Mezher v R

1. [1]

   HOEBEN CJ AT CL: I agree with the analysis of Price J and the orders which he proposes. I particularly endorse his Honour’s observations on Assam v R [2019] NSWCCA 12 at [113]. Assam v R gave rise to complex parity issues which determined the result of the appeal. As a result, the decision has limited application beyond its own particular facts.

2. [2]

   PRICE J: Tony Mezher (“the applicant”) seeks leave to appeal against an aggregate sentence imposed upon him by Neilson DCJ (“the judge”) in the District Court at Sydney on 11 May 2018.

3. [3]

   The applicant pleaded guilty in the District Court to the following counts on an indictment.

4. [4]

   The large commercial quantity of MDA was 0.5 kilograms. The large commercial quantity of bromo was 0.1 kilograms. The maximum penalty for an offence of supplying not less than the large commercial quantity of a prohibited drug (Counts 1 and 2) is life imprisonment. A standard non-parole period of 15 years imprisonment has been prescribed.

5. [5]

   The commercial quantity of cocaine was 250 grams. The maximum penalty for an offence of supply of not less than the commercial quantity of a prohibited drug (Count 3) is 20 years imprisonment. A standard non-parole period of 10 years imprisonment has been prescribed.

6. [6]

   The maximum penalty for an offence contrary to s 319 of the Crimes Act (Count 4) is 14 years imprisonment. There is no standard non-parole period for the offence.

7. [7]

   The applicant asked the judge to take into account two offences that had been placed on a Form 1 when sentencing him for Count 1, namely:

8. [8]

   The maximum penalty for the supply of the commercial quantity of MDMA was 20 years imprisonment with a 10 year standard non-parole period. The maximum penalty for the offence of knowingly participate in a criminal group was 5 years imprisonment.

9. [9]

   His Honour indicated the following sentences:

10. [10]

    In relation to Count 1 (including the Form 1 offences), Count 2 and Count 3 the applicant was sentenced to an aggregate term of imprisonment of 12 years with a non-parole period of 8 years, commencing 26 January 2017. In relation to Count 4, the applicant was sentenced to a fixed term of imprisonment of 1 year commencing 27 January 2016.

11. [11]

    Accordingly the overall effective sentence is 13 years imprisonment with an overall non-parole period of 9 years.

Grounds of appeal

1. [12]

   The Notice of Appeal identifies three grounds:

Facts

1. [13]

   A lengthy statement of agreed facts was tendered before the judge which his Honour summarised as follows: [1]

Alpha’s sentence

1. [14]

   Alpha was sentenced by Arnott SC DCJ on 22 May 2015 for two offences. For his early plea of guilty and assistance to authorities he received a discount of 55%.

2. [15]

   For the first offence of supplying a large commercial quantity of MDA (932 grams), with a Form 1 taking into account the supply of a commercial quantity of cocaine; an indictable quantity of methorphan; and knowingly deal with the proceeds of crime ($13,670), he was sentenced to 3 years 7 months imprisonment with a non-parole period of 2 years 4 months. For the second offence of supplying a large commercial quantity of bromo (221 grams), he received a fixed term of imprisonment of 2 years and 1 month.

3. [16]

   An overall head sentence of 5 years with a non-parole period of 3 years and 9 months was imposed.

A Factual Dispute

1. [17]

   A disputed issue in the sentencing proceedings was the applicant’s dealing with Alpha.

2. [18]

   The applicant gave evidence before the judge and documentary material was tendered in his case which included two reports from Professor Woods, a consultant psychologist.

3. [19]

   Shortly stated, Professor Woods reported that the applicant told him the way in which he had become involved in the drug dealing was that he had met Alpha at a brothel and had agreed to provide him with a short term loan which Alpha was going to repay with interest, at a rate higher than bank interest. When Alpha was unable to repay the loan, Alpha suggested to the applicant that he access and provide Alpha with small amounts of drugs which would be “on-sold” at a profit thereby enabling the loan provided by the applicant to be repaid. The applicant told Professor Woods that the money received from Alpha was regular but not sufficient to cover his debt personally incurred and he began to receive threats from the “supplier”. When challenged by Professor Woods as to “why” he persisted in providing Alpha with drugs and in doing so fell further in debt, the applicant stated:

4. [20]

   The applicant’s evidence before the judge included that he started supplying drugs to Alpha in lieu of Joe. He lent Alpha $100,000 because he believed that Alpha was an accountant and was smart with money. Although no interest rate was discussed, he believed he would get a return on his investment but he was never repaid. The applicant said he saw Alpha as an authority figure, and that he only became involved in drug dealing so he could get his money back. The applicant said he made no profit, and denied that his two trips to Thailand and a trip to Lebanon came from drug money. It was his evidence that he used his salary as a security guard to pay for the Thailand trips and relatives paid for the Lebanon trip. He denied that his Mercedes came from drug money and said that his Mercedes was worth $40,000 and not $180,000.

Evidence from the Crown

1. [21]

   A statement from Alpha was tendered in which he stated that he had never received any form of loan from the applicant; that the applicant only gave him credit on drugs; and there was never any interest on a loan. He stated that their continued relationship was for the applicant to supply him with drugs.

2. [22]

   During his evidence in the sentencing proceedings, Alpha adhered to his statement. As to the initial meeting with the applicant, Alpha said that there had been a pre-arranged meeting with his then drug supplier “Joe”, but instead of Joe turning up at that meeting, the applicant did and he then took over as Alpha’s drug supplier. Alpha agreed that he gave evidence to obtain a discount on sentence and when sentenced by Arnott SC DCJ, Alpha had received a 55% discount for his early plea and for past and future assistance.

3. [23]

   In cross-examination, Alpha agreed that he owed the applicant $405,000. He agreed that the applicant would have paid out or run up a debt of about $200,000 in order to supply him with about $405,000 worth of drugs.

Subjective circumstances

1. [24]

   In addition to the reports from Professor Woods, a letter from the applicant to the judge, a number of reference letters and certificates were tendered.

2. [25]

   The applicant was born in Lebanon on 17 December 1982 and was 35 years old when sentenced. He was born into a Maronite Catholic family who migrated to Australia in the mid to late 1990s.

3. [26]

   In his sentencing remarks, the judge detailed the applicant’s report of his background to Professor Woods and his evidence of his personal circumstances which included his father’s alcoholism, verbal abuse and abandonment of his family after coming to Australia; the kidnapping and murder of his father’s brother and mother in Beirut, the destruction and carnage the applicant experienced as a boy in that city; and his history of drug abuse.

4. [27]

   In his letter to the judge, the applicant wrote that he now realised the harm that drugs could do to others; that he was very sorry for what he had done and would not engage in such conduct again.

5. [28]

   The tendered references included a letter from the Parish Priest of St Maroun’s Cathedral who referred to the applicant’s repentance and commitment to transforming his life and a letter from the Managing Director of Payless Rubbish Removals, a previous employer, who stated that the applicant displayed “a unique ability to identify and solve problems” and could count on re-employment with the company.

6. [29]

   The applicant’s prior criminal history reveals convictions for assault, larceny, damage to property, contravention of an apprehended domestic violence order (2003), obtaining money by deception (2004) and possession of a prescribed restricted substance (2008). For these offences, he was placed on bonds or fined.

Evidence from psychologists

1. [30]

   In a report dated 14 November 2015, Professor Woods opined that the applicant was suffering from the following mental conditions:

2. [31]

   Professor Woods reported that a provisional diagnosis of a “slowly emerging” psychotic illness was applicable. Risk analysis had revealed that the applicant, due to his continuing high level of fear arising from threats made to his life as well as the lives of his sister, mother and fiancée, was unlikely to “willingly” resume any form of contact with a Middle Eastern Muslim criminal syndicate and was unlikely to reoffend.

3. [32]

   Professor Woods noted that the applicant’s Personality Assessment Inventory (PAI) clinical profile “is conspicuous in that inconsistencies across many of his responses are noted”. Professor Woods had regard to the applicant’s clinical presentation and was of the view “…that the many inconsistencies in [the applicant’s] responses was a function of his level of intelligence, apparent level of psychological distress and thus negative impact on his ability to maintain concentration when completing what is a length Inventory”.

4. [33]

   The Crown tendered a report from Dr Susan Pulman, a psychologist. Dr Pulman reported that there was nothing in the Justice Health records that indicated the presence of any mental health condition. Dr Pulman was of the opinion that the scores on the self-reported PAI and the Paulhus Deception Scale suggested “…the results of the personality and mental health instruments are likely to be invalid and caution must be used in their interpretation”.

5. [34]

   Dr Pulman observed that the PAI was not restricted to above average intellectual ability and offenders with an intellectual ability “at the lower end of the normal/average would have the capacity to respond to the items in an appropriate manner”. Dr Pulman reported that the Justice Health notes suggested “an individual who is alert, co-operative, easy to engage with a presentation consistent with self-report mental health screening of nil mental health concerns”.

6. [35]

   In a report dated 2 February 2018, Professor Woods considered the points made by Dr Pulman and remained of the view that the applicant satisfied the diagnostic criteria of the comorbid mental health conditions referred to in his earlier report.

Some findings by the judge

1. [36]

   The judge found the applicant’s evidence on how he came to deal in drugs with Alpha to be “unbelievable”. [2] He did not accept that the applicant was “a fool, or naïve or completely unworldly-wise”. He rejected the applicant’s evidence and preferred the evidence given by Alpha.

2. [37]

   The judge noted the Crown’s submission that in relation to Counts 1 - 3, the following aggravating factors pursuant to s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied:

3. [38]

   The judge said that he was unable to accede to the Crown’s submission as a large commercial supply of a prohibited drug more frequently involves a large number of transactions and is generally part of a planned and organised criminal activity. The present offences had “as part of their essence, of their very nature, the aggravating factors referred to”. [3]

4. [39]

   The judge said at [51]:

5. [40]

   His Honour observed that the drug supply would have continued had Alpha and the applicant not been arrested; the amount of drugs was large as was the number of dealings involved; and the transactions could not be described as unsophisticated as the applicant avoided detection for the best part of three years.

6. [41]

   His Honour noted that the applicant left the street dealing of the drugs to Alpha and was higher in the drug hierarchy than Alpha.

7. [42]

   The judge said at [56]:

8. [43]

   His Honour referred to the cross-examination of the applicant concerning his driving of a motor cycle, use of a Mercedes motor car, using a wristwatch which appeared to have been expensive, and overseas holidays and said “objectively that is consistent with the making of a profit”. [4]

9. [44]

   Another finding that his Honour made was that the applicant knew where to obtain large amounts of drugs which he could on-supply to Alpha.

10. [45]

    His Honour assessed the applicant’s objective culpability for the offences as being “just below the mid-range of objective seriousness because of the amounts involved”. [5] In referring to the quantities of the prohibited drugs, his Honour’s remarks at [59] included:

11. [46]

    As to Count 4, the judge accepted the Crown’s concession that the offence was below the mid-range of objective seriousness but said that “…any offence which strikes at the administration of justice is serious and must be punished accordingly”. [6]

12. [47]

    The judge considered the reports of Professor Woods and Dr Pulman. His Honour referred to the inconsistent responses within the PAI assessments forming part of Professor Woods’ report. His Honour found that Professor Woods’ reports suffered from the “defect of partisanship”, [7] and was not satisfied that the opinions of Professor Woods were valid.

13. [48]

    His Honour accepted the applicant’s evidence of his childhood and teenage experiences in Lebanon, the distress caused by his father’s attitude and abandonment, his upset and depression caused by the suicide of his former girlfriend and the use of drugs having an impact on his psychological condition. However, his Honour was not persuaded that the applicant’s psychological condition and any anxiety or depression suffered by the applicant was a “material ingredient in the causation of the offences”. [8] His Honour considered that the applicant’s depressive illness may make his incarceration onerous and “perhaps is contributing to his isolation from other prisoners”. [9]

14. [49]

    His Honour did not find any evidence of “any real remorse” [10] however found that the prospects for not re-offending and for rehabilitation were fair.

15. [50]

    The judge noted that the applicant had offered some assistance to the authorities. However, this assistance was limited as the police found it difficult to assess the “truthfulness, reliability and completeness of the information” [11] offered by the applicant. His Honour found that only a “very slight discount” [12] could be provided to the applicant.

16. [51]

    The judge allowed a 12% discount for the “very late” guilty pleas and for the limited assistance that had been provided to the police.

17. [52]

    His Honour addressed the parity issue in respect of Alpha and noted that the 55% discount applied to Alpha was obtained based on a plea of guilty entered at the earliest opportunity and a further substantial discount for “turning Queen’s evidence” (giving evidence for the prosecution). [13]

18. [53]

    In finding special circumstances his Honour referred to the applicant’s depressive illness, a diagnosed low back condition and the accumulation of sentence.

Ground 1: The learned sentencing judge erred in having regard to an incorrect quantity as the large commercial quantity of 4-bromo-2,5-dimethoxyphenethylamine.

1. [54]

   The Crown concedes that this ground of appeal has been established.

2. [55]

   It is evident from the judge’s sentencing remarks that his Honour carefully considered all of the matters that had been placed before him. Unfortunately, the Crown Prosecutor had informed the judge that the large commercial quantity of bromo was 50 grams whereas the large commercial quantity of that prohibited drug was 0.1 kilograms. His Honour referred to that incorrect quantity in assessing the objective seriousness of Count 2. As the judge had acted on a “wrong principle”, his sentencing discretion miscarried. [14]

3. [56]

   This case illustrates the necessity for Crown Prosecutors and Counsel appearing for offenders to understand that they have an obligation to ensure that the information provided to judges is accurate.

4. [57]

   By reason of this error, it is necessary for this Court to re-sentence the applicant. [15] Although the Court is not obliged to consider the remaining grounds of appeal, it is useful to consider the issues raised in these grounds before re-exercising the sentencing discretion afresh.

Ground 2: The learned sentencing judge erred in assessing the objective seriousness of the offence by impermissibly having regard to uncharged drug trafficking activity.

1. [58]

   The applicant contended that the judge took into account uncharged offending conduct when he referred in the passage quoted at [39] above to a “prolonged period of drug trafficking … from early 2011 to early 2014” and to three years being “a long time”. The applicant pointed out that the offences for which he was sentenced occurred over a range of dates, the earliest being 30 August 2013 (Count 1), the last being 9 January 2014 (Count 2).

2. [59]

   The applicant submitted that although he was not entitled to leniency that might be extended to an offender who engaged in one-off criminal activity, he was not to be sentenced for conduct beyond that charged. Uncharged criminal conduct could neither result in a higher sentence than would be merited by the charged conduct nor did it have any bearing on the objective seriousness of the charged offences.

3. [60]

   In oral argument Mr H Dhanji SC, the applicant’s counsel, accepted that the uncharged conduct could be relevant to considerations such as a lack of spontaneity and prospects of rehabilitation, as distinct from the objective gravity of the charged offences.

4. [61]

   The applicant contended that the references his Honour made under the heading “Seriousness” to “three years being a ‘long time’” and the applicant being “able to avoid detection for the best part of three years” indicated that a distinction between charged and uncharged conduct was not preserved. The applicant submitted that his Honour impermissibly took into account the uncharged conduct, producing a higher sentence than would have been warranted by the conduct for which the applicant was charged.

5. [62]

   It was also submitted that the judge erroneously increased the objective seriousness by taking into account the applicant’s involuntary cessation of offending activity, by making the finding that the “supply would have continued had Alpha not been arrested, and had [the applicant] not been arrested”.

6. [63]

   The Crown submitted that it was permissible for the judge to take account of the uncharged conduct to inform the seriousness of the offence for which the applicant was to be sentenced. Whilst the penalty could not be increased, there was no error in taking account of surrounding circumstances to determine, for example, that the offending was not isolated.

7. [64]

   The Crown further contended that the surrounding conduct taken into account by the judge was relevant to an assessment of the offending including sophistication, planning and assertions as to profit. The Crown referred to the length and nature of the applicant’s relationship with Alpha as being a material consideration in assessing the applicant’s role in the offences.

Consideration

1. [65]

   In Kelly v R, [16] Hidden AJ in referring to sentencing principles that apply to uncharged criminal conduct said at [38]-[39]:

2. [66]

   In Lago v R, [17] Gleeson JA (with whom Button and Fagan JJ agreed) considered that it is permissible to take into account uncharged conduct to inform the seriousness of the offence for which the offender is to be sentenced. Gleeson JA said at [49]:

3. [67]

   The agreed facts (see [13] above) recounted that the applicant supplied cocaine to Alpha in 2011, 2012 and 2013. The first count to which the applicant pleaded guilty related to the supply of MDA between 30 August 2013 and 27 September 2013 whereas Counts 2 and 3 related to the supply of bromo and cocaine in September 2013. The Form 1 offence of supply of MDMA related to the period between December 2012 and January 2013.

4. [68]

   The applicant’s uncharged conduct of supplying cocaine in the three years prior to the offences to which he stood to be sentenced could not be taken into account by the judge so as to lead to a higher sentence than these offences merited.

5. [69]

   The applicant’s argument that his Honour took the uncharged conduct into account in assessing the objective seriousness of the offences gains some force as the passage quoted at [39] above appears under “Seriousness” and follows shortly after the sentence:

6. [70]

   However, I am not persuaded that his Honour took into account the uncharged conduct in assessing the objective gravity of the applicant’s offending as the focus of that assessment was on the amount of drugs involved in the offences for which the applicant stood to be sentenced. His Honour said:

7. [71]

   As well as providing context to the relationship between the applicant and Alpha, his Honour was entitled to take into account the uncharged conduct as informing him of the seriousness of the charged offences of drug supply.

8. [72]

   Furthermore, I reject the applicant’s argument that the judge increased the objective seriousness of the offences by finding that the drug supply would have continued but for Alpha’s arrest.

9. [73]

   I would dismiss this ground of appeal.

Ground 3: The learned sentencing judge erred in finding that the applicant was making a profit.

1. [74]

   The applicant accepted that it was open to the judge to reject the applicant’s evidence that he “did not make any profit” on the basis that it was not proven on the balance of probabilities. However, in assessing objective seriousness, it was submitted that the judge erred in making positive findings as to profit. It was submitted that to make a positive finding adverse to the applicant, it needed to be established beyond reasonable doubt.

2. [75]

   The applicant contended that the paucity of evidence in respect of profit was not sufficient to make a positive finding. It was submitted that his Honour erred by conflating the two standards of proof in order to conclude that the rejection of the applicant’s evidence allowed for a positive and adverse finding to be made.

3. [76]

   In oral argument, Mr Dhanji did not dispute that it was the applicant’s intention to make a profit, but said that it was “not at all clear that he did so”. [18] Senior Counsel submitted that the applicant was conducting a business that was doomed to fail and he was not operating a sophisticated operation.

4. [77]

   The Crown argued that it was open to the judge to reject the claim that the applicant made no profit. It was submitted that the judge approached the question of profit consistently with principle, where his Honour found that the evidence, namely large sums of money, expensive items and overseas travel, was objectively consistent with making a profit.

5. [78]

   The Crown submitted that the judge did not rely upon his finding that the applicant has made a profit as a circumstance of aggravation and that his Honour approached the issue with authority and without error.

6. [79]

   It is common ground that it was open to the judge to reject the applicant’s evidence that he did not make a profit and his explanations as to the overseas trips, the Mercedes motor vehicle and the wristwatch. The applicant does not dispute that he was motived by profit. However, the applicant complains that the judge could not find beyond reasonable doubt that he made a profit.

7. [80]

   The agreed facts and oral evidence disclosed an ongoing arrangement between the applicant and Alpha for the supply of prohibited drugs on credit, which had an inbuilt measure of profit for the applicant. The cross-examination of Alpha by the applicant’s senior counsel included the following:

8. [81]

   The agreed facts reveal that Alpha made twelve payments totalling $186,800 to the applicant between 21 August 2013 and 26 September 2013, a period of just over five weeks. Viewed in combination with the overseas holidays, wristwatch and motor vehicle, the size and regularity of payments and the applicant’s mark-up lead to the inevitable conclusion beyond reasonable doubt that the applicant was profiting from this ongoing arrangement with Alpha, notwithstanding Alpha’s indebtedness of $405,000 when he was arrested. I do not accept the applicant’s argument that he was operating a business that was doomed to fail.

9. [82]

   The Crown did not submit that an aggravating factor was the commission of the offences for financial gain pursuant to s 21A(2)(o) of the Crimes (Sentencing Procedure) Act, nor did his Honour make such a finding.

10. [83]

    I would dismiss this ground of appeal

11. [84]

    Specific error having been identified, it is this Court’s duty to re-sentence, “unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed”: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [35] (“Kentwell”). This Court is obliged to take into account “all relevant matters, including evidence of events that have occurred since the sentence hearing”: Kentwell at [43].

Additional material admitted on resentence

1. [85]

   In an affidavit sworn 21 January 2019, Rabia Sabbagh, the applicant’s solicitor, annexes various documents which include a copy of the applicant’s custodial history; a letter from Reverend Muss, the Anglican Chaplain at Lithgow Correctional Centre; a completion of the Born to Win course from Emmaus Correspondence School with a letter from that School; and a Medication Risk Assessment Tool.

2. [86]

   The applicant’s custodial history discloses that he has been employed as a sweeper, is a “very good worker”, is polite and well mannered.

3. [87]

   Reverend Muss’s comments include the applicant’s engagement in spiritual and religious matters, his courtesy, compliance and respect, the applicant’s work roles in custody and his exemplary conduct.

Submissions on re-sentence

1. [88]

   The applicant submitted that a lesser sentence is warranted in law. Whilst accepting that the offending was serious, the applicant’s subjective case including his prospects of rehabilitation, plea of guilty and lack of relevant history were said to warrant a less severe sentence.

2. [89]

   The applicant contended that the quantities involved in the large commercial supplies “were far from the upper reaches seen in such offences”. [20] The applicant pointed to his traumatic upbringing in Lebanon, his mental health issues at the time of the offence, his progression in custody, including employment as a sweeper, his good prospects of rehabilitation and demonstrated remorseful insight into his offending.

3. [90]

   In oral submissions, Mr Dhanji referred to the lesser sentence imposed by this Court in Assam v R [21] and to the need for some amelioration of general deterrence in the applicant’s case.

4. [91]

   Mr Dhanji submitted that it was unnecessary for this Court to have regard to the sentence imposed on Alpha on re-sentence, particularly as no issue as to parity had been raised by the applicant on appeal. Mr Dhanji emphasised that Alpha’s sentence could not be used in justifying an increase in the applicant’s sentence.

5. [92]

   The Crown argued that this Court would proceed on the basis of the judge’s findings, that the evidence of the applicant’s mental health did not justify the need for specific or general deterrence to be ameliorated and that his mental health was confined to making his incarceration more difficult.

6. [93]

   The Crown argued that the judge’s assessment of Count 2 as being just below mid-range was well open to this Court despite his Honour’s error, having regard to the applicant’s role and the amount of the drug involved.

7. [94]

   In referring to Alpha’s sentence, the Crown submitted that Alpha was sentenced for the equivalent of the applicant’s sentences for Counts 1 and 2 although Alpha had a lesser role.

8. [95]

   The Crown contended that it was open to this Court to conclude that no lesser sentence was warranted in law.

Re-sentence

1. [96]

   The maximum penalty for Counts 1 and 2 is life imprisonment with a standard non-parole period of 15 years imprisonment. The maximum penalty for Count 3 is 20 years imprisonment with a standard non-parole period of 10 years imprisonment. The maximum penalty for Count 4 is 14 years imprisonment. These legislative guideposts are to be borne in mind when considering the appropriate sentences, having regard to the objective circumstances of each offence and the applicant’s subjective case.

2. [97]

   In Count 1, the applicant obtained and supplied Alpha with 926.4 grams of MDA for the total price of $136,800 (believing it was MDMA). The amount supplied was almost twice the large commercial quantity of that prohibited drug (0.5 kilograms). In Count 3, the applicant obtained and supplied Alpha with 763.32 grams of cocaine for the total price of $252,000. The amount supplied was more than three times the commercial quantity of that prohibited drug (250 grams).

3. [98]

   For the purpose of re-sentencing, I will adopt the judge’s assessment of the objective seriousness of these offences as being “just below the mid-range” (see [45] above), as that assessment was not challenged on appeal.

4. [99]

   However, it is necessary to assess the objective seriousness of Count 2 as Ground 1 has been established. Relevant considerations in assessing the objective seriousness of an offence under s 25(2) of the DMT Act include the applicant’s role, the level of criminality involved, the quantity of the drug supplied and the reward to be received. [22]

5. [100]

   In Count 2, the applicant obtained and supplied Alpha with 212.24 grams of bromo for $13,000 (believing it was MDMA). The amount supplied was just over two times the large commercial quantity of the prohibited drug (0.1 kilograms). Having regard to all relevant considerations, my assessment of the objective seriousness of this offence is below the mid-range.

6. [101]

   In Count 4, the applicant tendered a fabricated employment letter in a bail application before the Local Court at Waverley. Although his Honour’s assessment of this offence as “falling towards the bottom of the range” was not strictly necessary as an offence contrary to s 319 of the Crimes Act is not a standard non-parole period offence, it was not disputed on appeal. I propose to adopt that assessment and his Honour’s remarks:

7. [102]

   Counts 1, 2 and 3 are serious offences. The applicant was able to obtain and supply the prohibited drugs for Alpha between 30 August 2013 and 26 September 2013 for a total price of $401,800 which included the applicant’s mark-up. As stated at [81] above, Alpha made twelve payments totalling $186,800. I am satisfied beyond reasonable doubt that the applicant was profiting from his ongoing arrangement with Alpha, notwithstanding Alpha’s indebtedness of $405,000 when he was arrested.

8. [103]

   The applicant’s offending in the Form 1 offences reveals significant criminality. I take into account the additional need for deterrence and retribution when sentencing the applicant for Count 1.

9. [104]

   I take into account the applicant’s uncharged conduct in finding that the charged offences were not isolated and the lack of prior convictions for drug supply do not entitle him to leniency on sentence.

10. [105]

    The discount of 12% for the pleas of guilty and limited assistance has not been in dispute. Accordingly, a discount of 12% will be allowed on re-sentence.

11. [106]

    The judge’s findings as to the applicant’s subjective case have not been challenged; however, additional material has been admitted on re-sentence. The applicant’s work ethic, continuing good behaviour and positive steps taken whilst in custody, encourage a more optimistic view of his prospects of rehabilitation and likelihood of re-offending than his Honour’s conclusion that they were “fair”.

12. [107]

    I give modest weight to the need for specific deterrence.

13. [108]

    His Honour’s conclusions that the applicant’s psychological condition and anxiety and depression were not a material ingredient in the causation of the offences have not been disputed. However, it is well recognised that it is not necessary for mental health problems to be a cause of a crime to have some impact on the need for general deterrence. [23]

14. [109]

    The principles applicable to mental illness that were re-stated in De La Rosa by McClellan CJ at CL at [177] included:

15. [110]

    As Simpson J observed in Aslan v R [2014] NSWCCA 114, none of the principles stated in De La Rosa are absolute. Her Honour said at [34]:

16. [111]

    In his sentencing remarks, his Honour does not appear to have expressly given consideration to this issue. However, his Honour did say that although he could accept that the depressive illness would encourage the use of drugs and inhibit the desire to avoid taking drugs, there are many drug addicts who do not traffic drugs and “do not get to the stage of trafficking commercial quantities, let alone large commercial quantities of drugs”. [24] I respectfully agree with these observations. The importance of general deterrence for offences involving the supply of prohibited drugs has been emphasised by this Court. [25] I am not satisfied on the balance of probabilities that the applicant’s depressive illness renders the applicant to be an inappropriate vehicle for general deterrence.

17. [112]

    Furthermore, I take into account the need to protect the community. The grave consequences that follow to our society from the supply of prohibited drugs have often been stated. [26]

18. [113]

    In oral argument, Mr Dhanji raised the aggregate sentence imposed in Assam of 9 years with a non-parole period of 6 years 9 months. Assam’s sentence was reduced because of marked disparity with the sentence imposed on another offender. The sentence imposed in that case is of no assistance in the present sentencing exercise. The limitations on relying on individual sentencing decisions have frequently been emphasised.

19. [114]

    Whilst this Court must have regard to the sentence imposed on Alpha to ensure consistency in sentencing, Alpha’s sentence cannot be used to increase the applicant’s sentence beyond what is proportionate to the applicant’s offending.

20. [115]

    The judge saw the applicant’s depressive illness as making his incarceration onerous and contributing to his isolation from other prisoners which was taken into account with the applicant’s back condition in a finding of special circumstances as was the accumulation on sentence. No complaint was made concerning the finding of special circumstances or his Honour’s consequential variation of the statutory ratio between the head sentence and the balance of term, which will be retained on re-sentence.

21. [116]

    In accordance with s 53A of the Crimes (Sentencing Procedure) Act, I will impose an aggregate sentence with respect to Counts 1, 2 and 3. In assessing the indicative sentence for each of these offences and the overall sentence I have considered questions of accumulation or concurrence and totality. No change has been made to the indicative sentences for Counts 1 and 3 passed by the judge.

22. [117]

    I consider that an appropriate starting point for Count 2 is 6 years 6 months. After the discount of 12% is applied, the indicative sentence is 5 years 8 months (round figures) with a non-parole period of 3 years 9 months.

23. [118]

    In the independent exercise of my sentencing discretion, I would impose an aggregate term of imprisonment of 11 years 4 months with a non-parole period of 7 years 6 months.

24. [119]

    I make no change to the sentence imposed by the judge of a fixed term of imprisonment of 1 year for Count 4 and to the commencement date of that sentence.

Orders

1. [120]

   I propose the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal allowed.

   3. (3)

      The sentence imposed in the District Court of New South Wales on 11 May 2018 for Counts 1, 2 and 3 is quashed.

   4. (4)

      For Counts 1, 2 and 3, the applicant is sentenced to a term of imprisonment of 11 years 4 months commencing 26 January 2017 and expiring on 25 May 2028 with a non-parole period of 7 years 6 months expiring on 25 July 2024.

   5. (5)

      The earliest date the applicant will be eligible to be released on parole is 25 July 2024.

2. [121]

   ADAMSON J: I agree with the orders proposed by Price J and with his Honour’s reasons.