Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Laycock v R [2017] NSWCCA 47 Hearing dates: 24 February 2017 Date of orders: 20 March 2017 Decision date: 20 March 2017 Before: Hoeben CJ at CL at [1] Walton J at [2] Latham J at [106] Decision: (1) Leave to appeal against sentences granted. (2) The appeal is dismissed. Catchwords: CRIMINAL LAW – sentence appeal – drug related offences – manifestly excessive ground – all circumstances of offence relevant – consistency – numerical equivalence – wide discretion – flexibility in sentencing – supply of prohibited drug cannabis – less than indictable but greater than trafficable quantity – significance of quantity of drug – applicant's role and level of criminality – broader criminal activity – drug dealing and enterprise – actual supply – deeming provisions – monetary gain –applicability of statistics as to sentencing patterns – applicability of comparable cases – sentence imposed not manifestly excessive – supply of prohibited drug methylamphetamine – less than commercial quantity but significant quantity – applicant's role principal and a dealer – admitted offences – retribution – general deterrence and general denunciation – accumulation ground – degree of accumulation – discretion in fixing accumulation – possession for supply of cannabis separate act criminality – the principles of totality – accumulation necessary to address the total criminality of each offence – leave to appeal against sentences granted – appeal is dismissed Legislation Cited: Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Firearms Act 1996 (NSW) Poisons and Therapeutic Goods Act 1966 (NSW) Cases Cited: Abbas, Bodiotis, Taleb and Amoun v R (2013) 231 A Crim R 413; [2013] NSWCCA 115; Andreata v R [2015] NSWCCA 239; Attorney-General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518; Barbaro v R; Zirilli v R (2014) 253 CLR 58; [2014] HCA 2; Bidgood v R [2016] NSWCCA 138; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194; Franklin v R [2016] NSWCCA 319; Grills v R [2016] NSWCCA 46 Haule v R [2015] NSWCCA 253; House v The King (1936) 55 CLR 499; [1936] HCA 40; Hili v R; Jones v R (2010) 242 CLR 520 [2010] HCA 45; Koh v R [2013] NSWCCA 287; Le v R [2017] NSWCCA 26; Luu v R [2008] NSWCCA 285; McIntosh v R [2015] NSWCCA 184; Markarian v R (2005) 228 CLR 357; [2005] HCA 25; Melikian v R [2008] NSWCCA 156; R v MacDonnell (2002) 128 A Crim R 44; [2002] NSWCCA 34; Ngatamariki v R [2016] NSWCCA 155; R v Dunn [2004] NSWCCA 346; R v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115; Vale v R (2016) 77 MVR 194; [2016] NSWCCA 154; Wong v R (2001) 207 CLR 584; [2001] HCA 64 Category: Principal judgment Parties: Ronald James Laycock – Applicant Regina – Respondent Representation: Counsel: P. Johnson – Applicant J. Gibson – Crown Solicitors: Hammond Nguyen Turnball – Applicant Solicitor for Public Prosecutions – Respondent File Number(s): 2014/181859 Decision under appeal Court or tribunal: Gosford District Court Jurisdiction: Criminal Date of Decision: 15 December 2015 Before: Woods J File Number(s): 2014/181859 Judgment 1. HOEBEN CJ at CL: I agree with Walton J and the orders which he proposes. 2. WALTON J: Mr Ronald James Laycock ("the applicant") pleaded guilty to three offences under the Drug Misuse and Trafficking Act 1985 (NSW) ("the Act"). Those offences were referred to at sentencing as follows: 1. Sequence 2: Ongoing supply of prohibited drug, namely cocaine, contrary to s 25A(1) of the Act. It was charged that the applicant did on three or more separate occasions during the period of 30 days supply the prohibited drug for financial or material reward. The offence carried a maximum penalty of imprisonment for 20 years. 2. Sequence 3: Supply of a prohibited drug, namely 28.3g of methylamphetamine, contrary to s 25(1) of the Act. The offence carried a maximum penalty of imprisonment for 15 years. 3. Sequence 4: Supply of a prohibited drug, namely 757g of cannabis, contrary to s 25(1) of the Act. The quantity of the prohibited drug possessed by the applicant was less than indictable but greater than trafficable and deemed to be for supply pursuant to s 29 of the Act. The offence carried a maximum penalty of imprisonment for 10 years. 1. With respect to sequence 2, Woods J ("the sentencing judge") was asked to take into account eight other offences, of which the applicant had been charged but not convicted, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act"). The offences were set out on a Form 1 document executed in December 2015 ("the cocaine charge Form 1"). They were as follows: 1. Ongoing supply of cocaine s 25A of the Act 2. Possess unregistered firearm s 35(1) Firearms Act 1996 3. Possess prohibited drug (3,4) methylenedioxy methamphetamine (60g) s 10(1) of the Act 4. Possess ammunition s 65(3) Firearms Act 1996 5. Possess cannabis (33.3g) s 10(1) of the Act 6. Deal with proceeds of crime ($4,500) s 193C(1) Crimes Act 1900 7. Possess steroids s 16(1) Poisons and Therapeutic Goods Act 1996 8. Possess cannabis resin (1.99g) s 10(1) of the Act 1. In respect of sequence 3, the sentencing judge was asked to take into account another offence pursuant to s 33 of the Sentencing Act, found in a further Form 1 document ("the further Form 1"). The offence was described as "(Deemed) Supply of Crystalline Methylamphetamine" in the quantity of 62.86g contrary to s 25(1) of the Act. 2. Sentencing proceedings occurred on 11 December 2015 before the sentencing judge at the Gosford District Court. His Honour delivered judgment at that same location on 15 December 2015 and convicted the applicant with respect to each charge. The applicant was sentenced as follows: 1. Sequence 4 (supply of cannabis): Imprisonment for a term of 2 years commencing 4 September 2015 and expiring 3 September 2017. His Honour declined to set a non-parole period. 2. Sequence 3 (supply of methylamphetamine and the further Form 1): Imprisonment for a non-parole period of 3 years commencing on 4 September 2016 and expiring on 3 September 2019 with a balance of the term of 6 months expiring on 3 March 2020. The total sentence was three years and six months. 3. Sequence 2 (ongoing supply of cocaine): Imprisonment for a non-parole period of 2 years commencing on 4 September 2017 and expiring on 3 September 2019 with a balance of the term of 3 years expiring on 3 September 2022. The total sentence for sequence 2 was, therefore, 5 years. The sentencing judge noted that the matters listed in the cocaine charge Form 1 were taken into account "in assessing the criminality for the sequence 2 sentence." 1. The overall effective sentence was a term of imprisonment for 7 years comprising of a non-parole period of four years to commence on 4 September 2019 and a balance of term of 3 years to expire on 3 September 2022. The sentences were partly accumulated and partly concurrent. 2. His Honour found that there were special circumstances constituted by two factors: the sentence of imprisonment constituted the applicant's "first custodial sentence" and "there was a factor of accumulation". The overall sentence of 7 years with a 4 year non-parole period reflected a variation of the statutory ratio from 75% to 57.1% (there was no standard non-parole period for the offences). Grounds of Appeal 1. The applicant sought leave of the Court to appeal against the sentence passed upon his conviction pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). 2. The applicant relied upon the following grounds of appeal: 1. The sentence imposed for sequence 4 (Supply Prohibited Drug, Cannabis leaf) is manifestly excessive. 2. The sentence imposed for sequence 3 (Supply Prohibited Drug, Methylamphetamine) is manifestly excessive. 3. The degree of accumulation between the sentence imposed for sequence 4 (Supply Prohibited Drug, Cannabis leaf), sequences 3 (Supply Prohibited Drug, Methylamphetamine) and 2 (Ongoing Supply, Cocaine) was excessive, such that the overall sentence and non-parole period imposed was manifestly excessive. Factual Background 1. The following factual background is drawn from the statement of agreed facts incorporated in a bundle of documents tendered by the Crown at the sentencing hearing. Reference is also made to a psychologist report, tendered by the applicant, of Anna Robilliard of 29 October 2015. 2. Between April and June 2014, police attached to the Gosford Drug Unit conducted an investigation into the supply of cocaine by the applicant and others in the Ettalong Beach and Woy Woy areas. The investigation involved a controlled operation utilising an undercover police officer and an associate of the applicant requesting drug purchases. 3. With respect to sequence 2, on three separate occasions – 30 March 2014, 10 June 2014 and 18 June 2014 – the applicant supplied cocaine to a police officer. The quantity and purity of cocaine on each occasion was 28.4g (35.1%), 58.2g (36%) and 84.1g (34.5%) respectively. The amounts of money paid on those respective dates were $7,500, $14,800 and $21,900. 4. With respect to sequence 3, on the last date, 18 June 2014, the applicant also supplied the police officer with 28.3g of methylamphetamine for $9,000. 5. The applicant was arrested on 18 June 2014. On the same date, police executed a search warrant at the applicant's house. With respect to sequence 4, police found 757.9g of cannabis leaf in two sealed bags in the kitchen cupboard. 6. Other drugs and restricted substances found at the applicant's house on 18 June 2014 were: 1. 62.86g of methylamphetamine, 0.60g of ecstasy, five testosterone and trenbolone vials, 33.3g of cannabis (in plastic re-sealable bags in the rear bedroom) and 1.99g of cannabis resin. 2. An unregistered single barrel shotgun and ammunition. 3. Cash in the sum of $4,500 (found inside a cupboard). The admitted offences from this discovery were listed on the Form 1 documents. 1. A further offence of ongoing supply of cocaine was included on the cocaine charge Form 1. This offence concerned the supply of cocaine by the applicant on three separate occasions: 28 April 2014 (with a co-offender), 5 May 2014 and 13 May 2014. The quantity, purity and financial reward for each such occurrence was respectively: 3.6g (32% and $1,000); 3.52g (33.5% and $1,000) and 14.11g (33% and $3,800). 2. Subjective factors brought to account in the sentencing proceedings were recorded with his Honour's sentencing remarks and were not the object of challenge in this appeal. Save for some brief additional observations below, I propose to leave my description of subjective matters to the summary of his Honour's remarks on sentence which follow as the next heading in this judgment. The particular matters to which I will refer in this respect are: 1. The applicant is 51 years of age. He is one of six children born in Tasmania. The eldest sibling is the applicant's sister. She provided a character reference at his sentencing hearing. 2. The applicant left home at the age of 16 to attend the Australian Institute of Sport to train as a weightlifter. He was successful in the sport, competing at two Olympic Games and obtaining a bronze, silver and gold medal in the Commonwealth Games. He left the Australian Institute of Sport and ceased participation in competitive sport in 1993 as a consequence of him being banned for two years from the sport for steroid use. He then relocated to Melbourne. 3. The applicant maintained that he was introduced to illicit substances whilst training in his sport from an early age. He also took amphetamines. 4. The applicant divorced his wife in 2007 and has three children in their teenage years. 5. After he was banned from the sport he started abusing alcohol until 2010 (which then ceased due to his ongoing responsibilities for his children). 6. The applicant had no prior convictions. Sentencing Proceedings 1. The applicant did not give evidence in the sentencing proceedings. 2. His Honour assessed the objective seriousness of the offences. After noting the maximum penalty for the offences and that certain matters were referred to in the Form 1 documents his Honour made the following observation with respect to the offence in sequence 2: The amounts of money paid on those respective occasions were $7,500, $14,800 and $21,900. These figures indicate that this is not trivial drug dealing but significant amounts are involved. Of course, it does not rise to the level of many cases, regrettably before this Court, where kilograms and sometimes hundreds of kilograms are involved. This case is not in that category. However, it is significant. This sequence of supplies represents in law the one offence of "ongoing supply". This offence was created by legislature to cover situations where a supplying exercise is not one involving huge quantities but involved significant quantities repeatedly and consistently sold. 1. With respect to sequence 3, his Honour found that the applicant had supplied 2.83g methylamphetamine to an undercover police officer for $9,000. He observed, this was again a significant drug exercise. 2. As to sequence 4, his Honour observed that the applicant was arrested and his house was searched during which 757g of cannabis leaf were found. 3. After dealing with questions of deterrence, his Honour made the following finding: The role of the offender is that he was a user and a dealer. Although it was significant drug dealing, I am satisfied of this own personal use, coupled with depression, not amounting to any form of mental illness, has contributed to the offences. He did make profits from the enterprise but, in my view, a significant part of it was for his own purposes of use. 1. His Honour found that nothing other than a substantial sentence of full time imprisonment would satisfy "the purposes of the sentencing law." His Honour found that personal deterrence was not a very significant issue because he considered there was a low risk that the applicant would commit further crimes. Nevertheless, he emphasised the necessity for courts to deter individuals from further misconduct. In this respect, he emphasised general deterrence and denunciation. Whilst rehabilitation was important, that factor should not be allowed to outweigh the factors associated with "general deterrence" and "general denunciation". Further, his Honour made the following observations with respect to deterrence: However, two other purposes of sentencing are important: general deterrence and denunciation. Rehabilitation also is important but to allow rehabilitation as a factor to outweigh factors of general deterrence and general denunciation would be, in my view, an error. There is no equivalence between the offending by Mr Laycock and the other people who have been sentenced in this particular manner. It is necessary to deter members of the public, generally, from committing offences such as these. The amounts involved while not huge are significant and they would have been supplied to a number of people. It is well known, for example, that the drug crystalline methylamphetamine causes a great deal of havoc in the community, likewise with cocaine. The dangers of cannabis misuse have been repeatedly emphasised by the Courts. 1. As to the other offences shown in the Form 1 documents, his Honour found: Nonetheless, there is no apparent connection between these items and the drug dealing and there is no suggestion of any violence in this man's background. There is not, apparently, any evidence that the shotgun actually works. These various illicit items found in the search have been listed relevantly on the Forms 1 and the criminality involved and relating to them will be taken into account in assessment of the relevant criminality for which I am sentencing. 1. His Honour's discussion of subjective factors effectively commenced with the following passage from his judgment: The offender has, relevantly, no prior convictions. He is a man of 50 years of age. His date of birth is 27 September 1965. There are not relevant matters of prior criminal history although in 1993 he suffered the indignity of being banned from his sport for using a performance enhancing drug. I will return to that in due course. But he has the benefit of, as it were, a clean criminal record and the prison sentence which I intend to impose is structured so that there are special circumstances reflecting the fact that this will be his first time in custody. 1. The sentencing judge indicated that the applicant had already spent some time in custody and that would be taken into account in calculating the commencing date of his sentence. He found that the applicant's plea of guilty was entered at a "relatively early point" and that he recognised "the contrition in the pleas of guilty and some assistance in the administration of justice was speeding up the process." A discount of 25% was allowed for the guilty plea (were it not for the benefit of the plea of guilty the sentence imposed would have been significantly greater). 2. His Honour placed some emphasis on the reference provided by the applicant's elder sister. She identified that the applicant had left home at 16 to go to the Australian Institute of Sport in Canberra where he had a very successful sporting career in weightlifting. She also identified that the applicant experienced pressure from his weightlifting and success. He had been a good son to his parents and when his father died some four years earlier he had been grief stricken. His elder sister observed that the applicant thereafter had been drinking a lot. He had had a marriage break up but had been a good father. She also indicated that he regretted what he had done. The sentencing judge found that the applicant had a "supportive family situation" and that gave his Honour "some measure of comfort in assessing his prospects of rehabilitation" (which, his Honour thought were reasonably good). His Honour found that it was unlikely that the applicant would become involved in drug misuse or selling again. 3. The sentencing judge also had regard to the report of Ms Robilliard, who his Honour described as "a respected and very competent forensic psychologist". A number of findings based upon that report are discussed below. 4. The applicant was not mentally ill and was physically healthy. In custody, the applicant made an effort to keep away from drugs. A urinalysis report was clear (his Honour thought this was also a good sign for the future). 5. The applicant started taking amphetamines and steroids at about age 17 at the Australian Institute of Sport. He was a champion weightlifter and a gold medallist at the Commonwealth Games. (His Honour observed that young athletes were "vulnerable to a temptation of drug abuse, not for recreational purposes but for the purposes of aiding their performance and ambitions.") The applicant was subject to a sporting ban due to the use of performance enhancing drugs. Of significance was the fact that the applicant suffered pain as a result of falling from grace as a champion athlete. This left a vacuum in his life which was never satisfactorily filled although he made some efforts including taking on jobs from time to time. Whilst this was no excuse for the offences, "it is explanatory to some extent". 6. His Honour emphasised that the offences before the Court were serious. There had been increasing penalties for the supply of drugs like cocaine and "ice" and that the applicant's brush with the authorities in 1993, which resulted in his sporting ban, absent of criminal consequences, must have at least put him on notice, "that these things were regarded seriously". 7. His Honour accepted that the applicant did suffer depression as a result of bereavement (concerning his father) and various other family related problems although it was not clinical "in the sense of amounting to mental illness". The Appeal Ground One – The sentence imposed for sequence 4 (Supply Prohibited Drug, Cannabis Leaf) is manifestly excessive. 1. Whilst the applicant alluded to the fact that the quantity of cannabis for which the applicant was charged was less than an indictable quantity, thereby permitting the summary disposal of the offence, no complaint was ultimately made about that fact because the associated offences had to be dealt with on indictment. It was also accepted that, by virtue of s 45 of the Sentencing Act, the Court was permitted, as occurred in relation to sequence 4, to decline to set a non-parole period. 2. It was submitted that the sentencing judge did not illuminate whether he intended his sentence to represent a non-parole period or "fixed term" for sequence 4 but the Court should proceed on the "prevailing view" that a fixed term represented the equivalent of a non-parole period, as found in R v Dunn [2004] NSWCCA 346 at [161] and McIntosh v R [2015] NSWCCA 184 at [167]. 3. The applicant accepted that the sentence imposed for sequence 4 represented "a mandatory period of custody akin to a non-parole period". Nevertheless, he submitted that a 2 year fixed term for sequence 4 was manifestly excessive in the circumstances. 4. The applicant was found to be dealing in drugs for a period of six weeks. There was an absence of particular findings about the sequence 4 offence other than pointing to the dangers of cannabis use and noting this had been repeatedly emphasised. There was no "particular act" of supply. The supply charge derived from the deeming provisions within s 29 of the Act was largely as a result of the amount of cannabis being greater than a trafficable commodity. 5. No observation was made by the trial judge, akin to his observations with respect to sequences 2 and 3, that the amount in sequence 4 was significant. However, it was accepted that the offence did involve a "not insignificant" amount of cannabis which was found in applicant's home. In any event, it was at the lower end of quantities (constituting more than 300g) that can be dealt with on indictment: the quantity of prohibited drug being only 3% of the maximum for a non-commercial quantity. This was not an indictable quantity. 6. Financial reward was not an element of offence for sequence 4. However, it was conceded that it could be taken into account as an aggravating factor. There was no evidence of monetary gain for sequence 4. The issue was not addressed by the sentencing judge, but "it [was] conceded that such an inference [was] inevitable". Although, the applicant was found to be a user and a dealer who made profits, a significant part of his criminal activities was the possession of the drug for his own purposes. 7. It was acknowledged that sentencing is a task involving an exercise of discretion and that there is no single correct sentence. It was also accepted that the statistics as to sentencing patterns imposed for particular offences may be of limited assistance to the court. 8. Nevertheless, reliance was placed by the applicant upon statistics compiled by the Judicial Commission of NSW (referred to throughout proceedings as "JIRS statistics", "sentencing statistics" and "statistics", hereafter referred to as "JIRS statistics"). Appended to the applicant's submission was statistical data in the form of bar chart graphs showing patterns or outcomes in the District Court as to the supply of prohibited drug cannabis of a less than commercial quantity (with deemed supply). From this data the applicant made the following contentions: 1. Of 76 cases only 51% of all offenders received a prison sentence; 2. Of 33 cases where a non-parole period or fixed term was imposed for the principal offence: 1. 72% received 18 months or less; and 2. 7 cases which received 18 months or less involved both a plea of guilty and no prior record. 1. Of 14 offenders where a non-parole period or fixed term was imposed: 72% received 2 years or less. 1. Whilst the applicant accepted those statistics represented a small sample, they collectively suggested, it was submitted, that the sentence for sequence 4 represented the upper end of fixed term or non-parole periods previously imposed for non-commercial quantities. This is particularly so, when compared to the commercial quantity. The quantity of cannabis was low and there was no specific act of supply. The sentence also fell at the midpoint of non-parole periods imposed for commercial quantity supply sentences. 2. Reliance was also placed on three judgments to support the submission that the sentence was excessive: Bidgood v R [2016] NSWCCA 138 ("Bidgood"); Haule v R [2015] NSWCCA 253 ("Haule") and Andreata v R [2015] NSWCCA 239 ("Andreata"). The applicant set out some features of each judgment without developing how the principles stated or the sentencing outcomes, based on the circumstances of the offences dealt, within those judgments demonstrated the sequence 4 sentence was manifestly excessive. 3. The applicant submitted the penalty imposed was "unreasonable and unjust in the circumstances." Whilst no specific error was identified, the 2 years fixed term sentence was at the upper end of available range of non-parole periods or fixed terms imposed for non-commercial supplies of cannabis. Objectively the court ought to regard sequence 4 as being towards the lower end of the range of objective seriousness for offences of that kind. There was a failure to properly assess the objective seriousness of the offence. If that assessment had been undertaken properly a shorter fixed term would have resulted. Consideration 1. By contending the exercise of the sentencing discretion below resulted in a sentence which was manifestly excessive, the applicant must be taken as asserting the sentencing process was attended by the last mentioned error in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505, such that, the result embodied in the sentencing judge's orders with respect to sequence 4 was unreasonable or plainly unjust: Hili v R; Jones v R (2010) 242 CLR 520 [2010] HCA 45 ("Hili") at [58]; Wong v R (2001) 207 CLR 584; [2001] HCA 64 ("Wong") at [58]. 2. Such a conclusion will not be arrived at merely because the result below was different, even "markedly different", from other sentences that had been imposed in other cases: Wong at [58]. Rather there must be some misapplication of principle, even though when and how is not apparent from the reasons given in the impugned judgment: Hili at [59]. 3. It follows that any consideration as to whether a sentence was manifestly excessive will require a "consideration of all matters that are relevant to fixing the sentence" (Hili at [60]) or all of the circumstance of the offence (Wong at [76] and Markarian v R (2005) 228 CLR 357; [2005] HCA 25 ("Markarian") at [27]). 4. The bounds of the exercise of a sentencing discretion are wide with provision for "as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies": Markarian at [27]; Vale v R (2016) 77 MVR 194; [2016] NSWCCA 154 at [37] (per Hoeben CJ at CL with whom Rothman J and R A Hulme J agreed). 5. Consistency in sentencing is important, but what is necessary is consistency in the application of the relevant legal principles and "not numerical equivalence": Barbaro v R; Zirilli v R (2014) 253 CLR 58; [2014] HCA 2 at [40]. 6. It is necessary to restate these principles in the present matter because of the heavy reliance placed by the applicant upon the quantity of cannabis constituting an element of the charge and JIRS statistics concerning sentencing patterns, in order to demonstrate the sentence imposed in sequence 4 was manifestly excessive. 7. It is true that the applicant had in his possession a quantity of 757g of cannabis which is less than the indictable quantity but greater than a trafficable quantity. It is also true that the "supply" charge was founded upon the deeming provisions of s 29 of the Act. However, these considerations alone cannot make good this ground essentially because they pay insufficient regard to the whole of the circumstances of the offence. 8. Whilst the sentencing judge did not expressly describe the amount of cannabis for which the applicant was charged in sequence 4 as being "significant" (as per sequence 2 and 3), he plainly had the view that the amount was, as conceded by the applicant, not insignificant, and, more compellingly, that the offence was part of the broader criminal activity engaged by the applicant. It was an unchallenged finding of the sentencing judge that whilst the offender was a user of the prohibited drugs, the subject of the charge, he was also engaged in significant drug dealing. This conclusion was plainly open to him. 9. The sequence 4 charge in relation to cannabis arose in the context of a drug enterprise of which the cannabis formed one part. That consideration together with the cannabis being found in sealed bags in the applicant's kitchen cupboard were entirely supportive of the sentencing judge's finding that the cannabis found at the applicant's house was for the purpose of supply, irrespective of the deeming provisions. Further, the applicant conceded that an inference may be drawn that the cannabis for which the applicant was charged in sequence 4 was being supplied for monetary gain (as the sentencing judge commented the finding of $4,500 in the applicant's house is also consistent with a conclusion that the applicant was a drug dealer). 10. As the Crown's submissions contended, the applicant's role and his level of criminality were more important in determining a sentence than the quantity of drugs involved which were not the sole or even principal determinant in that report: Melikian v R [2008] NSWCCA 156 at [42] (per Price J with whom Spigelman CJ and Hidden J agreed); R v MacDonnell (2002) 128 A Crim R 44; [2002] NSWCCA 34 at [33] (per Woods CJ at CL with whom Sully and Wood JJ agreed). 11. It must be accepted that the applicant also relied upon JIRS statistics, as earlier mentioned, as to the supply of cannabis to support this ground of the appeal. 12. The often quoted caution as to the use of such statistics is that found in the judgment of the plurality in Wong at [64] as follows: the production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not told also why those sentences were fixed as they were. (original emphasis). 1. In Hili (at [54]), the plurality of the High Court referred with approval to the judgment of Simpson J in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303]-[305] in which her Honour stated: The point I am making is that the ranges of sentences actually imposed, while illuminating, are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence. But it is only by examination of the whole of the circumstances that have given rise to the sentence that "unifying principles" may be discerned. 1. In this matter, the statistics provided concerned sentencing for offences under s 25 of the Act for the supply of cannabis less than or amounting to a commercial quantity including deemed supply. The statistics concerned non-parole periods and fixed terms for principal offences only. The Crown was correct in submitting that the statistics say nothing about why the sentences were passed including the circumstances involved in the offending. More significantly, to draw upon my earlier analysis, the statistics offer no prospect of analysing whether various offenders, whose collective sentences are statistically grouped in the graphs provided by the applicant, were engaged in the supply of cannabis involving the level of criminality discussed earlier in this judgment. A simple illustration is that the statistics combine all cases involving the deemed supply of cannabis whereas in this case it may be reasonably inferred that the applicant was engaged in supply and that, as the trial judge found, the applicant was involved in significant drug dealing. To these observations, it may be added that the sample size for the statistics was very small. 2. The same principles as applied to statistical analysis are relevant to the applicant's reliance upon comparable cases. I agree with the submission advanced by the Crown that the three cases relied upon, namely, Bidgood, Haule and Andreata do not provide any unifying principle or a range which would permit a proper comparison with the indexed offence. Nor do they demonstrate the sentence imposed was beyond the wide discretion available to the sentencing judge. 3. The following passages from the judgment of Bellew J (with whom Hoeben CJ at CL and Hall J agreed) in Ngatamariki v R [2016] NSWCCA 155 at [65] and [66] are apposite in this respect and are as follows: [65] Even accepting the proposition that consideration of sentences imposed on other occasions is essential if consistency is to be achieved, the written submissions of the applicant did not approach the matter on that basis. Rather, they sought to establish, essentially by reliance upon the sentences imposed in the cases cited, that the sentence imposed upon the applicant was manifestly excessive. In other words, the reliance on those cases was really based upon a suggested need to achieve numerical equivalence of the kind to which their Honours referred in Barbaro (above). That reflects an incorrect approach. Moreover, and unsurprisingly, those cases expose, to varying degrees, fundamental differences in the circumstances of the offending, and/or the circumstances of the offender, when compared to the present case. [66] Bearing in mind that what is sought is consistency in the application of relevant legal principles, as opposed to numerical equivalence, the applicant's reliance on those cases does not demonstrate that the sentence imposed was manifestly excessive. Nothing in terms of the outcome of any of those cases suggests, in any way, that the sentencing judge in the present case applied relevant sentencing principles in a way which was not consistent with some established sentencing pattern. 1. Andreata concerned an appeal from a sentence imposed by the District Court upon the offender being convicted of cultivating not less than a commercial quantity of cannabis plant contrary s 23(2) of the Act and supplying a prohibited drug contrary to s 25(1) of the Act, namely, 2.45kg of cannabis. The offender was sentenced to a fixed term of imprisonment of 3 years for the supply charge. That term of imprisonment was reduced to a fixed term of 12 months imprisonment after a successful appeal was brought with respect to the supply charge. It is no doubt those factors which drew the applicant's attention to that judgment. 2. However, the ground appeal in Andreata concerning the supply charge was limited to a challenge based upon reference being made by the sentencing judge to a wrong maximum penalty. The ground contending that a sentence was manifestly excessive was confined to the cultivation charge. It followed that very little discussion in the judgment concerned the facts and circumstances associated with the supply charge. 3. As Beech-Jones J described in his decision the factual findings of the sentencing judge were accepted as forming the basis for the re-sentencing exercise without further specification except in some particular parts (see at [50]). 4. It follows, there is no proper basis to draw a comparison between the sentence imposed in Andreata and the present matter (and it might be added, as earlier noted, the applicant did not seek to draw one). To that consideration may be added that, whilst the offender was charged with two offences in Andreata, the other offence involved cultivation and not drug dealing by way of supply. 5. Similar difficulties exist with respect to the other two judgments relied upon by the applicant. Whilst the respective matters do involve offenders being sentenced for the supply of cannabis in conjunction with other counts concerned with drug supply (in Haule there was a commercial quantity of cannabis and a supply charge with respect to cannabis concerning a weight of 2.75 ounces and in Bidgood there was a cultivation charge and supply of MDMA on an ongoing basis), the applicant did not seek to establish how the criminality of offenders in those other matters would warrant a conclusion that the sentences imposed would give an indicative range of the appropriate sentence to be imposed upon the applicant in this matter. 6. In Bidgood, the sentencing judge imposed an aggregate sentence in respect to three drug related offences including supplying 3.2kg of cannabis. This Court (Davies J with whom Bathurst CJ and R A Hulme J agreed) stated that the indicative sentence of 12 months imposed in respect of the supply cannabis charge was "certainly open" (at [64]), even in view of an error regarding maximum penalty, and dismissed the appeal. It was held that the aggregate sentence imposed was lenient (at [70]). 7. In Haule, this Court (Adams J with whom Macfarlan JA and Fagan J agreed) allowed an appeal against sentence with respect to an offence of supplying 8.7kg of cannabis as well as the 2.75 ounces of cocaine and the possession of $21,400, being the proceeds of crime. The applicant pleaded guilty and received a 25% discount. A starting point of 5 years and 6 months was found appropriate for the supply of cannabis charge but this was discounted by 25% for the applicant's plea to 4 years and nine months with a non-parole period of 2 years and 6 months. 8. In the circumstances, I do not consider the sentence imposed for sequence 4 was manifestly excessive. I would grant leave to appeal and dismiss that ground of the appeal. Ground Two – The sentence imposed for sequence 3 (Supply Prohibited Drug, Methylamphetamine) is manifestly excessive. 1. In respect to sequence 3, the supply of 28.3g of methylamphetamine for $9,000, the sentencing judge imposed a non-parole period of 3 years, with an additional term of 6 months. The maximum penalty for sequence 3 is 15 years imprisonment. 2. In sentencing the applicant for this offence, his Honour was asked to take into account a further charge of "deemed" supply of 62.86g of methylamphetamine, on the further Form 1 document, which would result in the increase of the penalty that would otherwise be appropriate for sequence 3. There is no standard non-parole period. The non-parole period represented 85% of the total term for count 3. This was not prohibited under s 44(2) of the Sentencing Act. 3. It was also acknowledged that financial reward was an aggravating factor in relation to this count, even though it was not an element of the offence. 4. It was conceded by the applicant that the offence did involve a significant quantity of methylamphetamine, although there was no evidence as to any other suppliers of this particular drug. However, the maximum quantity of methylamphetamine, which is less than a commercial quantity, was 250g. In this case, the supply involved was about one tenth of that quantity, although it was "acknowledged there was 62.86g to be taken into account on a Form 1". There were no other aggravating factors present. 5. The planning involved did not exceed what would ordinarily be expected for an offence of this kind. There was no evidence as to the purity of the drug, which would have been relevant to an assessment of the objective seriousness of the offence. Nor was there evidence as to whether it was an offence committed without regard to public safety. 6. It was accepted that the applicant's role was that of a principal: "he being contacted directly and supplying himself". His Honour was satisfied the applicant's role was as a user and a dealer, although his own personal use contributed to the offence. 7. The applicant relied on statistics for the supply of less than the commercial quantity of methylamphetamine in order to demonstrate the sentence was "harsh" or "at the very top end of sentences previously imposed for this offence" as follows: 1. Of 554 offenders that were sentenced 87% received an overall sentence less than 3.5 years (pleas of guilty and not guilty were not distinguished). 2. Of 269 offenders that were sentenced 86% received a total term less than the applicant (guilty plea and a Form 1 were factored in). 3. Of 502 offenders, when determining non-parole period, 96% received a non-parole period/fixed term of less than 3 years (pleas of guilty and not guilty were not distinguished). 4. Of 240 offences, when determining non-parole period, 98% received a non-parole period/fixed term of less than 3 years (guilty plea and a Form 1 were factored in). Consideration 1. Similar observations may be made as to the submissions advanced by the applicant in support of this ground as were made with respect to Ground 1 of the appeal. 2. It is true that the quantity of the drugs supplied by the applicant was approximately one tenth of the commercial quantity of 250g and there was no evidence as to the purity of the drug which would have had a bearing on the objective seriousness of the offence. (It might be also noted that the applicant placed reliance upon statistical material.) Those factors, whilst relevant, do not adequately depict either the applicant's role in the offence or the level of criminality involved. 3. It was properly accepted by the applicant's counsel that the applicant was a principal in this offence. He also found that he was a dealer, even though there was also personal use. 4. A significant consideration in this matter was that his Honour was required to take into account an additional offence on the further Form 1 document. This involved a deemed supply of 62.86g of methylamphetamine. 5. In Attorney-General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 ("Attorney-General") Spigelman CJ (with whom Woods CJ at CL, Grove, Sully and James JJ agreed) found that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted (in a Form 1 document) with a view to increasing the penalty that would otherwise be appropriate for the particular offence (at [42]). The Court did that by giving greater weight to two elements, one of which was the community's entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been opposed. 6. Reference should be made to the recent judgment of Hoeben CJ at CL (with whom Walton J and Latham J agreed) in Le v R [2017] NSWCCA 26 at [37] where his Honour made observations regarding the judgment in Attorney-General as follows: The fact of the admitted offence and the circumstances surrounding it cannot be disregarded. It clearly played a significant part in his Honour's exercise of the sentencing discretion. This can be seen from the detailed description given by his Honour of the actions taken by the applicant in relation to this offence. In that regard, the oft quoted passages from Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 in the judgment of Spigelman CJ (with whom Wood CJ at CL, Grove, Sully and James JJ agreed) remain pertinent: [18] A number of propositions with respect to the process of taking into account matters on a Form 1 are well established and are uncontroversial. First, the entire point of the process is to impose a longer sentence (or to alter the nature of the sentence) than would have been imposed if the primary offence had stood alone. Secondly, it is wrong to suggest that the additional penalty should be small. Sometimes it will be substantial. (See e.g. The Queen v White (1981) 28 SASR 9 at 13; Murrell v The Queen (1985) 4 FCR 168 at 179 per Blackburn J; R v Vougdis (1989) 41 A Crim R 125 at 128-129; R v Morgan (1993) 70 A Crim R 368 at 371-372.) … [42] The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences which there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s 33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another. 1. Reference may also be made to the judgment of Bathurst CJ (with whom Hoeben CJ at CL, Garling and Campbell JJ agreed) in Abbas, Bodiotis, Taleb and Amoun v R (2013) 231 A Crim R 413; [2013] NSWCCA 115 at [22] where it was confirmed that an offence on a Form 1 document may result in a sentence being increased to take into account the additional need for deterrence and retribution. 2. In this matter the sentencing judge indicated that he took into account the further Form 1 document without elaborating on its significance. However, his Honour emphasised that the principles of general deterrence should be given significant weight because of the role the applicant played in the supply of prohibited drugs (see, Koh v R [2013] NSWCCA 287 at [137]-[138] per Johnson J (with whom Hoeben CJ at CL and Latham J agreed)). The dangers of cannabis use were particularly mentioned in that respect. 3. The confluence of the admitted facts in the further Form 1 document and his Honour's strong findings in relation to general deterrence result in the applicant's role and the level of criminality involved in the matter being considerably more serious than was reflected in the applicant's submissions on this ground of appeal. For similar reasons as to those given with respect to Ground 1, the statistical material relied upon by the applicant does not properly support the applicant's contention that the sentence for sequence 3 was excessive. 4. In all the circumstances, I do not consider that the sentence imposed by the sentencing judge with respect to sequence 3 was manifestly excessive. 5. I consider that leave should be given, at least for the purpose of discussing the aforementioned principles, and, that this ground of the appeal should be dismissed. Ground Three – The degree of accumulation between the sentence imposed for sequence 4 (Supply Prohibited Drug, Cannabis leaf), sequences 3 (Supply Prohibited Drug, Methylamphetamine) and 2 (Ongoing Supply, Cocaine) was excessive, such that the overall sentence and non-parole period imposed was manifestly excessive. 1. The sentencing judge accumulated sequence 3 by commencing the sentence 1 year after the commencement date of sequence 4. He imposed a non-parole period of 3 years for sequence 3, with an additional term of 6 months. The sentencing judge then further accumulated by one year the commencement date for sequence 2, imposing a non-parole period of 2 years and an additional term of 3 years. This resulted in an overall sentence of 7 years, with a non-parole period of 4 years. Accordingly, the sentence for sequence 4 represented both one year of the total non-parole period and consequently one year of the overall term imposed. 2. The applicant's submissions in this respect of Ground 3 are as follows. It was acknowledged that the sentences for sequence 2 and 3 ought to have been at least partially cumulative to each other since they represented separate acts of criminality. Whilst the sentencing judge did accumulate the sentence for sequence 2 by one year for sequence 3, the non-parole period of 2 years for sequence 2 was entirely subsumed in the non-parole period of 3 years for sequence 3 and therefore did not extend the overall non-parole period. This was to the benefit of the applicant given that sentencing principles would suggest some accumulation was appropriate. 3. No complaint is made about sequence 2 given that the "three supplies were significant and a number of further offences were taken into account in the Form 1 document." The sentence was nonetheless severe. It was contended by the applicant that, had a lesser non-parole period for sequence 3 been imposed, the sentence for sequence 2 would have then represented some discrete and additional proportion of the overall non-parole period so as to more appropriately reflect the need for some degree of accumulation for sequence 2; rather than the non-parole period for sequence 2 being evidently subsumed within the non-parole period for sequence 3. 4. It was accepted that "there ought to have been some degree of accumulation between the three sentences imposed". 5. The real argument in respect of Ground 3 is that the degree of accumulation between sequence 4 and the other offences was manifestly excessive; namely, that the 1 year added to the overall non-parole period by sequence 4 was disproportionate to the part played by the cannabis offence in the overall criminality of the offences. 6. If the Court were to accept Ground 2 was made out then the sentence imposed under sequence 2 would have extended the overall non-parole period as it ought to have done, rather than being entirely concurrent with sequence 3. 7. If the Court were to accept that Ground 1 of the appeal was established then the Court might more readily accept that the degree of accumulation with the other sequences was excessive. However, Ground 3 does not entirely depend on the success of Ground 1. 8. Whilst it is true that his possession of the quantity of cannabis represented "a further feature of his 'business'" which "no doubt added to his custom", it was submitted in support of Ground 3 that: 1. There was no evidence about "any actual supply of the drug"; 2. The cannabis had a lesser maximum penalty than the other 2 counts and it was a low quantity relative to non-commercial quantities of cannabis up to 25kg; and 3. When these factors were not taken into account, there was no warrant in the sentence for sequence 4 adding an extra year to the total non-parole period received. 1. It was accepted that the questions of accumulation are, subject to applicable principle, discretionary matters for the sentencing judge. 2. However, here, the sentence offended the totality principle because the further criminality disclosed by sequence 4 was not significantly additional to the criminality disclosed in the other offences. It was, therefore, unreasonable to accumulate the non-parole period by a year. Consideration 1. The sentencing judge determined that the sentences were partially accumulated and partially concurrent with imprisonment for a minimum of period of four years commencing 4 September 2015. His Honour accumulated sequence 3 by commencing the sentence 1 year after the commencement date of sequence 4. His Honour then imposed a non-parole period of 3 years for sequence 3 with an additional term of 6 months. The sentencing judge further accumulated by 1 year the commencement date for sequence 2, imposing a non-parole period of 2 years and an additional period of 3 years. It follows that 12 months of the 2 year fixed sentence for sequence 4 was made concurrent such that the amount of accumulation was 12 months or 50% of the total sentence. 2. Whilst the sentencing judge did accumulate the sentence for sequence 2 by 1 year for sequence 3, the non-parole period of 2 years for sequence 2 was entirely subsumed in the non-parole period of 3 years for sequence 3 and did not, therefore, extend the overall non-parole period. 3. The principles to be applied with respect to accumulation and concurrency were identified by Hall J (with whom Tobias JA and Kirby J agreed) in R v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115 ("XX") at [52]. Those principles have been recently adopted in Grills v R [2016] NSWCCA 46 at [39] per Davies J (with whom Beazley P and RS Hulme JA agreed) and Franklin v R [2016] NSWCCA 319 at [94] per Macfarlan JA (with whom R A Hulme and Bellew JJ agreed). I adopt those principles. For convenience I extract the relevant passage from Hall J's judgment below: There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively: see Cahyadi v Regina (2007) 168 A Crim R 41 per Howie J at 47. However, a number of propositions relevant to the consideration of that issue may be derived from the case law. They include the following:- (1) It is well established that questions of accumulation are, subject to the application of established principle, discretionary. What is important is that, firstly, an appropriate sentence is imposed in respect of each offence; and, secondly, that the total sentence imposed properly reflects the totality of the criminality: Regina v Wilson [2005] NSWCCA 219 at [38] per Simpson, Barr and Latham JJ agreeing. (2) In Regina v Weldon; Regina v Carberry (2002) 136 A Crim R 55, Ipp JA at [48] stated that it is "not infrequent that, where the offences arise out of one criminal enterprise, concurrent sentences will be imposed" but his Honour observed that "this is not an inflexible rule" and "[t]he practice should not be followed where wholly concurrent sentences would fail to take account of differences in conduct". (3) The question as to whether sentences in respect of two or more offences committed in the course of a single episode or a criminal enterprise or on a particular day should be concurrent or at least partly accumulated is to be determined by the principle of totality and the relevant factors to be taken into account in the application of that principle. See observations in this respect of Howie J in Nguyen v Regina [2007] NSWCCA 14 at [12]. (4) In applying the principle of totality, the question to be posed is whether the sentence for one offence can comprehend and reflect the criminality of the other offence. See generally Regina v MMK [2006] NSWCCA 272 at [11] and [13], Cahyadi (supra) at [12] and [27] and Vaovasa v Regina [2007] NSWCCA 253. (5) If the sentence for one offence can comprehend and reflect the criminality of the other, then the sentences ought to be concurrent, otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the totality of the two offences: Cayhadi (supra) per Howie J at [27]. (6) If not, the sentence should be at least partially cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality: Cayhadi (supra) per Howie J at [27]. (7) Whether the sentence for one offence can comprehend and reflect the criminality of the other calls for the identification and an evaluation of relevant factors pertaining to the offences. These will include the nature and seriousness of each offence. … (9) Where two offences committed during the course of a single episode are of a completely different nature and each individually involved significant or extreme gravity, it is likely that some accumulation will be necessary to address the criminality of the two: Nguyen (supra) per Howie J at [13]. (10) Possession of two different kinds of drugs may not be regarded as one episode of criminality in a case of "deemed" supply: Luu v Regina [2008] NSWCCA 285 at [32]. (11) The fact that the evidence of two offences (eg, documentary evidence or the presence of drugs) are located by police at or in the one place is not a relevant factor in favour of concurrent sentences:- '… The fact that the evidence of a number of discrete offences is located in the one place is completely irrelevant to any question of how the sentences for those offences should be imposed.' (Cahaydi (supra) at [26]) 1. One of the foundation stones for the applicant's contention in this respect is no longer available as a result of my earlier ruling in this judgment. I have already found that the sentence imposed for sequence 3 was not manifestly excessive. The applicant also contended that the sentence for sequence 2 was "severe". I do not accept that contention having regard to the nature of the applicant's role and criminality involved in sequence 2 particularly when account is given to the admitted facts in the cocaine related Form 1. To that assessment might be added the consideration that the non-parole period for the sequence 2 offence was entirely concurrent with the non-parole period for sequence 3. 2. The applicant nonetheless submitted that, in the event that its contentions as to sequences 2 and 3 fail, it may still establish that the degree of accumulation with respect to sequence 4 was excessive such as to establish the overall sentence and non-parole period imposed by the sentencing judge was excessive. 3. There are two fundamental flaws in this further leg of the applicant's contentions. First, the applicant accepted that there ought to have been some degree of accumulation "between the three sentences imposed". I agree with the submission of the Crown that once this submission was advanced, the "degree" of accumulation was open to the sentencing judge as a matter of discretion. The discretion was properly exercised in recognition of the possession for supply by the applicant of a different type of prohibited drug namely cannabis. The possession for supply of an amount of cannabis was a separate offence committed by the applicant and should properly, on the aforementioned principles, be regarded as a separate episode of criminality (see, in particular, Luu v R [2008] NSWCCA 285 at [32]). 4. Secondly, the contentions advanced by the applicant that his possession of a quantity of cannabis representing a lesser degree of criminality because there was no evidence of "any actual supply of the drug" and the quantity of cannabis was low relative to non-commercial quantities may be rejected upon the bases set out earlier in this judgment with respect to Ground 1 of the appeal. The applicant also pointed to the fact that the cannabis had a lesser maximum penalty than the other two counts. It is difficult to see how that submission can advance his case in circumstances where it has been found that the sentence imposed with respect to sequence 4 was not manifestly excessive. 5. Returning to the principles discussed in XX and the final aspect of this ground, I consider that the total sentence imposed by the sentencing judged properly reflected the totality of the criminality. This conclusion may be arrived at having regard to the bases for the dismissal of the respective grounds (including that aspect of this ground concerning accumulation) and the overall criminality of the applicant in drug dealing as a business enterprise, when two of the grounds have admitted offences set out in the Form 1 documents. To that may be added that the sequence 2 offence was particularly serious given it concerned ongoing supply of a significant quantity of cocaine for financial reward together with the admitted offences in the cocaine charge Form 1. 6. In the circumstances, I consider that leave to appeal should be granted and the appeal dismissed with respect to Ground 3. Proposed Orders 1. The orders which I propose are: 1. Leave to appeal against sentences granted. 2. The appeal is dismissed. 1. LATHAM J: I agree with Walton J. ********** Amendments 25 May 2017 - Correct typographical error: "Drug Misuse and Trafficking Act 1995 (NSW)" to "Drug Misuse and Trafficking Act 1985 (NSW)". 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: 25 May 2017