Robertson v R

SIMPSON JA: The applicant sought leave to appeal against the asserted severity of the sentence imposed upon him in the District Court on 4 April 2017 following his pleas of guilty to four counts of the supply of prohibited drugs. The counts to which the applicant pleaded guilty were:

Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”) the sentencing judge imposed an aggregate sentence of imprisonment for 20 months, with a non-parole period of 10 months, commencing on 4 April 2017. As he was required to do by s 53A(2)(b), he indicated the sentences he would have imposed if sentencing individually for each offence. He stated the indicative sentences as:

In accordance with s 50(1) of the Sentencing Procedure Act he directed that the applicant be released at the expiration of the non-parole period, on 3 February 2018.

The sentencing judge was asked to, and did, pursuant to Pt 3 Div 3 of the Sentencing Procedure Act, take into account three further matters listed on a Form 1. These were stated to be two offences of possession of prohibited drugs (80 grams of cannabis, and 95 grams of N,N-dimethyltryptamine) and one count of possession (80 grams) of a prescribed restricted substance, nominated as “Doxylamine”. The first two offences were offences against s 10(1) of the DMT Act; the third was, purportedly, an offence against s 16(1) of the Poisons and Therapeutic Goods Act 1966 (NSW). On the present application the Crown very properly pointed out that the Form 1 was erroneous in that the third count was based on possession of a substance which is not a restricted substance. Accordingly that “offence” ought not to have been taken into account in sentencing. On that basis alone, as the Crown conceded, leave to appeal must be granted, and the applicant resentenced: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

At the conclusion of the hearing of the application, the Court made the following orders:

The following are my reasons for joining in those orders.

At about 4.20am on 10 June 2016, the applicant was observed in the driver’s seat of a motor vehicle parked in a suburban street in Kellyville. Two other males were in the vehicle. The applicant was in possession of a small plastic bag which contained cannabis, and a large “bong”, a device used for smoking cannabis. His possession of the cannabis gave rise to the first of the counts on the Form 1.

Also in the vehicle was a locked safe that contained a number of drugs, including 23.36 grams of MDMA, and 19.9 grams of psilocin. By reason of the quantity of the drugs, the applicant was deemed to have them in his possession for the purpose of supply (DMT Act, s 29). His possession of these drugs gave rise to the first and second counts to which he pleaded guilty.

The applicant was arrested and taken to a local police station. He declined to take part in a recorded interview, and took advantage of his opportunity to seek legal advice.

As a result of his arrest, police took possession of his mobile telephone. On examination of text messages found on the telephone, it was revealed that the applicant had, between 30 and 31 May, and between 30 May and 4 June, agreed with callers to supply small quantities of psilocin. These gave rise to the third and fourth counts to which the applicant pleaded guilty. (By the definition of “supply” contained in s 3 of the DMT Act, supply of a prohibited drug is constituted by, inter alia, an agreement to supply.)

When charged at the Local Court he entered pleas of guilty to all charges, pleas to which he adhered on committal to the District Court.

Evidence was put before the sentencing judge in the form of a Pre-Sentence Report and a psychological report. The applicant’s father also gave oral evidence. A number of references were provided. The applicant himself did not give evidence. From this material, the following emerged.

The applicant was born in July 1996. He was therefore 19 – almost 20 – years of age at the time of the offences. He had no prior convictions. His background was unremarkable. He lived with his parents and two older sisters, all of whom were in employment. There were no family issues. The applicant completed the Higher School Certificate in 2014 and began a double degree course in Business and Commerce at the University of Western Sydney. He did this at the urging of his mother, who is an accountant and who wanted him to take up the profession so that he could involve himself in the family business, as she did. The applicant did not complete the course but began an accounting course at TAFE, which he also did not complete. He has had employment as a process worker in a medical manufacturing company.

As a teenager, he began using alcohol (which did not appeal to him) and then drugs. He became a regular user of MDMA, and later occasionally used LSD. His drug use escalated, and he, on occasions, lost time from work as a result. He became involved in drug supply by initially buying drugs for his own use, in bulk in order to save money, and then to sell to friends and acquaintances.

After his arrest the applicant was released on bail, initially subject to three times weekly reporting conditions, and to a curfew. The reporting condition was subsequently deleted.

It is apparent that the applicant’s arrest and charging have effected a significant change in his lifestyle. He has ceased using drugs. He has expressed shame for the damage his offending has caused his family and their relationships. He experienced a moderate degree of depressive symptoms, for which he took medication for a time, but which he has now ceased.

His father’s evidence confirmed the account of the applicant’s use of drugs (of which he had not known at the time). He frankly acknowledged that the possibility that the applicant was using drugs had crossed his mind, but he said, in effect, that he had ignored that. He said that when the applicant left school:

When asked about how the applicant had changed since his arrest, he said:

He said that the applicant had, after his arrest, been prescribed antidepressants, but had weaned himself off that medication, and had participated in a relapse prevention programme.

The Pre-Sentence Report was also positive. The applicant was described as having “accepted responsibility for his actions”, as being “cooperative and forthcoming” in the interview process, and as aware of the impact his offending had already had on his life. He was assessed as presenting a low risk of reoffending.

The psychologist who assessed him also considered that he had good prospects of rehabilitation, and to have matured from his experiences. He considered that the applicant had experienced moderate symptoms of depression (although it was not suggested that these were related in time or otherwise to the commission of the offences).

The positions of the parties at sentencing were clear-cut. Counsel who appeared for the applicant advanced two main propositions. The first was that the activities of the applicant did not amount to “trafficking to a substantial degree”. (The significance of this will become apparent in due course.) The second was that, even if it were held that the applicant’s drug dealing did constitute “trafficking to a substantial degree”, it was open, nevertheless, for the sentencing judge to consider imposing a sentence to be served by way of an intensive correction order (“ICO”), as provided by s 7 of the Sentencing Procedure Act.

Some discussion took place concerning a longstanding line of authority dealing with sentencing offenders who had engaged in drug dealing “to a substantial degree”. The position of the Crown was that the applicant was engaged in “trafficking drugs to a substantial degree”, and that, therefore, precedent and principle demanded that he be sentenced to a term of imprisonment. It therefore submitted that an ICO would not be adequate punishment. It submitted that issues of general deterrence “loom large”. Counsel for the applicant did not demur from the proposition that, if it be found that his drug dealing was substantial, then the course of authority in this Court did indeed indicate that a sentence of imprisonment should be imposed. His contention was, first, as to whether the preliminary finding, that the drug dealing was substantial, should be made. Even if it were, he contended, a sentence of imprisonment to be served by way of an ICO lay within the available sentencing options.

The sentencing judge recounted the facts of the offences and the evidence concerning the applicant’s personal circumstances in a manner that has not attracted criticism. He accepted the evidence of the applicant’s father that the applicant had ceased drug use. He was satisfied that the applicant was genuinely remorseful. He considered the applicant’s prospects of rehabilitation to be excellent, and that he was unlikely to reoffend. Relevantly to the grounds of appeal, he said:

He gave reasons for reaching that conclusion. The reasons included the content of the text messages which resulted in the charges of drug supply in May and June. It is plain enough that his Honour drew, from the content of those exchanges, an inference that the applicant had engaged in supply on other occasions. No point has been taken on this application in relation to that inference, or the effect that it may have had on the finding of substantial dealing.

Later in the Remarks on Sentence his Honour is recorded as saying:

The sentencing judge accepted, nevertheless, that the main purpose of the applicant’s involvement in drug supply was to fund his own habit. He assessed the objective gravity of the offences as “well below the mid-range level of objective seriousness”. He accepted that the applicant was genuinely remorseful, but considered that both general and personal deterrence had “a real part to play” in the sentencing exercise.

In recognition of the applicant’s early pleas of guilty, he allowed a 25 per cent reduction in the sentence he otherwise would have imposed.

Four grounds of appeal were proposed. They were formulated as follows:

The substance of the application, as I understood it, was that the sentencing judge wrongly excluded from consideration the possibility of imposing a sentence of imprisonment to be served by way of an ICO, with the result that the sentence imposed was manifestly excessive.

Section 7(1) of the Sentencing Procedure Act provides as follows:

The submissions on behalf of the applicant were brief. They asserted that, in the exercise of the sentencing discretion, the sentencing judge “adopted a two-tiered approach which failed to take into account all of the circumstances consistent with the instinctive synthesis approach”. It was also submitted that the sentencing judge was in error, in that the approach he took assumed that the applicant could not be dealt with by way of an ICO unless exceptional circumstances had been established. In support of the proposition that that constituted error, reliance was placed on the decision of this Court in EF v R [2015] NSWCCA 36. Since the sentencing judge approached the exercise on the basis that exceptional circumstances had to be demonstrated before a non-custodial sentence such as an ICO could be imposed, he failed to take into account a material consideration: House v The King (1936) 55 CLR 499; [1936] HCA 40.

The Crown did not address the grounds of appeal directly. That is not intended to be a criticism. The Crown took that course because it had identified the error in the Form 1 offence, and acknowledged that, as a result, the sentencing process miscarried (through no fault of the sentencing judge). That circumstance necessitated the Court proceeding to set aside the sentence and exercise the sentencing discretion afresh: Kentwell. The focus of the Crown’s submissions was on the resentencing exercise that this Court was obliged to undertake.

In addressing that exercise, the Crown relied on the authorities to which the sentencing judge referred, concerning the asserted need for offences of substantial drug dealing to be met with custodial sentences. I will return to this question below.

That an ICO may, in appropriate circumstances, be an available sentencing option, even in cases of drug supply, is established by the decision of this Court in EF, to which the sentencing judge referred. The circumstances in EF were not dissimilar to those in the present case (although EF’s personal circumstances were more powerful). EF’s counsel had omitted to make any submission concerning the availability of an ICO, with the result that the sentencing judge did not give that option any consideration.

Delivering the principal judgment of the Court, Schmidt J said (at [42]) that the failure to consider imposing a sentence to be served by way of an ICO was “plainly unjust and contrary to the requirements” of s 5 of the Sentencing Procedure Act, and demonstrative of error, and that whether an ICO should have been imposed was “an important consideration” but one to which no attention was paid.

In this case it is plain that the sentencing judge did not entirely overlook the possibility of proceeding by way of an ICO. It was expressly put to him and expressly rejected by him. He rejected the submission in the briefest of terms, saying only that the offences were too serious to be dealt with in that way, or by a suspended sentence. It seems to me that his Honour adopted that position because he regarded the statement of “principle” that he had earlier set out as determinative of the process. Indeed, when referring to the “principle” he said that he did not consider that the decision in EF “detracted” from it.

In my opinion, that was erroneous. EF is clear authority that an ICO may be imposed, even in cases of drug supply, and ought to be given full, fair and genuine consideration. In this case it was not, because of the view his Honour took of previous authorities in this Court. A realistic sentencing option was discarded.

I was satisfied that the sentencing judge erroneously took the view that previous authority of this Court precluded the imposition of a sentence to be served by way of an ICO. On that basis, as well as by reason of the error identified by the Crown, it became necessary to set aside the sentence imposed and resentence the applicant.

The starting point in any sentencing exercise begins with s 5(1) of the Sentencing Procedure Act which provides:

Sentencing must be undertaken in the light of the statement of purposes of sentencing in s 3A of the Sentencing Procedure Act. That section provides:

In my opinion, this was a case in which the imposition of a sentence to be served by way of an ICO would have been appropriate. An ICO is a sentence of considerable severity. It is a sentence of imprisonment (although the fact that it is to be served in the community introduces a substantial degree of leniency). It is subject to stringent statutory conditions, as well as other conditions that may be imposed to suit the circumstances of the individual case. It involves a minimum level of community service, and potentially intrusive supervision. The full regime may be found in the Crimes (Administration of Sentences) Act 1999 (NSW) and the Crimes (Administration of Sentences) Regulation 2008 (NSW), and is spelled out in some detail in R v Pogson; R v Lapham; R v Martin (2012) 82 NSWLR 60; [2012] NSWCCA 225.

The circumstances that I considered warranted recourse to an ICO were the applicant’s youth at the time of offending, his prior good character, the evidence of virtually complete rehabilitation, and the relatively low level of trafficking established in the evidence.

Were it not for the following circumstances, I would have favoured orders granting leave to appeal and allowing the appeal only so far as necessary to order that the sentence imposed (or what remained of it) be served by way of ICO. However, by reason of the passage of time, there were obstacles in the way of taking that course. First, the applicant had served a little over 4 months of the 10 month minimum term imposed. Second, there are delays in the process of imposing an ICO because, by Pt 5 of the Sentencing Procedure Act, it is necessary that an offender in respect of whom consideration is being given to an ICO be referred to the Commissioner for Corrective Services for assessment before a final order is made. The experience of this Court is that, generally, assessment reports cannot be prepared in less than six weeks. If that course were to be taken, it would then be necessary for the applicant to return to this Court for final orders, or for the Court to remit the matter for sentencing in the District Court. A question of the custody (or bail) of the applicant would arise. I was persuaded that, given these circumstances, to investigate the possibility of an ICO was now impractical. Accordingly, I joined in the orders set out above.

In stating what he called “the general principle”, that is, that offences of drug dealing to a substantial degree will necessarily be met by sentences of imprisonment, the sentencing judge was reflecting a long line of decisions of this Court, to some of which I have been a party, and of some of which I have been the author.

On reflection, I have come to the view that the statement of “principle” calls for re-examination. (In fact, I doubt whether it can properly be called a “principle”. It may more accurately be called a judicially imposed constraint on the exercise of the sentencing discretion.)

The origin of the “principle” is frequently traced to a 1990 decision of this Court, R v Peter Michael Clark (Court of Criminal Appeal (NSW), 15 March 1990, unreported). (This is the decision to which reference was made in Ground 2 of the proposed grounds of appeal.) The statement in Clark itself made clear (without detail) that the general proposition derived from previous decisions. What Hunt J (as he then was) said was:

Two years later, his Honour (by then Hunt CJ at CL) returned to the theme. He repeated the remark in Clark, saying:

The statement in Clark was made in the context of the rejection (by a majority of that Court) of a submission that the “principle” was restricted to circumstances in which a profit had been (or, presumably, was intended to be) made. That, in turn, derived from an earlier decision of the court, R v Michael John Hayes (1987) 29 A Crim R 452. It is notable that, although in Hayes the majority held that the sentence imposed (which was a sentence of full time imprisonment) was manifestly inadequate, there is, in that judgment, no statement to the effect that, in every case of drug dealing to a substantial degree (absent exceptional circumstances) a sentence of imprisonment must, or ought to, be imposed.

Nevertheless, it may be accepted that examination and analysis of sentencing practices establishes that, where the facts of an offence demonstrate drug dealing “to a substantial degree”, a sentence of imprisonment will ordinarily be imposed. Moreover, recognition of the serious social implications of drug dealing (reflected, if in nothing else, in the maximum prescribed sentences) suggests that, in the ordinary case, a sentence other than imprisonment will fail to meet sentencing objectives.

The statement in Clark has been endorsed on countless occasions. In 1998, Priestley JA, with whom Abadee and Kirby JJ agreed, described the statement in Clark as one that had been repeated in a series of cases and described it as a statement “about which there is no room for debate”: R v Cacciola (1998) 104 A Crim R 178 at 182. In a later passage (in what was an extempore judgment), having stated his view that the Crown appeal in that case should be dismissed (in the exercise of the residual discretion to dismiss a Crown appeal, notwithstanding that error is established), Priestley JA said:

In R v Carrion (2000) 49 NSWLR 149; [2000] NSWCCA 191, without explicitly endorsing or even referring to the “principle”, a five-judge bench upheld a Crown submission that none of a series of matters advanced as justifying a sentence of imprisonment to be served by way of periodic detention “was capable of constituting exceptional circumstances which would justify the imposition of a sentence other than full time custody”. It may be taken that their Honours accepted the anterior proposition, that, other than in exceptional circumstances, substantial drug dealing offences should be deal with by way of sentences of full-time imprisonment.

In R v Saba [2006] NSWCCA 214 Handley JA, with whom Hoeben J (as he then was) agreed, said:

In R v Wen Fei Gu [2006] NSWCCA 104 Howie J, with whom Grove J and I agreed, said:

In R v Gip; R v Ly (2006) 161 A Crim R 173; [2006] NSWCCA 115 McClellan CJ at CL referred, with apparent approval, to both Clark and R v Bardo (NSWCCA, 14 July 1992, unreported).

In Fayd’Herbe v R [2007] NSWCCA 20, Adams J, with whom Price J agreed, and Howie J partially agreed, reviewed a number of the previously mentioned authorities and said:

In R v Pickett [2010] NSWCCA 273 (with the concurrence of Fullerton and R A Hulme JJ) I said:

In Smaragdis v R [2010] NSWCCA 276 Fullerton J, with whom R A Hulme J and I agreed, said:

This is by no means an exhaustive list of decisions of this Court to the same effect. It is unnecessary to lengthen these already lengthy reasons by reinforcing the hold that the statement in Clark has taken. It is, however, to be observed that, in each case, in calling for full-time custodial sentences, the author necessarily excludes from consideration any of the non-custodial alternatives, such as ICOs or suspended sentences.

There have, however, been some notes of caution expressed, and there are indications that some members of the Court have experienced some discomfort or disquiet, perhaps at the absolute nature or the imperative tone of the statements, or perhaps at their prescriptiveness.

The passage cited from Cacciola was not all Priestley JA had to say on the subject. He added (at pp 183-184):

In R v Gip, Rothman J said:

In Youssef v R [2014] NSWCCA 285 the sentencing judge had expressly acknowledged the “long line of authority, commencing with the case of R v Peter Michael Clark”. McCallum J, with whom I agreed, referred to the passage from Clark, and said:

However, her Honour commented:

In a concurring judgment in EF (see above) I referred to the judgment of Howie J in Gu and said:

In Forti v R [2016] NSWCCA 127 (a decision to which the sentencing judge referred) Basten JA, with whom Rothman J agreed, referred to the “principle” without expressly endorsing it, but cautioned against the use of the term “exceptional circumstances” as if it were a statutory prescription requiring definition. It is, his Honour said:

However, in R v Ejefekaire [2016] NSWCCA 308, this Court, constituted by Gleeson JA and Fagan and N Adams JJ, appeared to reaffirm the “principle”. After referring to my remarks in EF their Honours said:

It will be seen from the above that the language varies from case to case. Some judges (Hunt J in Clark, Priestley JA in Cacciola, Handley JA in Saba, Howie J in Gu, Fullerton J in Smaragdis) employ language of mandate (although Priestley JA was also at some pains to place emphasis on the need for attention to be given to the individual circumstances of each case, and the individual discretion of each sentencing judge). All, it is true, also recognise that “exceptional circumstances” might permit departure from the “principle”, without identifying the kind of exceptional circumstances that might qualify. Other judges, more cautiously, use language reflecting recognition of sentencing practice.

What has consistently been stated as a “principle” is (in my opinion), no more than and is properly to be seen as a conclusion drawn from a history of sentencing in respect of relevant offences. Without legislative authority, it could not be more. The decisions upon which the “principle” is based are entitled to significant respect as the result of considered decisions and the experience of sentencing judges and appellate courts. Sentences imposed in the past, in relevantly similar circumstances, can and do provide significant guidance to sentencing judges. But they give rise to no binding precedent: The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at [29]. They are not statements of principle. Far less are they prescriptions for sentencing judges. The High Court has, more than once, used the metaphor of a “yardstick” constituted by prior sentencing decisions against which a sentencing judge may measure a proposed sentence: see Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 52; [2010] HCA 45 at [54]; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [41].

It is amply established that sentencing judges may, and should, have regard to historical patterns of sentencing in respect of particular offences: see Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [6] and [59]-[60]; Markarian at [44]; Hili at [54]; Barbaro at [41]. That is seen as an aid to consistency in sentencing, something that promotes confidence in the criminal justice system: Wong at [6]-[10]. What is sought is not “numerical equivalence” but consistency in the application of principle (Hili at [48]; Pham at [46]-[47]).

There are, in the judgments of the High Court of Australia, many statements concerning the exercise of the sentencing discretion. Invariably, the judgments maintain the primacy of the sentencing discretion of the individual judge, and the need in that exercise to balance a complexity of sometimes competing or contradictory factors that exist in the individual case.

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 was an appeal from the Supreme Court of Western Australia, concerning sentences imposed on the appellant for sexual offences against a child. The Supreme Court had allowed a Crown appeal against what was held to be the manifest inadequacy of the sentence. The High Court unanimously allowed an appeal from that decision although different reasons were given, by Gleeson CJ and Hayne J in one judgment, Gaudron and Gummow JJ in another, and Kirby J in a third.

At [68] Kirby J, commenting on the asserted inconsistency of the sentence imposed with other sentences, said:

That was a case in which the relevant Western Australian statute required a sentencing court to eliminate less serious sentencing options before imposing a more serious one. The Court of Criminal Appeal had begun asking whether the case was of a type that called for imprisonment, and then asking whether it was appropriate, either out of mercy, to aid rehabilitation, or for other “good and sufficient reason” to order the suspension of the sentence.

That, Gleeson CJ and Hayne J held, was to “invert the order in which the statute requires a sentencing judge to consider matters” (at [11]-[13]).

The task of a sentencing judge was stated by Gaudron, Gummow and Hayne JJ in Wong at [75], in the following terms:

In Markarian (at [37]) Gleeson CJ, Gummow, Hayne and Callinan JJ quoted from the decision of Gleeson CJ (when Chief Justice of NSW) in R v Gallagher (1991) 23 NSWLR 220 as saying (at 228):

In Wong, the High Court had under consideration a judgment of this Court, in which “guideline sentences” in respect of a particular kind of drug importation (which were of course, federal offences) were promulgated: R v Wong; R v Leung (1999) 48 NSWLR 340; [1999] NSWCCA 420 (“Wong (1999)”). (By Pt 3 Div 4 of the Sentencing Procedure Act, such judgments are now expressly authorised in respect of offences against the law of NSW, but those provisions were not then in force, and, in any event, do not apply to the sentencing of federal offenders.)

Prior to the enactment of Pt 3 Div 4, “guideline judgments” had been introduced in NSW in R v Jurisic (1998) 45 NSWLR 209. They were said to have:

Spigelman CJ went on to say that guideline judgments perform a limited role, and are not binding “in a formal sense” (at pp 220-221). The advantage of guideline judgments, the Chief Justice said, lies in their flexibility. They make provision for the special or exceptional case. There is recognition that they serve sentencing objectives beyond denunciation and deterrence, such as rehabilitation. They allow a sentencing judge to respond appropriately to all the circumstances of a particular case (at p 221).

The judgment in Wong (1999) (in this Court) promulgated a range of guideline sentences in relation to the importation of specified quantities of drugs, applicable to persons low in the hierarchy of the importing organisation. Spigelman CJ, who delivered the leading judgment (at [142]), emphasised that the range of sentences had been determined primarily on the basis of existing sentencing patterns, and was intended to be non-binding. His Honour was also explicit that, in particular cases, sentencing outside the range may be appropriate ([141]).

Notwithstanding that, and notwithstanding the disclaimers in Jurisic, the High Court unanimously condemned the approach to sentencing represented by the use of prescriptive guidelines. Gleeson CJ acknowledged the value of consistency in sentencing (at [7]-[11]). Nevertheless, his Honour held (at [31]) that the formulation of guideline sentences went beyond an attempt to identify sentencing patterns, and would have the effect of constraining the sentencing discretion. That was inconsistent with s 16A of the Crimes Act 1914 (Cth), the equivalent in Commonwealth law of s 21A of the Sentencing Procedure Act.

Gaudron, Gummow and Hayne JJ, in a joint judgment, held that the process was directed, not to the principles upon which a sentencing judge should act, but to the resultant sentences; it therefore gave no guidance as to what may make a particular case “typical” or “exceptional” (at [45], p 602). Although their Honours recognised that there can be value in sentencing courts having regard to previous decisions, that is so only if:

Their Honours did appear to approve a statement by Doyle CJ in the Supreme Court of South Australia (Police v Cadd (1997) 69 SASR 150) in which he had said, in respect of a particular class of offending (driving while disqualified) that the punishment should “in the ordinary case” be imprisonment “but the circumstances of the offending or the offender or both may dictate some less severe form of punishment” (at [61]). Their Honours went on to demonstrate that in that decision “the real content of the guidance lay in the reasons which were given for the stated conclusion”, and that the reasons gave guidance as to what was meant by “ordinary”, and the criteria that should be applied in exercising the discretion in sentencing an offender for the offence in question (at [62]). Their Honours concluded:

At [77] their Honours referred to “the complexity of the sentencing task”, saying:

At [82], referring to a decision of the Supreme Court of Canada (R v McDonnell [1997] 1 SCR 948) their Honours distinguished between “the judicial and the legislative function” (something Rothman J alluded to in Gip).

At [83] their Honours said:

There are, in the Clark (and the cases following) formulation, two value judgments. The first is quantification – whether the drug trafficking is “to a substantial degree”. The second is whether there exist “exceptional circumstances” justifying departure from the otherwise mandated sentence of full-time imprisonment. Neither “drug trafficking to a substantial degree” nor “exceptional circumstances” is defined. In Smaragdis the Court identified circumstances that it said will not (apparently ever) constitute “exceptional circumstances”. That was a judgment in which I concurred, a concurrence which I now consider may have been ill-founded.

I question whether it is a mistake to regard a history of sentences with respect to a particular class of offences as prescriptive of sentences that must be imposed for offences of that class in the future. Those sentences are, as was spelled out in Hili, a yardstick, a useful point of reference. In particular, it may be a mistake to prescribe that offences of drug dealing “to a substantial degree” must, absent “exceptional circumstances”, be met with a sentence of imprisonment. That is a pronouncement that, it appears to me, crosses the boundary between identifying the “unifying principles” to be applied in any sentencing decision and imposing an unlegislated judicially created constraint on the sentencing discretion.

First, there is no statutory warrant for any such prescription. Second, the prescription fails to define “drug dealing to a substantial degree”. Third, the prescription fails to define what might constitute “exceptional circumstances”. Fourth, the prescription fails to identify the source of the exception.

One issue in Hili was what was perceived to be a “norm” in relation to the proportion between a non-parole period and a head sentence in respect of sentences imposed for federal offences. The High Court unanimously rejected the proposition that such a “norm” should dictate sentencing decisions. Inter alia, the majority (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) said that references to the “norm” were “necessarily misleading” if they distracted attention from the applicable statutory provisions (in that case, Pt 1B of the Crimes Act 1914). They were misleading if they distracted attention from the relevant sentencing considerations (see [38]). In particular, their Honours said that such references would mislead:

This was what McCallum J referred to in Youssef. The observations are readily adaptable and applicable to the prescription that offences of a particular category must be met by a particular form of sentence, unless “exceptional circumstances” are demonstrated.

An analogy may also be drawn with the decision of the High Court in Kentwell. In that case, the appellant had, in this Court, sought an extension of the time prescribed for filing an application for leave to appeal against sentence, on a specific ground. Extension of time was governed by statutory provisions. An earlier decision of this Court (Abdul v R [2013] NSWCCA 247) had held that, in the determination of such an application, the Court was required to ask itself whether refusal of the application would occasion substantial injustice. Such a test was not to be found in the relevant statutory provisions.

The High Court held ([31]) that it was an error to introduce into the application such an additional test. At [45] the High Court said that this Court wrongly confined its discretion by applying a test which required that the applicant demonstrate substantial injustice if the application were refused.

The task of a sentencing judge is to impose a sentence that is just in all of the circumstances, those circumstances including the objective gravity of the offence in question, together with the personal circumstances of the offender, and any mitigating circumstances. Nowhere in the legislative regime is there any direction that, in sentencing in relation to drug offences, a sentencing judge must first determine to impose a sentence of full-time imprisonment, and then to examine the case for “exceptional circumstances”. Such an approach, in my opinion, comes dangerously close to the forbidden “two-stage sentencing”: Wong at [74]-[76], Markarian at [37].

Any sentencing exercise must begin with the applicable legislation governing sentencing, either general or in the particular case. So much was stated by the majority in Markarian at [26] in relation to appeals alleging error of principle, but it applies equally to the first instance sentencing exercise. It was also at the heart of the decision of the High Court in Wong. In this case the relevant legislation is, first, those provisions of the DMT Act that prescribe the maximum applicable sentences, and, second, the Sentencing Procedure Act, in particular s 3A (stating the purposes of sentencing), s 5 (requiring a court to consider all possible alternatives before imposing a sentence of imprisonment) and s 21A (stating, non-exhaustively, relevant sentencing considerations). The majority in Markarian went on to say:

Section 5(1) of the Sentencing Procedure Act is couched in mandatory terms. A court must not sentence an offender to imprisonment unless satisfied, having considered all possible alternatives, that no sentence other than imprisonment is appropriate. I recognise that a sentence to be served by way of an ICO is a sentence of imprisonment, but there is nothing in s 5 that directs a judge, having decided that no alternative to imprisonment is a viable option, then to exclude from consideration any non-custodial means by which the sentence may be served.

Yet the formulation in Clark, and the cases that have followed, effectively dictates, in cases of drug trafficking, non-compliance with the mandate of s 5. Alternatively, it dictates the conclusion that the sentencing judge must reach in the consideration of “all possible alternatives” to a sentence of imprisonment. The formulation operates (and the present case shows that it is taken to have been intended to operate) as a direction to the sentencing judge to reach only one conclusion in relation to the s 5 mandate. The NSW legislature has provided, in ss 6, 7 and 12 of the Sentencing Procedure Act, for sentences of imprisonment of stated length to be served (where the sentencing judge considering it appropriate) other than in full-time custody. Those options cannot be airbrushed out of consideration by judicial prescription.

Section 66 expressly provides that an ICO may not be made in respect of certain sexual offences. There is no such exclusion provided in relation to drug trafficking offences.

The mandate of s 5 may be seen to be of limited direct relevance in the present case, because the only realistic option, other than a sentence of full-time custody, advanced to the sentencing judge was an ICO. As mentioned above, an ICO is one of the means by which a sentence of imprisonment may be served. That is, it was accepted (realistically, in my opinion) that, inevitably, the sentence to be imposed on the applicant would be one of imprisonment. However, what may be properly be seen as directives in the pronouncements outlined above go beyond s 5. In their uniform references to “full-time custody” or “full-time imprisonment” they effectively direct sentencing judges, in every substantial drug trafficking case, not to consider alternatives such as ICOs, suspended sentences (Sentencing Procedure Act, s 12) or home detention (Sentencing Procedure Act, s 6). This appears to me to be wrong in principle, and to go beyond the judicial role and trespass upon the legislative function.

The Court in Ejefekaire was correct in its assumption that, in EF, I did not intend to say that “the longstanding principle … is no longer good law”. To have done so would have been presumptuous. What I did – and do – intend to do was question whether what was called a “longstanding principle” was ever good law. It seems to me that the peremptory terms in which Clark and the cases following are expressed are incompatible with the proper exercise of a judicial sentencing discretion, and incompatible with a number of statements made by the High Court. But that is a matter to be decided on another occasion, either by this Court (possibly constituted by five judges), or by the High Court.

There is a further consideration. Clark was decided in 1990, at a time when sentencing was generally left to judges, subject, of course, to prescribed maximum sentences. In 2002 a significant change was made to the legislative sentencing regime. Section 21A was inserted into the Sentencing Procedure Act. It bore the heading “General sentencing principles”. Sub-section (1) stated:

Later in that year, s 21A was amended. Curiously, sub-s (1) was omitted. In its place, the following sub-section was inserted:

This provision is the statutory counterpart of Pt 1B of the Crimes Act 1914 under consideration in Hili. The provisions of s 21A do not support a judicial gloss on the sentencing discretion. In Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638; [2012] HCA 1 the High Court rejected a proposition that a judicially developed gloss on Pt 1B of the Crimes Act 1914 could be accommodated (see [19]).

The practical consequences of what I have said (if accepted) should not be overestimated. When sentencing judges are freed of the judicially imposed constraint, they must, nevertheless, give full and proper consideration to the guidance they will obtain from past sentencing decisions, providing a “yardstick” against which to measure any proposed sentence. In practice, it is likely that this will result in a conclusion that (absent some unusual circumstance) a sentence of imprisonment ought to be imposed. But, as EF and the present case show, and as Priestley JA recognised in Cacciola, there will be exceptions, and sentencing judges should not be constrained by the language of mandate to disregard available sentencing options.

In this respect, it does not seem to me that the provision that “exceptional circumstances” might justify departure from the “principle” dilutes the effect of the otherwise prescriptive statements.

HARRISON J: I agree with Simpson JA.

DAVIES J: I have had the advantage of reading the judgment of Simpson JA in draft. Her Honour has set out the factual background and the submissions made. My reasons for joining in the orders made on 11 August 2017 are those set out in her Honour’s judgment at [35] to [44].

I have also read her Honour’s Additional Remarks at [45] to [106] of the judgment. I agree with her Honour’s analysis of the authorities and her conclusions at [101] and [104]-[106].