R v Cahill [2015] NSWCCA 53 (2 April 2015)

Last Updated: 2 April 2015

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JUDGMENT

1. LEEMING JA: I agree with Johnson J, for the reasons his Honour gives, that the Crown appeal should be dismissed, not because of any absence of error by the sentencing judge, but as a matter of discretion, having regard to the evidence now before this Court. I also agree with Schmidt J’s reasons.
2. At the sentencing hearing, counsel for the Respondent acknowledged that “the offending behaviour that Mr Cahill has pleaded to is incredibly serious”. In this she was correct. The conduct included three charges of supplying commercial quantities of a prohibited drug, each of which attracted a maximum penalty of 20 years’ imprisonment and a standard non-parole period of 10 years’ imprisonment. In addition, there were 13 offences of supplying a prohibited drug, each carrying a maximum penalty of 15 years’ imprisonment, and four other offences on a Form 1. The offending conduct took place over more than three months, on nine separate occasions.
3. True it is that there were aspects of the offending conduct which reduced its objective criminality. Foremost amongst these were the facts that the quantities in each case were only just sufficient to amount to a commercial quantity, and that in each of those cases the Respondent himself made no direct financial gain.
4. However, the standard non-parole period in each case of 10 years remained a mandatory matter to be taken into account under s.54B(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Her Honour mentioned the period at the outset of her remarks but it is difficult to conclude that her Honour gave any meaningful regard to it. Her Honour’s failure to indicate what non-parole period would have been imposed for each of the three commercial supply offences, as was required by s.54B(4), is confirmatory of this.
5. This was a case where, as Johnson J has observed, a sentence of two years imprisonment, and the non-custodial options available as a consequence, were not realistically open, despite the Respondent’s very strong subjective case.
6. The system of criminal sentencing requires the sentencing judge to undertake an intuitive synthesis having identified all relevant considerations. When that occurs, it will be accorded deference in any appeal. That is a consequence of the responsibility given to sentencing judges - the difficulty of whose task is not to be understated.
7. In the multitude of matters that come before sentencing judges, there will be a small number which can properly be described as “wholly exceptional”. If the circumstances are wholly exceptional, they may justify a sentence which is lenient to a wholly exceptional degree. An example may be seen in R v DH; R v AH [2014] NSWCCA 326, to which the Court was referred, where it was said at [104] by Button J (with the agreement of other members of the Court) that:

“The respect which this Court must pay to the role of a sentencing judge (see Mulato v R [2006] NSWCCA 282) extends to respecting the discretion of a sentencing judge to impose a wholly exceptional sentence where the circumstances are suitably exceptional. That is what is meant by ‘individualised justice’.”

8. Any sentencing judge, and particularly an experienced judge like her Honour, will be attuned to the possibility that a particular case is wholly exceptional (as well as to the possibility that it is merely claimed to be, but is not in fact, exceptional). In any such case, it will be essential for the sentencing judge to make appropriate findings of fact (as occurred in R v DH; R v AH). That will involve more than a mere recitation of undisputed facts and the parties’ submissions. It will ordinarily require an express acknowledgement that the case is exceptional, and an explanation of why what would otherwise be a distortion of the ordinary principles of sentencing is in fact an expression of their flexibility.
9. The sentence imposed by her Honour was outside the available range, given the objective criminality of the conduct to which the Respondent had pleaded guilty. However, even if that were not so, much more needed to be done in order to explain the sentence imposed. Her Honour did not even expressly state that she considered the case to be exceptional. More importantly, her Honour did not explain how she reached that implicit conclusion, or on what findings it was based.
10. Finally, especially if the sentencing judge concludes that a particular case warrants an exceptionally lenient sentence, then there should be scrupulous compliance with applicable statutes and established principles. As Johnson J explains, her Honour failed to comply with laws whose purpose is to promote consistency and transparency (Crimes (Sentencing Procedure) Act 1999 (NSW), ss.53A and 54B), and departed without explanation from orthodox approach of backdating a sentence to take into account presentence custody. Her Honour’s remarks on sentence fail to grapple with why the Respondent’s serious and sustained criminality should result in a sentence of two years’ imprisonment, to be served by means of an intensive correction order. In the absence of findings and reasons, I find it difficult to resist the inference that the reasoning process was tailored to reach a conclusion that the sentence should be one which engaged the power to order that it be served by an intensive correction order (which was in substance the submission advanced on his behalf). Such an approach, if that is what occurred, would be contrary to sentencing principle.
11. JOHNSON J: The Crown appeals under s.5D Criminal Appeal Act 1912 with respect to the sentence imposed on the Respondent, Simon William Cahill, by her Honour Judge Flannery SC at the Sydney District Court on 28 July 2014 for a series of drug supply offences.
12. Her Honour fixed an aggregate sentence of imprisonment for two years commencing on 8 August 2014 and expiring on 7 August 2016, to be served by way of an intensive correction order (“ICO”) pursuant to s.7(1) Crimes (Sentencing Procedure) Act 1999.
13. The Notice of Appeal, signed by the Deputy Director of Public Prosecutions on 19 August 2014, was served upon the Respondent on 21 August 2014.

The Offences and Indicative Sentences

14. The sentence was imposed for 16 drug supply offences contrary to the Drug Misuse and Trafficking Act 1985 (“DMT Act”). Particulars of the offences, and the applicable maximum penalties and standard non-parole periods, are set out below:

15. The following offences were taken into account on a Form 1 for the Sequence 19 offence:

Facts of Offences

16. An Agreed Statement of Facts was tendered at the sentencing hearing which revealed the following criminal conduct.
17. In December 2012, police conducted a controlled operation in relation to the supply of drugs by the Respondent and his associates.

Offences on 17 January 2013 - Sequences 20 and 27

18. On 15 January 2013, an undercover police officer named Jimmy sent a text message asking to meet the Respondent. As a result of an exchange of text messages between the Respondent and Jimmy, the two men met at the Respondent’s home at Darlinghurst on the night of 17 January 2013. Jimmy handed a small empty glass vial to the Respondent who used a syringe to draw out a quantity of liquid from a glass jar (4.5 grams of GBL) which he squirted into the vial which was then handed back to Jimmy.
19. Soon after, the Respondent gave a small resealable plastic bag containing a crystal substance (0.17 grams of Methylamphetamine with a purity of 46.5%) to Jimmy. Jimmy gave $200.00 to the Respondent and Jimmy left the premises.

Offences on 21 January 2013 - Sequences 3 and 4

20. On 21 January 2013, Jimmy and the Respondent communicated again by text message and arranged to meet that evening at the Respondent’s home. Again, Jimmy handed an empty glass vial to the Respondent who used a syringe to draw a quantity of liquid from a small bottle (4.7 grams of GBL) which he squirted into the vial and then returned it to Jimmy.
21. The Respondent again gave a small resealable plastic bag containing a crystal substance (0.19 grams of Methylamphetamine with a purity of 68%) to Jimmy. Jimmy gave $200.00 to the Respondent.

Offences on 29 January 2013 - Sequences 5 and 6

22. On 29 January 2013, Jimmy and the Respondent arranged again to meet that evening at the Respondent’s residence. On this occasion, the Respondent took a plastic tray from a cupboard and put it on the bed. In the tray were, amongst other things, a number of resealable plastic bags containing substances and digital scales. The Respondent took out a bag containing a crystal substance and the digital scales and walked with Jimmy to the kitchen. There the Respondent weighed the resealable plastic bag containing the crystal substance (0.38 grams of Methylamphetamine with a purity of 80%).
23. The Respondent took a small bottle from a shelf and used a syringe to draw liquid from the bottle which he squirted into the vial, again provided by Jimmy. The Respondent took a small brown bottle from a cupboard and squirted more liquid from the syringe into the bottle and then handed the vial and the bottle to Jimmy. The liquid was later identified as 9.56 grams of 1, 4-Butanediol. Jimmy paid the Respondent $350.00 for the prohibited drugs and then left the premises.

Offences on 25 February 2013 - Sequences 8 and 9

24. Between 7 and 25 February 2013, Jimmy and the Respondent communicated by text message with a meeting arranged for the evening of 25 February 2013 at the Respondent’s home.
25. Whilst in the unit, the Respondent opened a kitchen cupboard and removed a plastic container (containing resealable plastic bags), a calculator and two plastic bottles. The Respondent wrote some numbers on a piece of paper, calculating the cost of the drugs to be sold. The Respondent and Jimmy discussed the calculations. The Respondent then gave Jimmy a new mobile phone.
26. The Respondent then used a syringe to draw a quantity of liquid out of a glass jar and squirted the liquid into one of the plastic bottles (115.9 grams of GBL). The bottle was handed to Jimmy.
27. The Respondent then took a small resealable plastic bag containing a crystal substance out of the plastic container and gave the bag (containing 0.98 grams of Methylamphetamine with a purity of 80.5%) to Jimmy. Jimmy paid $1,250.00 to the Respondent for these prohibited drugs.

Offences on 1 March 2013 - Sequences 10 and 11

28. In the period leading up to 1 March 2013, Jimmy and the Respondent discussed Jimmy’s purchase of Methylamphetamine and a litre of GBL. Communications ensued concerning the cost of a litre of GBL.
29. On the evening of 1 March 2013, Jimmy met the Respondent at the Respondent’s home. The Respondent made phone calls to try to get the GBL delivered to his home. Whilst waiting, the Respondent and Jimmy counted out the sum of $6,350.00. Shortly before 11.00 pm, a man called Mark Batstra arrived at the unit. Batstra gave a full one litre plastic “Fiji Water” bottle to the Respondent who then gave the bottle to Jimmy. Jimmy handed the sum of $6,350.00 to the Respondent who gave it to Batstra.
30. The Respondent then held out a small resealable plastic bag containing a crystal substance. Batstra asked the Respondent to check the weight of the bag and he did so using the digital scales. The Respondent handed the plastic bag containing the crystal substance to Jimmy who left the premises.
31. The “Fiji Water” bottle contained 1,144 grams of GBL. The plastic bag contained 3.5 grams of Methylamphetamine with a purity of 79%.

Offences on 13 March 2013 - Sequence 12

32. Between 8 and 12 March 2013, Jimmy and the Respondent communicated by text message, with an arrangement being made to meet on 13 March 2013 at the Respondent’s new home at Rushcutters Bay.
33. Jimmy attended the Respondent’s home on the evening of 13 March 2013. The Respondent opened a small safe in a wardrobe and removed a plastic container from the safe. Inside the plastic container were a number of small resealable plastic bags.
34. The Respondent took one of the bags containing a crystal substance (3.31 grams of Methylamphetamine with a purity of 66%) and placed it on a set of digital scales. The bag was handed to Jimmy who gave the Respondent $1,650.00 in return.

Offences on 19 March 2013 - Sequences 13 and 14

35. About 7.00 pm on 19 March 2013, Jimmy and another undercover officer, Jessica, met the Respondent at a bar in Kings Cross. They arranged to meet soon after at the Respondent’s home.
36. Once there, the Respondent placed an amount of liquid into a small plastic container (6.69 grams of GBL) which he gave to Jessica.
37. Soon after, the Respondent gave Jessica a small resealable plastic bag containing the crystal substance (0.2 grams of Methylamphetamine with a purity of 81%). The Respondent gave the liquid and crystal substance to Jessica as “free samples”.

Offences on 27 March 2013 - Sequences 15 and 16

38. Between 24 and 27 March 2013, Jessica and the Respondent communicated by text message, arranging to meet on 27 March 2013 for Jessica to buy a litre of GBL and an ounce of Methylamphetamine.
39. About 7.50 pm on 27 March 2013, Jimmy and Jessica met the Respondent at the Respondent’s unit. There they met a man called Stephen Crosswell. A full one litre plastic “Fiji Water” bottle and a resealable plastic bag containing a crystal substance were on a table in the lounge room. Jessica examined the bottle and the plastic bag.
40. The Respondent weighed the resealable plastic bag on digital scales in the presence of Jessica, Jimmy and Crosswell. Crosswell and Jessica exchanged phone numbers. The Respondent then wrote down some calculations on a piece of paper and showed the calculations to Jessica. The calculations showed a figure of $6,600.00, with that sum then being handed by Jessica to Crosswell, who counted the money and kept it.
41. Jessica took the “Fiji Water” bottle (containing 1,132 grams of GBL) and the resealable plastic bag (containing 3.5 grams of Methylamphetamine with a purity of 72.5%). Crosswell left the unit followed later by Jimmy and Jessica.

Offences on 10 April 2013 - Sequence 19 and the Form 1 Offences

42. About 3.45 pm on 10 April 2013, police executed a search warrant at the Respondent’s home at Rushcutters Bay. During the execution of the search warrant, police located in the Respondent’s bedroom:
    • (a) four plastic bottles containing (in total) a commercial quantity of GBL (1,327.7 grams with the bottles containing 981 grams, 216.5 grams, 109.3 grams and 20.9 grams respectively) (Sequence 19);
    • (b) the sum of $9,705.00 in cash (Sequence 22 - Form 1);
    • (c) 17 4-Bromo-2, 5-Dimethoxyphenethylamine tablets (3.43 grams with a five per cent purity based on 14 tablets) (Sequence 24 - Form 1);
    • (d) 21 MDA tablets (4.06 grams with 18.5% purity based on six tablets) (Sequence 25 - Form 1);
    • (e) seven resealable plastic bags containing a total of 13.7 grams Methylamphetamine (of which 9.84 grams had a purity of 78.5%) (Sequence 27 - Form 1);
    • (f) syringes, small resealable plastic bags, small glass vials, digital scales and mobile phones.
43. At about 7.05 pm on 10 April 2013, the Respondent and another man arrived at the unit. The Respondent was arrested and conveyed to the King Cross Police Station where he was charged in relation to these matters.
44. The Respondent remained in custody from 10 April 2013 until his release on bail on 27 August 2013. More will be said about this later in the judgment.

The Respondent’s Subjective Circumstances

45. The Respondent was 33 years old at the time of the offences and 34 years old at the time of sentence. He has no prior criminal convictions.
46. The Respondent left school during Year 11 and completed an apprenticeship as a hairdresser. He operated his own salon for three years before moving to London where he worked as a hairdresser for two years. The Respondent returned to Sydney in 2008 and was employed with a multinational hairdressing and product styling company until his arrest.
47. The Respondent commenced using illicit drugs (cocaine) whilst living in London when he was around 24 years of age, following a serious snowboarding accident where he received substantial injuries. The Respondent commenced using Methylamphetamine extensively following the breakdown of a turbulent relationship in September 2011. He used GBL with Methylamphetamine, which had a disinhibiting effect, “to turn it into a party” (ROS9).
48. The evidence revealed, and the sentencing Judge found, that the Respondent had been violently raped by three men when he left a club in Sydney whilst intoxicated at the age of 19 years. The Respondent required 52 stitches to repair injuries to his rectum. The Respondent had received no psychological counselling in respect of the sexual assault until his admission to a rehabilitation program in late 2013, when he was diagnosed with post-traumatic stress disorder resulting from the rape and an adult personality disorder.
49. A psychologist, Dr Peter Ashkar, expressed the opinion that the Respondent’s drug use masked long-standing symptoms of psychological trauma arising from the sexual assault. The psychologist considered that the Respondent committed the offences to support his substance abuse under “powerful conditions of physiological and psychological dependence” (ROS12).
50. The Respondent was remanded in custody from his arrest on 10 April 2013 until his release to bail on 27 August 2013. He sustained facial injuries in a physical assault in Goulburn Correctional Centre in June 2013. The Respondent had been placed in protective custody because of his sexuality without access to programs or work. He was prescribed antidepressant medication in custody, but discontinued it on his release.
51. On being granted bail in August 2013, the Respondent entered the Salvation Army Dooralong Transformation Centre and had almost completed the 10-month residential rehabilitation program at the time of sentence. The Respondent had not used prohibited drugs since his arrest. He was gaunt at the time of the offences but, by the time of sentence, he had gained 25 kilograms and his health was good.
52. The rehabilitation program co-ordinator described the Respondent as an active participant who had engaged well with his case worker to address his many underlying issues. The Respondent was recognised as one of the program’s senior participants, supporting and encouraging new participants and contributing to the community at the Centre. The program co-ordinator considered that the Respondent had acquired the necessary skills for ongoing recovery, but recommended that he remain in their care to consolidate his skills.
53. Dr Ashkar considered that the Respondent had made steady progress with his recovery and that he was highly motivated to continue with treatment, but the Respondent would need continuing treatment for the management of psychological trauma and substance abuse to minimise the risk of his relapse. The psychologist considered that given the Respondent’s sexuality and his history of a violent sexual assault and a physical assault in custody, a return to prison would be “absolutely detrimental to his rehabilitation” (ROS12).
54. The sentencing Judge accepted that the Respondent was remorseful for the offences (ROS16) and noted that his family had “rallied around” him since his arrest. Her Honour noted the opinion of the psychologist that the Respondent presented a low risk of recidivism provided he continued to receive treatment and support (ROS12) and found that the Respondent had excellent prospects of rehabilitation (ROS16).

The Crown Appeal

55. The Notice of Appeal filed by the Crown on 20 August 2014 contended that the sentence imposed was manifestly inadequate. The Crown’s written submissions provided particulars of that contention, asserting that the sentencing Judge:
    • (a) failed to impose a sentence that reflected the objective seriousness of the offence;
    • (b) failed to give weight to the principle of general deterrence;
    • (c) erred in failing to account for the pleas of guilty in the specification of the indicative sentences for each count in accordance with s.53A(2)(b) Crimes (Sentencing Procedure) Act 1999;
    • (d) erred in failing to indicate what non-parole period would have been imposed for the offences attracting a standard non-parole period, in accordance with s.54B(4) Crimes (Sentencing Procedure) Act 1999;
    • (e) erred in imposing an intensive correction order.

Course of Proceedings in the District Court

56. Before turning to the Crown appeal, it is appropriate to refer to the course of proceedings in the District Court.
57. Following pleas of guilty in the Local Court, the Respondent appeared before the sentencing Judge for the first time on 15 May 2014. The Crown case on sentence was entirely documentary.
58. The Respondent and his father gave oral evidence at the sentencing hearing. In addition, (as mentioned above (at [49], [53]), a report dated 13 May 2014 of Dr Ashkar, psychologist, was tendered, together with a letter from Dr Julie Kibby and (as mentioned at [52] above) letters dated 14 May 2014 from the Program Director and AOD Case Worker at the Dooralong Transformation Centre. In addition, a presentence report was furnished to the sentencing court.
59. Counsel for the Respondent at first instance submitted that the Court could determine that a sentence of under two years’ imprisonment was appropriate in all the circumstances, so that assessment of the Respondent for the purpose of an intensive correction order ought be undertaken. At all times, the Crown submitted that the objective seriousness of the Respondent’s offences was such that a full-time custodial sentence exceeding two years was necessary.
60. Having heard submissions, the sentencing Judge stood the matter down until later in the day for sentence.
61. Upon resumption, her Honour commenced her remarks on sentence with reference to the maximum penalties applicable to the offences and the relevant standard non-parole period, together with an indication that a 25% discount would apply for the utilitarian value of the Respondent’s pleas of guilty (ROS1).
62. Thereafter, a recital of the facts of the offences was given (ROS1-5). Her Honour outlined the submissions of the Crown and the defence concerning the objective gravity of the offences, and referred to a number of decisions, including R v Clark (NSWCCA, unreported, 15 March 1990), R v Shi [2004] NSWCCA 135 and R v Dang [2005] NSWCCA 430 (ROS6).
63. The sentencing Judge found that the Respondent was trafficking to a substantial degree over a three-month period and was “fairly deeply involved at the retail end of the supply chain” in order to fund his own heavy drug use and partying lifestyle (ROS6-7).
64. Her Honour found that towards the end of the transactions, the Respondent was willing to become involved as “a stepping stone” in the supplies involving larger quantities, but had no wish to become directly involved in the supply of drugs in large quantities. Her Honour found that the Respondent received no direct benefit from his involvement in the supply of larger quantities of drugs although he received, or expected to receive, preferential treatment from Crosswell and Batstra (ROS7).
65. The sentencing Judge said that the drugs, particularly the GBL, were of “modest value” and that the Respondent’s role in the supplies of commercial quantities was as a facilitator only, that the quantities were just above the commercial quantity threshold and that the Respondent participated at the request of the undercover operative in the context of what he perceived as a friendship (ROS7).
66. Her Honour assessed the seriousness of the offences as “relatively low level” (ROS7).
67. Her Honour then turned to the subjective circumstances of the Respondent, reciting the matters referred to at [46] to [54] above.
68. Her Honour found that the Respondent “was remorseful and had excellent prospects of rehabilitation” (ROS16).
69. Her Honour observed that no sentence other than imprisonment was appropriate (ROS17).
70. Having determined to proceed by way of aggregate sentence, her Honour indicated sentences, and her approach to sentence calculation, in the following way (ROS17-18):

“I indicate that for counts 3, 4, 5, 6, 8, 9, 11, 12, 13, 14, 16, 20 and 27, I impose a term of imprisonment of six months.

I indicate in relation to counts 10 and count 15, I impose a term of imprisonment of two years.

I indicate in relation to count 19, and taking into account the matters on the Form 1, a sentence of two and a half years.

I intend to reflect some partial accumulation because although you were involved in a course of conduct, the offences were separate and distinct.

The aggregate sentence I would have imposed but for the pleas of guilty is one of four years. I would then reduce that to three years.

The offender has spent four months and 17 days in custody, and almost nine months in residential rehabilitation.

Having regard to those periods and to the fact the he was in protection when he was in custody and subject to the limitations he described, I propose to impose an aggregate sentence of two years.”

71. Her Honour then approached the ICO issue in the following way (ROS18):

“Ms Jardim submitted that if I did arrive at an aggregate sentence of two years, I would consider having the offender assessed to see if he would be suitable to serve his sentence by way of an ICO. She submitted that this was an exceptional case, given the offender’s pleas, his honest account, his substantial efforts at rehabilitation, the circumstances in which he came to use drugs, the difficulty he has had in gaol, and as he has separated himself from his drug using peers and now sees his life in a completely different prism.

I do propose to have the offender assessed to see if he is suitable to serve his sentence by way of an intensive corrections order, as I consider that if he is suitable to serve his sentence in that way, dealing with the matter in that way would reflect the objective seriousness of the offences and the manifold purposes of punishment.

It would also ensure that his substantial efforts at rehabilitation will not be undone.”

72. The sentencing proceedings were stood over until 28 July 2014 for an ICO assessment to be undertaken and the Respondent’s bail was continued.
73. On 28 July 2014, an ICO assessment report was provided to the Court which assessed the Respondent as suitable for an ICO. The Crown, once again, maintained the submission that a full-time custodial sentence ought be imposed “given the number of the offences and the nature of them involving three commercial quantity drug supply [offences]”.
74. In short remarks on sentence on that day, her Honour said (AB23):

“HER HONOUR: This matter was before me on 15 May 2014 at which time I indicated that in respect of all of the matters I would impose an aggregate sentence of two years.

I adjourned the proceedings to see if Mr Cahill was suitable to serve that sentence by way of an Intensive Corrections Order. A report is before me today which indicates that he is suitable to serve his sentence in that way.

I note that the Crown submits that fulltime custody is appropriate. However, in the light of the positive assessment, I propose to impose an aggregate sentence of two years imprisonment, to be served by way of an Intensive Corrections Order.

The formal orders are, sir, you are convicted of each offence. In respect of counts 3, 4, 5, 6, 8, 9, 11, 12, 13, 14, 16, 20 and 27, I confirm that I indicate a sentence of imprisonment of six months.

In respect of counts 10 and 15, I confirm I indicate a sentence of two years.

In respect of count 19, and taking into account the matters on the form 1, I confirm that I indicate a sentence of two years and six months.

Taking into account the pre-sentence custody and the time spent in a

rehabilitation centre, the aggregate sentence I impose is one of two years.”

75. Thereafter, the sentencing Judge expressed satisfaction for the purpose of s.67 Crimes (Sentencing Procedure) Act 1999 as to the suitability of the Respondent to be sentenced by way of an ICO, with the sentence to commence on 8 August 2014.

Submissions on the Appeal

Submissions of the Crown

76. The Crown submitted that the sentence imposed was manifestly inadequate in that imprisonment for two years for all the Respondent’s crimes was unreasonable and plainly wrong and that the use of an ICO (which was dependent upon the sentence not exceeding two years) ought be similarly classified.
77. The Crown advanced arguments in support of the particular contentions (set out at [55] above), culminating in the submission that the sentence was manifestly inadequate.
78. It was submitted that the sentencing Judge did not make a finding of exceptional circumstances in this case so as to avoid imposition of a full-time custodial sentence for substantial drug supply (in accordance with R v Clark) and that, in any event, such a finding could not be made in this case.
79. The Crown submitted that there had been a failure to give weight to the principle of general deterrence both expressly and in the sentence imposed.
80. It was submitted that the indicative sentences were erroneous in that there was non-compliance with s.53A(2)(b) Crimes (Sentencing Procedure) Act 1999 as the indicative sentences were total sentences before application of any discount for pleas of guilty. Once the 25% discount was applied to each sentence, the Crown submitted that the manifest inadequacy of the ultimate aggregate sentence was starkly illustrated.
81. The Crown pointed, as well, to the failure on the part of the sentencing Judge to specify a non-parole period for the indicative sentences for the three standard non-parole period offences as required by s.54B(4) Crimes (Sentencing Procedure) Act 1999. In each case, a standard non-parole period of 10 years applied to the offence. The failure on the part of the sentencing Judge to comply with this statutory requirement, so the Crown submitted, shed light upon the inadequate and erroneous approach adopted on sentence concerning these offences.
82. Finally, the Crown submitted that it was erroneous to proceed by way of ICO in sentencing the Respondent for his offences. The Crown submitted that the approach of the sentencing Judge involved reduction of an aggregate starting point of four years by a process leading to the neat jurisdictional limit of two years, in a manner which indicated a desire on the part of the sentencing Judge to reach this figure so as to open the door to the use of an ICO. The Crown submitted that the sentencing Judge had tailored the sentence inappropriately in order to meet this legislative threshold for an alternative form of custody: R v Begbie [2001] NSWCCA 206; 124 A Crim R 300 at 305 [34], R v Zamagias [2002] NSWCCA 17 at [26].

Submissions of the Respondent

83. Whilst acknowledging that the sentence in this case involved a considerable degree of leniency, Mr Gartelmann, counsel for the Respondent, submitted that error had not been demonstrated by the Crown.
84. Mr Gartelmann submitted that it should be inferred that the sentencing Judge had made a finding of exceptional circumstances in this case by accepting the submissions made on behalf of the Respondent at first instance. Further, Mr Gartelmann submitted that such a conclusion was open to the sentencing Judge in all the circumstances of this case.
85. Counsel submitted that the sentencing Judge had taken into account general deterrence as an important factor on sentence.
86. Whilst acknowledging that the indicative sentences had not complied with s.53A(2)(b) Crimes (Sentencing Procedure) Act 1999, Mr Gartelmann submitted that this irregularity in specification of the indicative terms did not invalidate the sentence: s.53A(5). He submitted that the sentencing Judge identified the full indicative terms for each offence and stated that an element of accumulation was to be applied. He submitted that no operative error resulted in the calculation of the aggregate sentence.
87. With respect to the failure to specify a non-parole period for the three standard non-parole period indicative terms, Mr Gartelmann noted that this irregularity did not invalidate the sentence: s.54B(7). He submitted that it was necessary for the Appellant to demonstrate that the irregularity was material in determining the sentence: PD v R [2012] NSWCCA 242 at [44]. Counsel submitted that the Crown had not so demonstrated in this case.
88. Mr Gartelmann submitted that it was open to the sentencing Judge to take into account the period of presentence custody, and the period of quasi-custody whilst the Respondent was engaged in a residential rehabilitation program, to reduce the aggregate sentence in the manner adopted by her Honour. Whilst acknowledging that the usual approach would be to backdate a sentence of imprisonment to have regard to presentence custody and quasi-custody, even where there is a broken period of custody, Mr Gartelmann submitted that this approach was not mandatory and that it was open to the sentencing Judge in the exercise of discretion to adopt the approach taken in this case.
89. With respect to the use of an ICO, whilst acknowledging that an ICO reflected considerable leniency, counsel pointed to statements of this Court that an ICO is a substantial punishment: R v Pogson [2012] NSWCCA 225; 82 NSWLR 60 at 84-85 [107], [109], [111].
90. Mr Gartelmann submitted that the Crown had not demonstrated that the sentence imposed upon the Respondent was manifestly inadequate.

What the Crown Must Establish on a Crown Sentence Appeal

91. As the High Court of Australia stated recently in CMB v Attorney General for NSW [2015] HCA 9 at [33]- [34], [54], [66] in an appeal against sentence under s.5D Criminal Appeal Act 1912, the Crown is required to surmount two hurdles. Firstly, it must demonstrate that the sentence turned on one or more specific errors of law or fact or, in the totality of the circumstances, was unreasonable or plainly unjust. Secondly, if error is demonstrated, the Crown must demonstrate that the discretion under s.5D to resentence the offender should be exercised.

The First Question - Has Error Been Demonstrated?

92. The principal question on this appeal is whether a sentence of two years’ imprisonment by way of ICO failed to give effect to the requirement of reasonable proportionality between the gravity of the Respondent’s offences and the sentence imposed: R v Dodd (1991) 57 A Crim R 349 at 354.
93. The objective gravity of the Respondent’s crimes was substantial.
94. Firstly, the Respondent supplied repeatedly, and was knowingly involved in the supply of small amounts of Methylamphetamine and larger quantities of GBL from his home on several occasions to undercover operatives who had been introduced to him. The transactions were for cash and took place on eight separate occasions between January and March 2013.
95. Secondly, the amounts supplied to the undercover operative escalated as time passed and the Respondent sourced two amounts of GBL from a co-offender which were in excess of the commercial quantity (one kilogram) during March 2013.
96. Thirdly, in April 2013, when police executed a search warrant at his unit, they found another quantity of GBL in excess of the commercial quantity, quantities of other amphetamine-based drugs and more than $9,700.00 in cash.
97. Fourthly, the Methylamphetamine supplied was generally of a high purity.
98. Fifthly, the Respondent had and utilised various indicia of supply such as resealable bags, a set of digital scales, vials and syringes, a small safe and mobile phones. He was able to calculate the cost of the drugs and gave a “free sample” of drugs to a second undercover operative introduced to him. He was in contact with his co-offender to source the larger quantities.
99. The Respondent engaged in substantial drug supply activity over a period of months. Different forms of prohibited drugs were supplied by him. He utilised his home as the base for supply with a range of paraphernalia present in the premises for that very purpose. Although a user himself, he utilised the proceeds as well to fund his partying lifestyle.
100. The Respondent cannot claim the immaturity of youth as being a factor which bears upon his criminal conduct: R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106 at 127 [72](k). He embarked upon the practice of substantial drug supply at the age of 33 years.
101. It may be accepted that sentencing Judges should consider the circumstances of each case individually, including the availability of alternatives to full-time study, in drug supply cases. As Simpson J observed in EF v R [2015] NSWCCA 36 at [10], the starting point for this exercise is s.5(1) Crimes (Sentencing Procedure) Act 1999. However, the requirement for reasonable proportionality to the objective gravity of the crimes meant that a sentence of two years imprisonment, and the non-custodial options available with that ceiling, were not realistically available in this case.
102. It is the case that the sentencing Judge did not make an express finding of exceptional circumstances (in accordance with R v Clark) in this case. That said, it may be accepted that the approach adopted by her Honour, in referring the matter for an ICO assessment, involved an implied finding of exceptional circumstances by way of acceptance of the submission advanced on behalf of the Respondent at first instance. However, a number of difficulties arise with respect to this finding.
103. The factors relied upon - the Respondent’s pleas, his honest account, his substantial efforts at rehabilitation, the circumstances in which he came to use drugs, the difficulty he had in gaol and the fact that he had separated himself from his drug-using peers and now saw his life in a completely different prism - involved an almost complete concentration on subjective factors.
104. This Court has observed that there is a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances of the case. That is what occurred here, resulting in a failure to ensure reasonable proportionality between the gravity of the crimes and the sentence imposed: R v Dodd at 354.
105. It is difficult to see how the “exceptional circumstances” approach, referred to in R v Clark, could have any application to a case such as this where the magnitude of the drug supply activity included three commercial supply offences and repeated offending over an extended period accompanied by use of a range of drug supply paraphernalia.
106. It is difficult to see that the sentencing Judge gave any proper weight to the standard non-parole period for the three offences to which that period applied.
107. The indicative sentences here constituted a series of head sentences. The indicative sentences should have factored in the discount for the Respondent’s pleas of guilty: s.53A(2)(b); JM v R [2014] NSWCCA 297 at [39](3).
108. The sentencing Judge did not comply with the requirements of s.53A(2)(b) and s.54B(4) Crimes (Sentencing Procedure) Act 1999. Compliance with s.53A(2)(b) would have seen indicative sentences assessed by taking into account such matters in Part 3 (ss.21-43) or elsewhere in the Crimes (Sentencing Procedure) Act 1999 as were relevant. These included, amongst other things, the Respondent’s pleas of guilty and any factors under s.21A Crimes (Sentencing Procedure) Act 1999 which applied.
109. It was erroneous to select an aggregate sentence and then apply a 25% discount for the Respondent’s pleas of guilty to that sentence. The purpose of s.53A should be kept in mind. In the course of a valuable summary of principles surrounding aggregate sentencing, RA Hulme J (Hoeben CJ at CL and Adamson J agreeing) said in JM v R at [39](1):

“Section 53A was introduced in order to ameliorate the difficulties of applying the decision in Pearce v The Queen [1998] HCA 57; 194 CLR 610 in sentencing for multiple offences: R v Nykolyn [2012] NSWCCA 219 at [31]. It offers the benefit when sentencing for multiple offences of obviating the need to engage in the laborious and sometimes complicated task of creating a ‘cascading or 'stairway' sentencing structure’ when the principle of totality requires some accumulation of sentences: R v Rae [2013] NSWCCA 9 at [43]; Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 at [231]; Behman v R [2014] NSWCCA 239; R v MJB [2014] NSWCCA 195 at [55]- [57].”

110. It is not consistent with this principle to select the aggregate sentence and then apply the discount to the aggregate sentence.
111. The imposition of an aggregate sentence is not to be used to minimise the offending conduct, or obscure or obliterate the range of offending conduct or its totality: JM v R at [39](5). I am satisfied that the use of an aggregate sentence in this case did offend against this principle.
112. A principal focus of determination of a ground alleging manifest inadequacy will be whether the aggregate sentence reflects the totality of the criminality involved: JM v R at [40](13). I am satisfied that the aggregate sentence in this case did not reflect the totality of the Respondent’s criminality.
113. The erroneous nature of the approach in this case is illustrated by the fact that the aggregate sentence imposed was actually less than one of the indicative sentences and was equal to two others.
114. This Court has emphasised the significant degree of leniency involved in the use of an ICO as a sentence. Although statements made in R v Pogson (in the joint judgment of McClellan CJ at CL and myself) point to the breadth of the concept of rehabilitation, and the capacity of an ICO to operate as a form of punishment, it is important not to lose sight of the need for an appropriate and proportionate level of punishment, in the form of immediate incarceration, in cases of serious offending. The decision in R v Pogson should not be utilised to pass an entirely inappropriate sentence which sees an offender such as the Respondent, with his magnitude of offending, being dealt with by way of an ICO. Such an approach does not accord with the principle of reasonable proportionality between the offending conduct and sentence and the need for general deterrence with respect to sentencing substantial drug supply offenders.
115. The Respondent was entitled to have his period of presentence custody taken into account (ss.24(a), 47(2)-(3) Crimes (Sentencing Procedure) Act 1999), together with some allowance for quasi-custody arising from his attendance at a residential rehabilitation program for a period of months. With respect to the latter, it was open to the sentencing Judge to approach the issue by an allowance of approximately 50% of the credit that would be given in respect of presentence custody: Hughes v R [2008] NSWCCA 48; 185 A Crim R 155 at 162 [38]; Truss v R [2008] NSWCCA 325 at [18]- [23].
116. This Court has consistently favoured (but not mandated) the approach of backdating a sentence of imprisonment to take into account presentence custody, even when there is an element of fiction involved in backdating a sentence to a period when the offender was not in custody: R v Newman; R v Simpson [2004] NSWCCA 102; 145 A Crim R 361 at 368 [26]- [27], Wiggins v R [2010] NSWCCA 30 at [3]- [8] (Howie J).
117. However, even if the approach adopted by the sentencing Judge of reducing the sentence to take account of these periods of custody and quasi-custody was open, the fact remains that an effective head sentence of two years’ imprisonment for all of the Respondent’s crimes was manifestly inadequate.
118. The Crown has demonstrated that the aggregate sentence imposed was unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25].
119. The Crown has made good this ground of appeal.

Should the Discretion to Resentence the Respondent be Exercised?

120. The Crown has established error. Accordingly, the first hurdle on a Crown appeal has been cleared. It remains incumbent on the Crown to demonstrate that the discretion to resentence the Respondent should be exercised: CMB v Attorney General for NSW at [33].
121. The Crown submitted that the Court should proceed to resentence the Respondent.
122. Mr Gartelmann submitted that the Court should decline to resentence the Respondent and should dismiss the Crown appeal.
123. Further evidence was placed before this Court concerning the Respondent’s progress. This evidence included an affidavit of the Respondent dated 19 February 2015 and affidavits of his solicitor, Rebecca McMahon, dated 22 February and 4 March 2015.
124. The evidence reveals that, after graduating from the Bridge Program, the Respondent remained at Dooralong as a graduate mentor in a volunteer capacity supporting others who were undertaking the program with this role ending on 7 January 2015. The Respondent continues to live at Dooralong participating in the program as a volunteer and supporting people undertaking the program. He intends to continue as a volunteer over the next 12 months whilst he completes his TAFE studies.
125. In February 2015, the Respondent enrolled in a Certificate IV Course in Community Service Work at the Hunter TAFE College. He hopes to graduate from this course at the end of this year. He has enrolled in this course to qualify as a case worker or support worker and to devote his career to assisting others to recover from drug addiction.
126. The evidence points powerfully towards strong rehabilitative steps which have been taken by the Respondent since July 2014.
127. A further report of Dr Ashkar, psychologist, dated 5 February 2015 is before this Court. According to Dr Ashkar, the Respondent appears to have made remarkable progress with his rehabilitation since his sentencing. Importantly, the psychologist considers that sentencing to full-time imprisonment will disrupt the Respondent’s rehabilitation and increase his risk of relapse.
128. Also before this Court is a letter dated 29 January 2015 from Lt Matthew Ryan, Mission and Ministry Director at Dooralong Transformation Centre, which emphasises the Respondent’s progress and his development to become a residential full-time leader in the community. In a letter dated 2 February 2015, Mr Bernie Muendel, Program Director at Dooralong Transformation Centre outlines the very substantial progress made by the Respondent and the assistance which he has provided in a volunteer capacity at the Centre.
129. Ms McMahon’s affidavit of 4 March 2015 contains information from Martin McCrea, the Corrections Officer administering the Respondent’s ICO. Mr McCrea reports that the Respondent has followed all directions and has complied with the conditions of his ICO. Mr McCrea states that the Respondent’s response to supervision has been “fantastic” with the Respondent having “done everything he can for his rehabilitation”.
130. In R v Speechley [2012] NSWCCA 130; 221 A Crim R 175, this Court said at 197 [146]:

“From time to time, this Court has declined to resentence an offender on a Crown appeal, despite error having been established, because of solid and substantial evidence of rehabilitative steps taken by the offender between the time of sentence and the hearing of the appeal: R v Tortell [2007] NSWCCA 313 at [63]; R v SC [2008] NSWCCA 29 at [55]. In such circumstances, it may be seen that the offender has taken full advantage of opportunities for rehabilitation which have presented themselves as a result of an erroneous and unduly lenient sentence. Depending upon the circumstances of the case, the residual discretion may be exercised in favour of the offender with the Court dismissing the Crown appeal.”

131. The Court observed in R v Speechley (at 195 [127], 197 [146]) that, in those circumstances, the judgment of this Court will still serve the primary purpose of Crown appeals to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at 465-466 [1]- [2]. This limiting purpose of a Crown sentence appeal under s.5D Criminal Appeal Act 1912 provides a framework within which to assess the significance of factors relevant to the exercise of discretion under s.5D: CMB v Attorney General for NSW at [35].
132. The question whether the discretion to resentence should be exercised falls to be determined in the circumstances of the particular case.
133. It is necessary to have regard to the sentence imposed, the errors which have been demonstrated and the totality of the evidence concerning the Respondent which is placed before this Court.
134. The evidence before this Court reveals the very substantial progress made by the Respondent since sentence was imposed in July 2014. Not only has great progress been made with his own rehabilitation, but he has fulfilled important functions to promote the rehabilitation of others with drug addiction problems. The Respondent is in a position to serve the public interest in this respect, both at the present time and in the future in a manner which bears upon the exercise of discretion.
135. Further, and importantly, there is evidence that the incarceration of the Respondent at this time will cause actual detriment to his prospects of rehabilitation. The Respondent’s experience in custody, and his own personal history, fortify this conclusion.
136. In all the circumstances, I am not satisfied that the discretion to resentence the Respondent should be exercised in this case.
137. Since writing this judgment, I have had an opportunity to consider the judgments of Leeming JA and Schmidt J. I agree with the observations made by their Honours in those judgments.
138. I propose that the Crown appeal be dismissed.
139. SCHMIDT J: I agree with Johnson J and with Leeming JA’s reasons.
140. In this case the sentencing judge failed to engage in the instinctive synthesis discussed in Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [37]- [39]. That process requires firstly, that account is taken of all of the relevant factors, balancing the many different and conflicting features revealed by the evidence, those arising from the applicable sentencing principles and those which arise under the sentencing legislation, in order that a single result, which takes due account of them all, may be arrived at, which is just in all of the circumstances. Secondly, the judge’s reasoning process must be adequately revealed, so that victims, the parties, appeal courts and the public can understand the result. Here, neither the individual sentences, nor the overall sentence imposed, were the result of adherence to these requirements.
141. The objective seriousness of each of Mr Cahill’s commercial supply offences had to be assessed without reference to matters personal to him (see Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27]). Mr Cahill’s moral culpability for his offending also had to be considered (see Muldrock at [58]). The maximum penalty had to be considered in the case of each offence, as did the standard non-parole periods which applied to some offences. These were both relevant statutory guideposts which had to be taken into account (see Muldrock and s.54B of the Crimes (Sentencing Procedure) Act 1999 (NSW)).
142. In arriving at an overall sentence, the principle of totality did require a downward adjustment, in order that an appropriate relativity was achieved between the totality of Mr Cahill’s criminality and the totality of the sentences imposed upon him (see Mill v The Queen [1988] HCA 70; 166 CLR 59 at 63). The resulting overall sentence had to be one which was not crushing, so as to induce in Mr Cahill a feeling of hopelessness and to destroy any expectation of a useful life after release (see R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 at [17]). Questions of accumulation and concurrency of sentences thus also had to be considered (as discussed in Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 at [27]).
143. But the sentencing exercise had to result in a sentence which included a non-parole period which reflected the minimum period of actual incarceration that Mr Cahill had to spend in full-time custody for his serious offending, having regard to all the elements of punishment (see Power v The Queen [1974] HCA 26; 131 CLR 623 at 628–629).
144. Here, neither the sentencing remarks delivered when her Honour ordered that Mr Cahill be assessed for an intensive correction order, nor those delivered when the sentence was imposed, adequately revealed the reasoning process by which her Honour arrived at the sentence imposed. Had it been, the serious errors in her Honour’s approach and the conclusions which she reached, might have been avoided.
145. In arriving at a sentence, sentencing judges must pay regard to all of the purposes of sentencing specified in s.3A of the Crimes (Sentencing Procedure) Act 1999. They include not merely rehabilitation, but also punishment, deterring offenders and others from committing similar offences, protecting the community from the offender, making the offender accountable for his or her actions, denouncing their conduct and recognising the harm done to the victim of the crime and the community.
146. These considerations were all important in this case, given the serious drug offences which Mr Cahill admitted committing. The seriousness of drug supply offences and the need for general deterrence to feature in the sentences imposed on such offenders, given the serious social consequences of the criminal trade involved in the supply of prohibited drugs, has been repeatedly discussed by this Court. Pity for Mr Cahill’s difficult personal circumstances could not prevail over proper adherence to the requirements of the sentencing task, difficult as that undoubtedly was in this case.
147. I also agree with Johnson J that despite these conclusions, this is a case where the Court should exercise the discretion to dismiss the Crown appeal, despite finding error. In this case, the additional evidence received on appeal which Johnson J has discussed, has also convinced me that this discretion should be exercised in this case.

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