Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Yang v R [2012] NSWCCA 49
• Hearing dates: 23 February 2012
• Decision date: 28 March 2012
• Before: Macfarlan JA at [1]; R S Hulme J at [2]; R A Hulme J at [3]

Decision

Leave to appeal granted. Appeal dismissed.

• Catchwords: CRIMINAL LAW - appeal against sentence - supply of heroin - Form 1 offences including further drug supply - mental condition of offender - whether moral culpability reduced - whether offender appreciated consequences of her conduct - whether sentence manifestly excessive
• Legislation Cited: Crimes (Sentencing Procedure) Act 1999; Drug Misuse and Trafficking Act 1985
• Cases Cited: Ayshow v R [2011] NSWCCA 240; Benitez v R [2006] NSWCCA 21; Cao v R [2010] NSWCCA 109; Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321; DPP (Cth) v De La Rosa [2010] NSWCCA 194; Graham v R [2009] NSWCCA 212; Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520; House v The King [1936] HCA 40; (1936) 55 CLR 499; Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; MDZ v R [2011] NSWCCA 243; Muldrock v The Queen [2011] HCA 39; (2011) 85 ALJR 1154; R v Baker [2000] NSWCCA 85; R v Biddle [2011] NSWSC 1262; R v Cotterill [2012] NSWSC 89; R v Israil [2002] NSWCCA 255; R v Koloamatangi [2011] NSWCCA 288; R v Majid [2010] NSWCCA 121; R v Mohammed Fahda [2012] NSWSC 114; R v Tuan Anh Tran [2011] NSWSC 1480; R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168; Ryan v R [2009] NSWCCA 183; TC v R [2009] NSWCCA 296; The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270; Watts v R [2010] NSWCCA 315; Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
• Category: Principal judgment
• Parties: Li Yang (Applicant); Regina (Respondent)
• Representation: Mr N Parsons (Applicant); Ms S Dowling (Respondent); Constantine G. Pavlis & Co; Solicitor for Public Prosecutions
• File Number(s): 2010/29661

Decision under appeal

• Date of Decision: 2011-04-11 00:00:00
• Before: Sides DCJ
• File Number(s): 2010/29661

Judgment

1 MACFARLAN JA: I agree with R A Hulme J.

2 R S HULME J: I agree with the orders proposed by R A Hulme J and with his Honour's reasons.

3 R A HULME J: This is an application for leave to appeal in respect of a sentence imposed in the District Court at Parramatta by his Honour Judge Sides on 11 April 2011.

4 The applicant pleaded guilty in the Local Court to an offence of supplying heroin and was committed for sentence. She adhered to that plea in the District Court and asked that three further offences listed on a Form 1 document be taken into account: one of dealing with the proceeds of crime and two of supplying other prohibited drugs.

5 The applicant was sentenced to imprisonment for 5 years with a non-parole period of 2 years to date from 9 April 2011.

6 The maximum penalty for supplying a prohibited drug, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985, is imprisonment for 15 years and/or a fine of $220,000.

Facts

7 The applicant lived with her mother and daughter in a townhouse in Fairfield. Police conducting surveillance on 29 January 2010 saw her drive away from her home with a male passenger. She drove to Heckenberg and then to Fairfield where there was activity that seems to have given rise to, or confirmed, a police suspicion that she was involved in the supply of drugs.

8 A search warrant was executed at the applicant's home on 1 February 2010. Her bedroom was searched after she had told police that she had nothing to declare. 22.8 grams of a rock like substance containing heroin was found in a bag in a chest of drawers. Four balloons were found in a box on the floor that contained an aggregate of 112.3 grams of heroin at 24.5 per cent purity. The total amount of heroin was 135.1 grams. The traffickable quantity and indictable quantity prescribed in respect of heroin is 3 grams and 5 grams respectively. The commercial quantity is 250 grams.

9 Cash was found in three separate locations in the bedroom, including in a locked safe. The total amount was $14,820 (item 1 on Form 1).

10 Also found within the safe and the chest of drawers were 36 tablets containing ketamine with a combined weight of 12.64 grams (item 2 on Form 1) and 20 tablets containing methylamphetamine with a combined weight of 3.81 grams (item 3 on Form 1). The traffickable and indictable quantities prescribed for ketamine are 7.5 grams and 12.5 grams respectively. The traffickable and indictable quantities for methylamphetamine are the same as for heroin.

11 Police also found multiple resealable plastic bags, a set of scales, a pair of scissors, and numerous books and pieces of paper with writing that appeared to be drug ledgers.

12 The applicant denied knowledge of the drugs and the money. She admitted the safe was hers and produced the key to open it. She exercised her right to silence when police later sought to interview her at the police station.

Subjective circumstances

13 The applicant was born in China in either 1977 or 1979. She has two older brothers. An adopted sister died through illness about four years ago. The applicant told Ms Kathryn Wakely, psychologist, that she had "a great life" in China. Her mother worked and her father stayed at home to care for the children. The applicant was very close to her father but had a difficult relationship with her mother. The family came to Australia when the applicant was aged ten.

14 The applicant's father was diagnosed with terminal cancer within six months of the family's arrival in Australia. Her parents returned to China, leaving the applicant and the youngest brother at home to fend for themselves for some months. Her father ultimately died and her mother then returned to Australia.

15 The applicant's relationship with her mother remained poor. She was subjected to abuse in varying forms and ran away from home on a number of occasions. At the age of 17 she commenced a relationship that lasted for about 10 years and produced a daughter who is now aged 13. The evidence before the judge was to the effect that the applicant was not prepared to leave her daughter in the care of her mother while she served her sentence; it was proposed that she would be sent to live with one of the applicant's brothers in Perth.

16 The applicant's school performance was adversely affected by the problems she experienced with her mother and she left part way through Year 11. She has limited vocational skills and employment experience. There was, however, evidence that she was motivated to obtain skills in order to play a more active role in the workforce.

17 The applicant was on a disability support pension. A letter from her general practitioner, Dr Devsam, reported that she suffered from recurrent lumbar spine pain due to degeneration of the spine. The doctor also reported that she had a history of depression and anxiety dating back some years. This was exacerbated by her difficult relationship with her mother, as well as by her back pain. Ms Wakely noted in her report that anxiety and depression had been diagnosed three years previously. Psychometric testing indicated that these conditions were both current and problematic. Ms Wakely also noted symptoms of Post-Traumatic Stress Disorder.

18 The applicant commenced using heroin at the age of 17. She had been able to abstain at times but relapsed about 12 months before her arrest. She ceased using drugs following her arrest, entered a methadone program and commenced a program of counselling.

19 This brief summary of the applicant's subjective case has been largely drawn from the judge's sentencing remarks. His Honour also said that he was satisfied her prospects of rehabilitation and not re-offending were "reasonable to good". A 25 per cent reduction of sentence was allowed because of the applicant's early plea of guilty. The judge was also satisfied that she was remorseful.

20 There are three grounds of appeal but before turning to them it would be convenient to set out a portion of the judge's sentencing remarks that is relevant to the first two grounds. After dealing with the facts and the applicant's personal circumstances, His Honour said:

It seems to the Court that [it] is highly likely that she used drugs to address the poor relationship between her and her mother, her mental health issues as well as her physical pain.

The evidence discloses that she suffers from depression and anxiety. However, there is no evidence that, at the time of the offence, she did not know what she was doing and did not fully appreciate the consequences of her conduct. The Court is satisfied that, in combination with the separation from her daughter, her mental health issues will make any time in custody more burdensome for her.

She became involved in the offence to fund her own habit and to provide her mother with money that the mother had demanded so she could visit China and support her gambling addiction. Because of the Offender's mental health issues she would have been vulnerable to pressure from her mother.

The Court is satisfied that the offence was premeditated and the Offender must have appreciated that, by becoming involved in the offence, she was enmeshing herself in organised criminal activity.

Ground 1: The sentencing judge erred in failing to adequately take into account the Applicant's mental health condition at the time of the commission of the offence.

21 The applicant did not give evidence and so the material concerning her mental condition was confined to the letter from the general practitioner and the report of the psychologist. Counsel for the applicant noted that the evidence was not challenged. It was submitted that the applicant was "entitled to have these mental conditions taken into account when assessing her moral culpability". Even if not found to be causative of the offending they remained relevant to sentence: TC v R [2009] NSWCCA 296 at [68] per Hall J; Benitez v R [2006] NSWCCA 21 at [36] - [38] per Simpson J.

22 Counsel for the applicant referred to the authoritative summary of principles concerning the relevance of a mental disorder in DPP (Cth) v De La Rosa [2010] NSWCCA 194 at [177] - [178] per McClellan CJ at CL. He also referred to the statement of McClellan CJ at CL and Howie AJ in Watts v R [2010] NSWCCA 315 at [24] that the relevance of an offender's mental disorder transcends a matter of mitigation under s 21A(3)(j) of the Crimes (Sentencing Procedure) Act 1999 ("the offender was not fully aware of the consequences of his or her actions because of the offender's age or any disability").

23 It was submitted that, having regard to the content of the reports, the judge's "comments about the applicant's mental health condition do not reflect that he gave adequate weight to the extent of the applicant's mental health problems at the time of the commission of these offences so as to reflect the degree of moral culpability that should attach to her conduct" (AWS [38]). In oral submissions, it was put that the applicant's mental condition was relevant to an assessment of her moral culpability, and therefore the seriousness of the offence, as well as to the degree to which the sentence should reflect general deterrence and denunciation.

24 The Crown did not dispute the principles to be applied in sentencing an offender who suffers from a mental disorder. It was noted, however, that the applicant bore the onus of establishing that the effect of her mental condition was to reduce her moral culpability: see, for example, The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at 281.

25 It was submitted that the expression of this ground tacitly conceded that the judge did take into account the applicant's mental condition at the time of the offence and that the complaint was directed to the weight that his Honour gave to this issue. The circumstances in which matters of weight will justify intervention by this Court are narrowly confined: R v Baker [2000] NSWCCA 85 at [11]; Ryan v R [2009] NSWCCA 183 at [33]; Cao v R [2010] NSWCCA 109 at [57]; and R v Majid [2010] NSWCCA 121 at [40].

26 The submissions for the Crown concluded with the contention that his Honour sufficiently referred to all relevant matters, made findings that were justified on the evidence, and adopted a principled approach to the issue of the applicant's mental condition.

Decision

27 Two observations may be made concerning the submission that the judge should have found that the offence was less serious because of the applicant's reduced moral culpability. First, his Honour did not express any finding as to the level of seriousness of the offence, apart from saying that the applicant "was involved in drug trafficking to a substantial degree". That was a finding that was well open on the evidence regardless of any determination of moral culpability.

28 Secondly, the High Court of Australia in Muldrock v The Queen [2011] HCA 39; (2011) 85 ALJR 1154 at [27] appears to have rejected the notion propounded in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [86] that matters personal to an offender, including a mental illness, can be said to affect the objective seriousness of an offence. I have said, "appears to have rejected", because it has not been universally accepted.

29 In MDZ v R [2011] NSWCCA 243, Hall J (Tobias AJA and Johnson J agreeing) stated:

[67] In my opinion, in light of the High Court's judgment in Muldrock (supra), it is open to conclude that the mental condition of the applicant at the time of the offence may bear upon the objective seriousness of the offences: Muldrock (supra) at [27] and [29]. Certainly, in the present case, the sentencing judge, on the evidence, was required to expressly determine the moral culpability of the applicant in assessing the seriousness of the offences and in determining the appropriate sentences to be imposed in relation to them. In this case, the evidence required a finding that the applicant's moral culpability was reduced by his mental health issues.

30 In Ayshow v R [2011] NSWCCA 240 the point was referred to but not decided. Johnson J (Bathurst CJ and James J agreeing) said (at [39]):

To the extent that a question arises whether the Applicant's mental state at the time of the offence may bear upon objective seriousness (Muldrock at 1162-1163 [27], 1163 [29]), it remains a relevant factor on sentence in an assessment of moral culpability. Accordingly, if there is evidence to support a finding that an offender's moral culpability is reduced by a relevant mental condition, the offender is entitled to have it called in aid on sentence.

31 There are first instance decisions that reflect different approaches. In R v Biddle [2011] NSWSC 1262 at [88], Garling J, with reference to Muldrock, specifically excluded from an assessment of the objective seriousness of the offence the offender's mental health (an impaired capacity of the offender to control himself due to brain damage).

32 The point is not entirely clear, with respect, in the approach taken by Harrison J in R v Mohammed Fahda [2012] NSWSC 114. His Honour said:

[50] The objective seriousness of the offence is to be determined without reference to the personal attributes of the offender, but "wholly by reference to the nature of the offending": Muldrock at [27]. However, such factors remain particularly relevant to any determination of the appropriate sentence to be imposed.

33 Earlier, however, his Honour said:

[38] I accept that the offender suffered from post-traumatic stress disorder that was caused and evident prior to the commission of the offence and that this was associated with hyper-vigilance, paranoia, auditory hallucinations, depression and inverted sleep patterns. I also find that the offender was substantially impaired by an abnormality of mind arising from an underlying condition in the form of post-traumatic stress disorder or an anxiety disorder and a probable psychotic illness. I have taken all of this into account in mitigation of the objective criminality of the offence.

34 In R v Tuan Anh Tran [2011] NSWSC 1480 at [13], Rothman J took into account in an assessment of objective seriousness, "circumstances personal to the offender that are causally connected to the commission of the offence such as his state of mind". The "state of mind" he was speaking of does not appear to have been any mental condition. The case concerned a murder committed at a meeting between parties involved in an illicit drug transaction. The offender engaged another man (the actual killer) to provide protection because he was in fear of the deceased's notoriety for violence and it would appear that it was this that his Honour had in mind.

35 In R v Cotterill [2012] NSWSC 89, McCallum J (at [30]) said that the assessment of the objective seriousness of the offence may include consideration of circumstances personal to the offender that are causally connected to the commission of the offence. Her Honour added that she did not understand Muldrock to hold otherwise. It was concluded (at [45]) that the seriousness of the offence was mitigated by the offender's impaired control due to several psychiatric disorders.

36 Finally, I note that in R v Koloamatangi [2011] NSWCCA 288 at [18], Basten JA said that Muldrock limits the range of factors to be considered in determining the objective seriousness of the offence.

37 This issue in relation to Muldrock was not the subject of submissions by the parties and I have come to the view that it is unnecessary to decide. It would be a relevant matter if the contention was that the judge overestimated the seriousness of the offence. Aside from the finding that the applicant was involved in drug trafficking to a substantial degree, about which there was no criticism, his Honour did not otherwise express a view as to the relative seriousness of the offence. In these circumstances it is not possible to say that a finding was made that was not open on the evidence.

38 That is not to say that an assessment of the applicant's moral culpability was irrelevant. If her moral culpability was reduced for the reasons advanced under this ground, it would have been necessary for the judge to assess its significance, along with all other relevant factors, in making a judgment as to the appropriate sentence to impose: Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357 at 351 [51].

39 It is correct, as counsel for the applicant submitted, that there was no challenge to the opinions expressed by Dr Devsam and Ms Wakely. A question was raised at the hearing of the application as to whether it would have been possible for the Crown to "challenge" the evidence, given that the applicant did not give evidence. I do not think anything turns on this because there was substantial consistency between what the applicant had said to Ms Wakely and what she had told Dr Devsam over a period of years.

40 Dr Devsam reported that the applicant was "frequently depressed and emotionally upset"; she had been "counselled for anxiety and depression" for the past three years; her back pain "worsens her depression"; she had "a long history of chronic depression for the last 5 years"; the problems in the relationship with her mother "is aggravating her depression and anxiety"; and she "often has panic attacks ... associated with severe anxiety". There was no expression of opinion by the doctor concerning the connection between these conditions and the offences for which the applicant was to be sentenced.

41 The submissions for the applicant referred to Ms Wakely's opinion that depression would likely interfere with effective daily living. Ms Wakely also made reference to feelings of pessimism, guilt, hopelessness, worthlessness, low self worth and poor self-esteem. There were references to "current difficulties"; for example, "tension and difficulty relaxing, sadness, apathy and feelings relating to self doubt and being socially awkward". There was a suggestion of a previous experience (with no detail as to what it was) that was "intensely threatening and/or fearful" to which the applicant had reacted "by having uncontrolled and intrusive thoughts, flashbacks or nightmares". Ms Wakely said that her testing confirmed that the conditions of anxiety and depression were current and problematic. The applicant's "current" levels of depression were of "great concern" and required attention and formal assistance. There was also evidence of symptoms of Post-Traumatic Stress Disorder.

42 It may be readily accepted that these various conditions were likely to have been present at the time of the commission of the offences. However, it does not necessarily follow that they operated to reduce the applicant's moral culpability.

43 His Honour referred to the evidence of the applicant suffering from depression and anxiety. He considered it highly likely to be one of the reasons she had been using illicit drugs. He found no evidence that the applicant did not know what she was doing, or did not fully appreciate the consequences of her conduct (the latter finding is the subject of the second ground of appeal). His Honour did take the applicant's mental condition into account, along with the separation from her daughter, in finding that any time in custody would be more burdensome.

44 The judge found that the applicant's motive for supplying drugs was to fund her own habit, as well as to provide money that her mother had demanded from her to support her mother's gambling addiction and to fund a trip to China. His Honour acknowledged that because of her mental health issues, the applicant would have been vulnerable to pressure from her mother.

45 The first of the principles referred to by McClellan CJ at CL in DPP (Cth) v De La Rosa, supra, at [177] was that:

Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence...

46 It is notable that the principle is concerned with a mental condition that contributes to the commission of the offence in a material way. Whether a mental condition is one that has had that effect is a question of fact. The sentencing judge in this case was not asked to make such a finding and I am unable to conclude on the evidence that was before his Honour that such a finding had to be made.

47 In R v Israil [2002] NSWCCA 255 at [23], Spigelman CJ referred to a mental condition impacting upon the level of culpability of an offender where there was an inability to understand the wrongfulness of his or her actions, make reasonable judgments, or control his or her faculties and emotions. The evidence in the present case did not require a finding that the applicant had any such inability.

48 The second of the principles set out by McClellan CJ at CL was that:

It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed... (Emphasis added).

49 This is clearly a discretionary issue in the domain of a sentencing judge. In the present case, the judge was not invited to make such a finding. In fact, aside from a general reference to having taken into account the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act, his Honour made no reference to general deterrence (or denunciation) at all. In those circumstances, it is difficult to conclude that inappropriate weight was given to any of the "purposes" listed in that section.

50 It was submitted that when his Honour said "there was no evidence that, at the time of the offence, she did not know what she was doing and did not fully appreciate the consequences of her conduct", he was confining himself to whether the statutory mitigating factor in s 21A(3)(j) had been established. So, it was argued, his Honour made the same error identified in Watts v R, supra, at [24] of failing to recognise that "the relevance of an offender's mental disorder transcends a matter of mitigation under this provision".

51 There would be force in this submission if it were the case that his Honour did not take the applicant's mental condition into account at all; but he did. In the extract from the sentencing remarks set out above, it is clear that he regarded it as one of two explanations for the applicant's recourse to drug use; it was part of the reason why custody would be more burdensome; and it was a reason why the applicant was vulnerable to pressure from her mother. These are all matters beyond a consideration of s 21A(3)(j).

52 It was submitted for the applicant before the sentencing judge that special circumstances should be found "because of the issues in the psychological report" (POS at 10.11). Although his Honour did not expressly say so, I am inclined to the view that, when he referred to the applicant's "strong subjective case" as a reason for finding special circumstances, he had that submission in mind.

53 The discretionary decision made by his Honour in light of the facts, matters and circumstances of the case was one that was uniquely for him. It was one that can only be interfered with by this Court on House v The King principles (House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505). I am not persuaded that his Honour's discretion miscarried. Clearly, he was alive to the applicant's mental condition and he took it into account in a number of ways that were favourable to her. I would not uphold this ground.

Ground 2: The sentencing judge erred in finding that there was no evidence that at the time of the offence the Applicant did not fully appreciate the consequences of her conduct.

54 In the third of the four paragraphs quoted earlier from the sentencing remarks, his Honour was referring to a portion of Ms Wakely's report. Under the heading "Background to the Offences", it was said that around the time the offences took place the applicant was using heroin daily. She told Ms Wakely that because she was using she would not be at home and she provided an excuse to her mother that she was working. As a result, her mother expected her to be earning money. Her mother demanded $5,000 to cover the cost of a trip to China and to provide her with gambling money. The applicant told Ms Wakely that she began selling drugs in order to comply with her mother's demands and also to support her own drug use.

55 Counsel for the applicant referred to a statement made by the applicant to Ms Wakely to the effect that her mind was clear now that she was off drugs. Further, there was the response made by the applicant when asked about her attitude to the offences in which she said, "My mind was not clear. It felt like a dream". Ms Wakely expressed the opinion that the applicant's use of substances was "likely to have impacted upon her ability to consider her actions appropriately and thoroughly given the enhanced lack of concern one will typically experience when under the influence of heroin".

56 Counsel invited consideration of these statements in conjunction with the opinions that the applicant suffered from anxiety, depression and Post-Traumatic Stress Disorder, and the interaction of these conditions with drug abuse. Accordingly, it was submitted that the judge was in error in finding that there was no evidence that the applicant did not fully appreciate the consequences of her conduct and that she must have appreciated that "she was enmeshing herself in organised criminal activity".

57 Counsel for the Crown pointed out that in the submissions made on the applicant's behalf in the proceedings on sentence there was no suggestion that she did not appreciate the consequences of her conduct. The only submission concerning the applicant's mental condition was that there should be a finding of special circumstances.

Decision

58 This ground may be dealt with briefly. At its highest, the evidence before his Honour was to the effect that the applicant's ability to think with clarity might have been impaired because of her drug use. The extent to which that might have been so was incapable of discernment. The combination of the applicant's drug use and her mental condition did not amount to evidence that she did not appreciate the consequences of her conduct. The findings made by the judge were open to him. I would reject this ground.

Ground 3: The sentence imposed on the Applicant is manifestly excessive.

59 Counsel for the applicant calculated that with the 25 per cent reduction for the early plea of guilty there must have been a "starting point" for the head sentence of 6 years 8 months. Sentencing statistics tendered before the judge (supply heroin less than commercial quantity; Form 1 matters; plea of guilty) indicated that sentences had been imposed in 67 cases ranging up to 6 years. A 6 year sentence had been imposed in only 1 of those 67 cases with all other sentences being 5 years or less.

60 A submission was made about the manner in which the judge rejected a claim made by the applicant to the author of the Pre Sentence Report that a significant proportion of the money and drugs found by the police were the property of some unnamed person, and that she was merely a temporary custodian of them while this person was away for a few days. It was submitted that the judge did not completely reject this explanation but that the sentence imposed reflected an implicit finding that the offender was "a sole principal". On the hearing of the application, however, counsel acknowledged the force of the written submissions for the respondent in relation to the manner in which the judge dealt with this issue and did not press the point (23.2.12 at T4.46).

61 It was submitted that the "starting point" for the sentence was too high, particularly having regard to the applicant's mental condition, and that this lead to the imposition of a sentence which was manifestly excessive. It was submitted that if the total term of the sentence was reduced, there should be a proportionate decrease in the non-parole period.

Decision

62 To make good a ground alleging that a sentence is manifestly excessive it must be shown that the sentence was unreasonable or plainly unjust: Markarian v The Queen, supra, at 371[25]. It is not simply a matter for this Court to substitute its own opinion for that of the sentencing judge because it might have exercised the discretion in a different manner: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 672 [15]; Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 at 339 [57]; and Markarian v The Queen at 371 [28]. Further, intervention by this Court on a ground that the sentence is manifestly excessive is not warranted simply because the sentence is markedly different from other sentences that have been imposed in other cases: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 605 [58]; Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 538 [59].

63 References to a "notional starting point" tend to deflect consideration from relevant matters and they have done so in this case. Hoeben J observed in Graham v R [2009] NSWCCA 212 at [40] that the focus should be on the sentence actually passed rather than on the starting point or notional sentence. An invitation to compare the "notional starting point" in this case with sentences actually passed in other cases by way of the statistics is to compare apples with oranges. Each of the 67 cases comprising the selection from the statistical database that was before the sentencing judge involved a plea of guilty. As a consequence, it could be expected that most, if not all, of those sentences were the result of a reduction of between 10 and 25 per cent. Counsel for the applicant acknowledged this in oral submissions, but maintained that the sentence actually passed was shown to be in "the top 7% of cases" (23.2.12 at T4.22).

64 The statistics do not say anything, of course, about the circumstances of the offence, or the offender. For an offence of supplying less than the commercial quantity of heroin, they can range from an offer to supply a few grams to an actual supply of 249 grams. The offenders might be persons with no previous convictions who committed the offence in extenuating circumstances; persons well entrenched in drug supply activity with previous convictions spanning many years; or persons with subjective circumstances of infinite variety in between. Where further offences were taken into account, the statistics say nothing about the number, nature or seriousness of such offences. In the present case, it is significant that there were two further drug supply offences, as well as the offence of dealing with $14,820 worth of proceeds of crime, on the Form 1.

65 A further point about the statistics is that nothing was said in the applicant's submissions about the non-parole period. The statistics before the sentencing judge showed that non-parole periods of 2 years or more had been imposed in 22 out of 61 cases (36 per cent). It is unsurprising that there was no submission that the non-parole period was manifestly excessive.

66 His Honour did not express any conclusion that the applicant was a "sole principal". What he found to be relevant to the seriousness of the offence included:

• There was no evidence that the applicant did not fully appreciate the consequences of her conduct.

• The applicant's motivation was to fund her own habit and to provide her mother with money.

• The offence was premeditated and the applicant must have appreciated she was enmeshing herself in organised criminal activity.

• The quantity was about 45 times the traffickable quantity and 27 times the indictable quantity. It was about 54 per cent of the commercial quantity.

• The 112.3 grams found in the four balloons had a purity of 24.5 per cent.

• The presence of the other drugs indicated that her activity involved more than one illicit drug and it was clear that substantial profit was involved.

• It was not clear whether all of the drugs would have been sold to users. The possibility that some might have been sold in wholesale quantities could not be excluded.

• There was drug trafficking to a substantial degree.

67 Although there was no express mention of it, the presence in the applicant's bedroom of the various paraphernalia associated with drug dealing (plastic resealable bags, scales and drug ledgers) provided further support for the finding as to the scale of the applicant's involvement in drug trafficking.

68 This was a serious example of an offence of supplying heroin in an amount less than the commercial quantity. The judge was correct to find that there was drug trafficking to a substantial degree and that substantial profit was involved. The further offences to be taken into account were far from insignificant. Against a maximum penalty of 15 years, even taking into account the various matters in mitigation including the applicant's mental condition, I am not persuaded that the sentence is manifestly excessive.

69 I propose that leave to appeal be granted but that the appeal be dismissed.

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Decision last updated: 29 March 2012