Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Buttrose, Richard William v R [2011] NSWCCA 35
• Hearing dates: 16 December 2010
• Decision date: 10 March 2011
• Before: McClellan CJ at CL at [1]; Hall J at [57]; Garling J at [58]

Decision

1. Apart from the order made pursuant to s 167 of the Criminal Procedure Act 1986 the sentences imposed on the applicant in the District Court are quashed and the applicant is sentenced as follows:

Count 1: a period of imprisonment of 12 months to date from 26 February 2009 and conclude on 25 February 2010.

Count 2: a period of imprisonment of 2 years to date from 26 August 2009 and conclude on 25 August 2011.

Count 3: having regard to the offences on the Form 1 to a period of imprisonment comprising a non-parole period of 9 years commencing on 26 August 2009 and concluding on 25 August 2018 with a balance of term of 3 years commencing on 26 August 2018 and concluding on 25 August 2021.

• Catchwords: CRIMINAL - appeal against sentence - grounds for interference - objective criminality- accumulation of sentence - insufficient weight to applicant's subjective circumstances - organised criminal activity - discount for plea and assistance - sentence quashed and applicant re-sentenced.
• Legislation Cited: Drug Misuse and Trafficking Act 1985; Criminal Procedure Act 1986; Crimes (Sentencing Procedure) Act 1999
• Cases Cited: Coetzee v R [2007] NSWCCA 12; R v AJP (2004) 150 A Crim R 575; R v El Helou [2010] NSWCCA 111; R v Stankovic [2006] NSWCCA 229; R v Way (2004) 60 NSWLR 168; R v XX (2009) 195 A Crim R 38; Sukkar v R [2007] NSWCCA 298; Wang v R [2009] NSWCCA 223
• Category: Principal judgment
• Parties: Richard William Buttrose (Appellant); The Crown (Respondent)
• Representation: Counsel: W Abraham QC/S McNaughton (Appellant); P G Ingram SC (Crown); Solicitors: Lincoln Smith & Company (Appellant); Director of Public Prosecutions (Crown)
• File Number(s): 2009/151506; 2009/156951

Decision under appeal

• Date of Decision: 2010-03-18 00:00:00
• Before: Sorby DCJ
• File Number(s): 2009/15150

Judgment

1 McCLELLAN CJ at CL : The applicant pleaded guilty to three offences being:

1. On 24 December 2008 he supplied a prohibited drug contrary to s 25(1) of the Drug Misuses and Trafficking Act 1985, namely 8.02 grams of cocaine. This offence carries a maximum penalty of 15 years imprisonment. There is no standard non-parole period.

2. On 25 February 2009 he supplied a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985, namely 85.15 grams of cocaine. This offence carries a maximum penalty of 15 years imprisonment. There is no standard non-parole period.

3. On 26 February 2009 he supplied not less than a large commercial quantity of a prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985, namely 5.9573 kilograms of cocaine. This offence carries a maximum penalty of life imprisonment and attracts a standard non-parole period of 15 years.

2 In addition there were four matters two of supply a prohibited drug and two of unlawfully obtained goods which were taken into account on a Form 1. An offence of possessing $1,313,700 suspected of being the proceeds of crime was dealt with pursuant to s 167 of the Criminal Procedure Act 1986.

3 The applicant was sentenced as follows:

1. Count 1 -- 12 months imprisonment to commence on 26 February 2009.

2. Count 2 -- 2 years 6 months imprisonment to commence on 26 August 2009.

3. Count 3 - taking into account the offences on the Form 1 10 years 6 months imprisonment with a balance of term of 3 years and 6 months the sentence to commence on 26 February 2011.

4 In relation to the offence pursuant to s 167 the applicant was sentenced to a term of imprisonment of 18 months which the sentencing judge said was to commence on 26 February 2009 although it has been recorded as commencing on 16 February 2009. This is clearly an error, probably in transcription. The sentence commenced on 26 February 2009.

5 The total term of imprisonment was 16 years with a non-parole period of 12 years 6 months. The sentencing judge allowed a 45% reduction for an early plea and assistance to authorities.

The facts

6 In August 2008, Rose Bay detectives commenced investigations into the supply of prohibited drugs by the offender in the eastern suburbs of Sydney. On 23 September 2008, a Controlled Operation , was undertaken .

7 The particular facts in relation to count 1 on the indictment are that o n 24 December 2008 an undercover operative contacted a mobile phone telephone number by SMS. An arrangement was made to meet in the vicinity of the Paddington Bowling Club car park at the end of Quarry Street, Paddington. A short time later, the undercover officer met with the applicant. The undercover officer handed the applicant $2,500 in pre-recorded buy money, and received thirteen small, resealable plastic bags containing a quantity of white powder. A subsequent analysis of the white powder by the Division of Analytical Laboratories revealed the substance to be cocaine, with a total weight of 8.02 grams.

8 The facts in relation to the first offence on the Form 1 concern similar events which occurred on 30 December 2008. The total weight of cocaine was 8.10 grams.

9 The facts in relation to the second offence on the Form 1, supply a prohibited drug, were as follows. At approximately 9.45am on 25 February 2009, police commenced surveillance of the applicant. At approximately 11.40am, the applicant drove from his home address in Sutherland Street, Paddington, in his motor vehicle . He was followed to the vicinity of the Phoenix Hotel at the corner of Moncur and Wallis Streets, Woollahra. There, a male person was observed to get out of the front seat of the passenger door of the vehicle. The vehicle drove off for about fifteen metres before stopping, and another person got out of that vehicle. The vehicle drove off and the person who got out was stopped and searched. Located in his sock were two small resealable plastic bags containing a quantity of white powder. A subsequent analysis of the white powder by the Division of Analytical Laboratories revealed the substance to be cocaine with a total weight of 1.44 grams.

10 The facts, in part, in relation to count 2 on the indictment, supply a prohibited drug, and also the facts in relation to offence number 3 on the Form 1, unlawfully obtained goods in personal custody, are as follows: At approximately 11.50am the applicant was stopped in a motor vehicle in Ocean Street, Woollahra. The applicant was removed from his motor vehicle, arrested and cautioned. When he was removed from the motor vehicle, a silver-blue and white canister made of tin fell onto the roadway and was recovered by police. Located inside the tin canister were forty-six resealable plastic bags containing a quantity of white powder. These items were seized. Also located in the vehicle was a spiral notepad containing names and figures and two Nokia mobile telephones. The offender was searched and found to be in possession of some $3,740. A subsequent analysis of the white powder by the Division of Analytical Laboratories revealed the substance to be cocaine with a total weight of 34 grams.

11 The further facts in relation to count 2 in the indictment, supply a prohibited drug, and also the facts in relation to offence number 4 on the Form 1, unlawfully obtained goods in personal custody, are as follows; Police applied for a search warrant for the applicant's residence in Sutherland Street, Paddington. The search warrant was executed at 4.40pm. During the search, the police located a black backpack that was on top of a shelf. A search of the black backpack revealed an A4-sized envelope containing nine bundles of cash totalling $50,000. This money was seized. The black backpack contained another A4-sized envelope that was sealed. This envelope was opened and found to contain two vacuum-sealed bags containing numerous smaller resealable plastic bags containing quantities of white powder. A subsequent analysis of the white powder by the Division of Analytical Laboratories revealed the substance to be cocaine with a total weight of 51.15 grams.

12 The facts in relation to count 3 on the indictment, supply of a prohibited drug greater than a large commercial quantity, are as follows: On 26 February 2009, the police received information that the applicant owned premises in Sutherland Crescent, Darling Point, and that he kept prohibited drugs at this residence. Police applied for and were granted a search warrant for these premises. A search warrant was executed at 4.50pm. During the search the police located the following:

1. In bedroom wardrobe number 1, a cardboard box containing fifty bundles of $50 notes bundled into $5,000 amounts totalling $250,000.

2. In bedroom wardrobe number 2, a cardboard box containing one hundred bundles of $50 notes, bundled into $5,000 amounts totalling $500,000 and fifty bundles of $100 notes bundled into $10,000 amounts totalling $500,000.

3. In a kitchen draw, two bundles of notes totalling $18,700.

4. In another kitchen drawer, a Nokia mobile telephone box containing nine bundles of $50 notes bundled into $5,000 amounts totalling $45,000.

5. In another kitchen drawer, 350 resealable plastic bags and seven packages containing 255 grams of cocaine.

6. In another kitchen drawer, 2,000 resealable plastic bags in forty packages containing 1.47 kilograms of cocaine.

7. In another kitchen drawer, two compressed blocks of beige substance being cocaine weighing 992.2 grams and 994.5 grams each respectively.

8. In another kitchen draw, six lots of five plastic bags in a heat-sealed package containing 2.2456 kilograms of cocaine. A total of $1,313,700 in cash, and 5.9573 kilograms of cocaine was located on the premises. Police also located a number of unused resealable plastic bags similar to those containing the cocaine, and an electronic money counting machine. On 27 February 2009, the offender attended the Rose Bay Police station as per his bail conditions, and was placed under arrest. He declined to be interviewed by police.

13 The sentencing judge found that the first offence included an actual supply to an undercover operative of 8.02 grams of cocaine. The exchange was to a person unknown to the applicant. His Honour described it as "a causal exchange for $2,500 odd in a public place namely a car park in a busy suburb." Although the offence does not attract a standard non-parole period his Honour described the offence as "towards the midrange of objective seriousness for such offences, but below it."

14 His Honour said of count 2 that the volume of cocaine found together with other indicia of supply found in the applicant's car and home, including note books containing names and figures, the large number of resealable plastic bags and a considerable amount of money found placed this offence in the midrange of objective seriousness.

15 With respect to count 3 his Honour initially described this offence as "objectively a very serious offence." His Honour recognised that because of the applicant's plea of guilty the standard non-parole period was a reference point. His Honour said:

"The facts of this count demonstrate a large scale retail cocaine supply operation being conducted by the offender. The total amount of cocaine, 5.957 kilograms, the total amount of money, $1,313,700 stashed in drawers and wardrobes and 2,350 resealable plastic bags containing cocaine ready for distribution, the two compressed blocks of cocaine ready to be cut, paint a picture of a large scale retail drug supply in the heart of one of the most fashionable areas of Sydney, Darling Point. It was a brazen operation by the offender. All the circumstances relating to his offence take it well above the midrange of objective seriousness for such offences."

16 The sentencing judge recognised the need for sentences which were of sufficient severity to deter others from engaging in similar crimes. His Honour remarked on the street value of the drugs and the social cost of drug addiction to the community.

17 The applicant was born on 25 September 1972. A report from Dr Rowe a consultant neuro-psychologist was tendered. The evidence reveals that the applicant had an ambivalent relationship with his parents , particularly with his mother and a somewhat distant relationship with his late father. The applicant has a good relationship with his aunt and uncle the latter being a police officer who gave evidence on his behalf.

18 The applicant has a long history of employment which started when he was aged 15 and still at school. He has worked in the hospitality industry and acquired and successfully operated his own restaurant business. He has also been involved in modest but successful property development.

19 The sentencing judge accepted the applicant's evidence as to how he became involved in supplying cocaine. That evidence was:

"During 2008, I was actively looking for a new property development opportunities and was also working on a motor racing business concept which incorporated a reality TV show. During 2008 I was seeing a cocaine supplier regularly. Meetings took place at restaurants or bars where I was socialising with friends who also used cocaine and who had their own suppliers. My supplier encouraged me to take larger amounts that I could on-sell to my friends. I was supplied on credit, but gave most of it away without getting paid and also found myself in debt to the supplier. However, this did not cause problems with the supplier, as I was never pressured or threatened to pay the debt off.

Since about 2000 I had owned a one-bedroom investment unit in Darling Point. It was vacant in 2008. The supplier suggested to me in 2008 that I take some kilograms of cocaine on consignment from him. I had a cocaine problem that was eroding my accumulated wealth and affecting my health and sensible judgment. I saw the proposal from my supplier as a way of breaking even with my drug use.

I broke the cocaine down into quantities of 0.75 grams for sale to others for individual use. I did not cut or dilute the cocaine which was supplied to me but bagged it in 0.75 gram amounts at the same level of purity as supplied. I accept that I was in possession of all of what was seized by reason of it being at the unit under the arrangements I have described."

20 His Honour concluded that "the picture the offender paints was not of just a man with a drug addiction problem, but of a person who was dealing at the street level on a large scale far in excess of simply obtaining money to feed his addiction."

21 Dr Rowe observed that the applicant's drug supply activities were not solely motivated by greed. Dr Rowe recorded the fact that the applicant's hypermanic style of socialisation and energy led to his wide acceptance in the social echelons of the Eastern Suburbs. The applicant became known as "the man" and accordingly to Dr Rowe "found the interest and attention he received extremely rewarding."

22 Dr Rowe expressed the following conclusions:

"In my opinion, the circumstances surrounding the alleged offences committed in December 2008 and February 2009 is described by the Police in the New South Wales Police Fact Sheets, are consistent with an impulsive, careless poorly considered thought process. This included a tin full of cocaine which fell out of his car. In my opinion, the circumstances in which he was caught was (sic) not that of a seasoned drug dealer but one of an impulsive, careless and disorganised individual with inattention to detail that in my opinion was suffering the effects of a hypermanic episode together with the other psychiatric symptoms found in SAD and ADD.

Mr Buttrose's diagnosis does not mean he was not aware of the legality of what he was doing but at the time he did not consider the potential consequences of his actions or the potential dangers to himself and his family or the community members who were using the cocaine. Nor did he consider the severe punishment that could result notwithstanding the fact that his behaviour was illegal.

23 The sentencing judge accepted that the applicant had demonstrated remorse. Because he has provided assistance to the authorities it has been necessary for him to serve his period of custody in protection. It has also been necessary for his wife and children to leave Australia. Because of the danger that they fear it is unlikely that the applicant will be able to receive many visits from his family during his period of incarceration. He does have telephone contact with them although this is of necessity limited.

24 The applicant has only a very minor criminal record which his Honour did not consider to be of relevance to the sentencing exercise.

25 Evidence was given of the assistance which the applicant has provided to the authorities. His Honour allowed a discount of 20% for the assistance.

26 His Honour indicated that he had considered the matters required to be considered by s 21A of the Crimes (Sentencing Procedure) Act 1999. His Honour said:

"There are no further factors in mitigation other than those to which I have already referred. In aggravation, the offence was part of an organised criminal activity."

27 His Honour did not consider that there were any special circumstances.

28 When defining the appropriate term of imprisonment his Honour said of count 1 that:

"It occurred in a public place in a brazen manner with no regard to the law. The person to whom the offender supplied the drug was unknown to him. The contact was made by mobile phone. No check was made by the offender, it was just another drug deal for money."

29 Generally of the applicant's offence his Honour said:

"The offender was operating a large scale retail and drug supply operation. He was the point of distribution of cocaine to a large network of drug users in the Eastern Suburbs of Sydney. The amount of money found in his possession and confiscated as proceeds of crime gives some idea of how much cocaine, with its attendant destructive properties and social costs he had already distributed in the community. The amount of cocaine found in his possession, just under 6 kilograms, and its potential street value which I set out earlier in these remarks, demonstrates what damage was yet to come and what profit this prisoner was to make by its sale and distribution. The amount of drugs, the actual supply and deemed supply counts, the large sums of money and the indicia of large sale drug supply that I stated earlier, mandate a significant period of non-parole."

30 The applicant argued that the sentencing judge erred in five respects being:

1. his approach to determining the assessment of the objective criminality of the offending and/or the findings he made, in particular that count 3 was "well above the mid range";

2. ordering a degree of accumulation in relation to the sentences imposed on counts 2 and 3;

3. giving insufficient weight to the applicant's subjective circumstances;

4. finding that the offence was part of an organised criminal activity within s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999;

5. imposing a sentence in relation to the s 167 offence which, when allowance is made for the 45 percent discount for the plea and assistance, must have had a starting point greater than the maximum penalty.

31 The resolution of this application has been assisted by concessions inherent in the Crown's submissions. The Crown accepted that his Honour's assessment of the objective criminality of count 3 as being "well above the mid range" was erroneous. Counsel submitted that the appropriate finding was that it was "somewhat above the middle range."

32 The problem identified by the applicant was that his Honour failed to have regard to the mental state and/or motivation of the applicant when assessing the relative objective seriousness of the offence. It was submitted that the decision of this court in R v Way (2004) 60 NSWLR 168 required a sentencing judge to have regard to the actus reus of the offence as well as those factors which might properly be said to have impinged on the mens rea of the offender. In R v AJP (2004) 150 A Crim R 575. This Court said that the relevant facts include:

"(but are not necessarily limited to) the actus reus, the consequences of the conduct, such factors as impinge upon the mens rea of the offender, matters of motivation, mental state, mental illness or disability (where causally related to the commission of the offence)."

33 It was submitted that when regard is had to the approach which the courts have previously taken it should be accepted that an offender who is a retail supplier to an end user should be identified as being at the bottom of the hierarchy of criminals in drug related crime and accordingly less culpable than those who are principals or "middle men." It was submitted that because they are offenders at greater risk of detection their offending should be viewed as less objectively serious.

34 It was further submitted that his Honour erred in having regard to the fact that in relation to count 3 there were 2 blocks of cocaine which his Honour described as "ready to be cut." The evidence indicated that applicant did not cut the cocaine but merely repackaged it and supplied it in the purity at which it was supplied to him.

35 It was further submitted that his Honour did not have regard to the applicant's state of mind or motivation when he became involved in his supply business. It was submitted that his Honour failed to recognise that the applicant started as a mere drug user but was then encouraged by his supplier to become involved in the business of supply which grew through his own efforts. Counsel emphasised that there was no evidence that the applicant employed others and submitted that his business was confined to supplying small amounts to users. Counsel emphasised that the evidence disclosed that the applicant supplied drugs to his friends and friends of friends and it was submitted was not otherwise engaged in the drug supply business.

36 Complaint was also made in relation to his Honour's finding that the applicant's offending was aggravated by the fact that it was "part of an organised criminal activity." It was submitted that because the applicant's drug supply business was no more sophisticated than would normally occur for this offence this finding was not open. The Crown accepted that his Honour had erred and could not have had regard to this aspect as a matter of aggravation but nevertheless submitted that the level of sophistication of the offending justified the sentence which had been imposed.

37 The applicant further submitted that his Honour erred in ordering a degree of accumulation in relation to the sentences imposed on counts 2 and 3. It was submitted that both counts relate to drugs which were in the applicant's possession at various locations at the time of his arrest. Although count 2 alleges that the possession and accordingly deemed supply occurred on 25 February 2009 and count 3 on 26 February 2009 it was emphasised that this merely reflects the fact that the search occurred on a different day. It was submitted that the reality was that he was in possession of just over 6 kilograms which was located variously in his vehicle, home and an apartment and that the fact that it was in different locations should not have operated to increase the criminality of the offending or the penalty to be imposed.

38 The Crown accepted that there was a substantial degree of concurrency was appropriate in the sentence for these 2 matters. However, the Crown submitted that the approach which his Honour took for the sentence was appropriate having regard to the fact that the quantity located and charged in relation to count 2 was 85.15 grams, which is some 27 times the 3 gram threshold for a trafficable quantity and just over one-third of the 250 gram threshold for the commercial quantity for that drug. It was submitted that the partial accumulation of these sentences by 18 months was open to his Honour.

Conclusion

39 There are often difficulties when sentencing an offender who is entitled to a substantial discount. The mathematically determined discount may impact upon the ultimate sentence in a way which reduces that sentence below that which could be appropriate in all the circumstances even accepting that the discounts expressed as percentages. It may be that this is what has occurred in the present case. There can be no doubt that the applicant has committed a number of serious offences each related to his involvement in a "large scale retail drug supply" operation. His counsel accepted as much. Irrespective of the numerical outcome from the application of the identified discounts the applicant's offending required a severe sentence.

40 The applicant referred us to various previous decisions including Wang v R [2009] NSWCCA 223; R v XX (2009) 195 A Crim R 38; Coetzee v R [2007] NSWCCA 12; Sukkar v R [2007] NSWCCA 298; R v El Helou [2010] NSWCCA 111; R v Stankovic [2006] NSWCCA 229 and drew attention to a number of features of each decision. They are useful in providing an understanding of some other sentences of varying degrees of significance to the present matter.

41 Wang v R involved what was described as a retail dealer. The offender was found guilty by a jury of 2 offences, the supply of a trafficable and large commercial quantity of drugs (ecstasy). The total quantity of drugs was about 1.5 kilograms (3 times the limit). The conduct was described by the Court of Criminal Appeal as "somewhat below the mid-range". The Court imposed a term of imprisonment of 16 years with a non-parole period of 12 years. The offender did not have the benefit of any discounts. He was sentenced on the basis of mid-range offending.

42 In R v XX on a Crown appeal this Court imposed a sentence of 9 years and 6 months with a non-parole period of 7 years and 4 months for 2 counts of supplying a large commercial quantity of a prohibited drug: 7.5 kilograms of MDMA (15 times the limit) and 3.1 kilograms of Ice (3 times the limit). This sentence also included 2 counts of possessing a prohibited firearm. The offender had received a 60 percent discount for a plea and assistance. The offender also had a pill press for the manufacture of MDMA and 20 kilograms of an unknown cutting agent. Count 2 (Ice) was characterised as mid range, count 2 (MDMA) was just above mid range.

43 In Coetzee v R the offender, a pilot pleaded guilty to supplying 24.4 kilograms of cocaine. He was sentenced to an effective term of imprisonment of 9 years 3 months with a non-parole period of 6 years 9 months. That sentence was arrived at after allowing a discount of 15% for the plea of guilty. He was sentenced on the basis that the drugs were imported in Australia, he had full knowledge about what was being imported, that his participation was central and vital to the success of the scheme, he arranged the formation of the company that facilitated the importation and he would have benefited financially in a significant manner from the importation. The sentence imposed was considered to be within the appropriate range. The trial judge had rejected aspects of the offender's evidence given during the sentencing proceedings. The offender did not use drugs - it was solely a commercial enterprise for financial reward.

44 In Sukkar v R the offender pleaded guilty to the supply of 5.9 kilograms of ecstasy tablets (12 times the limit). He was sentenced to 11 years imprisonment with a non-parole period of 7 years and 6 months. The offender was described as the middle man; he introduced the buyer and seller. He organised for the supply between the two and was present when it occurred. That conduct was described by the sentencing judge as slightly below mid-range. He was to gain financially. He did so against a background of having a number of prior convictions, including for drug offences. He was on periodic detention at the time of this offence. While the amount of the discount for the plea was not specific he would have been entitled to the maximum. The sentence was not interfered with on appeal.

45 In R v El Helou the Court of Criminal Appeal allowed a Crown appeal and imposed a sentence of 12 years imprisonment with a non-parole period of 8 years for an offender who pleaded guilty to the supply of over 250 kilograms (50 kilograms pure) of pseudoephedrine. This was 50 times the limit. The conduct was described as above the mid-range of seriousness. He was described as the transporter, the warehouser of the drugs and he was to be the deliverer of the drugs to persons within the organisation. He clearly did so for financial gain. The sentencing judge rejected his evidence as to the extent of that gain. He was well aware of the value of the drugs he was dealing with.

46 In R v Stankovic the offender pleaded guilty to the supply of a large commercial quantity of MDMA (approx 44 kilograms - 88 times the limit). The sentence imposed after a successful Crown appeal was 11 years 6 months with a non-parole period of 8 years and 9 months. In arriving at that sentence a reduction of 35% was made for the plea and assistance. The Court observed that the conduct would have been placed at least in the middle range of seriousness, while he acted under duress falling short of a defence, his initial involvement was to make fast, easy money and once involved irrespective of what motivated him, he freely engaged in the criminal activity. He was not supervised. He was involved in manufacturing the drug. The Court considered that the appropriate starting point before the discounts was 18 years.

47 As I have already indicated the Crown conceded that there are some problems with the sentences imposed on the applicant. Apart from the matters I have already mentioned, when allowance is made for the discount of 45%, which his Honour allowed, the sentence for count 3 must have commenced at 25 years and 6 months and the overall sentence at about 30 years. To my mind a sentence of this severity was manifestly excessive, both in respect of the applicant's total offending and for the offence constituting count 3.

48 With respect to count 3 his Honour's determination of the objective seriousness of the offence was inappropriate. Although the applicant was engaged in supplying on a very significant scale the evidence did not suggest that he was involved in the organisation of a supply chain or had himself employed others to assist in the distribution of drugs. The scale of his business appears to have been a product of his engaging personality. Apart from the very significant financial reward he obtained the evidence from the psychologist suggested that he received personal gratification from his recognition as the supplier of cocaine to many people in the Eastern Suburbs.

49 The applicant rightly emphasises the fact that although his Honour appears to have assumed that the applicant was maximising his return by cutting the drug this was contrary to the evidence. The evidence indicated that his modus operandi was confined to packaging the drugs maintaining the purity in which they were supplied to him.

50 Notwithstanding the fact that the applicant was not the organiser of the drug supply operation he was nevertheless a very active retailer with an extensive clientele. His suggestion that he merely supplied friends and friends of friends is not consistent with the evidence of the extent of his activities or of his supply to undercover agents. Count 3 concerned almost six kilograms of cocaine of a high degree of purity. The police found indicia of a significant drug supply arrangement together with large sums of money.

51 Having regard to all of these matters in my judgment the appropriate finding was that the objective seriousness of the offence was above the mid range but modestly so.

52 The evidence indicated that the applicant has significant prospects of rehabilitation. Although he created a sophisticated retail operation he was originally motivated by his personal use of cocaine. His personality enabled him to develop the business which eventuated. He has otherwise led a productive life and has responded positively since his incarceration. Although I would be guarded in my finding I am satisfied that he has prospects of rehabilitation.

53 The applicant has given assistance to authorities but as a result his family have had to move overseas out of concern for their safety. The consequence is that the applicant will serve his sentence with little contact with his family including his young children.

54 Having regard to these matters in my judgment the appropriate sentence for count 3 was a non-parole period of 9 years with a balance of term of 3 years.

55 I am also persuaded that the accumulation between counts 2 and 3 was inappropriate. I accept the applicant's submission that it is mere happenstance that he was not found to have possessed all of the drugs on the same day. I accept that in reality counts 2 and 3 are the one possession. It is the quantity which deems the possession to be for supply. The reality was that at the time of his arrest the applicant had just in excess of 6 kilograms in his possession. A single sentence for that amount would not have been any different from the sentence imposed if the total amount had been just under 6 kilograms. I accept that counts 2 and 3 should have been made wholly concurrent. I would not alter the sentence imposed in respect of count 1. The total non-parole period will be 9 years and 6 months with a total term of 12 years and 6 months imprisonment.

56 I propose the following orders:

1. Apart from the order made pursuant to s 167 of the Criminal Procedure Act 1986 the sentences imposed on the applicant in the District Court are quashed and the applicant is sentenced as follows:

Count 1: a period of imprisonment of 12 months to date from 26 February 2009 and conclude on 25 February 2010.

Count 2: a period of imprisonment of 2 years to date from 26 August 2009 and conclude on 25 August 2011.

Count 3: having regard to the offences on the Form 1 to a period of imprisonment comprising a non-parole period of 9 years commencing on 26 August 2009 and concluding on 25 August 2018 with a balance of term of 3 years commencing on 26 August 2018 and concluding on 25 August 2021.

57 HALL J: I agree with McClellan CJ at CL.

58 GARLING J: I agree with the orders proposed by McClellan CJ at CL. I desire to add some observations.

59 The evidence demonstrated that Mr Buttrose had for some years been engaged in a substantial, commercially motivated, activity of selling cocaine to a large number and a very wide range of people.

60 The scale of his enterprise at the time of his arrest can be gathered from a short description of what the Police found at his premises:

(a) $1.313M in cash, found in bundles of $50 and $100 notes;

(b) 2350 resealable plastic bags containing 1.72kg of cocaine ready for sale;

(c) 4.23kg of cocaine in various bulk forms awaiting division into small quantities for sale.

61 But for the concession of the Crown on the appeal, which McClellan CJ at CL describes in [31], I would not have been disposed to find that the sentencing judge's description of the criminality in Count 3, namely, " well above the mid-range " was an error.

62 Whilst I accept that in considering an assessment of the objective seriousness of the offences, a Court is required to look, not only at the actus reus of the offence, but also factors which might properly impinge on the mens rea of the offender, such as motivation, mental state and mental illness or disability (where relevant), the facts and circumstances of mens rea of this case do not seem to me to warrant a reduction in the objective seriousness of the criminality involved.

63 I would hold that factors such as Mr Buttrose receiving personal gratification from being a cocaine supplier and being accorded the description "The Man" by users of an illegal drug, to be wholly irrelevant in considering the objective criminality of the offence. The proved subjective factors in this case do not and cannot, in my view, amount to factors impinging on the mens rea of Mr Buttrose of a kind sufficient to reduce the objective seriousness of the criminality involved.

64 But in the unusual circumstances of this case, the submissions of the Crown, including concessions as to error by the sentencing judge, are entitled to significant weight.

65 Accordingly, I agree with the orders proposed by McClellan CJ at CL.

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Decision last updated: 10 March 2011