Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Hanley v R [2018] NSWCCA 262 Hearing dates: 10 September 2018 Date of orders: 26 November 2018 Decision date: 26 November 2018 Before: Basten JA at [1]; McCallum J at [2]; Bellew J at [8] Decision: 1. Leave to appeal granted. 2. Appeal against sentence allowed. 3. Set aside the aggregate sentence imposed upon the applicant in the District Court. 4. In lieu thereof impose an aggregate sentence of 4 years imprisonment commencing on 12 May 2017 and expiring on 11 May 2021, with a non-parole period of 2 years, commencing on 12 May 2017 and expiring on 11 May 2019. 5. Pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) indicate to the applicant, and record, that an aggregate sentence is imposed and that: (a) the sentence that would have been imposed in respect of count 2 is 1 year and 6 months imprisonment, with a non-parole period of 9 months imprisonment; (b) the sentence that would have been imposed in respect of count 5 is 2 years and 8 months imprisonment, with a non-parole period of 1 year and 4 months imprisonment; (c) the sentence that would have been imposed in respect of the count in the ex-officio indictment is 3 years and 4 months imprisonment, with a non-parole period of 1 year and 8 months imprisonment. 6. The earliest date on which the applicant is eligible for release on parole is 11 May 2019. Catchwords: CRIMINAL LAW – appeal – sentence – offences of drug supply – principle that trafficking in illicit drugs requires a gaol sentence absent exceptional circumstances –principle accepted at the time of sentence but since abandoned –– error established – serious offending – strong subjective case characterised by significant efforts towards rehabilitation before and after entering custody – applicant re-sentenced Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Cases Cited: Dayment v R [2018] NSWCCA 132 Parente v R [2017] NSWCCA 284 R v Clark (Court of Criminal Appeal NSW, 15 March 1990, unreported) Robertson v R [2017] NSWCCA 205 Category: Principal judgment Parties: Joshua Lee Hanley – Applicant Regina – Respondent Representation: Counsel: P Boulten SC – Applicant B Hatfield – Respondent Solicitors: Anthony Ziade – Applicant C Hyland, Solicitor for Public Prosecutions NSW – Respondent File Number(s): 2014/262604 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 19 May 2017 Before: Judge McLennan SC DCJ File Number(s): 2014/262604 Judgment 1. BASTEN JA: I agree with Bellew J. 2. McCALLUM J: I agree with Bellew J. I wish only to add the following additional remarks concerning the sentence to be imposed. 3. The sentencing judge acknowledged the strength of the applicant's subjective case. In assessing the significance of those considerations, his Honour posed for himself the following questions: "Does this combination of strong subjective circumstances amount to sufficient justification to result in a non-custodial sentence? Of course another way to ask the same question is whether, in this case, a head sentence of no more than two years imprisonment is justified, and whether I should then engage in showing the additional leniency involved in either suspending the sentence pursuant to s 12 of the Crimes (Sentencing) Procedure Act or to order that the offender serve his sentence by way of an intensive correctional order." 1. The judge's resolution of that issue was firmly anchored in the constraint now recognised to reflect error: "In my opinion given the relevant non-custodial options, that must be what is involved in a practical sense in coming to a conclusion that there are exceptional circumstances warranting departure from the general principal." 1. Freed of the erroneous constraint that the applicant had to fall within "exceptional circumstances" or else go to gaol, a non-custodial option of the kind referred to may have been within the proper exercise of the sentencing discretion. The decision in Parente stands for more than the removal of a formulaic constraint; it recognises the sentencing judge's discretion not to impose a custodial sentence, even for serious drug offences, in an appropriate case. 2. In the present case, the judge accepted (amongst other things) that the applicant's significant rehabilitation would be "substantially interrupted" by a custodial sentence. That was a powerful consideration. The principles reiterated in Parente should be understood to permit sentencing judges to imagine alternative, more constructive penalties in such cases. 3. However, the applicant now having served a substantial portion of his custodial sentence, it would not be appropriate to consider referral for an Intensive Correction Order at this stage, even if it were concluded that a sentence of no more than 2 years was appropriate, and the applicant (understandably) did not seek that course. In the circumstances, I agree with the orders proposed by Bellew J. 4. BELLEW J: Joshua Lee Hanley ("the applicant") seeks leave to appeal against sentences imposed by his Honour Judge McLennan SC in the District Court on 19 May 2017. THE CHARGES 1. The applicant appeared for sentence with two co-offenders, Jeffrey Robert Gilmour ("Gilmour") and Vinh Anh Hoang ("Hoang"). He was initially arraigned on an indictment containing the following counts: 1. between 25 July 2014 and 8 August 2014 he supplied not less than the large commercial quantity of a prohibited drug, namely N-(2-methoxylbenzyl)-2,5-dimethoxy-4-chlorophenet hylamine (25C-NBOMe) (count 1); 2. in the alternative to count 1, between 25 July 2014 and 8 August 2014 he supplied a prohibited drug, namely 25C-NBOMe (count 2); 3. in the further alternative to count 1, between 25 July 2014 and 8 August 2014 he supplied a prohibited drug, namely 3,4-methylenedioxy-methamphetamine (MDMA) (count 3); 4. between 13 August 2014 and 15 August 2014 he supplied not less than a large commercial quantity of a prohibited drug, namely 25C-NBOMe (count 4); 5. between 13 August 2014 and 15 August 2014 he supplied a prohibited drug, namely 25C-NBOMe (count 5); 6. between 13 August 2014 and 15 August 2014 he supplied a prohibited drug, namely MDMA (count 6). 1. The applicant entered the following pleas: 1. count 1 – not guilty; 2. count 2 – guilty (the plea being entered "subject to his Honour's determination of law"); 3. count 3 – guilty; 4. count 4 – not guilty; 5. count 5 – guilty, the plea again being entered "subject to his Honour's determination of law"; and 6. count 6 – guilty. 1. The pleas of guilty to counts 2 and 5 were entered in circumstances where there was an issue as to whether the applicant could be found guilty of such counts in circumstances where he asserted that he had an honest, but mistaken, belief that the prohibited drug in question was in fact MDMA, as opposed to 25C-NBOMe. The significance of that issue stemmed from the substantial differences between the quantities prescribed by the Drug Misuse and Trafficking Act 1985 (NSW) for MDMA on the one hand, and 25C-NBOMe on the other. The sentencing judge treated the pleas entered by the applicant to counts 2 and 5 as pleas of not guilty, following which the applicant stood trial before his Honour, and without a jury. 2. At the conclusion of the trial, his Honour found (inter alia) that in respect of each of counts 2 and 5 it was necessary for the Crown to prove, beyond reasonable doubt, that the applicant knew the nature of the drug which had been supplied. In respect of count 2, his Honour found that the applicant supplied 25C-NBOMe and that his belief that it was MDMA was both erroneous and irrelevant. He came to the same conclusion in respect of count 5. He then entered the following verdicts: 1. Count 1 – not guilty 2. Count 2 - guilty 3. Count 3 - not guilty 4. Count 4 – not guilty 5. Count 5 - guilty 6. Count 6 – not guilty 1. It is noted that in respect of count 3, his Honour declined to act upon the plea of guilty which had been entered by the applicant, and regarded that plea as being an admission as to the state of his belief which was relevant only to count 1. THE SENTENCE PROCEEDINGS 1. When the proceedings came before the Court for sentence, the applicant asked his Honour to take into account two additional matters on a Form 1, namely: 1. supplying a prohibited drug in an amount less than the indictable quantity on 8 August 2014; 2. supplying a prohibited drug in an amount greater than the commercial quantity on 1 September 2014. 1. After the sentence proceedings had concluded, but before sentence was imposed, the sentencing judge raised the fact that the second of the offences on the Form 1, which alleged the supply of more than the commercial quantity of a prohibited drug, was more serious than the offending in either of counts 2 or 5 in respect of which the applicant had been found guilty. The Crown then withdrew that Form 1 and presented an ex-officio indictment against the applicant containing one count of knowingly taking part in the supply of a commercial quantity of MDMA. The applicant pleaded guilty to that count. He then signed a new Form 1 which contained only the offence in [14](i) above, and asked that it be taken into account on sentence. THE SENTENCES IMPOSED UPON THE APPLICANT 1. The sentencing judge gave the following indicative sentences: 1. count 2 – 2 years imprisonment; 2. count 5 – 3 years imprisonment; and 3. the count in the ex-officio indictment – 4 years imprisonment. 1. His Honour imposed an aggregate sentence of 6 years imprisonment, with a non-parole period of 3 years. THE SENTENCES IMPOSED UPON THE CO-OFFENDERS Gilmour 1. Gilmour pleaded guilty to the following offences: 1. supplying not less than a large commercial quantity of a prohibited drug, namely 25C-NBOMe, on 8 August 2014 (count 1); and 2. supplying not less than a large commercial quantity of a prohibited drug, namely 25C-NBOMe, on 15 August 2014 (count 2). 1. In respect of count 2, Gilmour asked the sentencing judge to take into account the following matters on a Form 1: 1. knowingly taking part in the supply of a prohibited drug, namely cannabis leaf, on 8 August 2014; and 2. supplying not less than a commercial quantity of a prohibited drug, namely MDMA and ecstasy on 5 September 2014. 1. His Honour gave the following indicative sentences: 1. count 1 – 3 years imprisonment; and 2. count 2 – 6 years imprisonment. 1. His Honour imposed an aggregate sentence of 7 years imprisonment, with a non-parole period of 3 years and 6 months. Hoang 1. Hoang pleaded guilty to the following offences: 1. supplying not less than a large commercial quantity of a prohibited drug, namely 25C-NBOMe, on 8 August 2014 (count1); and 2. supplying not less than a large commercial quantity of a prohibited drug, namely 25C-NBOMe, on 5 September 2014 (count 2). 1. In respect of count 1, Hoang asked the sentencing judge to take into account the following matters (Form 1A): 1. supplying a prohibited drug, namely cannabis, on 8 April 2014; 2. supplying not less than a commercial quantity of a prohibited drug, namely MDMA, on 5 September 2014; 3. possessing a prohibited drug, namely cannabis, on 5 September 2014. 1. In respect of count 2, Hoang asked the sentencing judge to take into account the following additional matter (Form 1B): 1. supplying a prohibited drug, namely MDMA, on 5 September 2014. 1. His Honour gave the following indicative sentences: 1. count 1 – 6 years imprisonment; and 2. count 2 – 4 years imprisonment. 1. His Honour imposed an aggregate sentence of 8 years imprisonment, with a non-parole period of 4 years. THE FACTS OF THE OFFENDING 1. The sentencing judge found the facts of the offending to be as follows: [1] On 25 July 2014 as part of an authorised covert operation Police Undercover Operative P was deployed to the Jindabyne Hotel in Jindabyne where he struck up conversation with the accused Joshua Hanley and his friend Jeffrey Gilmour. As part of that operation P had been fitted with a lawfully sanctioned listening device to electronically record the conversations with the offender and Gilmour. Unless otherwise stated each of the following conversations involving P were similarly electronically recorded. The offender and Gilmour told P that they both used and supplied to others a range of drugs including ecstasy, cannabis, cocaine and amphetamines. At one stage in the conversation the offender P and Gilmour had the following conversation: "Offender: (In reference to Gilmour) He's the supplier. Essentially I just do his books. Gilmour: He keeps my books for me man. Offender: Man I've saved him f'ing thousands of bucks because I keep his books. He is f'ing hopeless with remembering. We had a bloke transfer a thousand bucks into my account this morning just to f'ing pay him back. It's like sweet. A bit of cash. P: I hope he gave you 10% of that. Offender: Ah, he gives me a pretty good price so that's all right. I get a discount on everything I buy and he gives me a bit of cash every now and then. It's just to help out so it suits me. It's good." Later in the evening the offender and Gilmour told P that they could supply him with ecstasy tablets in the quantity of either 50 or 100 tablets and a pound of cannabis leaf in the next few weeks. P was told that the tablets would cost probably 17 to $18 per tablet and the cannabis about $3,500. The offender offered to come down to Jindabyne to supply the drugs to P if Gilmour was unavailable. Both the offender and Gilmour gave P their respective mobile numbers before parting company. On 29 July 2014 Gilmour sent a text message to P stating that he was having difficulty contacting his up-supplier who is the offender Vinh Hoang or Vinh Anh Hoang as he is correctly known. Further text messages were sent between P and Gilmour and it was agreed that they would meet at the Time and Tide Hotel, Dee Why on 1 August 2014. Gilmour and P also had further discussions about the supply to P of the pound of cannabis and a hundred pack (100 tablets) of ecstasy. It was agreed they would try to do the deal either Tuesday or Friday of the following week. Between 5 August 2014 and 8 August 2014 P and Gilmour had further text and mobile conversations during which it was resolved that P would meet Gilmour at the Time and Tide Hotel, Dee Why after which they would travel to see Gilmour's up-supplier at Bankstown to complete the deal. At about 2pm on 8 August 2014 P and another Undercover Operative K met Gilmour at the Time and Tide Hotel. They eventually travelled together in P's car to meet Gilmour's up-supplier. During the journey Gilmour told P and K his up-supplier was Vinh. Gilmour agreed to drop the price for the 100 ecstasy tablets to $1,700 and confirmed the pound of cannabis at $3,500. P handed Gilmour $5,200 in cash. The trio met the up-supplier Vinh Hoang in High Street Bankstown where Hoang eventually supplied P with an amount of cannabis in the shopping bag and 102 tablets. Each tablet was blue and embossed on one side with Batman wings and half-scored on the other side. These tablets were analysed and found to contain an unspecified quantity of 25C-NBOMe. The tablets weighed 24.6 grams in total. It is agreed that the offender continued to be engaged in the joint criminal enterprise with Gilmour at the point of actual supply of the prohibited drugs to P on 8 August 2014. The analyst certificate is attached and forms part of exhibit A. Between 11 August 2014 and 13 August 2014 a number of text messages and phone calls were made between Gilmour and P during which they discussed the supply to P of a further 500 ecstasy tablets. Gilmour informed P that they would cost $7,500. On 13 August 2014 by prearrangement P and K met with the offender at the Banjo Patterson Hotel in Jindabyne. During the conversation over dinner the offender explained that he had created a drug dealing application. This application was on his Apple iPhone which he showed to P and K. The offender explained that "p" stood for pills (being ecstasy pills) and "c" stood for caps, referring to capsules which would contain a number of prohibited drugs in them in powder form. The offender handed his phone to P who scrolled through the application. He went into the "p" file and saw another screen that had three subheadings. One of these headings was a subheading for buyers. At the top of this screen were the words "Jeff - $2,920". The offender explained this meant Gilmour was owed $2,920 by his customers. The offender explained that was the reason he was Gilmore's accountant because Gilmour was losing money. P scrolled down further in the application and saw at least 20 names of customers with figures showing how much each owed (including figures of $25, $100, and $300). Some of the figures had a plus sign in front denoting the buyer was in credit. After a period of time P handed back the accused's phone. The accused offender told P that he wanted to sell the drug dealer application to other drug dealers. He said it had taken him 10 hours to make and he would be happy to get $1,500 for the sale of the application. On 14 August 2014 by prearrangement P and K met with the accused at Perisher Ski Resort. After spending some time together on the snowfields P and K and the offender went to the Perisher car park where they stood at the back of the offender's Toyota Prado. The offender's younger brother Jake Hanley was also present. P and the offender spoke about the 500 ecstasy tablets that Gilmour was going to supply to P the next day (being 15 August 2014). P gave the accused a muesli box containing $7,500 in cash as payment of the supply of the 500 tablets. The offender secreted the box containing the cash in a camping drawer in the rear of his vehicle. During this process the offender rang Gilmour and asked him if he ought to count the money. Gilmour said there was no need and told P he would meet him next day at the Eagle Hawk Hotel (at Sutton) to conclude the deal. P and K left after watching the offender and his brother drive away in the Prado. Throughout 15 August 2014 further messages were sent between P and Gilmour during which it was confirmed they would meet at the Eagle Hawk Hotel at Sutton with a view to completing the supply to P with the 500 tablets of ecstasy. At about 5pm Gilmour, the offender and a friend Dylan arrived, together and met P who had already arrived at the Eagle Hawk Hotel. They spent a short time talking in the smoking area inside the hotel. A short time later the four men went outside to a grey Subaru station wagon GG 068. Gilmour opened the boot and retrieved the same muesli box given to the offender the previous day by P which had previously contained the $7,500 in cash. Gilmour handed the box to P. He discovered a short while later that it contained 504 tablets which appeared identical in colour and style to the 102 tablets which were supplied to him on 8 August 2014. A short while later the offender Gilmour and Dylan drove off in the Subaru. It is agreed that the offender continued to be engaged with Gilmour in the joint criminal enterprise to supply prohibited drugs at the point of actual supply of the 504 tablets to P on 15 August 2014. A certificate of analysis was prepared which found that the 504 tablets contained an unspecified amount of 25C-NBOMe. The tablets weighed 121.5 grams. The analyst certificate forms part of the Crown material. Additionally and importantly are the agreed facts as they relate to the supply of a commercial community of ecstasy to which the offender pleaded guilty this morning. Those facts record that, on 1 September 2014 P negotiated the purchase of a further 500 tablets for 5 September 2014 from Gilmour. Subsequent to this conversation a number of calls and text messages were lawfully intercepted between Gilmour and the offender as they arranged money as a deposit to secure the 500 tablets from Hoang destined for P. Further calls and text messages were intercepted between Gilmour and Hoang arranging to meet up that night. On 2 September 2014 P met with Gilmour and the offender at the Brookvale Hotel, Pittwater Road, Brookvale. He paid Gilmour $8,000. That evening police lawfully intercepted a number of calls and text messages between Gilmour and Hoang and observed him meeting at the Bunnings store at Belrose. It is believed that Gilmour gave Hoang the money for the 500 tablets that the former had agreed to supply P. On 5 September 2014 at 3pm Gilmour and another person by the name of Zachary Fenson met Hoang at Hoang's address at 62 High Street, Bankstown. Hoang supplied them with 144.3 grams of ecstasy. Gilmour and Fenson drove to the Eagle Hawk Hotel on the Federal Highway at Sutton where they supplied the drugs to P. They were both then arrested by police. It is, of course, the case that the joint criminal enterprise that the offender had been engaged in with Gilmour continued throughout the supply of that particular quantity of the drug. THE OBJECTIVE SERIOUSNESS OF THE APPLICANT'S OFFENDING 1. The sentencing judge noted [2] that an analysis of the objective seriousness of the applicant's offending required focus upon (inter alia) his activities, their duration, his knowledge of the enterprise, his role, the quantities of drug involved and the extent to which the applicant's conduct formed part of an organised criminal activity. Taking into account all of those factors, his Honour found that the applicant's offending was "well within the mid-range of objective seriousness for the offence of the supply" [3] . In reaching that conclusion, his Honour had particular regard to [4] : 1. the fact that the applicant "did the books" for Gilmour and by doing so had saved Gilmour a substantial amount of money, thus enabling the profits of the enterprise to be maximised; 2. the nature of the enterprise, and the applicant's intimate knowledge of it; 3. the fact that the applicant's participation was for personal reward, in the form of discounted drugs and cash; 4. the applicant's development of a drug dealing "app" which reflected the degree of his enthusiasm for both the enterprise as a whole, and his role in particular; and 5. the quantities of the drugs supplied. THE APPLICANT'S SUBJECTIVE CASE 1. The documentary material tendered in the applicant's case on sentence included: 1. reports of Fred Cicchini, psychologist, dated 16 March 2015, 10 August 2015, 4 November 2016 and 1 May 2017; 2. reports of Dr Ben Teoh, psychiatrist, dated 2 April 2015, 5 August 2015, 2 November 2016 and 2 May 2017; 3. a series of testimonials; and 4. a pre-sentence report dated 13 August 2015. 1. Mr Cicchini reported (inter alia) [5] that the applicant did not meet the diagnostic criteria for substance dependence, and did not demonstrate any of the common psychological indicators associated with vulnerability to criminality. He expressed the opinion that the applicant had a low risk of relapse in relation to substance abuse, and that his risk of recidivism was extremely low. 2. Doctor Teoh reported [6] that the applicant's prognosis was good, that he was slowly gaining insight into his problems, and that he had expressed remorse. He also reported [7] that the applicant was "progressing well with his counselling". In the last of his reports [8] Dr Teoh expressed the opinion that the applicant had a good prognosis, good insight, and was motivated to remain well. 3. The testimonials tendered on the applicant's behalf spoke of (inter alia) his diligence in community activities, his management skills, and his trustworthiness. The pre-sentence report [9] noted that the applicant had developed insight into his offending behaviour, and had demonstrated a willingness to address identified social, anxiety and substance abuse issues. 4. In terms of the applicant's subjective case, the sentencing judge found that the applicant [10] : 1. had enjoyed a stable family life; 2. was university educated and employed as a computer technician; 3. had developed a relationship with Gilmour, following which he commenced the infrequent "binge" use of ecstasy; 4. had been diagnosed by Mr Cicchini with social anxiety disorder (a diagnosis endorsed by Dr Teoh) but was not otherwise suffering from any diagnosable mental illness; 5. had a low risk of recidivism; 6. did not demonstrate any of the common psychological indicators associated with a vulnerability to criminality; 7. had demonstrated sufficient insight and functional self-support to maintain the gains he had made without ongoing intervention; 8. had a low risk of relapse in relation to substance use; 9. enjoyed a high probability of successful rehabilitation in a community context; and 10. was remorseful. 1. His Honour concluded [11] : I am satisfied that the offender has learned his lesson. I am not satisfied that Mr Cicchini's report goes so far as to say Mr Hanley's rehabilitation will be nullified. But the reality is that Mr Hanley was an enthusiastic participant in a criminal enterprise that would have seen (but for police intervention) over a thousand doses of prohibited drugs on the street. To come to a conclusion in this case that his subjective circumstances warrants (sic) a sentence less than two years imprisonment, which could then be served by way of an ICO, would be to allow those subjective features to completely overshadow the objective seriousness of his conduct. That cannot be permitted. 1. His Honour also addressed the issue of the delay in the finalisation of the proceedings, which had resulted in the applicant being on bail for a period of 2 years and 8 months at the date of sentence [12] . He declined, in the exercise of his discretion, to reduce the applicant's sentence on the basis of the period he had spent on bail. His Honour concluded that such period had allowed the applicant to demonstrate his rehabilitation, and that it was not appropriate in those circumstances to extend leniency on the grounds of delay. THE GROUNDS OF APPEAL GROUND 1 HIS HONOUR'S SENTENCING DISCRETION WAS INAPPROPRIATELY CONSTRAINED BY HIS CONCLUSION THAT "WHERE THERE IS TRAFFICKING IN ILLICIT DRUGS THERE MUST BE A GAOL SENTENCE EXCEPT IN EXCEPTIONAL CIRCUMSTANCES". The reasons of the sentencing judge 1. Under the heading "Exceptional Circumstances" [13] his Honour said the following: Since before 1990 in New South Wales the sentencing principle in drug cases has been "where there is trafficking in illicit drugs then there must be a gaol sentence except in exceptional circumstances" see Priestley JA in the Queen v Cocciola (1998) 104 A Crim R, 178 at page 182. As was made clear a distinction needs to be drawn between a strong subjective case and the exceptional circumstances which justify a non-custodial sentence. A combination of strong subjective circumstances does not add up to exceptional circumstances unless the aggregate of all those circumstances point to the case being one of real difference from the general run of cases that come before the courts. 1. Having considered the evidence, his Honour concluded that the applicant's case fell completely within the general realm of cases, and that his subjective circumstances were not exceptional. His Honour said [14] : In this case the offender is now 26 years of age; 23 at the relevant time. He has no previous convictions. He is from a stable background and has a good job. He has a low risk of reoffending and, is in my view, substantially along the road to a successful rehabilitation. His treating psychologist is of the opinion that he has a poor capacity to successfully participate in a custodial sentence. I accept that his rehabilitation will be substantially interrupted. Does this combination of strong subjective circumstances amount to sufficient justification to result in a non-custodial sentence? Of course another way to ask the same question is whether, in this case, a head sentence of no more than two years imprisonment is justified, and whether I should then engage in showing the additional leniency involved in either suspending the sentence pursuant to s 12 of the Crimes (Sentencing) Procedure Act or to order that the offender serve his sentence by way of an intensive correctional order. In my opinion given the relevant non-custodial options that must be what is involved in a practical sense in coming to a conclusion that there are exceptional circumstances warranting departure from the general principal. As Cacciola makes clear there should not be an excessively liberal interpretation circumstances" (page 184). Examples of what might be thought to be the general run of cases include Cacciola (the circumstances of that offender are set out on page 182); Smith [2006] NSWCCA 129 (which was a case involving an 18-year old) at [18]; Fayd'Herbe [2007] NSWCCA 20 at [8]–[9]; Smaragdis [2010] NSWCCA 276 at [13]–[16], and the review of cases therein at [31] to [36]; Polley [2015] NSWCCA 247 at [6]–[16]; and Ejefekaire [2016] NSWCCA 308 at [10]–[18]. In each of the cases cited above the offender had pleaded guilty. The case of Mr Hanley is unusual in that there has not been a denial by him concerning his conduct, but rather a dispute about the legal significance of his state of mind concerning the nature of the drug he was involved in trafficking. In my opinion Mr Hanley is entitled to a 25% discount for his pleas in the unusual circumstances that were resolved in his favour as a consequence of a tightly focused one day judge alone trial. Therefore my approach is to proceed on the basis that Mr Hanley has at least that much in common with the general run of cases. In my assessment, subject to a particular matter to be discussed, his case falls completely within the general run of cases and the combination of his subjective circumstances do not qualify as exceptional. In the Queen v Harmouche [2005] NSWCCA 398 (a case involving an offer or agreement to supply a quantity of cocaine in the region of 200 grams) the Court considered the relevance of the rehabilitation of an offender. RS Hulme J for the Court at [52] said: "The achievement of rehabilitation does not of itself constitute exceptional circumstances justifying a sentence other than full-time custody, albeit if there is evidence that full-time custody is likely to have the effect of nullifying rehabilitation previously effected the situation may be different. Furthermore drug dealing raises many of the same considerations which led this Court in Musumeci v Queen (unreported 30 October 1997) - a case of dangerous driving causing death - to say that the need for public deterrence will usually outweigh the fact that the particular offender has already learned his or her lesson." 1. His Honour rejected [15] a submission made by senior counsel then appearing for the applicant that a sentence of 2 years or less should be imposed, and that consideration should then be given to the applicant's eligibility for an intensive correction order. His Honour then imposed the aggregate sentence previously set out. SUBMISSIONS OF THE PARTIES Submissions of the applicant 1. It was submitted on behalf the applicant that his Honour erred in finding that where there is trafficking of illicit drugs, a custodial sentence must be imposed absent exceptional circumstances. It was submitted that as a consequence of that error, his Honour's sentencing discretion had become inappropriately constrained. It was further submitted that his Honour's consideration of the appropriate penalty was fettered, in that his Honour concluded that the range of appropriate sentences was limited by a need to find exceptional circumstances in order to determine that a sentence of 2 years or less was appropriate. Submissions of the Crown 1. Whilst submitting that the sentencing discretion had been exercised in conformity with the law as it stood at the time, the Crown accepted that his Honour's approach, and in particular his conclusion that a custodial sentence was to be imposed absent exceptional circumstances, was at odds with the instinctive synthesis approach to sentencing. In these circumstances, the Crown conceded that error was established, and that this ground of appeal was made out. Consideration 1. In R v Clark [16] Hunt J (as his Honour then was) observed [17] : This court has, on occasions, too numerous to mention, emphasised that the sentences involving a substantial general deterrence are to be imposed on drug traffickers, and it has indicated that only in exceptional circumstances will a non-custodial order be appropriate. That statement is not, as has been suggested, restricted to those cases in which it has been demonstrated that a profit has been obtained … the position is worse when there has been a profitable commercial exploitation but trafficking alone in any substantial degree should normally lead to a custodial sentence. 1. Subsequently in Robertson v R [18] Simpson JA, having referred to a number of authorities including Clark, said [19] : 69. What has consistently been stated as a "principle" is (in my opinion), no more than and is properly to be seen as a conclusion drawn from a history of sentencing in respect of relevant offences. Without legislative authority, it could not be more. The decisions upon which the "principle" is based are entitled to significant respect as the result of considered decisions and the experience of sentencing judges and appellate courts. Sentences imposed in the past, in relevantly similar circumstances, can and do provide significant guidance to sentencing judges. But they give rise to no binding precedent: The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at [29]. They are not statements of principle. Far less are they prescriptions for sentencing judges. The High Court has, more than once, used the metaphor of a "yardstick" constituted by prior sentencing decisions against which a sentencing judge may measure a proposed sentence: see Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 52; [2010] HCA 45 at [54]; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [41]. 70. It is amply established that sentencing judges may, and should, have regard to historical patterns of sentencing in respect of particular offences: see Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [6] and [59]-[60]; Markarian at [44]; Hili at [54]; Barbaro at [41]. That is seen as an aid to consistency in sentencing, something that promotes confidence in the criminal justice system: Wong at [6]-[10]. What is sought is not "numerical equivalence" but consistency in the application of principle (Hili at [48]; Pham at [46]-[47]). 71. There are, in the judgments of the High Court of Australia, many statements concerning the exercise of the sentencing discretion. Invariably, the judgments maintain the primacy of the sentencing discretion of the individual judge, and the need in that exercise to balance a complexity of sometimes competing or contradictory factors that exist in the individual case. 1. More recently, in Parente v R [20] this Court (Macfarlan JA, Hoeben CJ at CL, Leeming JA, Johnson J and R A Hulme J) said [21] : 97. The Clark "principle", whether intended or not, has been given an interpretation in its practical application of dictating the particular path that a sentencing judge must follow. It is inconsistent with the flexibility to be afforded to sentencing judges in the exercise of the sentencing discretion. 1. Having referred to a number of authorities, the Court continued [22] : 101. … The "principle", that drug trafficking alone in any substantial degree should normally lead to a custodial sentence and it will only be in exceptional circumstances that a non-custodial sentence will be appropriate was not stated in terms that indicate it was descriptive, that is "an observation of what has been done in past cases". Rather, it was prescriptive; "a statement of what ought to be". Crucially, it had no "statutory root". Further, it was expressed as being of "universal application" subject only to there being identified "exceptional circumstances"; and no such circumstances were identified. 102. The "principle" is also apt to mislead in that once it is conceded, or concluded, that there was "trafficking alone in any substantial degree", it suggests that the offender must demonstrate that there are exceptional circumstances before the sentencing discretion can extend to the imposition of a "non-custodial" sentence. (Non-custodial in the sense of not being one of full-time imprisonment: R v Leslie.) … 106. For these reasons, the "principle" described in Clark – that drug trafficking alone in any substantial degree should normally lead to a custodial sentence and it will only be in exceptional circumstances that a non-custodial sentence will be appropriate – should no longer be applied in sentencing for drug supply cases. 1. The applicant was sentenced prior to this Court's decision in Parente. However, it is clear that the sentencing judge erred in the way identified in that decision, namely in concluding that it is only in exceptional circumstances that a non-custodial sentence will be appropriate in cases of substantial trafficking in drugs. It follows that this ground of appeal has been made out and the Court must proceed to re-sentence in the fresh exercise of sentencing discretion. In this regard, it should be noted that the applicant also relied on a second ground of appeal, namely that he had been left with a justifiable sense of grievance in light of the sentences imposed upon Gilmour and Hoang. Because ground 1 has been made out, it is not necessary to specifically consider this second ground. However in re-sentencing the applicant, I have taken into account the submissions made on his behalf in respect of that ground, along with those made on behalf of the Crown. Submissions of the applicant 1. The written and oral submissions of senior counsel for the applicant emphasised the applicant's strong subjective case. Senior counsel highlighted, in particular, the fact that the applicant: 1. had no prior convictions; 2. came from a stable family background; 3. had a positive work history; and 4. was found by the sentencing judge to present a low risk of re-offending. 1. Senior counsel further submitted that the evidence before the sentencing judge had established that the applicant had, by the time of sentence, made substantial progress towards successful rehabilitation. He submitted that the affidavit of the applicant's solicitor, which was read on the question of re-sentence supported the conclusion that such progress had continued after the applicant had been taken into custody. 2. Senior counsel for the applicant also sought to draw a number of distinctions between the position of the applicant on the one hand, and that of Gilmour and Hoang on the other. He submitted that the most significant difference was that both Gilmour and Hoang had each been sentenced for offences of supplying not less than large commercial quantities of 25C-NBOMe, whereas the applicant was to be sentenced for two offences of supplying not less than the indictable quantity of that drug, and one offence of supplying not less than the commercial quantity. Senior counsel emphasised that as a consequence, the maximum penalties that each of the offenders faced were substantially different. He submitted that any sentence imposed upon the applicant was necessarily required to reflect these matters, all of which supported a conclusion that there should be a significant difference in the sentences imposed upon the applicant on the one hand, and each of his co-offenders on the other. He submitted that in all of the circumstances the period of time served by the applicant to date amounted to an appropriate non-parole period. Submissions of the Crown 1. The Crown submitted that this Court should conclude that no lesser sentence than that imposed by the sentencing judge was warranted in law. In support of this submission, the Crown relied upon a number of factors. 2. Firstly, the Crown highlighted the objective seriousness of the applicant's offending which, it was submitted, was reflected in its deliberateness, its duration, and the quantities of prohibited drug involved. It was submitted that such matters placed the applicant's offending well within the mid-range of objective seriousness, as his Honour had found. 3. The Crown further submitted that the applicant's admitted role of "bookkeeper" for Gilmour reflected his intimate knowledge of the enterprise, and that his development of the drug dealing "app" demonstrated his level of commitment. 4. The Crown submitted that in all of the circumstances, any sentence imposed should reflect the "relatively slight" variation between the role of the applicant and that of Gilmour. However, the Crown took no issue with the positive findings made by the sentencing judge concerning the various aspects of the applicant's subjective case. Consideration 1. Although it might be regarded as unsophisticated in some respects, the enterprise of which the applicant was a part was nevertheless an organised one. As Gilmour's bookkeeper, the applicant was an integral part of that enterprise, in association with which he had developed the drug dealing "app" to which the sentencing judge referred. As a consequence of the role he played, the applicant necessarily acquired an intimate knowledge of the enterprise as a whole. He had a vested interest in its success, given that he stood to benefit from it by the receipt of both drugs and cash. Further, and whilst not, of themselves, determinative of the objective seriousness of the offending, the amount of prohibited drug supplied on each occasion was substantial. In my view, the applicant's offending falls within the mid-range of objective seriousness. 2. Equally, the applicant has a strong subjective case. He pleaded guilty at the first available opportunity. He clearly used the period time on bail to commence and progress, his process of rehabilitation. His progress towards successful rehabilitation was well advanced by the time he was sentenced. Moreover, the affidavit of Mr Ziade establishes that the applicant has diligently continued his efforts towards rehabilitation by using his time in custody in a productive way. He was initially employed in a number of clerical capacities in custody, before obtaining approval to enrol in a distance education course with a view to attaining a Bachelor of Business Degree. He gained high distinctions in the two subjects which he completed. His inability to further pursue that course arose because the remaining subjects required completion by way of online study, an avenue which is not open to him whilst in custody. However, his efforts in that respect are consistent with a desire to enhance his employment opportunities upon release. Mr Ziade's affidavit also establishes that since entering custody the applicant has involved himself in the work of various committees operating within the correctional services system, including a committee whose role is to liaise with management to address issues raised by inmates. He has also been a participant in a number of supervised community projects. 3. In my view, the applicant's prospects of rehabilitation are both positive and well advanced. His rehabilitation will be further assisted by an extended period of supervision on parole and for that reason I am satisfied that special circumstances are made out. I am also satisfied that he is genuinely remorseful for his actions. 4. Although each of the applicants, Gilmour and Hoang was sentenced for offences arising from the one set of circumstances, the specific charges were different as between the applicant on the one hand, and each of Gilmour and Hoang on the other. As a consequence, the charges carried differing maximum penalties. This necessarily has some impact upon the application of the parity principle. In Dayment v R [23] R A Hulme J observed that in such a case the relevant comparison is more broad and impressionistic than might otherwise be the case. 5. In his submissions before this Court, senior counsel for the applicant placed particular emphasis upon the respective positions of applicant and Gilmour. The comparative table which was helpfully incorporated into the written submissions of the Crown demonstrates that there is little separating their respective subjective cases. However, a distinction must be drawn between them in terms of their respective offending. Clearly, whilst the role played by the applicant was significant, he was at all material times Gilmour's subordinate. It follows that any sentence imposed upon the applicant must be less than that imposed upon Gilmour to the degree necessary to reflect that difference. ORDERS 1. Taking all of these matters into account I propose the following orders: 1. Leave to appeal granted. 2. Appeal against sentence allowed. 3. Set aside the aggregate sentence imposed upon the applicant in the District Court. 4. In lieu thereof impose an aggregate sentence of 4 years imprisonment commencing on 12 May 2017 and expiring on 11 May 2021, with a non-parole period of 2 years, commencing on 12 May 2017 and expiring on 11 May 2019. 5. Pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) indicate to the applicant, and record, that an aggregate sentence is imposed and that: 1. the sentence that would have been imposed in respect of count 2 is 1 year and 6 months imprisonment, with a non-parole period of 9 months imprisonment; 2. the sentence that would have been imposed in respect of count 5 is 2 years and 8 months imprisonment, with a non-parole period of 1 year and 4 months imprisonment; 3. the sentence that would have been imposed in respect of the count contained in the ex-officio indictment is 3 years and 4 months imprisonment, with a non-parole period of 1 year and 8 months imprisonment. 1. The earliest date on which the applicant is eligible for release on parole is 11 May 2019. ********** Endnotes 1. Commencing at reasons for judgment 3 2. At reasons for judgment 9. 3. At reasons for judgment 9. 4. Commencing at reasons for judgment 9. 5. Report of 16 March 2015 at AB119. 6. Report dated 2 April 2015 commencing at AB 134. 7. Report dated 5 August 2015 commencing at AB 135. 8. Report dated 2 May 2017 commencing at AB 140. 9. Commencing at AB 156. 10. Commencing at reasons for judgment 12. 11. Reasons for judgment 17. 12. Reasons for judgment 18. 13. Reasons for judgment 14. 14. Reasons for judgment16. 15. Reasons for judgment 17. 16. (Court of Criminal Appeal NSW, 15 March 1990, unreported). 17. At pp.3-4 . 18. [2017] NSWCCA 205. 19. At [69]-[71]. 20. [2017] NSWCCA 284. 21. At [97]-106]. 22. Commencing at [101]. 23. [2018] NSWCCA 132 at [65]. Amendments 27 November 2018 - Correction to typographical errors in [12] and [18]. 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: 27 November 2018