Parente v R

1. [1]

   THE COURT: Mr Ugo Parente ("the applicant") seeks leave to appeal against an aggregate sentence imposed in the District Court at Sydney by McLennan SC DCJ on 2 December 2016. The sentence was one of imprisonment for 4 years with a non-parole period of 2 years dating from 1 November 2016.

2. [2]

   The sentence was imposed in respect of three offences contrary to the Drug Misuse and Trafficking Act 1985 (NSW) ("the Act"). A further three offences were taken into account in relation to the offence identified as Sequence 5.

3. [3]

   Details of the offences, the relevant provisions of the Act, the prescribed maximum penalties, a prescribed standard non-parole period in relation to Sequence 5, and the sentences assessed for each offence (after a 25 per cent reduction for the applicant’s pleas of guilty) are set out in the following table:

4. [4]

   The three offences taken into account in relation to the offence in Seq 5 were as follows.

5. [5]

   Because the GBL offence carried a standard non-parole period it was a requirement that the judge also specify an indicative non-parole period: s 54B(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The failure to do so does not invalidate the sentence: s 54B(7). Moreover, there was no issue raised on the application about it.

Grounds of appeal

1. [6]

   The applicant seeks leave to appeal on the following grounds:

The offences

1. [7]

   The facts concerning the offences were not disputed.

2. [8]

   The applicant came under the notice of police by the manner in which he drove a car at about 12.50am on Friday 26 June 2015. He made a sudden right-hand turn in front of a patrolling police car in King Street, Eastlakes. He was followed and stopped. His demeanour (nervous, fidgety, anxious and mumbling) attracted the officers' suspicion. He said that he had been visiting friends; that he was a solicitor; and that he had been with a client.

3. [9]

   Police searched the applicant’s car, following which he was arrested. They later searched his home at Punchbowl. Overall, the police found:

4. [10]

   Police also found in the applicant's bedroom and in various places in the kitchen:

5. [11]

   The statement of facts included that the applicant was polite and co-operative with police and, in a conversation with one particular officer, he cried and said that he had developed an addiction to drugs.

6. [12]

   More will be said about the seriousness of the drugs supply offences later but the following quantities for each of the drugs prescribed in Sch 1 of the Drug Misuse and Trafficking Act may be noted at this stage.

Subjective case

1. [13]

   A substantial body of documentary material concerning the applicant's background and personal circumstances was tendered in the sentence proceedings. The applicant did not give evidence.

2. [14]

   The applicant was born in 1982 and was raised with his two siblings in the Newcastle area. His childhood years were uneventful until his mother developed kidney failure when he was aged 8 and she passed away when he was aged 14. Despite this traumatic experience he excelled in high school; he became school captain, dux and received many awards (including for his involvement in activities promoting drug awareness).

3. [15]

   The applicant was active in politics while he was a student at university. He worked part-time in the electoral offices of two members of Parliament and won pre-selection as a candidate in a local government election. He also commenced a long-term relationship around this time.

4. [16]

   After receiving degrees in Arts (Communications) and Law the applicant moved to Sydney and obtained employment as a solicitor. He took up a position with Marsdens Law Group ("Marsdens") in 2006. He specialised in criminal law. A senior partner wrote in a testimonial that the applicant "had generally been a diligent and competent lawyer who dedicated his time and his efforts to ensuring his clients were provided with clear legal advice and well represented in Court".

5. [17]

   The applicant's relationship with his partner broke down in 2010. The history the applicant provided to Dr Olav Nielssen, psychiatrist, included that he was "very shocked" by this; he had thought the relationship would last forever. He had only taken to drinking alcohol in his late twenties and the first time he got drunk was in August 2010, shortly after the separation.

6. [18]

   The applicant first used a drug (ecstasy) in early 2014. This was contrary to his previous beliefs and lifestyle. He attributed this decision to being depressed, the breakdown of his relationship and the pressures of work. He told Dr Nielssen, "It went from weekend relief from life to using it every day to function". He had used MDMA and occasionally cocaine but mainly methamphetamine (ice) with GBL to counter its effects. He claimed that a litre of GBL cost $2500 which was cheaper than buying it in 2 ml quantities in small plastic soy sauce containers for $20.

7. [19]

   The applicant also told Dr Nielssen that the purpose of his drug supply was to sustain his own use and that the drugs he had purchased over time when they were available had accumulated in his possession. He also said that he was embarrassed about his drug use and had kept it from his family and friends. In the period before his arrest he was only associating with other drug users.

8. [20]

   The applicant's work at Marsdens deteriorated; his files were in disarray, he was not attending court and appointments, and he was neglecting to return phone calls or respond to emails. A decision was taken at the end of April 2015 to terminate his employment. It was proposed that he would leave at a convenient time when some of his matters had been finalised but the applicant's arrest on 26 June 2015 precipitated the termination.

9. [21]

   The applicant returned to live in Newcastle following his release on bail. His general practitioner referred him to Dr Stuart Edser, psychologist, for counselling in relation to substance abuse and anxiety. The applicant attended 13 sessions with Dr Edser between August 2015 and September 2016. Dr Edser provided a report in which he described in very positive terms the progress the applicant had made in overcoming his addiction and the significant changes he had made in his life.

10. [22]

    In addition to the counselling sessions with Dr Edser the applicant also completed a two week Relapse Prevention Programme with the Mental Health and Substance Use Service at the Calvary Mater Hospital. (AB 76; 98.5)

11. [23]

    Dr Nielssen diagnosed the applicant as having a depressive illness (in partial remission) and a substance use disorder (in remission). He said the factors contributing to the applicant becoming depressed included an inherited vulnerability; grief over his mother's long illness and death; the effect of the breakdown of his one serious relationship; and the effect of unhappiness in his job, especially after the loss of his relationship.

12. [24]

    The applicant told Dr Nielssen that he had taken employment with a sports club and that "he realised he needs to change careers, and planned to work his way up in that industry". The sentencing judge had before him a number of certificates concerning vocational training in the hospitality industry the applicant had completed in 2016. In July 2016 he commenced in a casual position at a registered club in Maitland.

13. [25]

    A Pre-Sentence Report included an assessment that the applicant presented "a low risk of re-offending". Dr Nielssen was of the same view and similar sentiments were expressed by the authors of various testimonials.

Some findings by the sentencing judge

1. [26]

   The learned sentencing judge accepted a number of matters that were favourable to the applicant:

2. [27]

   As to the seriousness of the offences, his Honour noted the Crown's acceptance that the applicant was "operating as a user/dealer weighing packaging and distributing quantities of drugs for cash". He said, "It can be accepted that Mr Parente's activities in supplying to a small circle of fellow drug users places his activities at the lower end of the scale although I do not accept at the very low level". He noted that the supply of GBL offence concerned a commercial quantity and said, "[T]he legislature has deemed that his activities were of a commercial nature".

3. [28]

   After referring to some matters pertinent to the supply of GBL offence, his Honour said:

Ground 1 - Failure to take into account the applicant's loss of the right to practise

1. [29]

   It was submitted to the sentencing judge that "it [was] almost certain [the applicant] will never practice [sic] in his chosen profession again" after having been a "diligent and competent lawyer who dedicated his time and efforts to ensuring his clients were well represented in court". It was submitted that this was a matter that could be taken into account in the applicant's favour (together with the adverse effects of media publicity) as "non-curial punishment".

2. [30]

   During the course of oral submissions at the sentence hearing the judge said that this was an issue that was a "relevant factor, the weight of which will be something to be ultimately assessed in with the mix".

3. [31]

   It was submitted that although the judge referred at an early stage of his reasons for sentence to the applicant being a "criminal lawyer", thereafter nothing more was said about the subject. The judge later referred to extra-curial punishment but only in relation to publicity surrounding the applicant's case. It was submitted that if his Honour had applied the relevant principle, he would have referred to it, likely at the same time as he referred to the publicity issue. Accordingly, it was submitted that there was error in the exercise of the sentencing discretion (per House v The King (1936) 55 CLR 499; [1936] HCA 40) by the failure to take into account a material consideration.

4. [32]

   There is no doubt that the applicant's likely loss of the privilege of pursuing a promising career in the legal profession was a relevant matter to be taken into account in the assessment of sentence: see, for example, Oudomvilay v R [2006] NSWCCA 275 at [19]-[20]; Kenny v R [2010] NSWCCA 6 at [47]-[49]; Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1 at [95]-[97]; Michael v R [2014] NSWCCA 2 at [149]-[154]; Kearsley v R [2017] NSWCCA 28 at [13] (Macfarlan JA) and [76]-[80] (Harrison J).

5. [33]

   However, there can also be no doubt that the sentencing judge had regard to this matter. It was probably the most prominent feature of the case. References to the applicant being a practising solicitor and to his career being at least adversely (and likely terminally) affected permeated the entire proceedings.

6. [34]

   In recounting the facts of the offences the judge included the references to the applicant being a lawyer. When he came to review the applicant's subjective case, the judge commenced:

7. [35]

   His Honour said towards the end of his judgment:

8. [36]

   In the "impressive collection of testimonials testifying to his personal and professional qualities" to which the judge referred there were frequent mentions of the applicant's legal career, including of the likely loss of that career. They included this by a senior partner of Marsdens:

9. [37]

   A former member of the federal Parliament for whom the applicant had worked while at university, wrote:

10. [38]

    The submissions for the applicant referred to the fact that the judge only referred to media publicity in relation to extra-curial punishment. The evidence of such media publicity comprised a number of news articles that were tendered. It is obvious that the only thing newsworthy about a 33 year old man facing drug supply charges was that he was a lawyer. The articles all had a headline that referred to that fact: for example, "Sydney criminal lawyer Ugo Parente behind bars on drug charges pending bail bid".

11. [39]

    Having regard to all of this evidence it is abundantly clear that the applicant's potential loss of his career as a lawyer and the high regard in which he had previously been held was a prominent issue in the case. There can be no doubt that it is included in what the judge had in mind when he referred to the applicant's "tragic descent".

12. [40]

    The judge did not explicitly state that he took into account the applicant's likely loss of his legal career as extra-curial punishment but it is clear enough that it was a matter to which he had regard. This ground must be rejected.

Ground 2 - alternatively, error by constraining the approach to the test for "exceptional circumstances" in drug supply cases

1. [41]

   The grounds of appeal and written submissions for the applicant were filed on 7 August 2017. Ground 1A was added and further written submissions were filed on 22 September 2017, following the handing down of the judgment in Robertson v R [2017] NSWCCA 205 on 23 August 2017. In that case, Simpson JA, with the concurrence of Harrison and Davies JJ, raised serious questions about the "'principle' … frequently traced to a 1990 decision of this Court, R v Peter Michael Clark (Court of Criminal Appeal (NSW), 15 March 1990, unreported)" to the effect that drug trafficking in any substantial degree should normally lead to a custodial sentence and that only in exceptional circumstances will a non-custodial sentence be appropriate.

2. [42]

   Simpson JA said (at [101]):

3. [43]

   The Acting Chief Justice directed pursuant to s 3 of the Criminal Appeal Act 1912 (NSW) that the Court be constituted by a bench of five judges in order to determine the issue raised by the present applicant as to whether the "principle" referred to in Clark has any continuing application.

4. [44]

   Before turning to the issue itself it is necessary to examine how the issue was raised, and dealt with, in the course of the applicant's sentence proceedings. In short, it was a significant feature.

5. [45]

   The Crown and counsel for the applicant both provided the judge with written submissions. Citing a number of cases going back to Clark, the Crown submitted:

6. [46]

   The Crown's submissions proceeded to refer to a number of further cases in which the concept of "exceptional circumstances" in this context had been discussed. This culminated in the submission that "this is not a case where exceptional circumstances apply".

7. [47]

   The written submissions for the applicant made the point that the "policy that those who traffick in drugs to a substantial degree should be sentenced to full-time imprisonment is not a legislative provision”. It was submitted that there were "exceptional circumstances" in that a sentence of full-time custody would likely nullify the rehabilitation the applicant had achieved.

8. [48]

   During the sentence hearing, in the course of a discussion about the seriousness of the GBL offence, the judge said to the applicant's counsel:

9. [49]

   Counsel for the applicant accepted his Honour's proposition and pursued the contention that this was a case in which there were "exceptional circumstances".

10. [50]

    Given the approach of both parties, it is unsurprising that in the course of giving his reasons for sentence the judge addressed the question for his determination which he described as follows:

11. [51]

    After reference to the various matters put forward as amounting to "exceptional circumstances" and after quoting extracts from some judgments of this Court on the subject, the judge concluded:

12. [52]

    Senior counsel for the applicant submitted that "the Clark test is an impermissible constraint on sentencing discretion for three reasons": it is prescriptive in terms of the result; it is inconsistent with the legislative framework; and, it is a two-stage test. Given that "this whole case … was conducted by the Crown, by experienced counsel for the applicant and by his Honour through the prism of Clark", there was error that enlivened the re-exercise of the sentencing discretion by this Court.

13. [53]

    The Crown submitted that there was a concession by the applicant in the District Court that for the purposes of s 5 of the Crimes (Sentencing Procedure) Act a sentence of imprisonment was inevitable. The applicant had submitted, with reliance upon R v Harmouche [2005] NSWCCA 398; 158 A Crim R 357 at [52], that there was evidence that full-time custody was likely to have the effect of nullifying rehabilitation previously effected and that this was capable of amounting to "exceptional circumstances". However, the judge did not accept that there was such evidence. Having done so, the judge proceeded to exercise the sentencing discretion by way of instinctive synthesis of the relevant factors.

14. [54]

    It was submitted by the Crown that, in accordance with authority, the judge was first required to determine the length of the sentence before considering whether it could be served in some manner other than full-time imprisonment. Having determined that there should be a sentence of four years, there was no scope for his Honour to consider whether it should be served by way of an intensive correction order as the applicant's counsel had sought. Accordingly, it was submitted, the sentencing judge's discretion was not constrained by the "rule" in Clark.

15. [55]

    The Crown submitted that there was no occasion in this case to be considering the correctness of Clark as this was not a borderline case between imprisonment to be served by way of full-time custody or otherwise. Nevertheless, the Crown maintained that "the line of authority from Clark as set out in Smaragdis v R [2010] NSWCCA 276" should be followed. Specifically, the Crown referred to the judgment in Smaragdis v R of Fullerton J (Simpson J (as her Honour then was) and R A Hulme J agreeing) at [30]:

16. [56]

    Clark was a Crown appeal against a sentence imposed in the District Court following the offender's pleas of guilty to two charges of supplying amphetamine. Two summary offences, one of possession of cannabis and another of administering amphetamine, were taken into account. One of the supply charges concerned the offender's possession of three bags of amphetamine, a total of 13.4g, and the other concerned his admissions to police that he sold amphetamine to friends if they sought it. He sold about three or four small plastic bags for $50 each per week and he had been doing so for about a month. He was found to be in possession of $2002 in cash which the sentencing judge found to be the proceeds of drug sales.

17. [57]

    Hunt J (as his Honour then was), with the concurrence of Sharpe J (Enderby J dissenting), famously said (at pp 3-4):

18. [58]

    Hunt J referred to the sentencing judge having acknowledged that a custodial sentence would normally be appropriate. However, the judge deferred passing sentence upon Mr Clark entering into "minor bonds" (presumably recognizances to be of good behaviour pursuant to the then s 558 of the Crimes Act 1900 (NSW)). The only factor mentioned by the judge as justifying that course was the absence of any convictions for a period of ten years, Mr Clark having "an earlier bad record". Hunt J observed that "that was not a special circumstance". He said (p 5):

19. [59]

    Mr Clark was re-sentenced to a term of imprisonment with a minimum term of 9 months and an additional term of 3 months effective immediately from the date of judgment.

20. [60]

    It was subsequently clarified in R v Leslie (1991) 55 A Crim R 68 that the reference to "a custodial sentence" was a reference to full-time imprisonment and not to a sentence of imprisonment ordered to be served in another way (in that case, periodic detention).

21. [61]

    The "occasions" that the Court had "emphasised that sentences involving a substantial general deterrence are to be imposed on drug traffickers, and […] indicated that only in exceptional circumstances will a non-custodial order be appropriate" were not identified in Clark. Hunt J said they were "too numerous to mention".

22. [62]

    This Court had for a long period prior to Clark taken a strong view in relation to the need for "heavy penalties" so as to deter trading in illicit drugs.

23. [63]

    In R v Peel [1971] 1 NSWLR 247, a Crown appeal succeeded in respect of a fine imposed for an offence of importing cannabis. The sentencing judge erred by regarding cannabis as "innocuous and that illicit traffic in it is to be similarly regarded" (261D). It was said that "the offence can only be regarded as serious and such as to warrant an adequate penalty by way of deprivation of liberty if the penalty is to have its primary effect of deterring the commission of such offences" (262C).

24. [64]

    An appeal against the severity of a sentence of imprisonment for 5 years for supplying LSD was dismissed in R v Anderson (Court of Criminal Appeal (NSW), 29 November 1974, unrep). Street CJ said (p 2):

25. [65]

    In R v Speech (Court of Criminal Appeal (NSW), 11 December 1974, unrep), where there were three offences of selling drugs of addiction, Street CJ referred to the need for "heavy penalties" (at p 3):

26. [66]

    McClemens CJ at CL put the Court's concern about drug trafficking even more vividly in R v Saw; R v Loh (Court of Criminal Appeal (NSW), 20 December 1974, unrep) in making the following statements (pp 1, 2 & 3):

27. [67]

    Taylor J added reference to evidence by the head of Wisteria House Psychiatric Institute at Parramatta concerning the increasing prevalence of heroin use which would appear to have been influential in the strong view being expressed by the Court. Her evidence was that she was aware of one heroin addict in 1966 but was presently treating 250. Heroin use amongst young people was "absolutely absent" in 1966 but in the current time, children as young as 12 or 13 were becoming addicted. The death rate amongst addicts was said to be 25 to 30 per cent.

28. [68]

    In R v Constantinou (Court of Criminal Appeal (NSW), 19 December 1975, unrep), an appeal against a sentence of 6 years for an offence of selling Indian hemp (against a maximum penalty of 10 years) was dismissed. This was despite the mitigating features of the offender being aged 49, having no previous convictions, and being otherwise of good character and reputation. Street CJ observed that "it was a most serious crime and it demanded a heavy sentence".

29. [69]

    A similar offence, with an offender who was aged 58 who had led a "reputable and hardworking life", was considered in R v Sergi (Court of Criminal Appeal (NSW), 13 February 1976, unrep). Speaking for the Court, Street CJ endorsed observations by the sentencing judge including (p 4):

30. [70]

    This stern line was maintained by the Court in R v Smith; R v Wright; R v Lorenzo; R v Rendall (Court of Criminal Appeal (NSW), 30 July 1976, unrep). Sentences of periodic detention were replaced by sentences of full-time imprisonment despite each of the respondents being young and having a minimal prior record. Street CJ said (at p 6):

31. [71]

    The first mention that can be found of a need for something "exceptional" to justify something less than a full-time custodial sentence was in R v Marino (Court of Criminal Appeal (NSW), 7 July 1983, unrep). A 20 year old man became involved in supplying drugs in order to support his young family. He had no significant criminal record and was in regular employment. There were three offences of supplying a drug of addiction. The seriousness of the offences was such as would be assessed by today's standards as being of modest comparative seriousness - for example, one offence involved the possession for the purpose of supply of 60 tablets of amphetamine for $7 each.

32. [72]

    The sentencing judge deferred passing sentence upon the respondent entering into a recognizance to be of good behaviour on two charges and imposed a fine of $2000 on one charge. The Crown appeal was upheld and concurrent full-time custodial sentences of 18 months were imposed. Lee J described the seriousness of the offending as follows (p 4):

33. [73]

    After stating that the subjective features of the case "should carry little weight against the seriousness of the crimes" and finding that the primary judge had given too much weight to them, Lee J (Slattery and Roden JJ agreeing) said (p 5):

34. [74]

    In R v Blanco (Court of Criminal Appeal (NSW), 22 October 1987, unrep) there were two offences of supplying cannabis that brought deferral of sentence upon entering a recognizance and a sentence of imprisonment for 12 months to be served by way of periodic detention. The sentences were found to be inadequate, notwithstanding the respondent's strong subjective case, but the Crown appeal was dismissed in the exercise of the Court's discretion. Lee J (McInerney and Campbell JJ agreeing) reiterated the perceived need for "exceptional circumstances" to justify anything other than a full-time custodial sentence (p 3):

35. [75]

    It may be seen that the Court had consistently called for strongly deterrent sentences of full-time imprisonment to be imposed in drug supply cases, even where the offender presented a strong subjective case. Clark maintained this strong line but added the clarification that derivation of profit by the offender was not an essential requirement; "trafficking alone in any substantial degree should normally lead to a custodial sentence".

36. [76]

    Subsequent judgments have engaged in analyses of what constitutes "trafficking alone in any substantial degree". There has been discussion of whether "trafficking" carries with it the connotation of supply on more than one occasion: for example, in R v Bardo (Court of Criminal Appeal (NSW), 14 July 1992, unrep) it was held that it did. This was later confirmed in R v Ozer (Court of Criminal Appeal (NSW), 9 November 1993, unrep) but there, Hunt CJ at CL added:

37. [77]

    McClellan CJ at CL confirmed a requirement for "exceptional circumstances" in cases involving a single instance of supply in R v Gip; R v Ly [2006] NSWCCA 115; 161 A Crim R 173. After referring to what Hunt CJ at CL had said in Clark, Bardo and Ozer, his Honour said (at [13]):

38. [78]

    What can amount to "exceptional circumstances" has also been the subject of much discussion. Commonly, the discussion has focussed more on what cannot constitute such circumstances rather than what can. Judges have consistently avoided making definitive statements but a few examples are illustrative.

39. [79]

    In R v Cacciola (1998) 104 A Crim R 178 it was held that a sentencing judge was in error in finding exceptional circumstances in a combination of subjective features: youth; no prior convictions; pleas of guilty; remorse; very promising prospects of rehabilitation; and readiness to assist the police. Priestley JA observed (at 182):

40. [80]

    In Smaragdis v R [2010] NSWCCA 276 a combination of the following features was held not to amount to "exceptional circumstances": addiction to cocaine (the onset of which coincided with significant personal stressors and ill health); no previous convictions; good prospects of rehabilitation; unlikelihood of reoffending; being in employment at the time of sentence; pleading guilty at the first opportunity; and remorse.

41. [81]

    In Polley v R [2015] NSWCCA 247, a combination of youth, a very positive endorsement given by the offender's employer, positive changes observed in the offender by the employer, exceptional advances achieved in rehabilitation, remorse, and an underlying depressive condition was held not to amount to "exceptional circumstances".

42. [82]

    At the time Clark was decided, sentencing in this State was principally governed by the Crimes Act, the Sentencing Act 1989 (NSW), the Periodic Detention of Prisoners Act 1981 (NSW), and the Community Service Orders Act 1979 (NSW).

43. [83]

    The only manner in which a term of imprisonment could be served other than by way of full-time custody was by periodic (weekend) detention under the Periodic Detention of Prisoners Act. Upon enactment, s 5(1) provided that such an order could be made in respect of a sentence of imprisonment (defined in s 4(1) to include penal servitude which was imposed in respect of felonies) of not less than 3 months and not more than 18 months. By the Periodic Detention of Prisoners (Amendment) Act 1989 (NSW) the maximum period was extended to 3 years.

44. [84]

    In short, the sentencing options available to a court in the time of Clark were imprisonment to be served either full-time or by way of periodic detention, or alternatives to imprisonment which were limited to community service orders, recognizances to be of good behaviour or fines. Soon after Clark, periodic detention came to be regarded as "having a strong degree of leniency built into it and as being outwardly less severe in its denunciation of the crime": R v Hallocoglu (1992) 29 NSWLR 67 at 73E.

45. [85]

    Sentencing legislation now is vastly different and makes a number of provisions on topics for which recourse previously was to the general law. Of most significance was the repeal of the Sentencing Act and the enactment of the Crimes (Sentencing Procedure) Act. In its current form it includes (with no pretence of being exhaustive):

46. [86]

    Intensive correction orders were introduced and periodic detention was abolished by the Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 (NSW). An intensive correction order has been held to be "a substantial punishment to be utilised in an appropriate case" although "as with all sentencing options which do not involve immediate incarceration, it may also reflect a significant degree of leniency": R v Pogson; R v Lapham; R v Martin (2012) 82 NSWLR 60; [2012] NSWCCA 225 at [108].

47. [87]

    Intensive correction orders may vary in severity depending upon the conditions and the level of supervision considered appropriate by Corrective Services NSW. There may be requirements imposed for a curfew, electronic monitoring of movements, participation in programs, alcohol and drug testing, face to face contact with a supervisor at a certain frequency and the performance of 32 hours per month of community service work as directed: cl 186 of the Crimes (Administration of Sentences) Regulation 2014.

48. [88]

    The Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW) received assent on 24 October 2017 but its commencement is awaiting proclamation. Its provisions include the abolition of home detention orders, community service orders, suspended sentences and good behaviour bonds. A replacement provision is made in respect of sentences of imprisonment ordered to be served by way of an intensive correction order (for a single sentence of up to 2 years or an overall sentence of up to 3 years (Sch 1, cll 7, 29)). Provisions are also made for "community correction orders" (Sch 1, cl 8) and "conditional release orders" (Sch 1, cl 9) as alternatives to the imposition of a sentence of imprisonment.

49. [89]

    Notwithstanding these amendments, the fact remains that there are more sentencing options available to courts than there were in the time of Clark. Moreover, the option of ordering that a sentence of imprisonment be served by way of an intensive correction order may be significantly more onerous than the predecessor of periodic detention (as it was described in R v Hallocolglu).

50. [90]

    In Robertson v R, Simpson JA observed (at [51]) that the statement by Hunt J in Clark "has been endorsed on countless occasions”. She cited a number of cases from R v Cacciola (in 1998) to Smaragdis v R (in 2010).

51. [91]

    Her Honour also noted (at [60]) that there had "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". She referred (at [61]-[66]) to the following:

52. [92]

    After her extensive review of Clark and subsequent cases, Simpson JA said (at [69]-[71]):

53. [93]

    Some general principles of sentencing are illustrative of the problem in the continued acceptance of the Clark "principle". (Some internal citations have been omitted in the quotations that follow.)

54. [94]

    In Wong v The Queen; Leung v The Queen (2001) 207 CLR 584 at 611-612 [75]-[77]; [2001] HCA 64, Gaudron, Gummow and Hayne JJ described the correct approach to the sentencing task as follows:

55. [95]

    An approach to sentencing in drug supply cases of first determining whether there has been trafficking to a substantial degree giving rise to an assumption that there must be a full-time custodial sentence, and then to inquire whether there are exceptional circumstances that would justify some alternative imposition, may be characterised as a "two-staged" approach that is contrary to the "instinctive synthesis" approach of taking into account all of the relevant factors in order to arrive at a single result which takes due account of them all.

56. [96]

    In Markarian v The Queen (2005) 228 CLR 357 at 371 [27]; [2005] HCA 25, Gleeson CJ, Gummow, Hayne and Callinan JJ said:

57. [97]

    The Clark "principle", whether intended or not, has been given an interpretation in its practical application of dictating the particular path that a sentencing judge must follow. It is inconsistent with the flexibility to be afforded to sentencing judges in the exercise of the sentencing discretion.

58. [98]

    It is, nevertheless, important to recognise one of the constraints mentioned in the final sentence of the quotation above; the need for consistency of approach in the assessment of sentence. The importance of this has been recently confirmed by the High Court. Speaking of individualised justice and consistency in sentencing, Kiefel CJ, Bell and Keane JJ said recently in Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 91 ALJR 1063 (at [49]):

59. [99]

    Kiefel CJ, Bell and Keane JJ also summarised (at [45]; and see similarly Gageler and Gordon JJ at [79]) the passage from the judgment of Gleeson CJ, Gummow, Hayne and Callinan JJ in Markarian v The Queen at [30]-[39] as follows:

60. [100]

    Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 was referred to by Simpson JA in Robertson v R (at [91]) in relation to prescriptive constraints on the sentencing discretion. The majority in the High Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) dealt with an issue of whether there was a "norm" for the setting of a non-parole period in sentencing for federal offences in this way (at 532-533 [36]-[38]):

61. [101]

    Precisely the same reasoning is applicable in respect of the Clark "principle". The "principle", that drug trafficking alone in any substantial degree should normally lead to a custodial sentence and it will only be in exceptional circumstances that a non-custodial sentence will be appropriate was not stated in terms that indicate it was descriptive, that is "an observation of what has been done in past cases". Rather, it was prescriptive; "a statement of what ought to be". Crucially, it had no "statutory root". Further, it was expressed as being of "universal application" subject only to there being identified "exceptional circumstances"; and no such circumstances were identified.

62. [102]

    The "principle" is also apt to mislead in that once it is conceded, or concluded, that there was “trafficking alone in any substantial degree", it suggests that the offender must demonstrate that there are exceptional circumstances before the sentencing discretion can extend to the imposition of a "non-custodial" sentence. (Non-custodial in the sense of not being one of full-time imprisonment: R v Leslie.)

63. [103]

    The majority judgment in Hili v The Queen; Jones v The Queen rejected the notion of there being a "norm" in relation to the setting of a non-parole period for federal sentences, concluding in part by saying (at 534 [44]):

64. [104]

    The Clark "principle", in its practical application, has entailed precisely what the majority criticised in that passage. First, it entails a determination whether there has been "trafficking alone in any substantial degree". If that is the case, then there is an assumed starting point of a full-time custodial sentence unless "exceptional circumstances" can be identified. That is how the issue was approached in the present case. The first issue was conceded. It then became a matter of the applicant having an onus of persuading the sentencing judge that there were "exceptional circumstances".

65. [105]

    Simpson JA was correct to refer in Robertson v R (at [89]) to the "principle" in Clark as one that "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". She explained (at [90]):

66. [106]

    For these reasons, the "principle" described in Clark – that drug trafficking alone in any substantial degree should normally lead to a custodial sentence and it will only be in exceptional circumstances that a non-custodial sentence will be appropriate – should no longer be applied in sentencing for drug supply cases.

67. [107]

    Sentencing in drug supply cases should be approached in a manner consistent with the general principles referred to earlier. Nonetheless, there are some matters that should be emphasised.

68. [108]

    First, it is necessary for a sentencing court to be mindful of the purposes of sentencing listed in s 3A of the Crimes (Sentencing Procedure) Act which include "(b) to prevent crime by deterring the offender and other persons from committing similar offences" and "(c) to protect the community from the offender".

69. [109]

    Since at least the 1970s (see the cases referred to above at [63]ff) there has been no doubt about the importance of general deterrence in drug supply cases. An inherent characteristic of most activity relating to illicit drug supply is that participants take steps to ensure it is carried out covertly with the result that significant resources have had to be devoted by law enforcement authorities to detection and successful prosecution. A consistent message of deterrence from sentencing judges is necessary.

70. [110]

    Further, having regard to the social impact of drug use, particularly as an underlying cause of other criminal offending, protection of the community will usually be of significance as well.

71. [111]

    Secondly, it is necessary for sentencing judges to remain mindful of the maximum penalty and any standard non-parole period. They are legislative guideposts (Muldrock v The Queen (2011) 244 CLR 120 at 132 [27]; [2011] HCA 39) and for drug supply offences they are set at a high level. Gleeson CJ, Gummow, Hayne and Callinan JJ spoke of the importance of having regard to the maximum penalty in Markarian v The Queen at 372 [31] as follows:

72. [112]

    Thirdly, Simpson JA in Robertson v R at [50] was, with respect, correct to observe:

73. [113]

    Finally, it is a requirement of the Crimes (Sentencing Procedure) Act that, "A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate" (s 5(1)). This is a consideration of the possibility of options such as a fine, a bond, or a community service order (at present) rather than of the possible alternative ways in which a sentence of imprisonment might be served (presently, by way of full-time imprisonment, home detention or an intensive correction order). As Simpson JA noted in Robertson v R at [97]:

74. [114]

    What her Honour said is consistent with the approach endorsed by this Court: R v Foster [2001] NSWCCA 215; 33 MVR 565 at [30]; R v Zamagias [2002] NSWCCA 17 at [22]-[29]; and Douar v R [2005] NSWCCA 455; 159 A Crim R 154 at [70]-[72]. That approach is to determine:

75. [115]

    As to the appropriateness of imposing a sentence of imprisonment to be served in some alternative way, it is important to have regard to the following from the judgment of Howie J in R v Zamagias at [28] (and see similarly in the judgment of Johnson J in Douar v R at [72]):

76. [116]

    There was error in the exercise of the sentencing discretion in the present case by the sentencing judge having had regard to, and purporting to comply with, the Clark "principle". This is not a criticism, as his Honour was required by the doctrine of precedent to do so.

77. [117]

    As it happened, due to the judge’s determination that imprisonment was appropriate and that it should be for 4 years, there was no available alternative to full-time custody. The debate about exceptional circumstances could, in hindsight, be seen as redundant.

78. [118]

    Despite the fact that the result might not have been affected, it remains that his Honour allowed an extraneous or irrelevant matter to guide him along the path to his determination. In that sense, the sentencing discretion miscarried.

79. [119]

    Leave to appeal should be granted and Ground 1A should be upheld. It is therefore unnecessary to decide Ground 2.

80. [120]

    It is necessary for this Court to re-exercise the sentencing discretion afresh: Kentwell v The Queen (2014) 252 CLR 601 at 617-618 [42]; [2014] HCA 37. The question for the Court is whether some other sentence, whether more or less severe, is warranted in law and should have been passed: s 6(3) of the Criminal Appeal Act.

Resentencing

1. [121]

   Although it is unnecessary to determine Ground 3 (manifest excess), it is useful to have regard to some of the submissions that were made in relation to it.

2. [122]

   The written submissions of senior counsel for the applicant raised the following contentions:

3. [123]

   Affidavits of the applicant and his solicitor were read at the hearing of the application. The applicant deposed to certain events that had given rise to him experiencing anxiety and elevated blood pressure in gaol. He has been provided with medication in relation to the latter. He has engaged in employment and is willing to undertake courses. He has completed an Advance Diploma in Hospitality Management that he hopes will assist him with employment following his release. He anticipates progressing to a classification level that will permit him to have work release and study or day leave. The affidavit by the applicant's solicitor annexed Corrective Services NSW documents that support the applicant's claims as to events that have given rise to his anxiety. They also confirm that he has been a well behaved inmate.

4. [124]

   It is appropriate to approach the resentencing task by accepting the findings made by the sentencing judge as to the relatively low level of objective seriousness of the offences. That said, it is necessary to be mindful that they are serious offences to start with and there are substantial maximum penalties that provide guideposts. There is the additional guidepost of the standard non-parole period for the GBL offence which is also set at a high level.

5. [125]

   It is also appropriate to have regard to the various favourable findings made by the sentencing judge as to subjective matters: genuine remorse; no previous convictions and excellent prior character; excellent prospects of rehabilitation including substantial rehabilitation prior to sentencing; and unlikelihood of reoffending. The 25 per cent allowance for the early pleas of guilty should also be factored in.

6. [126]

   The two matters relied upon as "extra-curial punishment" must be taken into account. The media publicity the applicant endured is of relatively minor significance; the likely loss of what was a promising career in the law is more significant.

7. [127]

   Despite these favourable matters, the importance of general deterrence and protection of the community cannot be gainsaid.

8. [128]

   It is important to bear in mind the need to take into account the three additional drug offences in the assessment of the sentence for the GBL offence. Further, while it must be accepted that there was a substantial degree of correlation between each offence, it cannot be said that there was no additional criminality. In these circumstances it is appropriate that there be some notional accumulation of the sentences assessed for each of the three offences.

9. [129]

   In the synthesis of all of these considerations we are of the view that a sentence less than that imposed at first instance is not warranted.

Orders

1. [130]

   The following orders are made: