sentence that it considers warranted in law exceeds the aggregate sentence that is the subject of appeal. The occasions calling for the Court of Criminal Appeal to grant leave, allow an offender's appeal and substitute a more severe sentence are likely to be rare. Were the Court to grant leave in such a case, convention would require that it inform the appellant of its intended course so that he or she might abandon the appeal. [44] In assessing the prospects that the appellant's appeal would succeed, it was wrong to determine that the appellant had failed to demonstrate that substantial injustice was occasioned by the sentence. This is best understood as a conclusion that the aggregate sentence did not impress the Court, upon summary review, as excessive. The appellant is entitled to be sentenced according to law. The issue for the Court's consideration was whether upon the hearing of the appeal it might conclude, taking into account the full range of factors including the evidence of the appellant's progress in custody and current mental state, that a lesser sentence is warranted in law. [45] The Court of Criminal Appeal wrongly confined its discretion by applying a test which required the appellant to demonstrate that substantial injustice would attend the refusal of the application…" [Emphasis added] 1. The significant thrust of the appellant's submissions in this case is that when one has regard to what must have been the starting point for the sentence for Count 3, taking into account a combined discount of 45 percent for the appellant's early plea of guilty and his assistance to authorities, the sentence is manifestly excessive. In rounded terms, that starting point must have been in the order of 21 years and 9 months. In aid of this submission the appellant provided a detailed and helpful summary of some 41 decisions in this Court dealing with sentences for s 25(2) offences that have been either varied or affirmed. Of this collection of decisions, only four were concerned with cocaine. By comparison with these cases, taking into account the difficulties of accurately assessing the extent to which they can usefully be described as comparable, the sentence imposed upon the appellant was more severe than almost all of the sentences in the sample. 2. Specifying where in the theoretical range of objective seriousness any particular offence lies is both evaluative and subjective. The cases to which the appellant has drawn attention bespeak the truth of that concern. This is especially, although not uniquely, so in cases where the maximum penalty for the offence is life imprisonment. However, taking account of these difficulties, in my opinion the Count 3 offence committed by the appellant was objectively serious and clearly above the middle of the range of seriousness for offences of its type. There is almost nothing at all that can persuasively be proffered in derogation of such a conclusion. In short compass, the appellant was engaged in a single-minded and well organised operation of supplying cocaine to a receptive and apparently loyal clientele that produced large sums of money without any apparent need to employ or retain others to assist him. The ultimate profitability of the undertaking for him was not reduced by the need to compensate assistants. The appellant was also conspicuously unconstrained in his mode of offending, and did not appear to take any calculated or at least any sophisticated steps to avoid apprehension. 3. Senior counsel for the appellant contended that the significant amount of money found at the appellant's premises could not reliably inform the seriousness or significance of the offending. That was said to be for the reason that the appellant was otherwise sentenced for an offence contrary to s 193C (1) of the Crimes Act. That contention, if I understand it correctly, fails to take account of the fact that the profitability of the offending can reliably inform its objective seriousness regardless of whether the proceeds of the offending are discovered or recovered. I do not consider that the coincidental imposition of a sentence for the s 193C offence reduces the seriousness of the offending that its profitability appears reliably to indicate. 4. I am also not inclined to accept that there are grounds for concluding that the appellant's discount for assistance should be increased. The revelation of success from assistance considered retrospectively is only a manifestation of what is assumed to be the value of the assistance considered in the first place. It would be equally inappropriate to reduce a discount for assistance on appeal if the information turned out, especially through no fault of the offender, to be of less value than was originally anticipated. The material disclosed in the Crime Commission letter dated 10 November 2011 was originally thought to be significant by the sentencing judge and this Court previously, and in my opinion it remains so. 5. Whatever view might have been indicated by the evidence that was available in March 2010 concerning the appellant's prospects of rehabilitation, the evidence today demonstrates that the appellant has taken what are arguably quite remarkable steps towards self-improvement and reinstatement as a contributing member of society upon his release. He has acquired impressive tertiary qualifications and demonstrated significant responsibility and leadership qualities in the admittedly constrained context of the prison environment. He has not come under notice for disciplinary reasons while in custody and there does not appear to be any tangible likelihood that he will revert to a life of reoffending when released. This prospect is encouraged to a considerable extent by the assistance and support that he is likely to enjoy from family and close friends in the wider community. 6. In this last respect the loss of the appellant's marriage is an unfortunate consequence of his offending and inevitable incarceration. He has continued to attempt with considerable difficulty to maintain what remains of his relationship with his children in the circumstances of their relocation to the United Kingdom. These are matters which tend normally and naturally to evoke sympathy but are not in my view matters that also influence the approach that this Court can take to resentencing the appellant. It is inevitable that families will be disrupted and damaged when one of their members is imprisoned for a long period. It would not be appropriate to make allowances for the consequences of such imprisonment in circumstances that were not wholly unusual or even exceptionable. Such hardship as the appellant has had to endure in the circumstances is in this case an inevitable result of his original offending, and does not set him apart from an unfortunately large number of other offenders. 7. Nor am I attracted to the proposition that delays in sentencing the appellant according to law inform consideration of a reduction of his sentence. Anxiety about the outcome of his several appeals whilst he remained incarcerated would in my view only sound in his favour if the ultimate outcome of the resentencing process resulted in him having been imprisoned for a total period that exceeded what was determined to be the proper sentence. In the events that have occurred here, it is not my opinion that the appellant has demonstrated that the delays in his case have produced an injustice of this kind. 8. Senior counsel for the appellant finally referred to special circumstances. There do not appear to me to be any reasons for varying the statutory ratio of parole to non-parole periods. One of the curious reasons for that may well be that the appellant has demonstrated such good prospects for rehabilitation through his educational and leadership successes whilst in prison. Whereas it would not be appropriate to disadvantage the appellant for such efforts if he were otherwise able to demonstrate special circumstances, it would in my view be inconsistent and contradictory to take account of his good prospects of rehabilitation on the one hand and yet implicitly derogate from such a finding by suggesting that he warranted some longer period of supervision upon his release on the other hand. 9. In my opinion it follows, accepting the existence of specific error of the kind described in House v The King, and taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, or more particularly since the appeal to this Court determined in March 2011, that a lesser sentence is the appropriate sentence for the appellant on Count 3. The appellant's significant progress whilst in custody is something that this Court can and should acknowledge as a factor substantially influencing the question of what is the proper sentence for this count. In circumstances where this Court is presented with an opportunity to endorse and encourage the commendable manifestation of rehabilitation and self-improvement, it should not in an appropriate case decline to do so. This is such a case. Conclusions and sentence 1. In my opinion a lesser sentence for Count 3 is warranted in law. 2. I consider that a proper starting point for the Count 3 offence, taking into account the two charges on the Form 1, is a sentence of imprisonment for 20 years. The sentence should commence on the same day as the appellant's sentence for that count imposed by this Court in March 2011. A combined discount of 45 percent should continue to apply for the appellant's early plea of guilty and assistance to authorities. That produces a head sentence for this count of 11 years of which the appellant should serve a non-parole period of 8 years and 3 months commencing on 26 August 2009 and expiring on 25 November 2017 with a balance of term of 2 years and 9 months expiring on 25 August 2020. 3. All of the appellant's other sentences have now expired. I did not understand the appellant to contend that these sentences should be individually revisited or that any question of their respective accumulation or concurrency should influence this Court's approach to the appellant's complaints concerning the sentence for Count 3. Nor is there any suggestion in Kentwell v The Queen that it is necessary in a case such as the present for those expired sentences to be reviewed. 4. I would propose the following orders: 1. Allow the appeal. 2. Quash the sentence for Count 3 imposed by this Court in March 2011. 3. In lieu of the sentence imposed by this Court for Count 3 in March 2011, sentence the appellant to a term of imprisonment of 8 years and 3 months commencing on 26 August 2009 and expiring on 25 November 2017 with a balance of term of 2 years and 9 months expiring on 25 August 2020. 4. The first date upon which the appellant will become eligible for release on parole is 26 November 2017. 1. R A HULME J: I agree with Harrison J. 2. SCHMIDT J: I agree with Harrison J. ********** 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: 01 July 2016