Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Farkas v R [2014] NSWCCA 141
• Hearing dates: 15 May 2014
• Decision date: 30 July 2014
• Before: Basten JA at [1]; R A Hulme J at [33]; Campbell J at [41]

Decision

(1) Grant leave to appeal.

(2) Allow the appeal.

(3) Sentence imposed in the District Court of New South Wales on 12th June 2013 quashed.

(4) The applicant is re-sentenced to a term of imprisonment having a non-parole period of 2 years commencing on 29th March 2013 and expiring on 28th March 2015 with an additional term of 1 year and 7 months commencing on 29th March 2015 and expiring on 28th October 2016. The applicant will become eligible for release on parole upon the expiration of the non-parole period on 29th March 2015.

• Catchwords: CRIMINAL LAW - appeal against sentence - ongoing drug supply - misapprehension of fact about applicant's motivation - no evidence of financial gain - whether financial gain an element of the offence; EVIDENCE - finding as to 'normal street purity' of drug - use of other cases as evidence of fact - judicial notice - lack of clarity of fact in issue - lack of notice to offender; EVIDENCE - whether Evidence Act 1995 (NSW) applies in sentencing proceeding - what rules apply if Act does not apply - Evidence Act 1995 (NSW), s 4; PROCEDURAL FAIRNESS - judge relying on own enquiries about factual matter without notice to offender; WORDS AND PHRASES - "common knowledge" - Evidence Act 1995 (NSW), s 144
• Legislation Cited: Criminal Appeal Act 1912 (NSW), s 6; Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 47, 48; Drug Misuse and Trafficking Act 1985 (NSW), s 25A; Evidence Act 1995 (NSW), ss 4, 144; Ch 4, Pt 4.2; Interpretation Act 1987 (NSW), ss 34, 35
• Cases Cited: Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; Cavanett v Chambers [1968] SASR 97; Coco v The Queen [1994] HCA 15; 179 CLR 427; Dinsdale v The Queen (2000) 202 CLR 321; Dugan v Mirror Newspapers Ltd [1978] HCA 54; 142 CLR 583; Gattellaro v Westpac Banking Corporation [2004] HCA 6; 78 ALJR 394; Gordon M Jenkins & Associates Pty Ltd v Coleman (1989) 23 FCR 38; House v King (1956) 55 CLR 499; Ingham v R [2014] NSWCCA 123; International Finance Trust Company; Limited & Anor v NSW Crime Commission & Ors [2009] HCA 49; 240 CLR 319; Ma and Pham v R [2007] NSWCCA 240; Minister for Immigration; ex parte Lam [2003] HCA 6; 214 CLR 1; National Trustee Executors and Agency Co of Australasia Ltd v The Attorney General (Victoria) [1973] VR 610; Ombudsman v Moroney [1983] 1 NSWLR 317; One.Tel Ltd (In liq) v Rich [2005] NSWSC 226; 190 FLR 443; Prculovski v R [2010] NSWCCA 274; R v Attallah [2005] NSWCCA 277; R v Bourchas [2002] NSWCCA 373; 133 A Crim R 413; R v Hemsley [2004] NSWCCA 228; R v Hoon [2000] NSWCA 137; R v Kay [2000] NSWSC 716; R v Nilsson [2005] NSWCCA 34; R v Parkinson [2001] NSWCCA 244; 125 A Crim R 1; R v Simpson (2001) 53 NSWLR 704; R v Stanbouli (2003) 141 A Crim R 531; [2003] NSWCCA 355; R v Windle [2012] NSWCCA 222; Re application of The News Corp Ltd (1987) 15 FCR 227; Re Minister for Immigration; ex parte Lam [2003] HCA 6; 214 CLR 1; Saul v Menon [1980] 2 NSWLR 314; Shaaban v R [2007] NSWCCA 115; ST v R [2013] VSCA 133; Strinic v Singh [2009] NSWCA 15; 74 NSWLR 419
• Texts Cited: J D Heydon, Cross on Evidence (Australian edition, loose leaf), [3020], [3025]; National Drug Law Enforcement Research Fund, R Nicholas, An environmental scan on alcohol and other drug issues facing law enforcement in Australia 2010 (Commonwealth of Australia, March 2010), 7.4.2; National Drug and Alcohol Research Centre at the University of New South Wales, J Van Buskirk and L Burns, New South Wales Drug Trends 2012 - Findings from the Illicit Drug Reporting(NDARC, 2013), 5.2.3
• Category: Principal judgment
• Parties: Frank Farkas (Applicant); Regina (Respondent)
• Representation: Counsel: R Wilson (Applicant); S Herbert (Crown); Solicitors: Legal Aid NSW (Applicant); Solicitor for Public Prosecutions (Crown)
• File Number(s): 2011/373925

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2013-06-12 00:00:00
• Before: Arnott SC DCJ
• File Number(s): 2011/373925

Judgment

1 BASTEN JA: The applicant seeks leave to appeal with respect to a sentence imposed on him in the District Court for an offence of supplying prohibited drugs on an ongoing basis, contrary to s 25A of the Drug Misuse and Trafficking Act 1985 (NSW). Arnott DCJ imposed a sentence of four years six months imprisonment, commencing on 29 March 2013, with a non-parole period of two years and six months.

2 In my view, the Court should grant leave to appeal, allow the appeal, set aside the sentence imposed by the District Court and resentence the applicant. An appropriate sentence is one of imprisonment for three years and seven months, comprising a non-parole period of two years and a balance of term of one year seven months. The non-parole period having commenced on 29 March 2013 will expire on 28 March 2015.

3 The notice of application for leave to appeal contained five grounds. Ground 5 alleged that the sentence was manifestly excessive: because the specific complaints in grounds 1-4 should be upheld, it is not necessary to address ground 5.

4 Grounds 1 and 2 may be taken together. Ground 1 stated that the sentencing judge was in error in identifying as an aggravating feature of the offence the fact that it was committed for financial gain. The applicant submitted that unless the profit were extraordinary, financial gain was an element of the offence and therefore should not have been identified as an aggravating feature. Further, there was no factual basis for the finding. Ground 2 challenged the factual finding, namely that the purpose of the supply was to reduce or satisfy an existing debt of $22,000. The applicant said that he owed his supplier an amount of $2,350, being the amount he owed for the drugs on-sold, but which was a "debt" because his arrest resulted in the confiscation of both the drugs and the money.

5 For the reasons comprehensively set out by Campbell J, both of these grounds should be upheld. As Campbell J further demonstrates, each error was material to the sentence imposed. The multiple references to the "drug debt" demonstrate that this was a significant circumstance underpinning the assessment of an appropriate sentence. The applicant's evidence was that he was paid with drugs for his own consumption. It is not necessary to identify how the confusion arose: the fact that in respect of both grounds the judge, in his reasons, placed reliance on the impugned factors is sufficient to infer that, absent those factors, he would have imposed a lower sentence. They could not have been considered circumstances of mitigation and nothing in the reasons suggests that the sentencing judge treated them as neutral.

6 The third and fourth grounds relate to the inference drawn by the sentencing judge that the drug, known to the applicant as "speed", having a purity ranging between 9% and 12.5%, represented a more serious level of offending than had the same quantity been of "normal street purity", which the judge said was between 3% and 5%. Apart from the complaint that he should not have relied upon such a comparison, absent evidence (ground 3), the applicant also said he was denied procedural fairness because he was not given an opportunity to be heard to dispute that finding (ground 4).

7 Both these grounds, the background to which are fully set out by Campbell J, should be upheld. They provided a further basis for intervention. Again it is not possible to infer that the finding as to comparative purity was other than an aggravating circumstance.

8 As Campbell J is not satisfied that ground 3 was made out, it is necessary to explain why I take a contrary view.

9 The trial judge proceeded to identify the "normal street purity" of methylamphetamine without evidence. Indeed, the only evidence before him of normal street purity was the analysis of the drug supplied. Further, the very concept of "normal street purity" should have led to caution in giving it any weight as a relevant consideration. Rather, the judge referred to two decisions of this Court, namely R v Parkinson [2001] NSWCCA 244; 125 A Crim R 1 and Shaaban v R [2007] NSWCCA 115. This approach was not supportable. First, a judgment of a court with respect to a finding of fact is not authority for the "fact". The facts found are relevant to the precedent value of the case, either as a statement of legal principle, or as an indicator of a range of sentencing for a particular offence, but the facts in the later case must generally be based on the evidence before the later court.

10 Secondly, the cases did not, in their terms, purport to make relevant factual findings. In Parkinson, Howie J noted the quantity of amphetamine the subject of the offence which was "said to be valued at $2,000": at [10]. He continued:

"Although the normal street purity of amphetamine is said to be 3-4 per cent, the purity of the drug the subject of this charge was 7 per cent and, therefore, the drug could be cut down by some other substance to produce 118g of amphetamine which could be resold at street level."

11 What information Howie J was relying upon is not stated: however, the language, "is said to be", indicates that there was some material before the Court, possibly by consent, indicating "normal street purity". Shaaban provided even weaker support. In an ex tempore judgment, Rothman J noted that the supply involved "methylamphetamine with a purity of approximately 19% (the normal street purity being between 3 and 5%)." No source was given for any of the information set out as fact.

12 If these cases provided no basis for the assessment or comparison undertaken, it is possible that the judge was entitled to undertake the comparison on the basis of judicial notice. Chapter 4 of the Evidence Act 1995 (NSW) is headed "Proof"; Part 4.2 is headed "Judicial notice". Section 144 is in the following terms:

144 Matters of common knowledge

(1) Proof is not required about knowledge that is not reasonably open to question and is:

(a) common knowledge in the locality in which the proceeding is being held or generally, or

(b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.

(2) The judge may acquire knowledge of that kind in any way the judge thinks fit.

(3) The court (including, if there is a jury, the jury) is to take knowledge of that kind into account.

(4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.

13 The meaning of the phrase "common knowledge" is assumed to be common knowledge - it is not defined. It is doubtful that the normal street purity of methylamphetamine is a generally known fact, or even common knowledge in Campbelltown, where the Court sat. The very nature of the information makes it something which is inherently open to question. If it were relevant, the better view is that it is not a matter falling within the scope of s 144; it is therefore a matter needing to be proved.

14 No final view is necessary in relation to that issue because the Evidence Act does not apply in relation to a sentencing proceeding unless the court directs "that the law of evidence applies in the proceeding": s 4(2)(a). No such direction was given in the present case. However, it has been held by this Court that the curious effect of the absence of such a direction is that the law of evidence does apply, but not the Evidence Act: R v Bourchas [2002] NSWCCA 373; 133 A Crim R 413 at [43]ff (Giles JA; Levine and Sperling JJ agreeing). (Although it has been held that "there would appear to be no room for the operation of the common law doctrine of judicial notice, strictly so called, since the enactment of the Evidence Act 1995 (NSW), s 144", that statement did not have regard to the operation of s 4 of the Act: Gattellaro v Westpac Banking Corporation [2004] HCA 6; 78 ALJR 394 at [17] (Gleeson CJ, McHugh, Hayne and Heydon JJ).)

15 The circumstances in which it is appropriate for a court to rely upon "facts" which are not the subject of evidence cannot be determined by any simple statement of principle. References to "common knowledge", "notorious facts" and facts "which cannot reasonably be questioned" cover a multitude of circumstances and situations. The common understanding of human nature, on which juries are sometimes exhorted to rely in assessing the credibility of witnesses or the likelihood of events, may be no more than an appeal to popular prejudices. Even within that area, the rules of evidence assume that jurors will not readily appreciate the risks associated with something as commonplace as evidence of identification. The reasoning process by which judges reach findings of fact is often replete with assumptions and inferences based on what may be described as common experience. Findings as to a defendant's intention or purpose will often require a process far removed from scientific assessment. Numerous examples of "notorious facts judicially noticed without inquiry" are to be found in J D Heydon, Cross on Evidence (Australian edition, loose leaf) at [3020]. A somewhat different category of "notorious facts judicially noticed after inquiry" is largely restricted to ascertainment of matters which are believed to be uncontestable or at least generally accepted: see Cross at [3025].

16 To the extent that there is a known range of methylamphetamine of "normal street purity", it must fall into the latter category. That being so, it is necessary to identify an appropriate source of information: that did not happen in the present case. Further, unless the fact that the information is uncontestable is itself a fact of which judicial notice can be taken, it is necessary in accordance with the basic principles of procedural fairness underlying the adversary system that notice of the intention to rely upon such information is given to the parties: see, eg, Cavanett v Chambers [1968] SASR 97 at 101 (Bray CJ); Gordon M Jenkins & Associates Pty Ltd v Coleman (1989) 23 FCR 38 at 46-48 (Sheppard, Beaumont and Hill JJ). That did not happen here.

17 The applicant tendered before this Court extracts from two documents: the first chronologically, was a publication of the National Drug Law Enforcement Research Fund, prepared by R Nicholas, An environmental scan on alcohol and other drug issues facing law enforcement in Australia 2010 (Commonwealth of Australia, March 2010) ("the 2010 paper"). The second was a publication of the National Drug and Alcohol Research Centre at the University of New South Wales, prepared by J van Buskirk and L Burns, New South Wales Drug Trends 2012 - Findings from the Illicit Drug Reporting System (NDARC, 2013) ("the 2013 paper"). The 2010 paper identified several different forms of methamphetamine available in Australia with markedly different median purities, the purities apparently being based on analysis undertaken of drugs seized by police. At 7.4.2, the paper stated:

"McKetin, McLaren and Kelly (2005) described three predominate forms of methamphetamine that are available in Australia. The first of these is powder methamphetamine which has a median purity of approximately 10% and is usually white, or off white in colour. The authors reported that this is commonly known as 'speed' although sometimes this term is used more generically to refer to other forms of the drug."

18 Unhelpfully, this Court was not supplied with a copy of the references used in the 2010 paper. Nevertheless, it may be inferred that the figure of 10% derived from the paper of McKetin et al published in 2005 relied on analyses undertaken no later than 2005. Whether the analyses were limited to drugs seized in New South Wales or covered the whole of Australia is not known. It is certainly sufficient to cast doubt on the figures used in Shaaban in relation to offending which occurred in 2005.

19 The 2013 paper included figures for the "median purity of methylamphetamine seizures analysed in NSW for the period 1999/00 to 2010/11": par 5.2.3. The figures referred to did not provide any precise readings, although those in the period from the second half of 1999 to mid-2001 appear to be in the range of 5-7%. From mid-2002, the figures appear to vary between about 5% and a peak of a little less than 30%. As a rough approximation, the figures in 2010-2011 appear to indicate a median purity of around 10%. The drugs supplied by the applicant would fall squarely within that range. Whether these figures might provide a possible measure of "normal street purity" is difficult to know because of the uncertain meaning of that phrase.

20 This material is adequate to demonstrate that ground 3, as well as ground 4, was made good. The reference by the judge to Parkinson is a sufficient indication that he took an indication of higher than normal purity as warranting a more severe sentence. To the extent that this was a fact which had not been agreed, it was adverse to the interests of the applicant and could only be taken into account if proved beyond reasonable doubt. The applicant has established in this Court that, quite apart from the procedural complaints, the fact had not been established beyond reasonable doubt and should have been disregarded.

21 In these circumstances, each of the four grounds having been made good, it is necessary for the Court to consider resentencing the applicant.

Resentencing

22 Because the impugned facts had the potential to support a more severe sentence than would otherwise have been given, it should be accepted that absent these considerations, the sentencing judge would have imposed a less severe sentence. It does not follow that a different sentence should now be imposed. However, the question for the Court is not (as sometimes suggested) whether the sentence imposed was one which was "warranted in law", but whether the Court is of opinion that some other sentence, in this case less severe, is warranted in law: Criminal Appeal Act 1912 (NSW), s 6(3). The fact that the sentencing judge himself would have passed a less severe sentence, absent identified error, is a matter which supports this Court imposing a less severe sentence.

23 The circumstances of the offending and the matters personal to the offender have been fully articulated by Campbell J and need not be repeated. The matters which warrant a reduction of the sentence imposed are as follows:

(a) the activity of the offender in retailing drugs was undertaken to obtain drugs for his own use;

(b) his need for drugs was related to persistent psychotic symptoms, although their use with prescribed medication may have accentuated the mental health problems from which he suffered;

(c) the applicant has not been in prison on any prior occasion;

(d) the purity of the drugs supplied, being 38.09g of methylamphetamine, was within the median range of purity for street deals in New South Wales, and

(e) his prior criminal record did not include convictions for dealing in drugs.

24 The nature of the offence, the matters on a form 1 and the apparent willingness of the applicant to supply drugs on request demonstrate that a significant custodial sentence is required. The appropriate sentence to be imposed is that set out at the beginning of these reasons, namely a non-parole period of two years with a balance of term of one year and seven months, giving a sentence of three years seven months.

25 The Court is required to specify the earliest date on which the applicant is eligible for release on parole: Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act"), s 48. That date is either the day before the anniversary of the commencement of his sentence, or the anniversary. The answer must depend upon the proper construction of the sentence, but that is affected by the statutory scheme. Three provisions are relevant. First, s 47(1)-(5) deals with the commencement of sentences, including consecutive sentences. Recognising that the court may direct that a sentence commence on completion of another sentence, it provides that such a direction, specifying a commencement date after the date on which the sentence is imposed must specify a date "not ... later than the day following the earliest day on which it appears ... that the offender ... will become eligible to be released on parole": s 47(4)(b).

26 It has been the practice to commence consecutive statements on the anniversary of the commencement date of the first sentence. Thus a person sentenced to a non-parole period of 3 years, to date from 1 January 2000, with a consecutive sentence to date from "the day following the earliest day" on which the offender is eligible for parole will be fixed to commence on 1 January 2003. An example of the conventional approach may be seen in the recent judgment of this Court in Ingham v R [2014] NSWCCA 123.

27 Secondly, there is s 47(6) which provides:

47 Commencement of sentence

...

(6) A sentence of imprisonment ... starts at the beginning of the day on which it commences or is taken to have commenced and ends at the end of the day on which it expires.

There may be a question as to whether the practice noted above with respect consecutive sentences is consistent with s 47(6).

28 Thirdly, there is s 48 which requires that when sentencing an offender to imprisonment the court must specify "the earliest day on which it appears ... that the offender will become entitled to be released from custody, or eligible to be released on parole": s 48(1)(b). There follows a "Note" containing three examples, each of which assumes that the person becomes eligible to be released on parole (or released from a fixed term) on the day before the anniversary of the commencement of the sentence. Thus, example number 3 refers to a non-parole period of 18 months commencing on 22 September 2000, stating that the earliest date on which the offender will become eligible to be released on parole is 21 March 2002.

29 The conventional approach is consistent with the examples given in the note to s 48: cf R v Nilsson [2005] NSWCCA 34; 42 MVR 348 at [24], referring to R v Kay [2000] NSWSC 716 at [128] (R S Hulme J). To the extent that there is inconsistency between the examples contained in the note to s 48 and the language of s 47(6), there are four reasons to follow the approach adopted in the note to s 48.

30 First, s 48 is the provision in the Sentencing Procedure Act which imposes the obligation to identify the actual or potential earliest release date. Secondly, although the note in the text of the Act does not form part of the Act (see s 3(3) of the Sentencing Procedure Act) the note may be taken into account in interpreting a provision of the Act pursuant to s 34(1) of the Interpretation Act 1987 (NSW). In this respect, it is significant that the note being part of the "text" of the Act was subject to Parliamentary scrutiny. In that respect it differs in its significance from that commonly accorded to marginal notes, footnotes and endnotes (referred to in s 35(2)(c) of the Interpretation Act) which, historically, were not the subject of consideration by Parliament: see the historical explanation in the Ombudsman v Moroney [1983] 1 NSWLR 317 at 323-325 (Street CJ); One.Tel Ltd (In liq) v Rich [2005] NSWSC 226; 190 FLR 443 at [52]-[54] (Bergin J). See also Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 51; 204 ALR 722 at [98] (Lindgren J); Re application of The News Corp Ltd (1987) 15 FCR 227 at 240 (Bowen CJ). The notes in the Sentencing Procedure Act should not be equated with the "side notes" referred to by Stephen J in Dugan v Mirror Newspapers Ltd [1978] HCA 54; 142 CLR 583, which he described as "at most only a quite minor aid, 'a most unsure guide', in statutory interpretation": at 594.

31 Thirdly, there being doubt as to the proper construction of legislation giving effect to sentences of imprisonment, the doubt should be resolved against an interpretation which deprives an offender of his or her liberty, albeit for a very brief period: Coco v The Queen [1994] HCA 15; 179 CLR 427 at 437.

32 Fourthly, there is the practical consideration that the Court should prefer the conventional approach to sentencing referred to above, in the absence of any argument by the Director of Public Prosecutions that a more restrictive approach should be adopted. Given that the matter has not, however, been the subject of argument, these views should not preclude the issue being raised at some future time if a different construction is sought to be placed on the legislative scheme. For present purposes, it is sufficient to say that the order of sentence should contain a statement that the earliest date upon which the applicant will be eligible for parole is 28 March 2015.

33 RA HULME J: I agree that grounds 1, 2 and 4 should be upheld for the reasons given in the judgment of Campbell J.

34 I agree with Basten JA that ground 3 should be upheld as well. That should be so, in my view, because ascertainment of "normal street purity" of the substance supplied by the applicant is attended by a sufficient degree of uncertainty.

35 As Basten JA has pointed out (at [10]-[11]), the sources of information upon which the statements in R v Parkinson and Shaaban v R are not disclosed; in contrast to the present case there may well have been evidence on the subject.

36 The materials provided to this Court on the hearing of the application do not assist in determining what "normal street purity" might be at any particular point in time.

37 The foundation for the 2005 assertion of McKetin, McLaren and Kelly assertion that "powder methamphetamine ... has a median purity of approximately 10%" reported in "An Environmental Scan on Alcohol and Other Drug Issues Facing Law Enforcement in Australia 2010", as Basten JA has pointed out, is not known. It is not said to relate only to what could be termed "street deals to end users of the drug". It may well relate to all seizures made by law enforcement in a certain (but unstated) period of time.

38 The purity figures provided in "New South Wales Drug Trends 2012 - Findings from the Illicit Drug Reporting System" tend to confirm the uncertainty as to what "normal street purity" might be. It is said that in 2010/11 the median purity was 9 percent. That is based upon seizures made by NSW Police in that period. The proportion of those seizures that related to street deals to end users of the drug, as opposed to wholesale and quasi-wholesale transactions, is unknown. It is significant that the range of purity revealed by the seizures in that period is as wide as 0.5% to 84.5%. It is also significant that Figure 39 on p 53 of the report discloses a substantial fluctuation in median purity levels over the 10 years or so to the end of 2010 as Basten JA has pointed out (from about 5% up to almost 30%). The fluctuations may be explicable because of varying proportions of seizures from retail/wholesale drug activity; but they also might be explicable because of fluctuations in sources (locally manufactured or imported) or for other reasons. The point is that the data is not available. On the face of it, if the median purity levels of police seizures fluctuate so much, what is to say that there is not a fluctuation in "normal street purity" as well?

39 I agree with Campbell J, however, that the learned sentencing judge's reference to purity probably did not have much bearing upon his assessment of the seriousness of the offence. In contrast to his (erroneous) references to the pre-existing drug debt, he only referred to this in a single sentence.

40 I agree with the terms of re-sentencing proposed by Basten JA and formulated by Campbell J.

41 CAMPBELL J: The applicant seeks leave to appeal against the severity of the sentence imposed on him in the District Court on 12th June 2013. The applicant pleaded guilty to one count of supplying a prohibited drug on an ongoing basis contrary to s 25A(1) Drug Misuse and Trafficking Act 1985 (NSW) with further offences being taken into account on a Form 1. These matters consisted of three other supply charges contrary to s 25(1) of the last-mentioned Act and a charge pursuant to s 11C(1) Summary Offences Act 1988 (NSW) involving a knife.

42 The applicant was sentenced to a total term of imprisonment of 4 years and 6 months with a non-parole period of 2 years and 6 months. This included a 10% discount for the utility of his late guilty plea. The ratio between the non-parole period and the total sentence (55%) reflected his Honour's finding of special circumstances (see [21] below). The maximum penalty for the s 25A offence is imprisonment for 20 years. It is worth noting in passing that the s 25(1) offences, if dealt with on indictment, carried a maximum penalty of 15 years imprisonment; 2 years if disposed of summarily.

Summary of the Facts

43 The facts of the offence were not in dispute below and a statement of agreed facts was tendered as part of Exhibit A. I will summarise them briefly for present purposes.

44 The applicant met with a person who turned out to be an undercover police officer on four occasions between 26th October and 22nd November 2011. During these meetings he sold various quantities of methylamphetamine to the officer. The total amount of drugs was 38.09 grams for which an aggregate of $4350 was paid.

45 The Form 1 matters also arose in the course of these dealings. On their third encounter the applicant sold the officer 6.9g of cannabis for $100 (offence 1 on the Form 1). At their fourth meeting the applicant offered to sell "1 or 2 pounds" of cannabis leaf for $3600-$3800 (offence 3). The applicant was arrested soon after his fourth sale to the officer when a 28cm knife (offence 2) was found in a pocket of the driver's door of his vehicle, as well as 6.14 grams of amphetamine, contained in a cigarette packet (offence 4).

Subjective Features

46 The applicant was 44 years of age at the time of the offences. He has had an unfortunate childhood, his family having been abandoned by his father when he was only 8 years of age. This led to him becoming a ward of the State due to the inability of his mother, who was mentally ill, to care for him. His work record seems to have been poor, perhaps in part due to the prodromal phase of his mental illness referred to below.

47 The applicant also has a mental illness which seems to be of comparatively late onset. He told Dr Furst, a consultant psychiatrist who examined him for the provision of a medico-legal report, that he first started hearing controlling voices in 2000 when he was in his early 30s. He was admitted to Campbelltown hospital in 2004 suffering from auditory hallucinations and depressive symptoms. He told Dr Furst that in the years leading up to the offending his symptoms had been at a low level allowing him to function, except when his symptoms were aggravated by his use of illicit drugs. Dr Furst diagnosed him as suffering from paranoid schizophrenia which was chronic and symptomatic.

48 Over the years he has been treated with various anti-psychotic and anti-depressant medications prescribed by the Campbelltown Community Health team.

49 The applicant's history of illicit drug use, according to the account he gave to Dr Furst, started around the time of the onset of his illness. The applicant affirmed this history in unchallenged testimony. He reported to Dr Furst that at the time of the offending, and his subsequent arrest, he was using about 0.2 to 0.3 grams of "ice" per day. He also told Dr Furst that he would take this in addition to his prescription medications. He was under the influence of both at the time of this offending.

50 Dr Furst said that the applicant's prognosis depends upon "dual diagnosis drug and alcohol rehabilitation" while in custody.

Criminal Antecedents

51 The applicant has a criminal history dating back to 1981 when he was a juvenile. Importantly he was subject to a s 9 bond imposed by the Campbelltown Local Court for assault occasioning actual bodily harm during the period of his offending. This, of course, is a significant factor of aggravation.

52 His adult record, however, contains no offence for which a custodial sentence has been imposed. He has not committed a previous offence of supplying drugs.

The Sentencing Judge's Reasons

53 The sentencing judge found that the offender was a retailer of drugs, rather than a mere courier. His Honour formed the view that the offending was motivated by a combination of his desire to repay a drug debt and to support his own drug habit. The quantity of methylamphetamine supplied was found to be "comparatively small" but his Honour observed that the objective seriousness of offending of this type was determined by "concepts of repetition, system and organisation": R v Hoon [2000] NSWCCA 137 per Dunford J. As assessed, the purity of the drugs was greater than "normal street purity". His Honour referred to R v Parkinson [2001] NSWCCA 244 and R v Shaaban [2007] NSWCCA 115. Importantly for present purposes, the sentencing judge found that the offence was aggravated by the profit derived from the reduction of a drug debt amounting to $22,000. In his Honour's judgment the objective seriousness of the offending fell "a little under the middle of the range for offences of this type".

54 The finding about financial gain by reduction of a drug debt was central to his Honour's approach to the sentencing task, for he mentioned it no less than six times both as an aggravating factor and as a matter that reduced the significance of factors which otherwise suggested leniency.

55 The sentencing judge acknowledged that the offender had never been to prison prior to this offending but properly considered that the offence was aggravated by the fact that the offender was subject to a s 9 bond when he offended.

56 When assessing the subjective circumstances of the offender the sentencing judge recognised that the offender had a history of drug abuse related to his mental illness of paranoid schizophrenia. But the mitigating effect of the mental illness was reduced to an extent by his motivation to repay his drug debt and the "premeditated business-like" nature of the offending. This demonstrated that the offender was aware of the illegality, immorality and impact of his offending. For these reasons his mental illness did not reduce his moral culpability, but it did provide mitigation to the extent to which it accounted for his drug addiction through his impairment of brain function. It also reduced the relevance of general deterrence.

57 The offender's prospects of rehabilitation and his likelihood of re-offending were described as "guarded". This was due to his chronic mental illness and his long-term substance abuse, which included an ineffective attempt at rehabilitation at a drug and alcohol facility. Even when medicated for his illness the applicant suffered a degree of thought disorder.

58 While the sentencing judge was satisfied that some degree of remorse was present its significance was lessened by the applicant's focus on explaining how he became involved in this offending.

59 The offender was afforded a 10% discount for the utility of his late plea. The sentencing judge, as I have said, found special circumstances attributable to his need on release into the community for assistance with his mental health, drug addiction, and employment in combination together with the hardship of the sentence being his first time in custody.

Grounds of Appeal

Grounds 1 and 2

60 Grounds 1 and 2 are linked and I will deal with them together. The grounds are as follows:

1. The sentencing judge erred by taking into account, as an aggravating feature of the offence, that the offence was committed for financial gain.

2. The sentencing judge erred by finding facts adverse to the applicant upon a misconstruction of the evidence and/or which were not open to him to find, namely that the applicant:

a. had a pre-existing drug debt of $22,000;

b. was motivated by the need to pay a pre-existing drug debt;

c. was making a monetary profit from the sale of drugs.

61 The applicant contends that the sentencing judge misapprehended the facts by finding that the applicant's offending was motivated by his desire to repay a pre-existing drug. By so finding, it is submitted, the sentencing judge erroneously aggravated the offending by concluding that "Profit, including one to reduce a debt, as was the case here, is an aggravating circumstance." (ROS p5). The Crown concedes that the Sentencing Judge erred here but submits that the error was not significant.

62 This Court held in Prculovski v R [2010] NSWCCA 274 at [43] (by Howie AJ; McClellan CJ at CL agreeing) that financial gain and a level of planning are elements of the offence. It is only when these factors are "significant" and above that expected in the "lowest level of offending" that a sentencing judge would not be in error to take this into account as a matter of aggravation.

63 The Crown accepts that the appellant in this case did not fall into this "significant" category. Neither the level of planning involved nor the "profit" gained were so significant as to take the offence beyond the level inherently contemplated by the elements of the offence. It is difficult to accept his Honour's error was not material in the result given the centrality of this idea in his thinking as summarised at [16] above.

64 Moreover the sentencing judge, with respect, misapprehended the facts about this so-called drug debt. In his reasons his Honour said, "[The applicant] gave evidence that he sold drugs to pay back a drug debt of over $22,000, as well as being supplied with the "speed" he needed at the end of the week." The Crown concedes that taken at its highest the evidence of the applicant conceding a debt revealed a far lesser sum of $2350. And the figure of $22,000 is not mentioned anywhere in the agreed facts or other evidence.

65 There is no obvious correlation between $2350 and $22,000 which might explain his Honour's finding as a mere slip or mis-transcription. In chief the applicant said he received "a percentage, you know, a third for me through the week" (Tcpt p 6(40)). This was clarified in cross-examination. When asked about the word "percentage" he said, "I get a Speed in return, yeah" (Tcpt p 8(20)). This was the only evidence of material reward, or "profit".

66 The natural inference is that his Honour simply misheard what the applicant said. This impression is reinforced by the consideration that the applicant's legal representative below made a similar mistake and accepted in submissions that the applicant's motivation was a drug debt (Tcpt p 10(20)). A transcript of the proceedings on sentence would not have been available to the sentencing judge at the time he prepared his reasons for sentence.

67 The applicant further submits that the impression of misapprehension is increased by the finding that the appellant was motivated by "a pre-existing drug debt" (my emphasis; ground 2b). The $2350 referred to was not pre-existing but rather a debt that fell due to his supplier by dint of his arrest following the fourth instance of supply. The figure of $2350 is the amount the applicant received from the undercover officer which he was meant to hand over to his supplier.

68 Thus the "debt" the applicant referred to in evidence was not pre-existing but money lost by the supplier because the applicant was arrested. To put it another way the debt of $2350 is money seized by the authorities which was intended by the applicant for his supplier. The Crown accepted this submission as being "most probably" the case after a careful reading of the transcript (CWS 5(g)).

69 Reading the evidence as a whole I am satisfied that the Crown concessions are properly made. The applicant's evidence was to the effect that he received no money for his misconduct by way of commission or otherwise, and that his only drug debt was the result of his arrest which precluded him from passing on the $2350 to his supplier. His only recompense was drugs for his personal use. These matters were not contested in cross-examination.

70 I therefore accept that his Honour erred in stating the sum of the "debt" as $22,000, and by finding that the applicant's offending was motivated by his desire to repay a pre-existing drug debt. The debt in question arose upon his arrest and on the evidence it appears that at no stage did the applicant receive any financial gain over and above drugs for his personal use, doubtless a "material reward" within s 25A. The applicant was paid in kind receiving some "speed" at the end of each week.

71 I accept that grounds 1 and 2 are made out. The sentencing judge erred by aggravating the offending by finding that the applicant profited by way of a reduction in pre-existing drug debts. He profited by receiving drugs but that did not take the case out of the ordinary. The error was one of principle, coupled with a material misapprehension of the facts.

Grounds 3 and 4

72 Grounds 3 and 4 are also best dealt with together. These grounds are in the following terms:

3. The sentencing judge erred by finding, without evidence, that the normal street purity of methylamphetamine is between 3 and 5 per cent.

4. The applicant was denied procedural fairness in that, contrary to the indication given to the parties during submissions and without providing the parties with an opportunity to be further heard in relation to the question, the sentencing Judge found that the purity of the drug supplied was greater than normal street purity.

73 The substance of the argument comes down to two propositions: first, it was simply impermissible for the sentencing judge to take judicial notice of the "normal street purity" of the drugs involved and, secondly, his Honour ought not to have acted on his own inquiries about this topic unless he first gave the parties an opportunity to further address him about it.

74 The finding that the purity of the drug was greater than "normal street purity" was made by reference to previous decisions of this Court in R v Parkinson and Shaaban v R. During addresses below the applicant's legal representative (not Mr. Wilson who appeared on the appeal) submitted the drugs supplied were "of pretty poor purity" (Tcpt p 10(45)). This drew a question from his Honour "purity is about street value purity?" To which the advocate answered "yes, yes, thank you, your Honour those are my submissions" (Tcpt p 10(50)). His Honour's question cannot be properly understood as indicating acceptance of the submission about purity. Quite the contrary.

75 On the hearing of the appeal the Court permitted the tender of An environmental scan on alcohol and other drug issues facing law enforcement in Australia 2010, a paper by Roger Nicholas of the National Drug Law Enforcement Research Fund, and New South Wales Drug Trends 2012: findings from the Illicit Drug Reporting System (IDRS) (2013) by J Van Buskirk and Lucy Byrnes of the National Drug and Alcohol Research Centre, University of New South Wales. The purpose of the tender was to demonstrate that the question of "normal street purity" is a question of contestable fact, or to put it another way, a question of "adjudicative fact".

76 Writing in Cross on Evidence, 9th Australian Edition, Butterworths 2004, (Cross) J D Heydon (at p 145 [3005]) stated:

In the case of adjudicative facts, the doctrine of judicial notice has restricted scope, for in the common law system, the facts are appropriately determined on the evidence presented by the parties, unless the fact is of such notoriety that to call for evidence would be a waste of time.

As to whether "the doctrine of precedent applies to a judicially noticed fact" so that a judge may inform herself or himself by reference to a previous decision where judicial notice was taken, Cross states (at p 146):

...where the fact so found is an adjudicative fact, its impact on subsequent trials stems not from its judicial authority but from its notoriety which is presumably evident to all courts.

77 A judge is entitled to take judicial notice of a notorious fact after inquiry, notwithstanding that this proposition contains an obvious contradiction: Cross p. 156 [3025]. It is clearly established, however, that a court is not entitled to act upon judicial memory refreshed by inquiry without giving the parties notice of its intention "and an opportunity to be heard on the results of its researches": Cavanett v Chambers [1968] SASR 97 at 101 per Bray CJ. In International Finance Trust Company Limited & Anor v NSW Crime Commission & Ors [2009] HCA 49; 240 CLR 319 at 382 [146] Heydon J said:

The court is not entitled to take judicial notice of particular matters of fact after inquiry without notifying the parties of the inquiry and giving them the opportunity to controvert or comment on the source on which the inquiry is made.

78 This Court has taken judicial notice of "the normal street purity" of drugs. The cases are those referred to by the sentencing Judge. In R v Parkinson (2001) 125 A Crim R 1 at [10] Howie J (Barr J agreeing) said:

Although the normal street purity of amphetamine is said to be 3-4%, the purity of the drug the subject of this charge was 7% and, therefore, the drug could be cut down by some other substance to produce 118 grams of amphetamine which could be resold at street level.

Shaaban v R [2007] NSWCCA 115 at [10] is to the same effect, although Parkinson is not referred to. In the passage I have quoted, Howie J refers to amphetamine, but the drug involved was "methylamphetamine", the same drug as in the present case.

79 The basis upon which judicial notice of drug matters is taken was explained by RS Hulme J in two cases. In R v Stanbouli (2003) 141 A Crim R 531; [2003] NSWCCA 355 at [106]-[107] his Honour (Spigelman CJ and Carruthers AJ agreeing on this issue) said:

[T]he topic of heroin usage, price and purity comes often before the Courts and has been dealt with sufficiently often in published research material for judicial notice to be taken of it - cf R v Henry (1999) 46 NSWLR346 at 360-366, 399-403.... The figures I have used, other than those in the immediately preceding paragraph where I have stated the source, are more than supported by data contained in the 1998-99 Australian Illicit Drug Report published by the Australian Bureau of Criminal Intelligence. Support for various of them is also to be found in "Australian Drug Trends, 1999", published by the National Drug and Alcohol Research Centre, a Research Report by Darke, Topp, Kay and Hall entitled "Heroin use in New South Wales, Australia, 1996-2000" published by that Centre, and an Article "Heroin Purity and composition in Sydney, Australia" by Maher, Swift and Dawson in the 2001 Drug and Alcohol Review (though it should be said that the survey the subject of that article was performed on drugs seized in 1996 and 1997).)

In this area precision is neither possible nor required. The Respondent is not being sentenced for the harm the heroin he helped import did.

80 Stanbouli should be read with Ma and Pham v R [2007] NSWCCA 240 where RS Hulme J (with McClellan CJ at CL and Hoeben J agreeing) expressed the following view at [51]-[52]; [54]:

However, regrettably, the experience of courts with drug offences is vastly greater now than it was then. So, I suspect, is the published material. That presently available includes: "NSW Drug Trends 2006; Findings From the Illicit Drug Reporting System (IDRS)" by E. Black et al, NDARC Technical Report No 270 (University of New South Wales); "The Effect of a Reduction in Heroin Supply on Fatal and Non-Fatal Drug Overdoses in New South Wales, Australia", by Degenhardt L. et al, (2005) 182 The Medical Journal of Australia; "Heroin Markets in Australia: Current Understandings and Future Possibilities", by T J Moore et al, Drug Policy Modelling Project, Monograph 09, (Turning Point Alcohol and Drug Centre Inc).

Judge Morgan was thus entitled to take judicial notice of the purity of drugs commonly to be found in cases coming before the courts and to make a judgment of where, relative to the levels of purity commonly seen, the purity of the drugs in the case before her fell. ...

Furthermore, if judicial notice is to be taken of matters such as purity commonly experienced in the Courts, the particular matters must be such as to be, or be virtually - and for present purposes it is unnecessary to explore the difference - beyond argument.

81 From his Honour's reference to "judicial notice"; to the experience of Courts with drug offences; and the literature that is available to judges about illegal drugs, RS Hulme J should not be taken as suggesting in any way that the District Court is a "specialist tribunal" when it comes to dealing with drug offences: cf Strinic v Singh [2009] NSWCA 15; 74 NSWLR 419. Rather judicial notice may be taken of facts which are notorious, whether or not the notoriety is established after inquiry. The point his Honour was making is simply that with the far greater experience of the courts with drug offences and with the advances in knowledge due to literature of the category his Honour mentioned, matters like "normal street purity" have acquired sufficient notoriety for judicial notice to be taken whether or not inquiry is first made. By definition, if judicial notice may be taken of a fact, it is unnecessary to receive evidence about it.

82 As I have already pointed out, a decision based on judicial notice about "normal street purity" of a particular drug "cannot provide a precedent in the legal sense, as in the case of a decision upon a matter of law, [but] other courts can be expected more readily to accept judicial knowledge of the basic facts leading to the conclusion and hence the conclusion itself": Saul v Menon [1980] 2 NSWLR 314 at 326 (by Moffitt ACJ); see also National Trustee Executors and Agency Co of Australasia Ltd v The Attorney General (Victoria) [1973] VR 610 at 612.

83 In my judgment, his Honour was entitled to take judicial notice of the "normal street purity" of methylamphetamine, and was entitled to refresh his judicial memory by reference to Parkinson and Shaaban.

84 As Cross points out (page 173-4 [3125]), strictly, evidence in rebuttal of a fact judicially noticed is inadmissible. The learned author continued:

Similarly, evidence that a particular practice was not followed on a particular occasion would not rebut the existence of the practice of which judicial notice is taken; nor, strictly speaking, would evidence of a change of practice, for judicial notice is simply taken of the current practice at the particular time.

The sentencing Judge was entitled to draw upon "the store of judicial knowledge" of which the previous decisions of Parkinson and Shaaban form part. From them his Honour was entitled to take notice that "normal street purity" of methylamphetamine is in the range of 3 to 5 percent. But this did not prevent the applicant leading evidence to demonstrate, if he could, that things had changed since those decisions were made by reference, say, to the 2012 publication. And this consideration gives rise to the difficulty in the present case.

85 By his question, his Honour properly indicated that purity in absolute terms is not the issue; the issue was "normal street purity". But, as the extract from International Finance Trust demonstrates, his Honour was not entitled to refresh his memory in chambers by reference to those cases "without notifying the parties of the enquiry and giving them the opportunity to controvert, or comment, on the source in which the enquiry is made". As Bray CJ pointed out in Cavanett even where the information is "of an uncontroversial nature" the Court should give the parties notice and an opportunity to be heard on the result of its researches.

86 In ST v R [2013] VSCA 133 Ashley, Redlich and Priest JJA said:

It is axiomatic that a judge may not search for, or take account of, information that is not in evidence, save where a fact is of such notoriety that a judge may take judicial notice of it.

At [40] their Honours explained:

One must distinguish the process of modern litigation where a judge is frequently provided with material which does not end up in evidence or where a judge is required to rule upon evidence which it is concluded is inadmissible. It is assumed that a judge then has the capacity to put from his or her mind evidence which has been seen or heard but which is not relevant or admissible to the determination of the questions before the court. One may also put to one side those instances where a judge may take judicial notice of a particular fact, even if it is not put into evidence, which is of such notoriety that it could not be the subject of serious dispute. So also, a judge may have recourse to learned works for the purpose of refreshing his or her memory. But even in such cases where evidence may not required to prove a fact, the requirements of natural justice will ordinarily have to be observed. Judges should not so inform themselves on any contentious matter, and then act upon it, without first giving the parties an opportunity to controvert or comment upon it. (Citations omitted; my emphasis)

87 His Honour should not have taken judicial notice of the "normal street purity" of methylamphetamine without notice to the parties especially where his Honour appreciated that this consideration was relevant to the objective seriousness of the offending, and he intended to use it in assessing that matter. I will return to the question of whether any practical injustice flowed from this.

88 The legal position I have described drawn from the common law is materially the same as that established by the provisions of the Evidence Act 1995, s 144 which is in the following terms:

144 Matters of common knowledge

(1) Proof is not required about knowledge that is not reasonably open to question and is:

(a) common knowledge in the locality in which the proceeding is being held or generally, or

(b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.

(2) The judge may acquire knowledge of that kind in any way the judge thinks fit.

(3) The court (including, if there is a jury, the jury) is to take knowledge of that kind into account.

(4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.

Importantly, s 144(4) requires the judge to give the parties a fair opportunity to make submissions.

89 I am conscious that by dint of s 4, the Evidence Act applies to sentencing proceedings only to the extent that the Court directs that the Act apply. No party asked for such a direction in the present case, and none was made. In R v Bourchas [2002] NSWCCA 373; 133 A Crim R 413, Giles JA noticed it was not customary for a direction that the Act applied to be made. After a detailed and insightful review of the case law and the writings of commentators, his Honour, with the agreement of Levine and Sperling JJ, expressed the following conclusion at [61]:

What I have said is not to deny that the sentencing judge should be fully informed, or that desirable practices as they have developed should not continue. In practice sentencing proceedings are conducted with a degree of informality. Unnecessary insistence on the strict rules of evidence is in no-one's interests in sentencing proceedings, and the customary co-operation between the Crown and the offender and making of admissions by the offender should so far as possible be insisted upon. But if there is good reason for objection to evidence in sentencing proceedings the objection when taken must be resolved and, apart from statute, must be resolved by application of the rules of evidence. In the absence of a direction pursuant to s4 of the Evidence Act, the law of evidence unaffected by that Act applies.

90 Accordingly, in the absence of a direction, the law of evidence unaffected by the Act applied in this case. And that common law, in my judgment, required the parties to be given a fair opportunity to address or comment upon whether 3-5% represented normal street purity when the applicant offended. The denial of that opportunity amounted to practical injustice: Re Minister for Immigration; ex parte Lam [2003] HCA 6; 214 CLR 1 at 13-14 [37] by Gleeson CJ. The reports tendered in this Court suggest that the street purity of methamphetamine in Australia is higher now than when Parkinson was decided, if not Shaaban. At page 109 (7.4.2) of the 2010 paper, of the various forms of methylamphetamine, "speed" is said to have a median purity of approximately 10 percent; "base", 21 percent; and "ice", a median purity of 19 percent. In the 2012 report (p72 [5.2.3]) the median purity of all methylamphetamine seizures analysed by police was said to be 9%, from a range of all seizures of 0.5-84.5%.

91 I would reject Ground 3, but uphold Ground 4. Having said that, I do not regard his Honour's finding as to purity as having had much effect upon his finding as to the objective seriousness of the offending. It was a factor that he said he was taking into account. However, it is implicit in his Honour's finding that the offender was a retailer that the drugs were not to "be cut down by other some substance" to produce a greater quantity for the purpose of on-selling.

92 In expressing these conclusions, I have not overlooked the significance of the decision of this Court in R v Attallah [2005] NSWCCA 277 where (at [221]) James J (Buddin and Rothman JJ agreeing) said:

I do not consider that it was open to her Honour to find that the heroin or cocaine supplied was "of a high degree of purity". There was no evidence which would have permitted a determination of whether these degrees of purity should be regarded as high degrees of purity. Her Honour did not refer to any evidence at all about the degree of purity of the heroin the appellants had supplied.

This statement should not be taken as requiring direct evidence in any case in which purity of a drug is in issue. The question of the "high degree of purity" in Attallah was raised in the context of s 61(2)(c) Crimes (Sentencing Procedure) Act 1999 (NSW). That section imposes a mandatory life sentence for certain serious drug offences. In those circumstances where there is a requirement for a court to be satisfied as to the purity of a drug before imposing the most severe punishment known to our criminal law it follows that evidence is required to discharge the standard of proof beyond reasonable doubt. An offender should not be sentenced to life imprisonment on a finding "of a high degree of purity" without evidence.

93 Obviously, in every case, a sentencing Judge may not take into account as an aggravating factor any matter unless satisfied of it beyond reasonable doubt and in a case of appropriate notoriety, judicial notice will suffice. What was required in Attallah was not proof of "normal street purity" but that the actual drugs in question were of a high degree of purity. Judicial notice could not supply that fact.

Ground 5: Is the sentence manifestly excessive

94 As there are identifiable appellable errors in his Honour's approach, it is unnecessary to consider whether the sentence passed is manifestly excessive. However, I will bear in mind the arguments addressed to this ground when considering the next question which is whether some other sentence is warranted in law.

Is a less severe sentence warranted in law?

95 Error in the sentencing process does not trigger the quashing of a sentence automatically. The establishment of error in the House v King (1956) 55 CLR 499 sense is a condition of the exercise of the power conferred by s 6(3) Criminal Appeal Act 1912: Dinsdale v The Queen (2000) 202 CLR 321 at [21] per Gaudron and Gummow JJ. But before a sentence may be quashed and the offender re-sentenced "this Court must form a positive opinion that 'some other sentence is warranted at law and should have been passed'": R v Simpson (2001) 53 NSWLR 704 at [79].

96 I accept that Grounds 1, 2 and 4 have been made out. As I said at [53], it is difficult to gauge how significant his Honour's assessment of "normal street purity" was in his thinking as he found the offender was a retailer. But his Honour's misapprehension of the facts about the "drug debt" was mentioned six times during his reasons and taken into account, erroneously, as conceded by the Crown, as an aggravating factor, but more generally as a factor materially affecting his Honour's assessment of the objective seriousness of the offending, and reducing the mitigating effect of the offender's mental illness (see [16] above).

97 The offender emphasised that his mental illness called for a greater measure of leniency than that allowed by the sentencing Judge. Judicial Commission statistics and a table of 27 cases involving breaches of s.25A(1) Drug Misuse and Trafficking Act demonstrate that the sentence imposed was a relatively stern one when compared with "what sentences have been imposed (in other more or less) comparable cases": Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2 at [26]. The applicant argued that if the sentence imposed on him is examined against this historical "yardstick" the Court should conclude that a lesser sentence was warranted in law and should have been passed, mainly because of the issue of the applicant's mental illness.

98 The Crown relies upon Prculovski v R [2010] NSWCCA 274 at [32] and [42] to advance the following propositions:

(a) Given the wide variety of offending covered by s 25A, the statistics provide at best an unreliable yardstick. This is more significant in this case because the applicant's plea was late and the statistics reflected pleas of guilty in the Local Court;

(b) Prculovski was a similar case with a similar sentence of which Howie AJ (with the agreement of McClellan CJ at CL) said the sentence "barely reflected the objective seriousness of the conduct that gave rise to [the] offence". In fact, the present case involved supply on 4 occasions and an aggregate amount more than twice that involved in Prculovski.

99 The Form 1 offences were serious. The drug matters carried a maximum penalty of 15 years and 10 years respectively. The applicant was on conditional liberty for an assault and at the time of his arrest had a long bladed knife hidden in his car. The latter offence was also on the Form 1. The Crown argued that his Honour had due regard to the applicant's mental illness which, as his Honour found, "did not preclude the applicant from engaging in serious premeditated business-like criminality" (CWS [37]). A high degree of leniency was reflected in the finding of special circumstances resulting in the fixing of a non-parole period which was 55.5% of the total sentence.

100 I do not find Prculovski comparable to the instant case. The offending there consisted of four offences. Of the three drug offences, one was contrary to s 25A and two others were contrary to s 25 carrying a maximum penalty of 15 years. The fourth offence was a serious firearm offence carrying a maximum penalty of 10 years. There were eleven offences on the Form 1, including one supply of a prohibited drug, three instances of possession of a prohibited drug and seven firearm or weapon offences including the possession of a number of prohibited weapons. The offender suffered from a pathological grief reaction and major depressive illness caused by the death of his father, but mental illness of this type, in my judgment, hardly falls into the same category as the illness of paranoid schizophrenia suffered by the applicant. Prculovski provides no real guidance in the present case.

101 The relevance of mental illness to the sentencing of offenders is summarised by Basten JA in R v Windle [2012] NSWCCA 222 at [41] - [42] (see also R v Hemsley [2004] NSWCCA 228 at [33] - [36] per Sperling J). It is unnecessary for me to re-state these principles. The sentencing Judge referred to them and bore them in mind when sentencing the applicant. He made express reference to Hemsley. At [18] above I have summarised this part of his Honour's reasoning, but I think it worthwhile setting out now the passage in full:

For the reasons already expressed, I do not think that [the offender's] culpability is reduced due to his inability to appreciate the gravity of his actions and its consequences. His motive was to repay his drug debt and fund his drug habit. However, I consider a measure of leniency is warranted by reason of his debt and drug habit being partly caused in the first place by impairment of his brain function in turn caused by his chronic schizophrenic illness. I also consider that the full measure of general deterrence is not appropriate in view of his longstanding mental condition. I also consider he will do his time in custody harder than would otherwise be the case. Even when medicated he appears to have some level of though disorder. As Dr. Furst notes at the end of his report, "he had residual signs of paranoia and thought disorder and reported auditory hallucinations on a regular basis".

102 It is clear from this that his Honour found that the mental illness: reduced the applicant's culpability, albeit to a limited degree; rendered him an inappropriate vehicle for general deterrence; and that his custodial sentence will weigh more heavily on him. He also put to one side the possibility that the applicant's mental illness made him a danger to the community. I acknowledge that his Honour did not refer to the question whether the need for specific deterrence was reduced in the circumstances of the present case. I would infer that the sentencing judge decided that it was not.

103 I confess that I initially seriously questioned whether all of the facts, matters and circumstances relevant to fixing the appropriate sentence in this case warranted a less severe sentence. However, I have had the benefit of reading the judgment of Basten JA in draft. What his Honour has written, especially at [22] - [25], has assuaged my concern. Notwithstanding our difference of views about Ground 3, which I did not regard as very material to the sentencing judge's thinking, I have formed the positive opinion that a less severe sentence is warranted in law. I agree with the orders proposed by Basten JA at [2], which I suggest be formalised as follows:

(1) Grant leave to appeal.

(2) Allow the appeal.

(3) Sentence imposed in the District Court of New South Wales on 12th June 2013 quashed.

(4) The applicant is re-sentenced to a term of imprisonment having a non-parole period of 2 years commencing on 29th March 2013 and expiring on 28th March 2015 with an additional term of 1 year and 7 months commencing on 29th March 2015 and expiring on 28th October 2016. The applicant will become eligible for release on parole upon the expiration of the non-parole period on 29th March 2015.

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Amendments

06 August 2014 - corrected paragraph numbering
Amended paragraphs: 103

Decision last updated: 06 August 2014