Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Le v R [2018] NSWCCA 199 Hearing dates: 7 September 2018 Date of orders: 21 September 2018 Decision date: 21 September 2018 Before: Ward JA at [1] Bellew J at [2] Beech-Jones J at [41] Decision: (1) Leave to appeal against sentence granted. (2) Appeal allowed. (3) Sentences imposed in the District Court quashed. (4) In lieu thereof, the applicant is sentenced as follows: (i) as to count 1, a non-parole period of 4 years and 6 months commencing 8 December 2015 and expiring on 7 June 2020 with an additional term of 1 year and 6 months expiring on 7 December 2021; (ii) as to count 2, a non-parole period of 4 years and 9 months commencing 8 April 2016 and expiring on 7 January 2021 with an additional term of 1 year and 9 months expiring on 7 October 2022; (iii) the total term of imprisonment is one of 6 years and 10 months; (iv) the applicant will be eligible for parole on 7 January 2021 and his sentence will expire on 7 October 2022. Catchwords: CRIMINAL LAW – Appeal – Sentence – where applicant appeared for sentence in respect of separate counts of supplying a prohibited drug – Where sentencing judge omitted to impose a non-parole period in respect of one count – Error established – Applicant re-sentenced Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Cases Cited: BB v R [2017] NSWCCA 189 MLP v R [2014] NSWCCA 183 R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 R v Younan [2018] NSWCCA 180 RLS v R [2012] NSWCCA 236 Vaiusu v R [2017] NSWCCA 71 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Category: Principal judgment Parties: Huu Hong Le – Applicant Regina - Respondent Representation: Counsel: S Fraser – Applicant C Curtis - Respondent Solicitors: O'Brien Solicitors – Applicant C Hyland, Solicitor for Public Prosecutions - Respondent File Number(s): 2015/187492 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 7 August 2017 Before: Sutherland SC DCJ Judgment 1. WARD JA: I agree with Bellew J. 2. BELLEW J: On 24 May 2016 Huu Hong Le ("the applicant") pleaded guilty in the Local Court to the following charges: 1. supplying prohibited drugs on an ongoing basis between 1 May 2015 and 22 May 2015 (count 1); and 2. supplying prohibited drugs on an ongoing basis between 25 May 2015 and 25 June 2015 (count 2). 1. Each count was contrary to s 25A of the Drug Misuse and Trafficking Act 1985 (NSW) ("the DMT Act"), the maximum penalty for which is 20 years imprisonment. 2. The applicant adhered to his pleas when he appeared before the District Court for sentence. In addition, he asked the sentencing judge to take into account two matters on a Form 1, namely: 1. possessing a prohibited drug (methylamphetamine) on 25 June 2015; and 2. supplying a prohibited drug (methylamphetamine) on 29 April 2015. 1. On 7 August 2017 the applicant was sentenced by his Honour Judge Sutherland SC in the District Court as follows: 1. in respect of count 1, imprisonment for 7 years commencing from 8 December 2015; 2. in respect of count 2, imprisonment for 6 years, to be served concurrently with the sentence imposed in respect of count 1, with a non-parole period of 5 years and 3 months commencing on 8 December 2015 and expiring on 7 March 2021, with a balance of term of 21 months expiring on 7 December 2022. 1. The applicant now seeks leave to appeal against the sentences imposed on the grounds more fully set out below. THE FACTS OF THE OFFENDING 1. The applicant was sentenced with a co-offender, Binh Thanh Kha. The sentencing judge found the facts of the offending to be as follows (commencing at ROS 6): 21. In March 2015 a Strike Force was formed by the Redfern Drug Unit with the intention of investigating the supply of methylamphetamine and heroin by Huu Hong Le. Controlled Operation certificates were obtained authorising the purchase by undercover police of prohibited drugs from Mr Le and his associates. 22. The first undercover purchase took place on 29 April 2015. The Agreed Facts tendered in the proceedings against Mr Le describe "an individual' meeting with police and being given $500 cash. I infer that the individual was either an undercover police officer or a person working closely with police who I will refer to relevantly as an "operative." Whether or not the repeated contacts, to which I will in due course refer, were the same operative or different police operatives is uncertain on the Agreed Facts and not a relevant consideration in my view. 23. On 29 April 2015 the operative went to a unit in George Street, Redfern occupied by somebody referred to in the facts as TJ. After making contact with TJ, whose identity remains undisclosed, a request to obtain a "weight' of "ice", which I understand to mean 1 gram, was made. TJ called a person on the operative's mobile phone and had a conversation in Vietnamese. After completing the call TJ advised the operative that he could obtain "half-weights" for a cost of $250 each. 24. A short while later the operative gave TJ the $500 and a black Honda motor vehicle pulled up, being driven by an Asian male. TJ got into the car, which then drove off. Sometime later the operative met with TJ back at the apartment where a bag containing crushed "ice", that is, methylamphetamine, was handed over. This bag was apparently only one half-weight. 25. A short while later TJ and the operative went to the nearby TAB where they made contact with the Asian male who had earlier been seen driving the motor vehicle. TJ told the operative that the Asian male was waiting to pick up the other half-weight. Later that afternoon the operative received a phone call from the Asian male who advised him that his name was "Kevin". "Kevin" provided a mobile phone number, 0405 003 881, and advised the operative that he had the other half gram of "ice" and asked the operative to call back the following day. The operative said that he could not meet with "Kevin" until 30 April which was the following day. "Kevin" phoned back at some stage and said he could not meet until after 5pm. The meeting did not take place that day. 26. The single packet that had been supplied was later analysed to be methylamphetamine with a total weight of 0.34 grams at a purity level of 40%. "Kevin" was established to in fact be Huu Hong Le, who had been driving the black Honda motor vehicle which in due course, as will become clear, was ascertained to be registered in his own name. 27. That individual supply of 29 April was separately charged as a supply of a small quantity contrary to the provisions of s 25(1) of the Drug (Misuse and Trafficking) Act and it appears in the present proceedings on the Form 1. It would appear that over the following period of approximately three weeks between 1 May 2015 and 20 May 2015 there were seven separate supplies of a prohibited drug by the offender Le to the police operative. 28. On 1 May 2015 the police operative contacted Le on his mobile telephone and sought to arrange the purchase of a gram of "ice." A price was agreed at $450 and arrangements were made for the purchase to take place at a service station at Ashfield. The police operative and the offender drove their vehicles to the nominated service station where the exchange took place. The resealable bag which was supplied and which was said to contain a gram was subsequently ascertained to be methylamphetamine with a total net weight of 0.66 grams and a purity of 83%. 29. The repeated supply of a quantity of drug, whether described as a gram or as an eight-ball, which as will become clear is an eighth of an ounce, would appear to almost invariably have been at somewhat of an underweight. 30. On 4 May 2015 the police operative again contacted the offender Le on his mobile telephone. Arrangements for the acquisition of an amount of heroin were made. The operative and the offender met in Quay Street in the Haymarket in Sydney and a quantity of heroin was supplied by the offender. It was described as being an eight-ball, which I infer is a reference to the well-known quantity involved in drug supply, namely an eighth of an ounce or approximately 3.54 grams. Payment on this occasion was made of $1,200 by the operative. The quantity of heroin supplied was in due course weighed and it had a total net weight of 3.39 grams with a purity level of 35%. 31. Two days later, on 6 May 2015, the police operative again contacted Le on his mobile phone and arrangements were made to again meet in Quay Street in Haymarket. On this occasion the offender advised the operative that he could obtain eight-balls of ice for $1,200 each and that he could be available for such supply 24 hours a day. 32. The two men went to a Vietnamese restaurant in George Street, where the discussion related to the provision of "one ball of slow", which was a shorthand reference to an eight-ball of heroin. The operative handed over $1,200 and he was supplied by Mr Le with a bag of heroin, ultimately ascertained to have a net weight of 3.23 grams with a purity level of 29.5%. On this occasion Mr Le provided a new mobile phone number for the purpose of being contacted. 33. On 11 May 2015 the operative again contacted the offender, this time on his new mobile phone number which had been provided the week earlier. The two men met in Chinatown and again went to the same Vietnamese restaurant in George Street that they had attended previously. A further bag of heroin was supplied for an amount of $1,200. Subsequent analysis confirmed this heroin to have a total net weight of 3 grams with a purity of 29%. 34. On 13 May 2015 the operative yet again contacted the offender. On this occasion they met at Phillip Street, Waterloo. The offender Le got into the motor vehicle driven by the police operative and they proceeded to Chinatown. The offender told the operative that he had "some new stuff for you" in respect of which he should be "very carefuf as it was "very strong." 35. The offender told the operative that the drug had come "from my country, Thailand". In the course of driving towards Chinatown the offender Le pulled out a bag of heroin and advised the operative: "it's much better now, not cut'. The offender advised the operative that there was one gram and the supply of that quantity was then exchanged for $500. The offender advised the operative to try the "new" heroin and to let him know straight away what he thought of it. He further advised that an eight-ball of this new and stronger heroin would be at least $1,500. The quantity supplied on this occasion was ultimately ascertained to have a total net weight of 0.62 grams at a purity of 69.5%. 36. The following day, 14 May 2015, the operative again contacted the offender. The police operative again went and collected Mr Le at Phillip Street, Waterloo in the motor vehicle driven by the police operative. He enquired if the offender had the same "stuff' as had been supplied the previous day and they had a discussion as to the price for an ounce of the "new" heroin. The offender advised that it would be $10,500 for an ounce. He also told the operative that he could provide a different type of heroin for $7,000 an ounce. 37. In due course both men, that is Mr Le and the police operative, went to the Vietnamese restaurant in George Street in the city where an eight-ball of heroin was supplied for $1,500. Analysis subsequently ascertained this heroin to have a total net weight of 3.16 grams with a purity level of 50.5%. 38. On 19 May 2015 the police operative yet again contacted the offender via mobile phone and arrangements were again made for the supply of an eight-ball of heroin. After meeting at the Vietnamese restaurant at 709 George Street, Sydney where they frequented, the two men travelled to Surry Hills in the police operative's motor vehicle. Near Crown Street, Surry Hills the offender, Mr Le, indicated that he did not have the heroin with him and he got the operative to park his car near Crown Street and adjacent to where, in due course, it became clear Mr Le lived. 39. The offender, Mr Le, was given $1,500 by the operative and Mr Le said that he would be back in five minutes. After some time Mr Le had not returned to the motor vehicle, so the operative called him and sent SMS messages, all without response. Later that afternoon the operative, having departed the area, received a message from Mr Le advising that he was still waiting to obtain the heroin. That evening the offender telephoned the police operative to advise that he had obtained the eight-ball of heroin and arrangements were made for the supply to take place the following morning. 40. On 20 May 2015 the two men met at the Vietnamese restaurant on George Street. The offender advised that he had "seven" for the operative and that he would give him credit because of the mistake that occurred the day before. Mr Le told the police operative that the day before, his "boy didn't come". A package said to contain 7 grams of heroin instead of approximately 3.5 grams, or an eight-ball, which had been requested, was then handed over. 41. The police operative said that he would go to his vehicle and only take half of what was being supplied because he did not want to be indebted to Mr Le. The operative then returned to his own vehicle and examined what had been provided to him. He observed that there were three small clear resealable bags, one of which appeared to contain an eight ball of heroin and the other two bags appeared to contain approximately half of an eight ball or about 1.7 grams each. The police operative retained the bag containing what appeared to be an eight ball and returned the two smaller bags to the offender Le. Subsequent analysis ascertained this heroin, that is the heroin retained by the operative, to in fact have a total net weight of 2.88 grams with a purity of 31.5%. 42. As I have indicated above, these seven discrete supplies by Le involving 0.66 grams of methylamphetamine on the one occasion and a total of 16.28 grams of heroin in total comprise the single count of ongoing supply of a prohibited drug between 1 May 2015 and 20 May 2015. This offence is the second indicted substantive offence before me in respect of which he appears for sentence. 43. As I have already indicated, this supply on an ongoing basis is an offence contrary to s 25A(1) of the Drug (Misuse and Trafficking) Act 1985 and carries a maximum penalty of 20 years imprisonment. There is no prescribed standard non-parole period. 44. I should note in passing that this period during which ongoing supplies were occurring between the offender Le, using the name "Kevin" to identify himself, and the unnamed police operative is not suggested either in the facts or in any of the charges before me to have had any connection with the co-offender Binh Thanh Kha. As I have observed, there are no charges preferred against Mr Kha with respect to that series of supplies. 45. On 25 May 2015 the police operative again contacted the offender Le on his mobile phone. On this occasion they arranged to meet at a coffee shop at Surry Hills. They had a discussion about the quality of the heroin which had been supplied on the last occasion, namely 20 May 2015, which as I have already indicated was 31.5% purity and the police operative advised Mr Le that it was "not the best'. 46. The offender Le advised the operative that he only had the same type of heroin with him on this particular occasion and that the operative would have to wait longer if he wanted better heroin. The operative agreed to take the heroin which was available at that time and paid $1,100 for what was said to be an eight-ball. The transaction thereafter took place and two clear resealable bags of heroin were provided which, according to the offender when he supplied them, contained respectively 1.75 grams each. In due course analysis of the heroin revealed a total net weight of only 2.59 grams at a purity level of 32.5%. 47. On 27 May 2015 the police operative contacted the offender Le and made arrangements to meet with him at Goulburn Street, Surry Hills. The offender arrived at that location in his black Honda CRV. The operative left his own vehicle and got into the offender's car. The offender Le advised that again he only had the same "gear" as previously and if the operative wanted "the good one" they needed to go for a drive. 48. The operative indicated that he did want the "good one" and also asked the offender if he could still obtain "ice". The offender indicated that he would be able to obtain "ice" and it would be $6,000 an ounce. The offender Le then drove his Honda CRV with the operative to a house at 42 Neerini Street, Smithfield, which as it transpired, was the home of the co-offender Binh Thanh Kha. 49. Both men got out of the vehicle and walked to the garage of the house. Inside the garage they met with the co-accused Binh Thanh Kha. Mr Le and Mr Kha spoke with each other in Vietnamese and the police operative handed $1,500 to Le, who in turn passed it to Kha. 50. I should observe that the Agreed Facts tendered separately against each of the respective co-offenders coincide with each other up to this point in time regarding the activities of 27 May. 51. The Agreed Facts with regard to the offender Le then include a description of an activity allegedly involving the offender Kha whilst all men were present in the garage. Those details, which set out what appears to have been the use of drugs, are not included in the Agreed Facts tendered against Mr Kha. They involve, if accurate, activity with which he is not charged. I accordingly ignore those assertions contained in the Le Agreed Facts insofar as determining an appropriate sentence against Mr Kha. 52. The assertions appear to me to play no part in a relevant determination of the criminality of Mr Le. I should observe in passing that careful attention needs to be given to what is and what is not included in Agreed Facts in circumstances where co-offenders are to be dealt with together. In the circumstance where the particular assertions, assuming that they were originally included perhaps in the Kha Agreed Facts and, not having been agreed upon and not being the subject of charge, were then excluded; and playing no relevant part in the proceedings against Mr Le, they ought to have been excised from the Le Agreed Facts as well. 53. The $1,500 having been handed to the offender Kha, it would appear he then supplied to the police operative two bags of grey beige heroin in rock form. Kha advised the police operative that what was being supplied was one ball comprising a "half-balf in each of two separate bags. The operative asked Mr Kha whether it was the "good one" and was advised by Mr Kha that it was. The police operative said to Mr Kha that he thought he had obtained this "good" heroin previously and Mr Kha asked whether it had been obtained from him. The operative and Mr Le then departed Smithfield and drove back to Surry Hills. 54. The facts tendered in in the sentence proceedings against Mr Le go on to include that Le subsequently advised the police operative that the heroin had come into Australia in a liquid form and had been evaporated to form powder. I note that material and remind myself that Mr Le is not charged in any respect with being concerned in any importation. The fact asserted by him as to the source of the heroin may well have been derived by him as a consequence of something that he was told and I obviously bear in mind the principles in R v De Simoni [1981] HCA 31; 147 CLR 383; 5 A Crim R 329 in sentencing him purely for the matters in respect of which he is charged. 55. The subsequent analysis of the heroin which had been supplied from Mr Kha in the garage at Smithfield and in respect of which Mr Le had taken the operative there for the purpose of obtaining that heroin, was ascertained to have a total net weight of 3.14 grams with a purity of 68.5%. That specific supply of heroin from the premises at Smithfield on 27 May 2015 forms the basis of a substantive charge of supplying a prohibited drug in an amount not less than the indictable quantity against Mr Kha. That offence has been included in the Form 1 which I am asked to take into account in sentencing for the substantive matters before me, and as I have already indicated, I will do so in relation to the third substantive count. 56. Insofar as Mr Le is concerned, together with the supply of heroin on 25 May, this supply from Smithfield forms part of the sequence of 11 supplies ultimately giving rise to the substantive offence of ongoing supply of prohibited drugs between 25 May and 25 June 2016 and which is the first count of ongoing supply substantively before me. 57. On 28 May 2015 the police operative again contacted Mr Le. On this occasion he arranged to meet with him to obtain a sample of the ice that they had discussed previously. The operative drove to Goulburn Street near Crown Street, Surry Hills where he called the offender Le on his mobile phone. He was advised to come to Unit 10, 261 Crown Street, Surry Hills, which transpired to be the residence of the offender Le. The operative went to Mr Le's unit where they had a discussion about the sample of "ice" and confirmed that the price would be $6,000 for an ounce. 58. The offender went to his desk and opened a drawer in which there were several bags. The offender opened a bag of "ice" and used a straw to pull out a large long crystal of methylamphetamine. The operative asked how much it was and was advised by Mr Le that it would cost nothing because it was a sample. The police operative took the large crystal and left the home unit indicating that he would be back in touch regarding the purchase of an ounce. Subsequent analysis of the crystal which was supplied confirmed that it was methylamphetamine and that it had a total net weight of 0.09 grams. Due to the small size of the sample the purity was not further analysed. 59. Later on 28 May 2015 the operative spoke with the offender Le by telephone. He advised Le that he was happy with the sample and they arranged to meet the following day for the purchase of an ounce of ice for $6,000. In a further conversation later that day the offender Le sent a message to the police operative asking him if he would become a "runner". Le told the operative that he needed help in selling a "half of heroin and that he was prepared to pay the operative to assist him in selling it to other people. 60. I have drawn the inference that reference to a "half in this instance, as I have earlier alluded to, was to an "eight ball", or an eighth of an ounce, or approximately 3.54 grams. 61. The police operative, as I perceive the Agreed Facts, declined the invitation to become a distributor. On 29 May 2015, however, the police operative introduced another person into the interaction with the offender Le. He introduced Le to a person described in the Agreed Facts as "Johnny" at Surry Hills. In the course of that meeting, the Agreed Facts in relation to Mr Le, assert that the co-accused, Mr Kha, arrived and participated in conversations regarding the supply of an ounce of ice. No transaction is said to have occurred on that occasion. 62. I again note that the assertions with respect to the offender Kha are not included in the Agreed Facts in his sentence proceedings. There is no charge or offence alleged against him with respect to the events of 29 May 2015. Accordingly, the assertions against Mr Kha in the Le Agreed Facts regarding the events of 29 May 2015 will play no part in the determination by me of Mr Kha's overall level of criminality. 63. On 1 June 2015, the police operative called the offender Le and they arranged to meet at Le's unit in Crown Street, Surry Hills. The operative went to the unit and advised Le that he wanted to purchase an eight-ball of heroin on this occasion. The offender Le advised that he only had two and a half grams in his possession at that time and in due course that amount was supplied for $1,070. The offender went and procured the bag of heroin physically from a concealed location on a bookshelf in his flat. 64. Subsequent analysis revealed that supply of heroin to be a total net weight of 2.12 grams. Later that same day, "Johnny" had a number of telephone conversations with the offender Le, in which it was arranged that they would meet on 3 June 2015 at the premises at Smithfield. As I have already referred to briefly, I should note again in passing that my references thus far to the police operative are, as I have described, an inference which I have drawn from the terminology used in the Agreed Facts which variously refer to "an individual' or "the individual". The surrounding circumstances cause me to draw the inference that it was the same individual who was contacting and meeting with the offender Le on the various occasions described. 65. I should make it clear that if, in fact, there were different police operatives that circumstance does not alter the gravamen of the criminal conduct by the offender Le in either aggravating or mitigating it. The circumstances set out in the Agreed Facts which now extend to include a person identified in the agreed facts as "Johnny" lead me to draw the inference that "Johnny" was also a police operative or a person assisting police. 66. On 3 June 2015 as a consequence of the arrangement which had been made by phone, "Johnny" travelled to Fairfield. Whilst driving, he received a phone call from the offender Le as a consequence of which he met with Mr Le at the KFG premises in Alan Street, Fairfield. The offender got into "Johnny's" motor vehicle and they drove to the McDonald's car park at Horsley Drive, Fairfield. 67. At those premises the offender made a phone call following which he asked "Johnnf to drive back from McDonalds to the KFC premises in Alan Street. Once back at that location, "Johnnf provided a bag containing $12,000 to the offender Le. Le got out of "Johnny's" motor vehicle carrying the $12,000 and he walked across Alan Street into the Cambridge Tavern car park which, as I understand it, was across the road, where he met with the co-offender Binh Thanh Kha who was seated inside a black Honda CRV. 68. This black Honda CRV which had been previously been observed being driven by Mr Le was in fact Le's motor vehicle. It was at this time in possession of Mr Kha. I will make reference to that circumstance later in these remarks. Le then made a phone call to "Johnny" telling him to drive his motor vehicle from the KFC park, effectively across the road, to the Cambridge Tavern car park. 69. When "Johnny" arrived in the Cambridge Tavern car park Mr Le got out of the black Honda CRV and got into "Johnny's" car. He provided a package containing two sandwich bags in which there were yellow shards of crystal. The Agreed Facts then described "Johnny" parking his car inside the McDonald's car park where Le got out of the vehicle. 70. Whether it was in fact McDonalds or whether he went back across the road to KFC where they originally met would appear to me to be an irrelevant detail. I am uncertain whether it is a typographical error or whether there was a change of location but nothing turns upon that detail. 71. Subsequent analysis of the yellow shards identified them as methylamphetamine with a total net weight of 55.4 grams and a purity of 80.5%. The events of 3 June and the supply of the methylamphetamine on that occasion comprise the basis for the substantive offence of supplying a prohibited drug contrary to the provisions of s 25(1) of the Drug Misuse and Trafficking Act in an amount greater than the indictable quantity applicable to methylamphetamine, against the offender Kha. This is sequence 2 of the three charges that he asks to be taken into account and which have been placed on a Form 1. 72. So far as the offender Le is concerned, the supply of methylamphetamine on this occasion, 3 June 2015, is included in the charge of supply on an ongoing basis between 25 May and 25 June 2015 which is the first of the two substantive offences in respect of which he has pleaded guilty before me. 73. On 10 June 2015, the police operative drove to Goulburn Street near Crown Street, Surry Hills and met with the offender Le at his apartment. On this occasion, a purchase of an eight-ball of heroin was made for an amount of $1,500. The bags of heroin handed over on that occasion were subsequently ascertained to have a total net weight of 2.9 grams with a purity of 72%. 74. On 11 June 2015, "Johnny contacted the offender Le and arranged to meet with him at Surry Hills. In due course, "Johnny" attended the offender Le's home unit where he obtained three clear resealable bags containing clear crystal shards for an amount of $18,000. Those crystals were subsequently analysed and confirmed to be methylamphetamine with a total net weight of 83.9 grams and a purity of 76.5%. This supply comprised part of the ongoing supply, 11 transactions in total, effected by the offender Le between the dates I have identified, 25 May and 25 June 2015. 75. On 15 June 2015 the police operative again contacted the offender Le and arrangements were made for another attendance at the home unit of Le at 10/261 Crown Street, Surry Hills. The Agreed Facts tendered in the sentence proceedings against Mr Le recite: "The individual told the accused that he wanted $1,500 which was for an eight-ball of heroin". I am uncertain whether that is a typographical error but it would appear that the police operative was not seeking to obtain $1,500 but was rather indicating that he had $1,500 which he was prepared to pay for an eight-ball of heroin. 76. In due course, an Asian male, described as having a stocky build and carrying a bag attended the offender Le's home unit where the transaction for a bag of heroin took place. The police operative handed over $1,500 and obtained a bag containing heroin, after apparently being shown that the scales which Mr Le had in the unit read 3.9 grams with respect to the contents. Subsequent analysis in fact revealed the heroin to have a total net weight of 2.98 grams. The purity of this quantity was not tested. The identity of the Asian male described as having a stocky build was never disclosed and he is not otherwise referred to again in the Agreed Facts. 77. On 18 June 2015, "Johnny" again contacted the offender Le having had a number of conversations with him in the preceding days and having apparently placed an order for three ounces of "ice". Arrangements had been made to meet at the McDonald's restaurant at Smithfield on 18 June 2015. 78. "Johnny" drove to the McDonald's at Horsley Drive at Smithfield where he saw the offender Le who then approached "Johnny's" car before coming and sitting inside it. Once inside "Johnny's" car, Mr Le directed him to drive to the car park next to McDonald's where they pulled up alongside the black Honda CRV which was in fact registered to Mr Le. "Johnny" parked his vehicle alongside the black Honda CRV and observed Mr Kha in the driver's seat. 79. Mr Le got out of "Johnny's" car and went and got into the passenger side of what was his own vehicle being driven by Mr Kha and whilst that was taking place "Johnny" obtained $18,000 in cash from the boot of his own vehicle. In due course, the offender Le returned to "Johnny's" car where a transaction took place involving the supply of a number of bags containing crystal shards. Subsequent analysis of those crystal shards confirmed the substance was methylamphetamine and that it had a total net weight of 84 grams with a purity of 79%. 80. On 22 June 2015, the police operative contacted Mr Le on his mobile phone and asked to come and see him. The operative attended the home premises of Mr Le at Crown Street, Surry Hills where discussion regarding the supply of an eight-ball of heroin took place. The Agreed Facts, as with the description of the events on 15 June assert: "The individual told the accused that he wanted $1,500 which was for an eight-ball of heroin". 81. I again infer that this is either a typographical error or, alternatively, that it is an inelegant way of expressing that the police operative wanted to pay $1,500 for an eight-ball of heroin 82. Le advised the operative that he only had 1.7 grams in possession at that time, but if more was wanted they could drive out to Smithfield. The weight of 1.7 grams was apparently confirmed by again being placed on the scales in the unit and the operative handed over $650 for what was purported to be 1.7 grams. Subsequent analysis of the heroin in fact revealed that it had a total net weight of 0.96 grams with a purity of 66.5%. 83. The suggestion of needing to drive to Smithfield to get a large amount of heroin does not resolve any question of entitlement to possession. It does however, indicate that Mr Le was aware that there was an amount stored at the premises at Smithfield, such factor being borne out in due course after the search took place on 25 June. 84. On 25 June 2015 both offenders, Le and Kha, travelled in a motor vehicle from Pyrmont out to Kha's premises at 43 Neerini Avenue, Smithfield. They then went to the Cambridge Tavern at The Horsley Drive, Smithfield where they met with "Johnny". On this occasion Le went to "Johnny's" car and entered the front passenger seat and placed a bag containing three clear resealable bags of crystal shards in the vehicle. Immediately following the fact of that supply of the drug, both offenders were arrested by police. 85. The Agreed Facts tendered in the sentence proceedings against Mr Le include the fact that police recovered a bag containing what was intended to be the purchase money of $20,000 from "Johnny's" vehicle. This amount had been intended to be handed over by "Johnny" as the purchase price for the methylamphetamine which had been supplied. That assertion and that fact is not included in the Agreed Facts tendered with respect to Mr Kha. At the risk of repeating myself some more considerable care needs to be paid to agreed facts where there are joint proceedings in relation to co-offenders, particularly in circumstances such as this where both men are charged in respect of the particular supply. The crystal shards which were handed over were ascertained to be methylamphetamine with a total net weight of 83.6 grams and a purity of 70.5%. 86. As I have indicated earlier in these Remarks the 11 separate supplies of, variously, either heroin or methylamphetamine effected by Mr Le during the period between 25 May and 25 June 2015 have been incorporated into the single charge of supply on an ongoing basis between those dates. The total weight of methylamphetamine supplied in the five separate supplies of methylamphetamine comprised a total of 306.99 grams of methylamphetamine, whilst the six separate supplies of heroin included in that ongoing supply charge comprised a total of 14.69 grams. 87. Following the arrest of both offenders they were separated and dealt with in the fashion described in their respective Agreed Facts. With regard to the offender Le he was interviewed by police with the assistance of a Vietnamese interpreter. He told police that he had been in very difficult financial hardship and needed money. He said: "Whatever they asked me if I could do then I was doing, so I just received and give it to other people. I never done it before in my life." 88. The accused said it was his friends who had asked him to do these things and that he had simply done what he was asked. When asked the names of the friends to whom he was referring he said that he was uncertain if they were real or fake names, but he nominated a male called "Tri" who lived in the city. He also stated that his other friend Tanh, that is the co-offender in these present proceedings, was the driver of the black Honda CRV. He claimed that because he owed Tanh money, Tanh had taken the Honda CRV, in effect as collateral because the debt was said to be approximately $10,000. 89. Police asked whether he was selling drugs on behalf of Tanh to pay off the debt which was owed and Le replied: "He didn't, he didn't ask for me to do that, but because I was in financial hardship so needed to do it to get money. Yeah because I owed a sum of money and I did, I did not have the money to pay him and that's why he kept my vehicle and also that's why I had to do this." 90. Le claimed on that day that the amount of money to be paid for the drugs was $18,000 and that he himself was to get $900 for facilitating the supply. He claimed that for every ounce he supplied he would get $300. He admitted to the supply of three ounces of methylamphetamine on 18 June 2015 and claimed that he had only received $900 for that transaction. He asserted that it was Tanh who was holding the drugs and supplying them to him. 91. In the course of that interview police asked questions involving the quantity of drugs that they had located in the course of a search at the home of Mr Kha. That was, as will become clear, in excess of a kilogram of heroin. Mr Le denied that the drugs found at Kha's home were his. 92. Police executed a search warrant of the residential premises of Le at Unit 10/261 Crown Street, Sydney. I note that on occasion this address appears to be referred to in the Agreed Facts as 10/261 Goulburn Street, but nothing turns on this distinction. In the course of the execution of that search warrant police located a number of clear resealable bags containing white crystals together with white residue. Analysis of those crystals found no evidence of a prohibited drug. I am unaware as to the relevance of that seizure or indeed what the white crystals were. In a desk in the unit a small resealable bag containing crystals was located which was ascertained to be methylamphetamine with a total net weight of 0.43 grams. A set of scales and a number of mobile phones were also located. The Agreed Facts indicate that the offender Le was subsequently transported back to Fairfield Police Station where he participated in an electronically-recorded interview. 93. In the way that the Agreed Facts are set out it is unclear to me as to whether he was taken back after one record of interview and after the search for a second record of interview or alternatively whether the way the agreed facts have been drafted is simply a repetition of some of the detail set out regarding his interview earlier. 94. It suffices to observe that the accused in his recorded interview asserted that he was being paid by his co-offender Bin Tanh Kha to supply the drugs and that all the drugs that were supplied by Mr Le had been obtained by him from Mr Kha. The Agreed Facts indicate a total in excess of 33 grams of heroin being supplied by Le during the period of the investigation and in excess of 300 grams of methylamphetamine which in total would exceed the commercial quantity applicable to that drug. The estimated street value was said to be in excess of $60,000. I should note that in the course of the transactions that are set out in detail in the Agreed Facts and to which I have made specific reference, some $63,370 would appear to have been handed over as purchase money by a police operative and there was then the additional amount of $20,000 which had not yet been handed over on 25 June. 95. Following the arrests at the Cambridge Tavern carpark on 25 June 2015 the supply of the methylamphetamine on that date was charged against Bin Thanh Kha as a substantive offence (originally sequence 4) and is the second substantive offence to which he has pleaded guilty before me. The transaction on that occasion is included in the charge against Mr Le in the ongoing supply that culminated with that date, 25 June. 96. Police also on that date executed a search warrant at Kha's residential premises at 43 Neerini Avenue, Smithfield. In the course of the execution of that search warrant they located a number of separate electronic scales; a sealed cylindrical container in which was located seven plastic bags containing methylamphetamine with a total net weight of 53.8 grams and a purity of 79.5%; a Crown Casino voucher for $5,000 in the name of "Cha Binh"; four mobile phones; a container with crystal rocks weighing 2.26 grams which tested positive for the presence of amphetamine-type substances; a container with resealable plastic bags containing 12.22 grams of heroin; and the registration papers for the black Honda CRV showing "Huu Hong Le" as the registered owner. 97. Separately, four Tupperware containers were located concealed behind the skirting boards under the kitchen cupboards. They respectively contained 322.1 grams of heroin, 5.31 grams of heroin, 348.6 grams of heroin and 350.4 grams of heroin. The purity of the 350.4 grams was analysed and ascertained to be 70.5%. The purity of the other three containers was apparently not tested. The total net weight of the heroin seized was 1,038.63 grams or 1.038 kilograms. This amount exceeds the large commercial quantity applicable to heroin. It carries a maximum penalty of life imprisonment and, as I have already indicated, a standard non-parole period of 15 years. The total amount of methylamphetamine which was seized weighed in excess of 53.8 grams. This exceeds the indictable quantity by a substantial factor. 98. The possession of the large commercial quantity was charged against Mr Kha pursuant to s 25(2) of the Drug (Misuse and Trafficking) Act as sequence 5 in the original charges and it is the third substantive offence in respect of which he has pleaded guilty before me. 99. The 53.8 grams of methylamphetamine was separately charged as a supply greater than the indictable quantity (sequence 8). That is one of the three matters contained in the Form 1 in respect of which I am asked to take the matters into account in passing sentence. 100. Mr Kha was taken to Fairfield Police Station where, with the assistance of Vietnamese interpreter, he also participated in a recorded interview. He acknowledged that he was the only adult male living at the premises at Neerini Avenue Smithfield and he agreed that he had been the driver, assisting Mr Le, with respect to the supplies which took place on 3 June, 18 June and 25 June 2015. He asserted that on 3 June and 18 June he had been paid $3,500 on each occasion by Mr Le for assisting him by driving. 101. When asked about the drugs located within his premises he agreed that they were prohibited drugs. He claimed that Mr Le had brought the items to his home and had asked him to store them. He told police that he assisted Le by weighing the drugs and packaging them and then driving Mr Le to meetings for the purpose of supply. He would appear not to have been asked why he had possession of Mr Le's motor vehicle. 102. The heroin located within the residential premises occupied by Mr Kha and in respect of which he pleads guilty to the possession by way of deemed supply, had an estimated worth in excess of $250,000. The Agreed Facts do not make it clear, but I infer that that is said to be a wholesale value. I have not sought to undertake any arithmetical computation by reference to the payments that were made for smaller amounts of heroin, as to any ultimate street value. FINDINGS AS TO THE APPLICANT'S ROLE 1. The sentencing judge found (commencing at ROS 32) that the applicant was involved in trafficking to a substantial degree, having acted as the point of contact with the operative and "Johnny" at all relevant times. His Honour noted (at ROS 34) that the applicant had made various assertions about his manner of recruitment, and concluded the applicant was to be sentenced for what he in fact did, namely undertake 18 separate supplies of a prohibited drug in the circumstances previously set out. THE APPLICANT'S SUBJECTIVE CASE 1. A report of Dr Catherine Crouch was tendered in the applicant's case on sentence. Based on the history provided by the applicant, Dr Crouch concluded that he presented as a "naïve man" who was "socially isolated and experienced significant loss through the termination of contact with his children". She also concluded that it was likely that the applicant suffered from Persistent Depressive Disorder, characterised by consistent low mood, sleep disturbance and low self-esteem, and that this disorder had been complicated by a Substance Abuse Disorder involving the use of ice, which had resulted in a further negative impact upon the applicant's mood, sleep and judgment. 2. By reference to the contents of the report of Dr Crouch, the sentencing judge (commencing at ROS 36) noted that the applicant was a 56 year old single man who had been born in Vietnam, had been married twice, and had four children. He had previously worked as a truck driver, but told Dr Crouch that his employment had been terminated when his employer learned of his criminal history. 3. In assessing the conclusions reached by Dr Crouch, and in circumstances where the applicant did not give sworn evidence, the sentencing judge made specific reference (at ROS 39) to the decision of this Court in R v Qutami [2001] NSWCCA 353; 127 A Crim R 369. Although not expressly stated, I infer from his Honour's reference to that decision that he placed little weight on the report of Dr Crouch. 4. Also tendered before the sentencing judge was a statement from the applicant which was in the following terms: I come before you for sentencing today on the serious charge of ongoing supply. I have been on remand for the past 17 months. During this time, I have been able to reflect on my terrible anti-social behaviour. I have come to hate drugs whilst in prison. I can see first-hand the lives that it wrecks and I feel extremely guilty that I have been a part of this! I have children myself and would never want anyone selling drugs to my kids. So the fact that I was selling ice disturbs me greatly. I want to take full responsibility for my actions. The community deserves much more from me as a member of society. Your Honor I hope to finish the jail sentence you give me today and completely move forward with my life. I still have hopes and dreams, and wish to show my family and community that I can be a productive, hard-working member of society. I appreciate your Honor taking the time to read this letter. Thank you. 1. The sentencing judge stated (at ROS 40) that he took the expressions of remorse contained in that statement into account, but acknowledged the obvious difficulty in assessing the veracity of such expressions in the absence of sworn evidence from the applicant himself. I again infer that his Honour afforded little weight to the contents of the statement. 2. Finally, the sentencing judge detailed the applicant's criminal history (commencing at ROS 40). He noted that the applicant had a number of prior convictions (none of which related to drug use or drug supply) and that the current offending occurred whilst the applicant was on parole for offences relating to the use of a firearm. GROUND 1 – THE SENTENCING JUDGE ERRED BY FAILING TO APPLY THE TERMS OF DIVISION 1 OF PART 4 OF THE CRIMES (SENTENCING PROCEDURE) ACT 1999 (NSW) The relevant statutory provisions 1. Part 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act") deals with sentencing procedures for imprisonment. Division 1, which is headed "Setting terms of imprisonment", includes s 44 which is in the following terms: 44 Court to set non-parole period (1) Unless imposing an aggregate sentence of imprisonment, when sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence). (2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision). (2A) Without affecting the requirement to set a non-parole period for a sentence, a court imposing an aggregate sentence of imprisonment in respect of 2 or more offences on an offender may set one non-parole period for all the offences to which the sentence relates after setting the term of the sentence. (2B) The term of the sentence that will remain to be served after the non-parole period set for the aggregate sentence of imprisonment is served must not exceed one-third of the non-parole period, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision). (2C) The court need not indicate the non-parole period that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence unless it is required to do so by section 54B. (3) The failure of a court to comply with subsection (2), (2B) or (2C) does not invalidate the sentence. (4) Schedule 1 has effect in relation to existing life sentences referred to in that Schedule. 1. Division 1 also includes s 53 which is in the following terms: 53 Multiple sentences of imprisonment (1) When a court imposes a sentence of imprisonment on an offender in relation to more than one offence, the court must (unless imposing an aggregate sentence of imprisonment in accordance with section 53A) comply with the requirements of this Division by imposing a separate sentence in relation to each offence. (2) The term, and any non-parole period, set under this Division in relation to a sentence of imprisonment is not revoked or varied by a later sentence of imprisonment that the same or some other court subsequently imposes in relation to another offence. 1. Section 53A also bears upon this ground and is in the following terms: 53A Aggregate sentences of imprisonment (1) A court may, in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each. (2) A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a written record of, the following: (a) the fact that an aggregate sentence is being imposed, (b) the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence. (3) Subsection (2) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) The term, and any non-parole period, set under this Division in relation to an aggregate sentence of imprisonment is not revoked or varied by a later sentence of imprisonment that the same or some other court subsequently imposes in relation to another offence. (5) An aggregate sentence of imprisonment is not invalidated by a failure to comply with this section. The reasons and orders of the sentencing judge 1. In imposing sentence, the sentencing judge said (at ROS 46): 158. ... In relation to the first count of supplying a prohibited drug on an ongoing basis between 25 May 2015 and 25 June 2015 which carries a maximum penalty of 20 years' imprisonment I take into account the matters included on the Form 1. I allow a discount of 25% from the appropriate sentence and I am ultimately of the view that an appropriate sentence would be a period of seven years in relation to that offence. That sentence will commence from 8 December 2015 which is a later period than your incarceration commenced but allows for a period of the revocation of parole being served concurrently. 159. With respect to the second count I sentence you to six years' imprisonment. I direct that it be served concurrently with the sentence of seven years. The non-parole period in relation to that head sentence will be five years and three months. Accordingly, I sentence you to a term of imprisonment a minimum term of five years and three months, it will commence on 8 December 2015 and expire on 7 March 2021. The balance of term of 21 months will expire on 7 December 2022. 1. The orders subsequently signed by the sentencing judge were in the following terms: ORDERS 1. In respect of sequence 2015/187492019, and taking into account the matters on the Form 1 (sequences 2015/187492021 and 2015/187492022), I sentence the offender to a term of full time imprisonment of 7 years. This sentence will be backdated to commence on 8 December 2015. 2. In respect of sequence 2015/187492023, I sentence the offender to a term of full time imprisonment of 6 years, such sentence to be served concurrently with the sentence imposed in respect of sequence 2015/187492019. 3. I set a non-parole period of 5 years and 3 months which will expire on 7 March 2021. I sentence the offender to an additional term of 21 months which will commence on 8 March 2021 and expire on 7 December 2022. 4. I direct that the drugs seized be destroyed. 1. In a response to correspondence forwarded to him from the Registrar of the Court on 21 August 2018, the sentencing judge said the following: ... I have read the first ground of appeal and note the argument sought to be advanced that a reading of my remarks suggests that I have neglected to set a non-parole period with respect to the First Count, and have then proceeded to fix a non-parole period (5 years 3 months) at a ratio of 85% with respect to the second count in respect of which I fixed a head sentence of 6 years. As ought to be clear, I directed that the sentence in respect of count two of 6 years was to be served concurrently with the sentence for count one of 7 years. Count one was past taking into account matters on a Form 1. I then said with respect to "that head sentence", referring to the last sentence mentioned, i.e. the 7 years, that there was to be a non-parole period of 5 years 3 months. As would be self-evident, 63 months represents the precise statutory ration of 75% of the head sentence of 7 years. I acknowledge that I overlooked the otiose but statutorily required fixing of a non-parole period with respect to the second count. Submissions of the applicant 1. Counsel for the applicant submitted that in imposing the sentence for count 1, the sentencing judge had erred in failing to specify a non-parole period in compliance with ss 44 and 53 of the Sentencing Act. Counsel submitted that the combined effect of those provisions was to require the sentencing judge to impose separate sentences of imprisonment, and separate non-parole periods, in respect of each of the two counts. It was submitted that in circumstances where his Honour had not done so, error was established. Submissions of the Crown 1. The Crown accepted that prima facie, a failure to specify a non-parole period in relation to the first count, and the imposition of a "global" non-parole period, contravened s 44(1) of the Sentencing Act. However, the Crown raised for consideration whether the sentencing judge had in fact imposed an aggregate sentence pursuant to s 53A. In support of that conclusion, the Crown pointed to the fact that his Honour had specifically indicated that he was imposing an aggregate sentence on the co-offender. The Crown submitted that it was unlikely that his Honour would have intended to take that course in respect of one offender but not the other. The Crown further submitted that it was quite clear from what the sentencing judge had said in his correspondence with the Registrar that it was his intention to impose an overall term of 7 years imprisonment with an overall non-parole period of 5 years and 3 months, the latter being precisely 75% of the former. 2. However, all of that said, the Crown appeared to concede that the orders signed by the sentencing judge were inconsistent with an intention to impose an aggregate sentence. The Crown ultimately accepted, as I understood it, that the conclusion that his Honour did not intend to impose an aggregate sentence was fortified by the fact that the orders in respect of the co-offender specifically referred to s 53A of the Sentencing Act and indicative sentences, whereas the orders made in relation to the applicant did not. The Crown appeared to accept that the terms of the orders suggested that a "global" non-parole period had been imposed, and conceded that in those circumstances it would be open to find that error had been established. Consideration 1. The terms of orders made by the sentencing judge are completely at odds with an intention to impose an aggregate sentence. In those circumstances, the provisions of ss 44 and 53 of the Sentencing Act required his Honour to impose a non-parole period in respect of each of counts 1 and 2. It is unclear from both the remarks on sentence and his Honour's orders whether the non-parole period that was specified related to count 1 or count 2, although it was more likely the former. What is clear is that his Honour was required to impose two non-parole periods, and only one was imposed. Accordingly, error is established. In these circumstances it is not necessary to give any consideration to how this Court should treat the correspondence sent by the sentencing judge to the Registrar. Error having been established, this Court must exercise the sentencing discretion afresh. RE-SENTENCE 1. In re-sentencing, it should be noted that ground 2 relied upon by the applicant was that the sentence imposed was manifestly excessive. Error having been found in respect of ground 1, it is not necessary specifically to consider ground 2. However, I have taken into account the submissions made by the parties in respect of ground 2 in considering the question of re-sentence. 2. I have previously set out the principal findings of the sentencing judge, both in respect of the applicant's objective criminality and his subjective case. None of those findings was challenged before this Court and in my view, each of them was clearly open. Accordingly, I have adopted those findings for the purposes of determining an appropriate sentence. Submissions of the applicant 1. Whilst no issue was taken with the findings of the sentencing judge, it was submitted on behalf of the applicant that the evidence failed to establish that he held any organisational or managerial position which elevated the objective gravity of his offending. It was submitted that in these circumstances the offending in count 1 fell below the mid-range of objective seriousness. 2. Counsel conceded that the offending in count 2 was more significant given the larger number of transactions in which the applicant had engaged, and the larger quantities of drug which were involved. It was submitted that this offending fell at or about the mid-range of objective seriousness. 3. Counsel also accepted that there was little substance in the applicant's subjective case, aside from the fact that he had pleaded guilty. 4. Counsel for the applicant specifically adverted to previous observations of this Court regarding the use of sentencing statistics, and the associated use of sentences imposed in other cases which are said to be comparable to the case under consideration: see for example MLP v R [2014] NSWCCA 183 at [40]-[44] per Bellew J (Macfarlan JA and Adamson J agreeing); RLS v R [2012] NSWCCA 236 at [132] per Bellew J (McClellan CJ at CL and Johnson J agreeing). However having done so, counsel then referred the Court to decisions in four previous cases in support of a conclusion that some lesser sentence should be imposed on the applicant. At the same time, counsel's written submissions specifically recognised that offending of this type covered a broad range of conduct, as well as a broad range of subjective circumstances. Submissions of the Crown 1. The Crown emphasised that consistency in sentencing is not demonstrated by, and does not require, numerical equivalence, and that what is sought is consistency in the application of relevant legal principles: BB v R [2017] NSWCCA 189 per Bellew J at [42] (Bathurst CJ and McCallum J agreeing). In these circumstances, the Crown submitted that the decisions to which counsel for the applicant had referred the Court demonstrated nothing more than the fact that the sentence imposed upon the applicant was appropriate, bearing in mind that there is no single correct sentence: Vaiusu v R [2017] NSWCCA 71. In support of that submission, the Crown pointed to the following factors: 1. the applicant committed two offences against s 25A of the DMT Act; 2. each offence carried a maximum penalty of 20 years, which operated as a statutory guidepost for the purpose of sentencing; 3. the two offences were effectively committed over a continuous period of time which, it was submitted, rendered the case one of particular seriousness; 4. the two counts involved a total of 18 separate instances of supply of two different drugs; 5. the applicant had a criminal history containing a number of significant offences; 6. the applicant was on parole for a serious offence when the offending occurred; 7. in the course of offending, the applicant had actively promoted the sale of drugs to the operative, exhorting him to try the "new" heroin and to let him know straight away what he thought of it; and 8. the applicant actively tried to recruit the operative as a "runner". Consideration 1. The prescribed maximum penalty of 20 years imprisonment for each of the two offences reflects the seriousness with which the Parliament views such conduct. As the Crown pointed out, the maximum penalty operates as a guidepost for the purposes of sentencing. 2. The applicant's offending spanned what was essentially a continuous period between 1 May 2015 and 25 June 2015. The table annexed to the Crown submissions and reproduced below sets out the details of the offending (noting that the dates specified in respect of count 2 are incorrect and should read 25 May 2015 to 25 June 2015): ANNEXURE A: Table of transactions Offence: Supply prohibited drug on ongoing basis 1/5/15 - 22/5/15 Trans Date Drug Q Heroin (g) Q Meth (g) Purity % 1 1/5/2015 METHYLAMPHETAMINE 0.66 83 2 4/5/2015 Heroin 3.39 35 3 6/5/2015 Heroin 3.23 29.5 4 11/5/2015 Heroin 3 29 5 13/5/2015 Heroin 0.62 69.5 6 14/5/2015 Heroin 3.16 50.5 7 20.5/2015 Heroin 2.88 31.5 Total quantities 16.28 0.66 Offence: Supply prohibited drug on ongoing basis 1/5/15 - 22/5/15 Trans Date Drug Q Heroin (g) Q Meth (g) Purity % 1 25/5/2015 Heroin 2.59 32.5 2 27/5/2015 Heroin 3.14 68.5 3 28/5/2015 METHYLAMPHETAMINE 0.09 n/a 4 1/6/2015 Heroin 2.12 n/a 5 3/6/2015 METHYLAMPHETAMINE 55.4 80.5 6 10/6/2015 Heroin 2.9 72 7 11/6/2015 METHYLAMPHETAMINE 83.9 76.5 8 15/6/2015 Heroin 2.98 n/a 9 18/6/2015 METHYLAMPHETAMINE 84 79 10 22/6/2015 Heroin 0.96 66.5 11 25/6/2015 METHYLAMPHETAMINE 83.6 70.5 Total quantities 14.69 306.99 FORM 1 25(1) 29/4/2015 Supply 0.34 40 Methylamphetamine 10(1) 25/6/2015 Possess 0.43 Methylamphetamine 1. The applicant must be sentenced for what he actually did, and not by reference to some convenient label: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54. What he did was play a pivotal role in an organised and well-established network of drug supply. He was the regular, and only, point of contact for the operative and "Johnny". Statements he made to the operative, including statements to the effect that the operative "would have to wait longer if he wanted better heroin", were indicative of the level of his role, which extended to an attempt to recruit the operative as a distributor of illicit drugs. Clearly, the applicant's role was not a peripheral one and I accept the Crown's submission that the fact that there were two offences contrary to s 25A involving what was, in effect, continuous offending over significant period is a factor that renders the present case one of particular seriousness: R v Younan [2018] NSWCCA 180 at [84] per R A Hulme J (Gleeson JA and Button J agreeing). 2. The sentencing judge imposed a longer sentence in respect of count 1 than count 2. However, counsel for the applicant properly conceded that in view of the comparative number of transactions, the second count involved greater criminality than the first. In my view, the offending in count 2 was, in terms of its subjective seriousness, at or about the mid-range, with the offending in count 1 slightly lower than that. It follows that a longer sentence should be imposed in respect of count 2. 3. The applicant's offending is aggravated by the fact that he has a lengthy record of previous convictions (Sentencing Act s 21A(2)(d)) as well as the fact that it was committed whilst he was on parole: Sentencing Act s 21A(2)(j). 4. Further, and as was expressly conceded by counsel for the applicant before the Court, there is little of substance in the applicant's subjective case apart from the fact that he is entitled to a 25% discount to reflect the utilitarian value of his plea of guilty. In circumstances where the applicant did not give evidence, his letter to the sentencing judge is of little weight, although like the sentencing judge, I am prepared to treat it as some limited evidence of remorse: Sentencing Act s 21A(3)(i). 5. For similar reasons, the report of Dr Crouch is also of limited weight. In these circumstances, I am unable to make any assessment of the applicant's prospects of rehabilitation, particularly given his criminal history. Counsel for the applicant did not submit that a finding of exceptional circumstances was open. 6. Finally, the sentences imposed in the Court below were wholly concurrent. Before this Court, counsel for the applicant properly conceded that some level of accumulation was warranted in order to properly reflect the totality of the applicant's criminality. I note that in determining sentence I have had regard to the matters on the Form 1. CONCLUSION 1. Taking all of these factors into account, I propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal allowed. 3. Sentences imposed in the District Court quashed. 4. In lieu thereof, the applicant is sentenced as follows: 1. as to count 1, a non-parole period of 4 years and 6 months commencing 8 December 2015 and expiring on 7 June 2020 with an additional term of 1 year and 6 months expiring on 7 December 2021; 2. as to count 2, a non-parole period of 4 years and 9 months commencing 8 April 2016 and expiring on 7 January 2021 with an additional term of 1 year and 9 months expiring on 7 October 2022; 3. the total term of imprisonment is one of 6 years and 10 months; 4. the applicant will be eligible for parole on 7 January 2021 and his sentence will expire on 7 October 2022. 1. BEECH-JONES J: I agree with Bellew 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: 21 September 2018