R v Kalache [2000] NSWCCA 2 (4 February 2000)

Last Updated: 27 October 2000

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Regina v Leslie Kalache [2000] NSWCCA 2

FILE NUMBER(S):

60238/99

HEARING DATE(S): 21 October 1999

JUDGMENT DATE: 04/02/2000

PARTIES:

Regina

Leslie Kalache

JUDGMENT OF: Sully J Hulme J Hidden J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 97/11/0998

98/11/0659

98/11/0689

99/11/0259

LOWER COURT JUDICIAL OFFICER: Woods DCJ

COUNSEL:

P. Berman - Crown

C. A. Porter QC - Respondent

SOLICITORS:

S. E. O'Connor - Crown

Walter Madden Jenkins - Respondent

CATCHWORDS:

LEGISLATION CITED:

Criminal Appeal Act 1912 (NSW)

Criminal Procedure Act 1986 (NSW)

Crimes Act 1900 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Criminal Assets Recovery Act 1990 (NSW)

Crimes Legislation (Amendment) Act 1990 (NSW)

Sentencing Act 1989 (NSW)

DECISION:

(1) Crown appeals allowed

(2) Sentences passed upon respondent on 6 May 1999 in the District Court quashed

(3) Respondent re-sentenced as per judgment.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60238/99

SULLY J

HULME J

HIDDEN J

4 February 2000

REGINA v Leslie KALACHE

JUDGMENT

SULLY J:

Introduction

1 The Director of Public Prosecutions appeals, pursuant to Section 5D of the Criminal Appeal Act 1912 (NSW), against a number of sentences imposed upon Mr. Leslie Kalache, ("the respondent"). The sentences were imposed in the District Court at Sydney on 6 May 1999, and by his Honour Judge G. D. Woods QC. The Director's challenge to the sentences is that they are inadequate.

2 On 6 May 1999 the respondent entered pleas of guilty to six counts spread over two indictments. On a separate and earlier occasion the respondent had pleaded guilty to a seventh charge. The seven charges are set out hereunder. Noted in connection with each individual charge are the statutory maximum penalty applicable to that charge, and the sentence in fact imposed in respect of that charge.

(1) That between 23 May 1997 and 11 August 1997 he did knowingly take part in the manufacture of a prohibited drug, namely methylamphetamine, in an amount not less than the large commercial quantity applicable to that drug.

Statutory maximum penalty: Life imprisonment and/or a fine of $550,000.

Sentence imposed: 6 years' imprisonment as a fixed term to commence on 30.9.97 and to expire on 29.9.2003.

(2) That between 11 January 1997 and 30 September 1997 he did knowingly take part in the supply of a prohibited drug, namely methylamphetamine, in an amount not less than the large commercial quantity applicable to that drug.

Statutory maximum penalty: Life imprisonment and/or a fine of $550,000.

Sentence imposed: 6 years' imprisonment as a fixed term to commence on 30.9.97 and to expire on 29.9.2003

(3) That between 1 January 1997 and 30 September 1997 he did knowingly take part in the supply of a prohibited drug, namely cocaine, in an amount not less than the commercial quantity applicable to that drug.

Maximum statutory penalty: 20 years' imprisonment and/or a fine of $385,000

Sentence imposed: 3 years' imprisonment as a fixed term to commence on 30.9.97 and to expire on 29.9.2000.

(4) That between 1 January 1997 and 30 September 1997 he did knowingly take part in the supply of a prohibited drug, namely 3,4- methylenedioxymethylamphetamine, also known as ecstasy, in an amount not less than the commercial quantity applicable to that drug.

Statutory maximum penalty: 20 years' imprisonment and/or a fine of $385,000.

Sentence imposed: 3 years' imprisonment as a fixed term to commence on 30.9.97 and to expire on 29.9.2000.

(5) That between 1 January 1997 and 30 September 1997 he did knowingly take part in the supply of a prohibited drug, namely cannabis leaf.

Statutory maximum penalty: 10 years' imprisonment and/or a fine of $220,000

Sentence imposed: 3 years' imprisonment as a fixed term to commence on 30.9.97 and to expire on 29.9.2000.

(6) That between 1 December 1995 and 31 January 1997 he did knowingly take part in the manufacture of a prohibited drug, namely methyl amphetamine, being an amount not less than the large commercial quantity for such drug.

Statutory maximum penalty: Life imprisonment and/or a fine of $550,000

Sentence imposed: 5 years' imprisonment as a fixed term to commence on 30.9.97 and to expire on 29.9.2002.

(7) That between 2 July 1997 and 6 December 1997 he did an act with intent to pervert the course of justice.

Statutory maximum penalty: 14 years' penal servitude

Sentence imposed: 4 years' penal servitude divided between a minimum term of 1-1/2 years to commence on 30.9.2003 and to expire on 29.3.2005; and an additional term of 2-1/2 years to commence on 30 3.2005 and to expire on 29.9.2007.

3 In addition to the foregoing matters, the respondent asked the sentencing Judge to take into account, according to the relevant provisions in that behalf of the Criminal Procedure Act 1986 (NSW), two additional offences. Both of these offences were charged in the wake of a police search on 30 September 1997 of the respondent's home at Clovelly. The first of the two matters involved a charge of goods in custody contrary to section 527C of the Crimes Act 1900 (NSW). The goods in question were described as "a quantity of clothing, a watch, 4 pens and $57,652". The second of the two additional matters charged the respondent with possession of a prohibited drug contrary to section 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The charge particularises as follows the relevant material:

"...................a plastic bag contained 2 small white tablets. These were later analysed and found to be 0.7 grams of methyldioxymetamphetamine, commonly known as ecstasy."

4 The effect of the sentences thus imposed is that the total relevant criminality is punished by imprisonment for 10 years, divided between a minimum term of 7-1/2 years, and an additional term of 2-1/2 years.

The Relevant Facts

5 I take these, as follows, from the written submissions of the Director. The quoted material says all that needs to be said as to the structure and substance of the Director's case against the respondent. It was not submitted at the hearing of the appeal that the facts as so stated in the Director's submissions were erroneous in any particular.

"6. In essence the respondent was identified by investigating police as being the leader of an organised network involved in the manufacture and distribution of prohibited drugs.

7. The respondent dealt primarily with methylamphetamine. Surveillance revealed that from December 1995 the respondent was involved with others in financing an operation to manufacture this drug through the purchase of equipment and chemicals (on the blackmarket). A drug laboratory was established at Wollombi. Subsequent forensic evidence established that commercial quantities of the drug had been manufactured on this property.

8. Surveillance also established that the respondent later became involved in a similar operation on a site in Booral which was purchased in June 1997. This involved the mass purchase of Sudafed tablets (around $70,000 worth) by a number of people. Around 3.5 kilograms of methylamphetamine was manufactured by the respondent's associates. The respondent discussed selling the drug at $70,000 per kilogram and splitting the profits. He also mentioned that an upcoming production of the drug would result in a $350,000 profit. The manufacture of a further 3.5 kilograms of the drug was begun, but the respondent's associates were arrested in mid-August 1997.

9. Between 20 May 1997 and 30 September 1997 surveillance on the respondent (through physical and video surveillance, telephone intercepts and the installation of listening devices) revealed that between 5 and 20 persons were involved in trafficking the prohibited drug which was supplied by them to the respondent.

10. From his premises, the respondent regularly supplied 454 grams (1 pound) of methylamphetamine, occasionally supplying as much as 1362 grams (3 pounds), but rarely supplying less than 28.3 grams (1 ounce). He charged between $7,500 and $10,000 per `street-level' pound, and between $35,000 and $45,000 per `high-purity' pound. In excess of 20 kilograms of methylamphetamine was supplied during the above period of surveillance. The value of drugs supplied by the respondent during this period was estimated to be $800,000 (for bulk deals) and $1,500,000 (at street level): ..........

11. The respondent also supplied cocaine in quantities of up to 10 ounces at a time. He charged between $3,800 and $4,500 per ounce. On one occasion he complained to his associates that 30 ounces of cocaine had been stolen from his premises. In excess of 5 kilograms of cocaine, with an estimated street value of $1,000,000, was supplied by the respondent during the above period of surveillance ..........

12. The respondent also supplied ecstasy tablets. He charged between $20 and $30 per tablet, and most commonly supplied between 50 and 200 tablets at a time; on one occasion he supplied 650 tablets. The respondent complained one day to his associates that 600 ecstasy tablets had been stolen from a storage area in his premises. Investigating police estimated that the respondent had supplied, or had in his possession for the purpose of supply, at least 4,000 ecstasy tablets (800 grams). This averaged out to around $160,000: ................

13. Cannabis leaf was also supplied on a regular basis by the respondent in varying amounts between one ounce and several pounds at a time. `Hydro' quality cannabis leaf was sold for between $3,500 and $4,800 per pound or between $200 and $250 per ounce. A lower-quality leaf was sold for $3,000 per pound. Cannabis bricks were also offered by the respondent for $3,700. One kilogram bricks with `good head' were offered for $4,500 per brick. It was estimated that cannabis leaf to a total street value of $200,000 was supplied by the respondent during the above period of surveillance: ...............

14. The respondent advised his associates on ways in which they could on-sell the various drugs, and advised them on suitable prices and potential profits from the sales.

15. Investigating police, through the benefit of the surveillance, arrested around 50 other persons who were connected with the respondent's activity.

16. In early July 1997 investigating police received information that the respondent had stored amphetamine at a house in Kingsford. Police seized a number of items from this house. The respondent was subsequently heard (via a listening device) to give Detective Sergeant Irwin $500 and to express concern about his fingerprints being on the items seized by the police. Another police officer, Detective Sergeant Craig McDonald, became involved on the respondent's behalf. He arranged for a police officer to wipe the respondent's fingerprints and promised to pay him $5,000. A total of $3,300 was actually given to him. The respondent was subsequently heard to have a conversation with Irwin in which he indicated that he would pay $20,000. Irwin and McDonald were subsequently arrested: ................

17. The respondent was arrested on 30 September 1997 after the execution of a search warrant on his premises. Police located 360 grams of cocaine, two ecstasy tablets and equipment used for the preparation of the drugs into a suitable form for distribution.

18. The respondent generated large sums of money, and acquired a significant amount of property (both real and personal), from gambling activities and drug activities. He and his former de-facto subsequently agreed to forfeit all their property interests to the Crown. The value of this property exceeded $1.1 million."

The Objective Criminality of the Respondent

6 The evidence before the learned sentencing Judge established beyond any reasonable doubt that the respondent was the lynch-pin of a well organised, high-volume and high-profit drug trafficking network. In that connection, three particular matters, each of which has great significance in the context of objective criminality, stand out.

7 First, is the precise nature of the respondent's involvement in that drug trafficking. The learned sentencing Judge made a number of specific findings in that respect. They are set out hereunder. Each such finding was, in my opinion, clearly correct on the evidence before the sentencing Court.

· "There is no doubt that Mr. Kalache was the principal of this operation. He was the leader of an extensive and well organised network of persons involved in the manufacture of methylamphetamine and the distribution of large commercial quantities of prohibited drugs including methylamphetamine, cocaine, ecstasy and cannabis." [remarks on sentence, (R/S):3]

· "Large sums of money were generated by this illegal exercise". [R/S 4]

· "............ .......... his saga of criminality' [R/S 4]

· "............... ..........this was a million dollar operation in the sense that in terms of the values of products sold at street level, millions of dollars worth of illicit drugs were supplied or created." [R/S 5]

· "Investigators have estimated that during the five month period of the investigation during which the listening device was operative at his premises, the prisoner supplied in excess of twenty kilograms of methylamphetamine. The street value of this would have been well over a million dollars.

He was also active in relation to cocaine, ecstasy and cannabis leaf. .......... .............. ................depending on the quantity of cocaine supplied the prisoner charged the customer between $3,800 and $4,500 per ounce." [R/S 6]

· "In addition to supplying methylamphetamine and cocaine, between May and June 1997 the primary focus of his activities was the supply of large quantities of Ecstasy. The Ecstasy was supplied in individual tablet form for between twenty and thirty dollars, depending on quantity sold. He would often supply between fifty and 200 tablets." [R/S 7]

· "The prisoner frequently supplied cannabis leaf to a number of associates but it was not as frequent an exercise as the activities of the prisoner in relation to the other drugs to which I have referred. ........... ................. .................... .......... During the period of the investigation it is estimated that the prisoner supplied cannabis leaf with a street value of approximately $200,000" [R/S 7]

· "As with the other prohibited drugs in which Kalache traded, he advised the recipients of cannabis about the price at which they should re-sell the drug in order to maximise their profit. Throughout the course of the transcripts one sees frequently that Mr. Kalache is a fairly confident and authoritative person, giving directions and information to people about how they should `on-sell' the drug." [R/S 8]

· "The second drug indictment relates to an attempt to establish an amateur factory at Wollombi. Once again, without detailing the matter, this was an exercise in which the prisoner set out, with associates, to create a supply of methylamphetamine on a very large scale for maximum distribution and profit." [R/S 11]

· "I have said that Mr. Kalache had the role of coordinator and principle (sic). There is no doubt that he was the boss." (R/S 13)

8 Secondly, it was, and is, undisputed that the respondent was not at any relevant time, and is not now, himself a user at all of prohibited drugs of addiction.

9 This is, in my opinion, a very serious aspect of the respondent's objective criminality. There are many persons who are addicted to such prohibited drugs, and for whom it is proper to feel compassion. No such consideration can apply in the case of a person who trafficks in prohibited drugs of addiction, but who is not himself a user at all of such substances. The impact that the illicit activities of such a person has on the community of which he is a part is, with respect, well and comprehensively described as follows by the learned sentencing Judge in the present case:

"The activities of Mr. Kalache, as indicated in the charges, have undoubtedly created a trail of destruction. Many people have been brought undone legally because of their involvement with Mr. Kalache, that is to say they have been charged or otherwise brought within the toils of the law by virtue of this large scale operation. More importantly, the number of people who have been physically and emotionally mentally damaged by these drugs is incalculable."[R/S 5]

10 Unlawful conduct of that kind is, in my opinion, simply beyond objective extenuation.

11 Thirdly, the offences committed by the respondent, and in respect of which he stood for sentence on the occasion now relevant, were committed by him against a truly appalling background of antecedent drug-related crime. The relevant particulars are as follows:

· On 28 September 1987 the respondent stood for sentence in the Sydney District Court in connection with a charge of supplying indian hemp; a charge of possessing an unlicensed pistol; and a charge of supplying heroin. On the first charge he was sentenced to 4 years' imprisonment; on the second charge he was sentenced to 12 months' imprisonment to be served concurrently with the first sentence; and on the third charge he was sentenced to 5 years' imprisonment cumulative upon the first sentence. To this effective head sentence of 9 years there was appended a non-parole period of 4-1/2 years, expiring on 4 September 1991.

· On 8 December 1987 the respondent stood for sentence in the District Court at Sydney for an offence of supplying a prohibited drug. He was sentenced to imprisonment for 3 years. In a way which is not entirely clear from the available material, this sentence was aggregated with the sentences earlier imposed on 28 September 1987. The practical effect was to impose upon the respondent head sentences totalling 12 years and a non-parole period totalling 4-1/2 years to expire on 7 June 1992.

· On 16 November 1993 the respondent stood for sentence in the District Court at Sydney and in respect of two offences each involving the supply of a prohibited drug. He was granted, apparently in respect of each of the two matters, a recognisance himself in the sum of $1,000 to be of good behaviour for 4 years; that is to say, up to and including 15 November 1997.

· On 22 November 1993 the respondent stood for sentence in the District Court at Sydney and in connection with another offence of supplying a prohibited drug. Once again, he was granted a recognisance, himself in the sum of $1,000, to be of good behaviour for 3 years, that is to say to and including 21 November 1996.

· On 2 September 1994 the respondent stood for sentence in the Local Court at the Downing Centre in Sydney. Once again, the offence in respect of which he was then punished was an offence of possessing a prohibited drug. He was fined $400. An appeal was dismissed by the District Court on 26 June 1995.

12 In addition to the foregoing matters, it is relevant to note that on 30 September 1997 the respondent was dealt with by the New South Wales Parole Board in respect of breaches of his parole granted in connection with the sentences that had been imposed in September and December 1987. He was ordered to serve the balance of the additional term of 2 years 1 month and 24 days, a period spanning from 30 September 1997 until 22 November 1999.

13 Of the seven offences with which the present appeal is concerned, the six offences of direct drug trafficking were committed variously between 1 December 1995 and 30 September 1997. In other words, those six offences were committed by the respondent in breach of his parole pursuant to the sentences imposed in September and December 1987; and also of his obligations under the recognisance granted to him on 16 November 1993. Some, at least, of the conduct relevant to the sixth of the offences itemised in paragraph 2 of this judgment, occurred not only in breach of that parole and of that particular recognisance, but in breach, also, of the terms of the recognisance extended to the respondent on 22 November 1993.

14 The principles which govern the use that may properly be made of an offender's antecedent criminal history are stated as follows in the joint judgment of Mason CJ and Brennan, Dawson and Toohey JJ in Veen v The Queen [No. 2][1988] HCA 14; , [1998] 164 CLR 465 at 477:

"............. ............... (T)he antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: ............... ................ ................. . The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind."

15 Applying those principles to the facts of the present particular case, it is in my opinion indisputable that the offences which are the subject of the present appeal could not be regarded by any reasonable mind as having been uncharacteristic aberrations. They manifest, if ever offences did, "a continuing attitude of disobedience to the law". Indeed, they demonstrate a cold-blooded and callous amorality such as to place the "moral culpability of the offender in the instant case" at the highest relevant level of culpability; and such as to demonstrate in the plainest possible way both "dangerous propensity" and "a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind".

16 From time to time appellate Courts are called upon to grapple with the question whether a particular offence falls within what is conventionally described as the "worst case" category. The relevant principles in that regard are established by various decisions of which it is convenient and sufficient to refer only to the decision of this Court, (constituted by Carruthers, Finlay and Badgery-Parker JJ), in Reg v Twala: unreported; CCA (NSW); 4 November 1994. The relevant principles are there stated as follows:

"However, in order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from subjective features mitigating the penalty to be imposed)." [per Badgery-Parker J at p.7]

17 In my opinion, each of the three factors which I have previously discussed is a factor "of very great heinousness" in all six of the directly drug-related offences. In addition, it is in my opinion possible in all of those cases "to postulate the absence of facts mitigating the seriousness of the crime".

18 I take exactly the same view of the corruption offence. Anybody who corrupts a police officer in connection with the proper performance of that officer's public duty, commits, without more, a most serious offence against the rule of law. When, as in the present particular case, the act of corruption is designed to have, and has in fact, the effect of preventing the detection of, and the proper prosecution and punishment of, drug trafficking offences which fit within the "worst case" category, then the corruption offence itself has about it those special qualities of unmitigated heinousness apt to bring it, also, within the "worst case" category.

19 Speaking in terms of general principle, and leaving to one side for the moment a particular analysis and assessment of the sentences under appeal, I am of the opinion that each of the seven offences in respect of which the respondent stood for sentence in May last was in the "worst class" category of that particular offence; and that, purely subjective considerations to one side, each such offence called, in terms of objective criminal culpability, for the imposition of a penalty of exemplary severity.

The Subjective Matters Personal to the Respondent

20 Only two such matters were put forward by the respondent: first, the respondent's pleas of guilty; and, secondly, the cooperation of the respondent with the New South Wales Crime Commission in connection with action taken by the Commission with respect to the property of the respondent, and pursuant to the relevant provisions of the Criminal Assets Recovery Act 1990 (NSW).

21 As to the respondent's pleas of guilty: It is convenient to begin by noting the relevant provisions of section 439 of the Crimes Act 1900 (NSW), which are:

"439(1) In passing sentence for an offence on a person who pleaded guilty to the offence, a Court must take into account:

(a) The fact that the person pleaded guilty; and

(b) When the person pleaded guilty or indicated an intention to plead guilty,

and may accordingly reduce the sentence that it would otherwise have passed.

(2) A Court which does not, as a result of this section, reduce the sentence that it passes on a person who pleaded guilty to an offence must state that fact and its reasons for not reducing the sentence when passing sentence.

......................................"

22 These provisions of section 439 were inserted into the Crimes Act by the Crimes Legislation (Amendment) Act 1990 (NSW). The Attorney-General, moving the Second Reading of the Bill for that Act, made the following statements:

"At present the common law in this State provides that a court when sentencing a person is entitled to, and often will, take into account a plea of guilty as evidence of contrition in imposing a lesser sentence than would otherwise be the case, and other matters, such as recompense, damage suffered, and so on. As former Chief Justice Street said in Regina v Ellis, reported in (1986) 5 New South Wales Law Reports, 603 at page 604:

This Court has said on a number of occasions that a plea of guilty will entitle a convicted person to an element of leniency in the sentence. The degree of leniency may vary according to the degree of inevitability of conviction as it may appear to the sentencing judge, but it is always a factor to which a greater or lesser degree of weight must be given.

Because of the importance of encouraging appropriate guilty pleas, this common law rule will be given statutory force. Therefore, the bill provides that, for all offences and for all courts, the court in sentencing a person who pleaded guilty to an offence must take into account the fact that the person pleaded guilty and when the person either pleaded guilty or indicated an intention to do so, and may reduce the sentence accordingly. It is not mandatory to reduce the sentence. It is a discretion, but a discretion that ought to be exercised on proper sentencing principles.

....................................................................................................

There are some cases in which it would be inappropriate to reduce a sentence because of a plea of guilty. It is impossible to predict what sort of cases these will be but one example is where the offence is so serious that it is appropriate for the maximum sentence to be imposed despite a plea of guilty. The amendments therefore give the sentencing court the power to refuse to reduce a sentence. I take it one point further: if the sentence is between, in effect, nothing and the maximum sentence, it is proper for the court to say, where there is clearly no basis for reducing the sentence following a plea of guilty, that a sentence should be imposed which otherwise would have been imposed if the person had been convicted after a plea of not guilty. Thus the court will have a complete discretion with proper discretionary principles applied.

If the court refuses to reduce a sentence it must give reasons for doing so. This reflects the intention of the amendments that a reduction will usually be given. The new provision is not intended to intimidate the bench. The bench has to make such decisions all the time. Reductions will be made in some circumstances and not in others. Even where the Crown case is strong and a guilty plea may be thought to be inevitable, it will usually be appropriate to reduce the sentence to take account of the plea of guilty because the State has been saved the expense of a trial, witnesses have been spared the necessity of attending court and giving evidence, and police have been able to better carry out their duty of protecting the community." [Hansard: NSW Legislative Assembly: 4 April 1990, at 1689, 1690]

23 The way in which, and the limits within which, a sentencing Court should take into account in a prisoner's favour the fact that the prisoner has pleaded guilty, has been the subject of a great deal of curial exposition. In the present respondent's case, that particular factor, being one of only two subjective matters put forward by the respondent in mitigation of penalty, requires a more extended consideration than is often necessary in other, and different types of, cases.

24 It is convenient to begin with the decision of this Court, (constituted by Street CJ, Priestley JA and O'Brien CJ of Cr D), in Reg v Holder; Reg v Johnston [1983] 3 NSWLR 245, a case ante-dating the decision of the Court in Ellis, the case mentioned by the Attorney-General in the Second Reading speech earlier cited. In Holder and Johnston the trial Judge furnished a report for the information and assistance of the Court of Criminal Appeal. The report took note of a submission that had been put to the trial Judge to the effect: "that it was not sufficient for a court in handing down sentence after a plea of guilty to merely refer to the plea having been taken into account, that the sentence itself should necessarily reflect that factor, and that any term of imprisonment imposed should be patently shorter than that which would have been appropriate following a trial".

25 The trial Judge said, in connection with those submissions:

"It seemed to me that there was merit in this submission, particularly in the absence of any suggestion that the pleas of guilty by the offenders had been induced by the laying of charges of a less serious nature. The submission flows from the principle referred to in the well-known passage in Thomas, Sentencing, 2nd ed, at 52. It was my understanding that this principle of substantial reduction for a plea of guilty based on contrition was generally accepted in New South Wales as well as in the other States, at least in relation to head sentences, although the one quarter to one third mathematical calculation made by Thomas would be of little assistance in any particular case.

What I had in mind in assessing the period to be served for the total criminality was that each offender should be given a real and not merely nominal `discount' for the plea and contrition shown, and that had the convictions followed a trial each offender would have received a head sentence some two to three years longer than that in fact imposed."

26 Priestley JA, with whom O'Brien CJ of Cr D agreed, thought that such approach of the trial Judge had been wrong in law. Priestley JA said:

"The foregoing paragraphs seem to indicate clearly that he accepted the view that he was bound as a matter of sentencing principle to impose a patently shorter term of imprisonment than that which would have been appropriate following a trial. He also appears to have accepted that it would be wrong merely to take that particular factor into account. With due respect, in my opinion the law is otherwise. A sentencing judge is entitled to, and often will, take into account a plea of guilty and evidence of contrition in imposing a lesser sentence than he would otherwise do. There is no statutory provision or relevant authority binding him to do so. The passage in Thomas , Principles of Sentencing, 2nd ed (1979), at 52, referred to by his Honour, although it speaks in terms of "principle", is generalizing from the practice of the English Court of Criminal Appeal. The correct status of the "principle" in England is, in my opinion, set out in Thomas (at 50) where the following citation from a 1974 Court of Criminal Appeal decision appears:

"...... it is a well recognized practice of the courts wherever possible to give some degree of credit in the case of somebody who pleads guilty."

The practice in New South Wales is similar.

In many cases some leniency has been explicitly accorded to a person because of a plea of guilty. However in very many cases appeals against severity of sentence upon a plea of guilty have been dismissed notwithstanding that there has been no reference by the sentencing court to any allowance being made for the plea of guilty (or contrition)...................................................

My conclusion therefore is that .....(the trial Judge) ..... felt himself obliged to impose a patently less overall sentence upon Johnston than he otherwise would have done because of what he thought was a rule binding on him, when in law that "rule" was a practice guide which he might or might not act upon according to his sense of its fitness in the circumstances." [3 NSWLR, 268D, 269C]

27 Street CJ, with whom O'Brien CJ of Cr.D agreed, approached the particular point in a somewhat different way. His Honour said:

"It is well established that contrition is in itself a factor weighed in the matter of sentence in favour of accused persons. This is particularly so where the contrition is manifested in a plea of guilty. It is impossible, however, to lay down arbitrary rules regarding the weight to be attributed in any given case to the factor of contrition manifested by a plea of guilty. In examining the extent to which a plea of guilty can take on the colour of contrition, much may depend upon the time and circumstances in which the plea was advanced. To make a commonplace example, a man accused of a sexual offence may make a full and frank admission, coupled with expressions of contrition, to the arresting police at the very outset and, by maintaining that attitude throughout, spare the victim the ordeal both of appearing at committal proceedings and of keeping alive her recollection so that she may be able to give evidence at the trial. Such a man's contrition will weigh more favourably than another, similarly placed so far as concerns the offence, who proffers a plea of guilty for the first time when the indictment is presented against him. Shades of genuineness, too, can affect the extent of the favourable weight attracted by protestations of contrition coupled with a plea of guilty.

It has been said repeatedly in judgments of this Court that guilty persons are to be encouraged to plead guilty and courts will not be slow to identify elements of contrition as inhering in the proffering of a plea of guilty. All accused persons can ordinarily expect to receive the benefit of some credit in the matter of sentence (and, for that matter, in the non-parole period also) when proffering a plea of guilty. In order, however, that the criminal law may not present the appearance of dealing more harshly than would properly be the case with a person who, after pleading not guilty, is convicted by a jury, the relevance of a plea of guilty as a factor pointing towards leniency in the sentence is subsumed under the general category of contrition.

It may be thought that these generalizations provide to sentencing judges little guidance upon the manner and extent to which they should take into account contrition manifested by a plea of guilty. It would, however, in my view, be undesirable to attempt to go further either by way of indicating proportional reductions of the otherwise proper sentence or by any other precise indication. In every case the genuineness of the contrition and the time and manner in which it is manifested in association with the plea of guilty will require evaluation by the sentencing judge in the light of the overall complex of the facts before the court." [3 NSWLR, 258C, 259A]

28 There are, in my opinion, three things to be drawn from the decision in Holder and Johnston.

29 First, the decision has to do with the proper place in the sentencing process of a plea of guilty regarded in the particular sense of a practical manifestation of genuine contrition.

30 Secondly, the decision recognises a sentencing policy or principle to the effect that genuine contrition given practical expression in the form of a plea of guilty is deserving of, and ought normally to be given and seen to be given, real substance as a factor mitigating what would otherwise be the proper sentence in the particular case.

31 Thirdly, that general policy or principle is to be applied in any particular case, either as a "practice guide which .........(the sentencing judge) ........ might or might not act upon according to his sense of its fitness in the circumstances" (Priestley JA and O'Brien CJ of Cr D); or after "evaluation by the sentencing judge in the light of the overall complex of the facts before the court", (Street CJ and O'Brien CJ of Cr D).

32 In the case of the present respondent, I do not see any basis for an affirmative finding than it is more probable than not that the pleas of guilty entered by the respondent give practical expression to genuine contrition. The nature of the offences; their systematic commission over a lengthy time; their contemptuous flouting of the law both in themselves and as continuations of previous similar contemptuous breaches of the law; all point in the opposite direction. The respondent gave no evidence before the sentencing Judge. There was no evidence in the form of pre-sentence or the like reports from which a sympathetically disposed sentencing Judge might properly glean some support for an affirmative finding, reached on the probabilities, of genuine contrition expressed by the pleas of guilty. To make such an affirmative finding in the case of a major drug trafficker such as the present respondent, would be to impute to him, in effect, a Pauline conversion. Such a thing is not impossible; but it is exceptional. For my own part, I cannot see anything about the present respondent's case that makes it exceptional in that sense.

33 Other judgments of differently constituted Benches of this Court have consistently recognised a quite different sentencing policy or principle in connection with the entering by an accused person of prompt pleas of guilty. This further policy or principle has nothing to do with the manifesting, by the pleas, of genuine contrition. It has a blunt, and bluntly acknowledged, utilitarian purpose.

34 A representative exposition of the particular approach is that of Hunt CJ at CL in Reg v Winchester [1992] 58 A Crim R 345 at 350:

"A plea of guilty is always a matter which must be taken into account when imposing sentence. The degree of leniency to be afforded will depend upon many different factors. The plea may in some cases be an indication of contrition, or of some other quality or attribute, which is regarded as relevant for sentencing purposes independently of the mere fact that the prisoner has pleaded guilty. The extent to which leniency will be afforded upon this ground will depend to a large degree upon whether or not the plea resulted from a recognition of the inevitable: Shannon (1979) 21 SASR 442 at 452; Ellis (1986) 6 NSWLR 603 at 604. The plea of guilty may also be taken into account as a factor in its own right independently of such contrition, as mitigation for the co-operation in saving the time and cost involved in a trial. Obviously enough, the extent to which leniency will be afforded upon this ground will depend to a large degree upon just when the plea of guilty was entered or indicated (and thus the savings effected): Beavan (unreported, Court of Criminal Appeal, Hunt, Badgery-Parker and Abadee JJ, 22 August 1991), at p 12.

The important point to be made is that leniency is afforded upon the second ground as a result of purely utilitarian considerations, as with the "discount" allowed for assistance given to the authorities: Cartwright (1989) 17 NSWLR 243; Gallagher (1991) 23 NSWLR 220; 53 A Crim R 248. The leniency is afforded in order to encourage early pleas of guilty so that the criminal list is more expeditiously disposed of and so that other cases, in which there is a genuine issue to be determined, will be brought on for hearing without delay.

Encouragement will be given to early pleas of guilty only if they lead (and are seen to lead) to a substantial reduction in the sentence imposed. That does not mean that the sentencing judge should show a precisely quantified or quantifiable period or percentage as having been allowed. Indeed, it is better that it not be shown; that was the point of this Court's decision in Beavan at pp14-15. As was said in that case - discounts for assistance given to the authorities to one side - it is both unnecessary and often unwise for the judge to identify the sentence which he or she regards as appropriate to the particular case without reference to one factor and then to identify the allowance made which is thought to be appropriate to that particular factor."

35 As to the principles thus stated, there are certain propositions which, in my opinion, derive from those principles and have particular relevance to the case of the respondent.

36 First, the utilitarian principle recognised in Winchester must now be accepted as being, at least in broad principle, well entrenched in the sentencing law of this State. Subsequent decisions of this Court have consistently so recognised and applied the stated principles.

37 Secondly, the practical application of the principles in any given case will be affected if, and in so far as, the relevant plea(s) result(s) "merely from a recognition of the inevitable": Reg v Beavan: CCA (NSW), unreported, 22 August 1991 per Hunt CJ at CL.

38 Thirdly, it does not, in my opinion, run counter to the general principles stated in Winchester to recognise that there will inevitably be cases where the sheer enormity of the criminal conduct involved is such as to require that the proper protection of the public, and the maintenance in every other proper way of the rule of law, will entail that the utilitarian principle must, albeit exceptionally, yield to considerations of greater weight.

39 The present respondent's case exemplifies, in my opinion, that exceptional type of criminal conduct.

40 There was put for the respondent a submission, the practical effect of which was that the respondent, had he chosen not to plead guilty to the charges preferred against him, could have tied up, perhaps for a year or more, a considerable portion of the limited resources available to the criminal justice system. It was submitted that the respondent was entitled, therefore, to a recognisably substantial discounting of what might otherwise have been thought appropriate sentences in his case.

41 I regard such a contention by a persistent and major criminal offender such as this respondent to show a cold and cynical effrontery to which the Courts, and in particular this Court, should give no countenance whatsoever.

42 In the present particular case, I am strengthened in that view by my opinion that it is a reasonable inference that the respondent's pleas of guilty recognised the virtual inevitability of his eventual conviction on all counts. The evidence against the respondent was, in my opinion, overwhelming. In my opinion it is a reasonable inference that the respondent, recognising that he was facing charges, three of which attracted a statutory maximum penalty of imprisonment for life, was sufficiently street-wise to realise that he had, so to speak, virtually no card to play whether objective or subjective than that of pleas of guilty relied upon as entitling him, practically as of course, to a substantial discounting of what would otherwise be appropriate sentences.

43 As to the respondent's cooperation with the New South Wales Crime Commission: The convenient starting point is a letter written on 6 May 1999 by Mr. Bradley, the Commissioner of the New South Wales Crime Commission. The letter became Exhibit 1 in the proceedings on sentence.

44 The following extract from the letter, Exhibit 1, summarises the assistance given by the respondent to the Commission:

"Kalache made full disclosure of his financial and beneficial interest in the Town & Country Hotel.

Kalache consented to forfeiture at an early stage of the confiscation proceedings. He persuaded Crawford and Burke to do likewise. As a result:

(a) interest in property of Kalche and Deborah Crawford having an estimated value of $1.1 million were forfeited to the Crown.

(b) a proceeds assessment order was made against Burke and Deborah Burke for $375,000;

(c) the Commission's resources were not expended in costly further investigations, examinations and hearings;

(d) the resources of the NSW Police Service were not expended in the investigation or litigation of the matter;

(e) the Supreme Court was not consumed with the hearings for examination and orders for final relief."

45 It should be added to what is there written that the Commissioner, in a separate part of the letter, acknowledges that the respondent contended to the Commission that he would be able to demonstrate "that his assets were lawfully acquired and that he had made, and was continuing to make money, from lawful betting activities". As to this contention of the respondent, the Commissioner acknowledges that electronic surveillance conducted by the Commission had yielded evidence supportive of the respondent's assertion that he had won significant amounts of money through betting.

46 It should be further noted that the person referred to as "Burke" in the Commissioner's letter earlier quoted was, at material times, a business associate of the respondent in the conduct of the business of the Town & Country Hotel; and "Deborah Burke" was Mr. Burke's wife. The person described as "Deborah Crawford" was, at all material times, the de facto wife of the respondent.

47 It was submitted for the respondent that he was properly entitled to a discount in any sentence otherwise appropriate, as an acknowledgment of the utilitarian purposes served by his cooperation with the Commission, and acknowledged in terms in the Commissioner's letter previously quoted.

48 In order to test this submission, it is necessary to consider some features of the relevant legislation. The Criminal Assets Recovery Act 1990 was originally introduced into Parliament as a Bill for an Act to be known as the Drug Trafficking (Civil Proceedings) Act. The long title of the Act, as it now stands, is:

"An Act to provide for the confiscation of interests in property that are interests of a person engaged in serious crime-related activities; to enable proceeds of serious crime-related activities to be recovered as a debt due to the Crown; and for other purposes."

49 The Second Reading Speech for the original Bill is recorded at Hansard: Legislative Assembly (NSW), 8 May 1990 at 2527 and following. The Second Reading was moved by the Premier himself, a circumstance which would seem to indicate the importance attached by the Government of the day to the legislative policy embodied in the proposed enactment. The Premier introduced the Bill with the following statement:

"This legislation is aimed squarely at those associated with major drug crime. Its purpose is to deprive those involved in the drug trade of their illicit profits - profits earned at the expense of their victims and of the community generally. Importantly, it is not only the profits of a discrete transaction but the proceeds of a life of crime that will be confiscated. Also crucial is the fact that it is not only the person directly involved in the transaction but also those who knowingly benefit from his or her activities who will be called to account for drug-derived assets and profits. Therefore, the legislation represents a comprehensive scheme designed to undermine entire organisations engaged in the drug trade."

50 The Premier went on to refer to recommendations that had been made by a series of Royal Commissioners in connection with the pursuit of the profits of organised crime. The Premier referred in particular to the following comments made by one such Royal Commissioner:

"The modern view held in the U.S. and embraced by many here such as Costigan and Stewart is that the primary attack on organised crime ought to be directed at destroying syndicates and their power.

It is a view that Australian Governments must embrace and act on without delay.

A primary target for attack, if syndicates and their power are to be destroyed, is the money and assets of organised crime.

There are many reasons to support this view.

The goal of organised crime is money.

The financial rewards are very great, and they are the greater because the profits are tax-free.

Money generates power; it allows expansion into new activities; it provides the motive for people to engage in such crime.

It is used to put the leaders in positions, superior to that of others in the community, where they are able to exploit the law and its technicalities and so on.

At the same time, it is the point at which organised crime is most vulnerable."

51 The Premier went on to stress that:

"The most innovative and controversial aspect of this legislation is that it will create a scheme of asset confiscation that will operate outside and completely independent of the criminal law process...........................................

This legislation, like the Commonwealth Customs Act, treats the question of confiscation as a separate issue from the imposition of a criminal penalty. It essentially provides that a person can be made to account for and explain assets and profits whether or not the person has been convicted, and even if the person has been acquitted in the criminal courts. The critical thing that must be proved is that it is more probable than not that the person engaged in serious drug crime. Proof on the balance of probabilities is the same standard of proof as that used in ordinary civil litigation. The more stringent standard of proof beyond reasonable doubt is a creature of the criminal law."

52 The foregoing statements of policy were reinforced further and as follows:

"I mentioned at the outset that the scheme is aimed at those who knowingly benefit from the drug trade. It is fundamental that any confiscation legislation must recognise that the drug trade is not simply a series of discrete activities, but relies on sophisticated organisations and relationships. If honourable members read the Stewart report on the Mr. Asia syndicate and more recent cases involving Cornwall and Bull, it will be obvious that the notion of organised drug crime is not a myth. It is a very disturbing reality. Recent events in Latin America and the United States of America also show that the drug trade involves sophisticated international organisations that involve a lot of people. It is also clear that the people who make big profits from the drug trade are not necessarily, and indeed are not often, involved in the hands-on operational aspects of the drug trade. Complex corporate and international transactions can be used in an attempt to channel money to the Mr. Bigs, to launder illicit proceeds.

........................................................There is, therefore, no doubt that effective legislation has to be able to trace drug-derived proceeds into the hands of third parties and put the onus on those companies or those people to show that they are not involved and have acquired the assets as bona fide purchasers without notice. That is precisely what this legislation will do. There is a very broad definition of drug-derived property, which includes basically any property that has been acquired directly or indirectly using drug proceeds. That property can be restrained and the owner can be put in the position of having to show that he or she did not know or should not reasonably have suspected that the property was illegally derived."

53 The policy thus explained to Parliament by the Premier informs the overall structure of the Criminal Assets Recovery Act, which is a lengthy enactment comprising some 70 sections arranged in five Parts. For present purposes, it is necessary to note the detail of some only of those provisions.

54 The principal objects of the Act are defined in section 3, and are as follows:

"(a) to provide for the confiscation, without requiring a conviction, of property of a person if the Supreme Court finds it to be more probable than not that the person has engaged in serious crime related activities, and

(b) to enable the proceeds of serious crime related activities to be recovered as a debt due to the Crown, and

(c) to enable law enforcement authorities effectively to identify and recover property."

55 The concept of "serious crime related activity" is the subject of particular, and extensive, definition in section 6. Section 6(2)(b) embraces within the concept of "serious crime related activity" what is described as "a drug trafficking offence". That latter term is itself extensively defined in section 6(3); and is so defined in terms embracing offences in contravention of either section 24 or section 25 of the Drug Misuse and Trafficking Act 1985 (NSW). The directly drug-related offences charged against the present respondent were charged, variously, as contraventions of sections 24 or 25.

56 Section 5 of the Act provides as follows:

"(1) For the purposes of this Act, proceedings on an application for a restraining order or a confiscation order are not criminal proceedings.

(2) Except in relation to an offence under this Act:

(a) the rules of construction applicable only in relation to the criminal law do not apply in the interpretation of the provisions of this Act, and

(b) the rules of evidence applicable in civil proceedings apply, and those applicable only in criminal proceedings do not apply, to proceedings under this Act."

57 The particular point now being considered was raised in this Court, and before a two-Judge Bench consisting of Grove and Dunford JJ, in Reg v Rhona Roby, unreported: CCA (NSW), 28 June 1995. The applicant in that matter chose, in the event, not to press the point. The point, as originally formulated by the applicant, had been ".........that the applicant's consent to various orders relating to confiscation of her assets amounted to `assistance to authorities within the meaning of s.442B of the Crimes Act". Grove J notes in his Honour's judgment that the Crown Prosecutor "conveyed his explicit instructions to contend that such activity ................cannot amount to such assistance". Thereafter, and counsel for the applicant having taken further explicit instructions on that point, the applicant, by her counsel, "expressly disavowed any intention to advance such a submission and was prepared to limit any submission to the more general and, if I may say so, available proposition that the conduct might be seen as some indication of the applicant's progress towards rehabilitation": per Grove J at p.5.

58 The point arose again, and once more before a two-Judge Bench consisting, on this occasion, of Newman and Barr JJ, in Reg v Kellie Marie Murray: unreported; CCA (NSW), 29 October 1997. The case was described, in the principal judgment, which was delivered by Barr J, as entailing "........... criminality which.................consisted of many repeated acts of supply over a period of more than three months".

59 In connection with the point now being discussed, Barr J said:

"In my opinion the applicant's co-operation with the authorities and the repayment of moneys derived from her criminal activity did not merit a reduction of the sentence for assistance to authorities. The applicant was entitled to rely on those circumstances as evidence, together with her plea of guilty, of the genuineness of her remorse and that is a finding that his Honour made in her favour."

60 There are four decisions of the Court of Criminal Appeal of Victoria which are relevant to the point now being discussed.

61 The earliest of them is the decision in Reg v Peter John Allen [1989] 41 A Crim R 51. The reasoning of the Court is contained, relevantly, in the following passages from the joint judgment of the Court:

"It is clear that a judge when sentencing a person convicted of a serious crime cannot take into account an application for a confiscation order which has not yet been determined. Indeed, the application need not be made before the offender is sentenced, but may be made within six months of conviction: s 5(2) of the Act. Clearly in such a case the sentence could not be affected by the subsequent making of a confiscation order, whether by way of forfeiture order or pecuniary penalty order. However, s 5(3)(a) of the Act reads:

"5(3) If an application is made under sub-section (1) to the court before which the person was convicted of the offence before that court has passed sentence for the offence, that court may ---

(a) make a confiscation order at the time of passing sentence and for this purpose the court may, if it thinks it necessary to do so, defer the passing of sentence until it has determined the application for the confiscation order;"

The Legislature appears to contemplate that the court may wish to postpone sentence until after it has determined the application for the confiscation order, and the section specifically empowers it to do so. It does not say why the court might wish to do this, and the words "for this purpose" would seem as a matter of construction simply to refer to the "purpose" of making the confiscation order at the same time as sentence is passed.

It is difficult to be sure what the Legislature has in mind when it states "the court may, if it thinks it necessary to do so, defer the passing of sentence until it has determined the application for the confiscation order".[emphasis added] It may be simply an empowering provision or it may be that the Legislature contemplates that the court may think it "necessary" to know what sort of confiscation order is to be made before fixing an appropriate sentence for the offence.

It is commonplace, when sentencing, to take into consideration the value of any goods stolen or destroyed - and not recovered from the offender. Similarly, the courts invariably take into consideration the fact that an offender has returned goods or money stolen or had made some other form of recompense. Often this is seen, of course, as evidence of remorse, but apart altogether from remorse it is a relevant circumstance when determining the sentence appropriate to the crime.

This being so, although an offender may be sentenced before an application for a confiscation order is made, then if at the time of sentencing it is apparent that the profits of the crime are confiscated, it is appropriate to bear that circumstance in mind when sentencing the offender.

The weight to be attached for the purposes of sentencing to the fact that a confiscation order has been made is of course an entirely different matter. Often it may be entitled to little weight. But if, for example, the crime was one involving a fraud of some millions of dollars, it might be seen to have some real relevance when sentencing to be aware that a confiscation order had been made that was likely to be effective in the recovery of the amount of the fraud.

It may be that for some reason the court may also see that in the very making of a confiscation order, there is something in the nature of punishment wrought. For example, if an offender who has mixed the profits of his crime of fraud with lawfully gotten gains, and purchased a residential property in which his innocent wife and family live with him in apparent respectability, has a confiscation order made apropos that residence, it might been (sic) that the order, in causing the disruption of his whole family, is in itself a form of punishment to him. The circumstances can vary infinitely, and any attempt to contemplate them in advance is futile.

The scope of the Crimes (Confiscation of Profits) Act is so wide that there must be circumstances where the mere making of a confiscation order will be seen to effect some punishment for the crime in addition to the removal of ill-gotten gains from the offender." [41 A Crim R at 56,57,58]

62 There are, in my opinion, two points which it is necessary to make in connection with that reasoning.

63 First, there is no equivalent of the Victorian section 5(3) in the New South Wales legislation. The scheme of the New South Wales legislation is much more draconian. That scheme contemplates the making, initially, of what is called a "restraining order". Part 2 of the legislation contains extensive provisions in connection with the making of such orders. Put very simply, the N.S.W. Crime Commission is entitled to apply, ex parte, to the Supreme Court for a restraining order; and the Supreme Court "must make the order" if the application for it is supported by an affidavit made by an authorised officer as defined in the legislation. It is sufficient if that affidavit states, either that the authorised officer "suspects that the person has engaged in a serious crime-related activity or serious crime-related activities and stating the grounds on which that suspicion is based"; or that the authorised officer "suspects that the interest is serious crime-derived property because of the serious crime-related activity or serious crime-related activities of a person and stating the grounds on which that suspicion is based". It is required that the Court itself must, in addition, consider "that having regard to the matters contained in any such affidavit there are reasonable grounds for any such suspicion".

64 Whenever such a restraining order is in force, the Commission may apply at any time to the Supreme Court for what is described as an "assets forfeiture order". Part 3 of the legislation makes extensive provision in connection with the making of, and the consequential effect of, such an order.

65 The relevant provisions are found in section 22 and are as follows:

"(1) If a restraining order is in force under Part 2, the Commission may apply to the Supreme Court for an order forfeiting to, and vesting in, the Crown all or any of the interests in property that are subject to the restraining order when the assets forfeiture order takes effect.

(2) The Supreme Court must make an assets forfeiture order if the court finds it more probable than not that the person whose suspected serious crime-related activity, or serious crime-related activities, formed the basis of the restraining order was, at any time not more than 6 years before the making of the application for the assets forfeiture order, engaged in: (a) a serious crime-related activity involving an indictable quantity or (b) a serious crime-related activity involving an offence punishable by imprisonment for 5 years or more.

(3) A finding of the court for the purposes of sub-section (2) need not be based on a finding as to the commission of a particular offence or a finding as to any particular quantity involved, and can be based: (a) on a finding that some offence or other constituting a serious crime-related activity and punishable by imprisonment for 5 years or more was committed, or (b) on a finding that some offence or other constituting crime-related activity was committed involving some quantity or other that was an indictable quantity."

66 Secondly, it is noteworthy that the Victorian Court of Criminal Appeal, even given the legislative ambiguities to which it refers in the quoted passages, considered it to be clearly correct that the weight to be attached for the purposes of sentencing to the fact that a confiscation order had been made was, in practical terms, dependent upon particular circumstances which might well "vary infinitely"; and that in at least some cases, the making of a confiscation order "may be entitled to little weight".

67 A differently constituted Bench of the Court, (Young CJ, Murphy and Nathan JJ), dealt briefly with the same point in Reg v Antonio Salvatore Sergi: unreported, CCA (Vic), 23 November 1989. It is sufficient to say that the original sentencing Judge had said, during the course of his remarks on sentence, that he had been "conscious of the impact on" the offender as a result of forfeiture orders that the sentencing Judge himself had made. It is clear that the Court of Criminal Appeal, which refused to reduce the sentence, accepted that, at least as a matter of general principle, it had been correct for the sentencing Judge to give at least some weight to the fact that confiscation orders had been made.

68 In Reg v Leslie Daniel Carroll: unreported; CCA (Vic), 15 October 1999, a Bench consisting of Young CJ , Crockett and O'Bryan JJ considered the extent to which the making of a restitution order in favour of the Commonwealth and against a social security fraud offender, was relevant to the sentencing of that offender. The Court dealt with the point very briefly and as follows:

"We were also urged to take into account the restitution order which was made in favour of the Commonwealth. In R v Allen (CCA, 27th April 1989, not yet reported) this court held that an order under the Crimes (Confiscation of Profits) Act 1986 (Vic) might be taken into account as a relevant factor when determining the appropriate sentence, but the weight of such a factor must vary considerably with the circumstances. The reasoning in that case seems equally applicable to the present restitution order under s. 21B but we do not think in the circumstances that it is entitled to very much weight."

69 The last of the relevant Victorian decisions is that of the Victorian Court of Appeal in R v Tilev [1998] 2 VR 149. The principal judgment was that of Batt JA.

70 The original sentencing Judge had given a suspended sentence to a convicted trafficker in cannabis. The sentencing Judge had made, also, a forfeiture order in respect of various property of the offender. The relevant portions of the judgment of Batt JA, (the other two members of the Court concurring), are as follows:

"Were it not for the existence of the forfeiture order, I would be clearly of the view that an immediate custodial sentence was required and that a sentence which was of a different nature was clearly inappropriate and thus manifestly inadequate. .....................

But the fact is that the learned judge made a forfeiture order, and that the forfeiture order stands. Further, it has, as I have endeavoured to show, a significant effect upon the applicant. ........................Although not strictly part of the sentence, in substance the forfeiture order has a punitive effect. It is somewhat analogous to a fine paid immediately. The question is not whether this court would have imposed a different sentence, but whether the sentence imposed is manifestly inadequate .....................

In the particular circumstances of this case,.........................., I have concluded that the forfeiture order has such a significant effect that it cannot be said that the suspended sentence imposed is clearly inappropriate or manifestly inadequate or that, in imposing it, and in particular in suspending the sentence of imprisonment, his Honour gave too mitigatory weight to the forfeiture order." [ (1988) 2 VR, 155(10) - (25)]

71 In Gee v Reg: unreported; CCA (SA), 16 December 1998, a Bench consisting of King CJ and White and Bollen JJ had to deal with an appeal, one of the grounds of which was that the sentencing Judge, before passing sentence upon the appellant, had made an order for the forfeiture of the sum of $10,000 which the appellant had received in exchange for the sale of about 2,300 grams of cannabis. The money had been in the appellant's possession at the time of his arrest; so that the forfeiture order had real effect. The sentencing Judge had taken the view that he was required to disregard the forfeiture in determining the sentence to be imposed; and that he was so constrained by an amendment to the relevant South Australian legislation, being an amendment requiring that in the determination of a sentence, a sentencing Court was to disregard a forfeiture order. That perception of the sentencing Judge had been, in fact, erroneous by reason of the fact that the amendment had come into operation on a date subsequent to the date of the commission of the offence for which the sentence in question was to be imposed.

72 Against that background, King CJ, who delivered the principal judgment of the Court, said this:

"Quite apart from s. 3a, it seems to me that it would have been quite wrong for the learned Judge, in the circumstances of this case, to have mitigated the sentence which the crime otherwise merited by reason of the fact that the appellant has lost his money. It was said on his behalf that he had invested the $9,000 of his lawful savings in the purchase of the cannabis, .................. If he did so, he invested his money in an unlawful enterprise, and had to take all the risks that are involved in the investment of money in criminal activity. If he lost that money, it is no more than he deserved for embarking upon the criminal enterprise. I think that it would be quite wrong, and indeed bordering on the farcical, for a judge to mitigate a sentence which he would otherwise impose because an offender had lost money which he had chosen to invest in criminal activity. It seems to me, therefore, that the judge's mistake as to the applicability of s.3a of the Act has no effect upon the outcome of this appeal."

73 Further authorities are collected and analysed by Slicer J in Reg v Geoffrey Ian Thorley: unreported; Supreme Court of Tasmania, 25 June 1999. I do not refer to them in detail for three reasons: first, because they do not seem to me to add anything of substance to what I have thus far written; secondly, because there are, among the various authorities, differences between the relevant legislation and the New South Wales Act; and thirdly, because some, at least, of those decisions turn upon there having been made pecuniary penalty orders, so denominated and imposed, rather than confiscation orders of the kind for which provision is made in the New South Wales Act.

74 I advert, finally, to the decision of the Court of Appeal of New Zealand, (Cooke P, Casey and Tompkins JJ), in R v Brough [1995] 1 NZLR 419.

75 In that case, the appellant offender had been convicted of drugs and arms offences. He had been sentenced to imprisonment for 7 years and a fine of $5,000. He had been ordered, also, to forfeit over $17,000 found during a police search of relevant premises; and to pay a pecuniary penalty of nearly $85,000. He contended, relevantly, that the forfeiture and penalty orders should have been taken into account on sentence, and had not been so taken into account. The appeal was dismissed. The relevant portions of the judgment read as follows:

"The policy of the Act, therefore, is two-fold.. First, a person who has engaged in criminal activity should be required to disgorge what in common parlance may be referred to as his or her ill-gotten gains. Requiring these to be paid cannot in any way be regarded as a penalty. Rather, it is simply a recognition that the law should not permit a person to retain the profits of criminal activity. Secondly, it empowers the court to forfeit property used to facilitate the commission of the offences. That too is not for reasons of penalty or punishment, but rather in recognition of the principle that persons who use property to commit crimes should be liable to have that property forfeited. ................. ......

The court is not directed to have regard to any sentence that may be imposed in respect of offences to which the forfeiture relates. Nor is there any provision in the Criminal Justice Act 1985 requiring a sentencing court to have regard to confiscation orders made under the Act." [ (1995) 1 NZLR at 423(25)-(50) ]

76 After some reference to some of the Australian authorities, and having noted in connection with those authorities that "care must be exercised since in at least some of the State jurisdictions the statutory provisions are different", the Court proceeded:

"It is our conclusion, having regard to the scheme of the Act, that as a general proposition, confiscation orders under the Act should not be taken into account when assessing sentencing, subject to two qualifications. First, there may be exceptional or unusual circumstances where orders made, particularly orders to forfeit valuable property used in the commission of an offence, may have a disproportionate or exceptional effect on the offender, sufficient for some regard to be had to it when imposing sentence. Secondly, recognising that one of the purposes of the sentence to be imposed is to deter others who may be minded to commit like offences, if forfeiture orders of property used in the commission of offences are particularly severe, some adjustment to the sentence may be appropriate because the deterrent effect of the forfeiture orders may lessen the need for the deterrent element in the sentence. But it is difficult to conceive of circumstances where orders to forfeit the proceeds of the offence or for a pecuniary penalty order reflecting the benefit derived from the commission of an offence, should have any relevance to an appropriate sentence. These reflect the offender's ill-gotten gains which, in accordance with the policy of the Act, and irrespective of sentencing for offences, the offender should be required to disgorge."[ (1995) 1 NZLR 424 (25)-(40) ]

77 In my opinion, it would better accord with the manifest policy of the New South Wales legislation to adopt in relation to it the clear and resolute approach of the New Zealand Court of Appeal. Applying the principles thus established to the particular facts of the present case, it would be, in my opinion, and to borrow respectfully from King CJ, farcical to give the present respondent the consideration that he claims by reason of his cooperation with the Crime Commission in the matter of disgorging his ill-gotten gains from criminal activity of the enormity previously described and discussed. In such a case as the present one, the sanction of condign punishment by way of substantial imprisonment, and the sanction of disgorgement of ill-gotten gains, are intended by the legislature to be; should be seen by all concerned to be in fact; and should be enforced resolutely by the Courts as, complementary sanctions intended to strengthen each other, rather than as alternative sanctions which a resourceful offender can juggle in a way that effectively causes the one to weaken, rather than to strengthen, the other.

The Reasoning of the Sentencing Judge

78 It is trite that any consideration of the learned primary Judge's remarks on sentence is not to be undertaken in the form of a narrow and pedantic analysis of what his Honour said: R v Johnson [1917] 17 SR(NSW) 481 at 482-484; and R v Sorlie [1925] 25 SR(NSW) 532 at 539

79 It is convenient to begin by considering a submission of the Director that there are identifiable patent errors in the remarks on sentence.

80 The first suggested patent error has to do with the absence from the remarks on sentence of any reference to the relevant detail of the respondent's criminal antecedents as I have earlier summarised them.

81 It is true that his Honour does not speak at any length of the relevant criminal antecedents of the respondent. His Honour does take note, however, of the fact that: "he has some previous convictions, and in particular, he has served a significantly long sentence for similar misconduct in the past".

82 It is true that his Honour makes no specific mention of the previous recognisances to which the respondent was subject, as previously herein described, at times when he committed further offences. I agree that it is surprising that the learned sentencing Judge makes no mention of this, not insignificant, aspect of the respondent's antecedents; and I respectfully agree that it would have been better had his Honour made such a specific mention of those antecedent matters. I would not, however, draw the inference that his Honour simply ignored them or forgot about them. It is a question whether his Honour gave proper weight to them; but that is a different question to which I shall come in due course.

83 The second suggested patent error concerns the way in which the learned sentencing Judge dealt with the respondent's pleas of guilty. The Third suggested patent error concerns the way in which his Honour dealt with the element of contrition on the part of the respondent.

84 In my opinion, the respondent's case was of such a kind that he was not entitled to any significant discount in respect of his pleas of guilty; and there was no basis in the evidence for a reasonable finding, reached on the probabilities, of genuine contrition. I need not repeat what I have said earlier herein about these two particular matters.

85 The fourth suggested patent error concerns remarks made by his Honour about the absence of any trafficking by the respondent in heroin. At p.5 of the remarks on sentence his Honour, while canvassing the relevant objective facts and their criminality, says:

"It can be said of the charges listed in the indictment that at least there are no charges relating to heroin."

86 Had that reference stood alone, I would have found it, with respect, puzzling, both as to its logic and as to its relevance. I would have hesitated, however, to make an affirmative finding that his Honour had fallen into error.

87 But the statement which I have quoted does not stand alone. Later, and in the very closing paragraphs of his remarks on sentence, his Honour returns to the point, saying:

"I said before that there is no heroin being sold in this exercise..................."

88 It seems to me to be a fair inference from these two discrete references to the matter that his Honour did in fact think that, in some way or other, it stood to the credit of the respondent in terms of the sentencing exercise with which his Honour was concerned, that the respondent was not alleged to have trafficked in heroin.

89 Any such concept is entirely erroneous. The accused manufactured and trafficked in very significant quantities of methylamphetamine. He trafficked in very significant quantities of cocaine and of cannabis leaf. It needs nothing more to mark him as a major player in the trafficking of illicit drugs. It needs nothing more, in terms of objective gravity, to expose him to the full rigour of the law in connection with the undoubted criminality of his persistent, indeed contemptuous, unlawful conduct. Had the evidence shown that the respondent had trafficked in heroin as well as in the other drugs to which I have referred, then that would have been a circumstance that required to be taken into account adversely to the respondent. It does not at all follow, and it is in my respectful opinion contrary to logic and principle alike, that the absence of any demonstrated trafficking in heroin somehow cuts down the objective criminality of the proved conduct of the respondent; or somehow strengthens his subjective case in the matter of penalty.

90 In my opinion, this particular complaint of the Director has been made good.

91 The fifth suggested patent error has to do with two references made by the learned sentencing Judge to the question of violence.

92 The first of them occurs at p.6 of the remarks on sentence, and is as follows:

"I should add in this respect that it is to the credit of the prisoner, notwithstanding the extensive surveillance of the premises, perhaps rivalling the comprehensive nature of the surveillance in the film `The Truman Show', there is no suggestion in any of the materials I have looked at of any violence threatened or used by the prisoner. Unhappily the business of illegal drugs often generates violence but I have not seen any evidence of that and he is not charged with that. At least the absence of that is a negative factor which I weigh in his favour."

93 His Honour returned to the topic of violence at p.15 of the remarks on sentence, and immediately following the later of the two references, earlier herein quoted, to the absence of any suggestion of the respondent's having trafficked in heroin. His Honour says: "..............................and I take into account an unusual feature, that in the saga of the listening devices, there is no suggestion of threats or violence being made by or on behalf of Mr. Kalache".

94 I would repeat, mutatis mutandis, in connection with his Honour's treatment of the absence of a suggestion of violence, what I have earlier said in connection with his Honour's use of the absence of any suggestion of trafficking in heroin.

95 The sixth, and final, suggested patent error concerns what is said to have been his Honour's erroneous limiting of the use to which the respondent's criminal antecedents could be put. His Honour says, at p.14 of the remarks on sentence:

"Good character is not put forward on his behalf because he has some previous convictions, and in particular, he has served a significantly long sentence for similar misconduct in the past. So he does not have the benefit, which otherwise might have been available to a person being sentenced in this court, of previous good character."

96 In my opinion, and with respect to his Honour, the submission of the Director is correct. What his Honour actually said was, with respect, undoubtedly correct as far as it went. The present case called, however, for a much more careful and discriminating consideration of the respondent's criminal antecedents, and of the inferences fairly available to be drawn from those antecedents as to the matters, all of which were of obvious significance in the fixing of proper sentences in the present case, of "...................the moral culpability of the offender in the instant case, or .................. his dangerous propensity or ....................... a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind". [Veen v The Queen [No. 2] [1988] HCA 14; (1988) 164 CLR 465 at 477 and following]. His Honour did not give the proved antecedents any such consideration.

97 Thus far, I have dealt with the appellant Director's submissions centred upon suggested patent errors. Insofar as I have accepted those submissions, I am of the opinion that, subject to the relevant discretionary factor to which I shall come later, clear cause is shown for the intervention of this Court.

In reaching this conclusion, I have kept in mind the approach described as follows by Jordan CJ in R v Geddes (1936) 36 SR (NSW) 544 at 555, 556:

"Upon what principles, then, should the Court proceed in determining whether a sentence is inadequate? I think that they are the same as are applicable when the more frequently occurring question arises of whether it is excessive. This throws one back upon a preliminary question as to the general principles upon which punishment should be meted out to offenders. In the nature of things there is no precise measure, except in the few cases in which the law prescribes one penalty and one penalty only. In all others, the judge must, of necessity, be guided by the facts proved in evidence in the particular case. The maximum penalty may, in some cases, afford some slight assistance, as providing some guide to the relative seriousness with which the offence is regarded in the community; but in many cases, and the present is one of them, it affords none. The function of the criminal law being the protection of the community from crime, the judge should impose such punishment as, having regard to all the proved circumstances of the particular case, seems, at the same time, to accord with the general moral sense of the community in relation to such a crime committed in such circumstances, and to be likely to be a sufficient deterrent both to the prisoner and to others. When the facts are such as to incline the judge to leniency, the prisoner's record may be a strong factor in inducing him to act, or not to act, upon this inclination. Considerations as broad as these are, however, of little or no value in any given case. It is obviously a class of problem in solving which it is easier to see when a wrong principle has been applied than to lay down rules for solving particular cases, and in which the only golden rule is that there is no golden rule.

The position of the judge is analogous to that of a civil jury who are called upon to award damages for a breach of contract, or a tort, in relation to goods which have no market value, and for the assessment of the value of which no generally accepted measure exists. The jury must do the best they can; and so must the judge. In applying considerations as general as these, it is necessarily not often that it can be said, with reasonable confidence, that the sentence imposed was wrong. If it appears that the wrong principle has been applied, the Court must, of necessity, treat the question of the sentence as being at large, although, even in such a case, the attitude and report of the judge, who alone has had the opportunity of coming to grips with the evidence at first hand, may be, and ordinarily would be, of great importance. If no wrong principle has been applied, the position is somewhat analogous to that which arises when, in a case in which no definite measure of damage exists, it is contended, before a Court of Appeal, that damages awarded by the jury are inadequate or excessive. It has been said that, in such a case, the rough rule is that the verdict should be set aside if the Court cannot find any reasonable proportion between the amount awarded and the loss sustained: Taff Vale Railway Company v Jenkins ( [1913] A.C. 1 at 7). The analogy is not exact; but I think that a Court of Criminal Appeal should intervene if the sentence appears to it to be out of reasonable proportion to the circumstances of the crime, having regard to the facts proved in evidence at the trial; but before the Court is satisfied that such an absence of due proportion exists, it should make the fullest allowance for the consideration that the trial judge has had an advantage denied to it, namely, that he has seen the witnesses, and, therefore, that he has had an opportunity of forming impressions which no perusal of cold print can afford. Unless some error in principle, or some such unreasonable disproportion, appears, I think that a case is not made out for revision of the sentence. When, as here, the contention is that the sentence is inadequate, I think that the Court, in the absence of some definite reason to the contrary, should assume that the trial judge was entitled to take the view of the evidence most favourable or least damaging to the prisoner, .......................... ."

98 So far as concerns the directly drug-related offences, I am of the opinion that the sentences imposed in the Court below manifest, as well as patent errors, latent error. It seems to me, with respect to the learned primary Judge, that one has only to set side by side the statutory maximum penalties, and the penalties actually imposed, to see at a glance that the sentences imposed cannot reasonably be thought proportionate to the enormity of the objective criminality of the respondent; especially when coupled with the absence of any subjective matters of such substance as would mitigate in any significant way the penalties otherwise properly to be imposed. His Honour's exercise of his relevant powers and discretions produced, in my respectful opinion, sentences so manifestly inadequate on their faces as to indicate, without more, error(s) in his Honour's process of reasoning.

99 As to the corruption offence, the position is not, in my opinion, quite so straightforward. The police officer who was corrupted by the respondent was sentenced, initially, to imprisonment for 16 months, divided between a minimum term of 12 months and an additional term of 4 months. This Court, (Newman, Studdert and Hulme JJ), has subsequently increased that penalty to one of imprisonment for 4 years, divided between a minimum term of 3 years and an additional term of 1 year. The remarks on sentence of the learned primary Judge do not say very much at all about the corruption offence; and they do not expose any particular and detailed process of reasoning by which his Honour came to select a total sentence of imprisonment for 4 years, in a case where the relevant statutory maximum penalty was one of imprisonment for 14 years.

100 The sentence of imprisonment for 4 years which was in fact imposed upon the respondent equates to the sentence imposed upon the co-offender after the intervention of this Court. It seems to me that practical justice requires and justifies that the respondent not be left, ultimately, worse off than his co-offender; and, to that extent, I would not interfere with the sentence imposed. But I think that those same requirements of practical justice ought to entail that, in respect of the corruption offence, the respondent should not be, and should be seen not to be, any better off than his co-offender. Whether that approach might be thought properly to require any, and if so what, adjustment of the minimum and additional terms set by the learned sentencing Judge, are questions which cannot be answered finally until the proper re-sentencing of this Court by the respondent in connection with the directly drug-related offences has been dealt with.

Re-sentencing the Respondent: General Considerations

101 I take the following propositions to be settled law and relevant to the present particular case:

(1) "This Court's approach to Crown appeals in general was re-stated recently in R v Alpass (Court of Criminal Appeal, 5 May, 1993, unreported) at 1-3, which may be summarised as follows:

1. A Court of Criminal Appeal which is dealing with an appeal against sentence does not simply embark upon the task of sentencing afresh, substituting its own opinion for that of the sentencing judge. An appellate court will interfere only if it is demonstrated that the sentencing judge fell into a material error of law or fact, recognising that sentencing judges have a substantial discretion in relation to the view which may be taken of the facts and circumstances of individual cases.

2. Crown appeals against sentence are relatively infrequent, because of the element of double jeopardy involved.

3. If a Crown appeal against sentence is successful, and the appellate court re-sentences the respondent, it does so in the light of all the facts and circumstances as at the time of re-sentencing.

4. When, in response to a Crown appeal, the appellate court decides to re-sentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence which is somewhat less than the sentence that it considers should have been imposed at first instance.

5. An appellate court has an over-riding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process. In this connection, the conduct of the Crown at the original sentencing proceedings may be a matter of significance. So important is the element of double jeopardy in Crown appeals that this Court will not infrequently exercise its discretion to dismiss the appeal because of the unfairness or injustice which would otherwise be occasioned to the respondent by reason of his double jeopardy; R v Holder [1983] 3 NSWLR 245 at 255-256." R. v. Warfield (1994) 34 NSWLR 200, per Hunt CJ at CL (McInerney and James JJ concurring), at 209, 210.

(2) The principles numbered 1 and 2 in the above summary given by Hunt CJ at CL can be supplemented, usefully for present purposes, by the following observations of King CJ in Reg v Osenkowski (1982) 30 SASR 212 at 212-213:

"It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform. The proper role for prosecution appeals, in my view, is (1) to enable the courts to establish and maintain adequate standards of punishment for crime (2), to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and (3) occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience."

(3) The proposition numbered 5 in the summary given by Hunt CJ at CL can be supplemented, usefully for present purposes, by the following observations of McHugh J in Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 307:

"It is well established that, in the exercise of its discretion to grant leave to appeal against a sentence, a court of criminal appeal must take into account the attitude of the Crown in the sentencing court .............. Even when it appears that the sentencing judge has erred in a fundamental way that may affect the administration of justice, fairness to the sentenced person requires that the Crown's concurrence with, or failure to object to, a proposed course of action by the sentencing judge must be weighed in the exercise of the discretion. This is particularly so when the convicted person has been given a non-custodial sentence. Private litigants who appeal against judgments and orders are not usually allowed to withdraw concessions made or concurrences expressed in the course of litigation. As a general rule, neither should the Crown be permitted to depart from a course of action that may have induced the sentencing judge to take the course that he or she did."

102 In the present particular case, it is necessary, in my opinion, to look with some care at the stance taken by the Crown Prosecutor, then appearing at the proceedings on sentence. I do not see that anything said or done by the Crown Prosecutor during the proceedings on sentence would warrant this Court's taking the view that, notwithstanding the errors, both patent and latent, previously identified, this Court should, in the exercise of its over-arching discretion, refuse to intervene at all. I am, however, of the opinion that what transpired at the sentence proceedings needs to be brought carefully to account in considering the extent to which this Court should now intervene and re-sentence the respondent.

103 Because the matter is so important in the present particular case, I shall quote in full the relevant passages of the transcript of the proceedings on sentence. The extracts are taken from pages 11 and 12 of the transcript for 6 May 1999.

"HIS HONOUR: Well, it seems to me that, subject to argument, that it's appropriate in this case to approach it on the basis that so far as counts 1 and 2 are concerned, one would start calculations in double figures and work back from there that because the whole exercise so far as Mr. Kalache was concerned pivoted on his place at Clovelly that it would be appropriate to sentence globally but concurrently for all the drug matters but that there should be cumulative sentencing for the pervert the course of justice, and what do you say about that general approach?

[CROWN PROSECUTOR] Yes, I would concur that approach. Your Honour, there's also the matter of the other indictment that's been presented this morning.

HIS HONOUR: Yes, of course, yes. What do you say about the proper approach to that? Isn't it part of the drug - I mean, shouldn't one look at that concurrently but globally with the methylamphetamine charges counts 1 and 2 in the other indictment?

[CROWN PROSECUTOR] Probably that's the way to go even though it was a completely separate setup.

HIS HONOUR: One can take a building block approach to this and, I mean, theoretically not a day went by when Mr. Kalache wasn't doing something that could individually possibly attract 20 years gaol so that we could set a world record and have a sentence of thousands of years but it wouldn't be appropriate, wouldn't be lawful, wouldn't be fair, but if I were to take an approach that has been taken in some other broadly similar cases, looking at this material globally - in one of the large cases recently the court started at 11 and deduced some use for various factors. Some sort of approach along those lines is what I have in mind subject to argument.

[CROWN PROSECUTOR] Well I wouldn't necessarily argue that the new methylamphetamine charge has to be cumulative, I think it couldn't be dealt with.

HIS HONOUR; But it's force would be, it seems to me, again subject to argument, that regarding it as part of an ongoing exercise it inhibits any significant leniency other than for the plea, the quite significant utilitarian consideration, both in avoiding a long trial and an expensive trial and long Supreme Court proceedings over money and anything else that Mr. Porter can put to me in subjective terms.

[CROWN PROSECUTOR] Well those are obviously factors that have to be built in to the sentence. Your Honour, as for the utilitarian value, it is of course significant to the court's congestion but I would remind you that there is some pretty powerful evidence that was recorded on these listening device tapes and if a person does want to go to trial and have all the material that's been gathered presented in court that's fine but there has to be some forensic purpose to it.

HIS HONOUR; Well, I mean, the forensic purpose in this case, no doubt, is that Mr. Kalache has been no doubt well advised and advised that if the matter is dragged over for 12 months it may well be that rather more worms would be exposed in the earth than otherwise might have been. I don't know, but the fact is that the court system depends on people who are guilty recognising that there is some benefit to them in pleading guilty because if everybody pleaded not guilty they would be here forever, the courts would grind to a halt.

[CROWN PROSECUTOR] Yes, and indeed he is entitled to a significant credit for his attitude but your Honour, on the point about the extent to which his agreement to surrender assets is of utilitarian value the reference was made in the Crime Commission letter to the undoubted success he had in gambling. This was, as I understand it, from sports gambling primarily and in the schedule in the Crime Commission letter which is also in the Crown material, the order that was made by the Supreme Court, there is on page 5 of that under the heading, schedule part 1, there is reference to two cheques which appear to be from sports betting successes. Now, those are identifiable in the schedule that accompanied the order but I draw you attention to the value of those, that's $177,500. Now, that's in the context of 1.2 million dollars worth of assets, so as a proportion when your Honour is assessing the value of the voluntary agreement to surrender assets I'd just ---"

104 It needs to be understood that the whole of the foregoing exchanges occurred immediately after the Crown Prosecutor had summarised for the sentencing Judge the relevant statutory maximum penalties.

105 In my opinion, the quoted exchanges between the sentencing Judge and the Crown Prosecutor raise three points, each of which is of significant practical importance in any re-sentencing by this Court of the respondent.

106 First, neither the sentencing Judge nor the Crown Prosecutor appears to have adverted to the proposition which is stated as follows in the joint judgment of McHugh, Hayne and Callinan JJ in Pearce v The Queen (1998) 194 CLR 610 at 624:

"A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality."

107 Appended to the foregoing statement of principle is a foot-note referring to an earlier decision of the High Court of Australia: Mill v The Queen (1988) 166 CLR 59. The Bench which decided Mill, (Wilson, Dean, Dawson, Toohey, Gaudron JJ), published a joint judgment containing the following statements of principle:

"The totality principle is a recognised principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd Ed. (1979), pp 56-57, as follows (omitting references):

`The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is `just and appropriate'. The principle has been stated many times in various forms: `when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong [`];'when...................cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.' `

See also Ruby, Sentencing, 3rd ed. (1987), pp.38-41. Where the principle falls to be applied to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable the former is to be preferred." 166 CLR, 62, 63

108 Secondly, the Crown Prosecutor concurred, at the very inception of the exchanges earlier herein quoted, with the approach foreshadowed by the sentencing Judge and entailing that "one would start calculations in double figures and work back from there". When the learned sentencing Judge indicated, very shortly thereafter, that what his Honour had in mind as a starting point was a sentence in the order of imprisonment for 11 years, the Crown Prosecutor did not in terms dispute the soundness, at least as a matter of broad general principle, of such an approach.

109 This Court has not heard from the Crown Prosecutor who appeared at the proceedings on sentence. It would be, therefore, unfair to make simplistic criticisms particular and personal to her. I do not intend to do the contrary in what follows.

110 In my opinion, and with all proper respect to the learned sentencing Judge, His Honour's foreshadowed approach was wrong in principle. The most obvious defect of the proposed approach is, in my respectful opinion, that it cuts across the fundamental principles of sentencing that are established by the decisions in Mill and in Pearce. Had the approach which is required by those decisions been taken in the present case, then there could have been no taking of some such sentence as one of imprisonment for 11 years as a bare starting point for the formulation of sentences proper to criminal conduct of the enormity of the conduct involved in the case of the present respondent. An approach which had taken as its starting point the assessment of individual sentences appropriate individually to each of the offences which were being punished, must have thrown into stark relief the proposition that three of the six directly drug-related offences attracted, each, a statutory maximum sentence of imprisonment for life. As to the first of those three very serious matters, the available evidence suggested that the amount involved in the offence was in the order of 7 kilograms, the statutory minimum apt to attract a life sentence being 1 kilogram. As to the second of those matters, the evidence established a trafficking in amounts totalling something in the order of 20 kilograms; when the statutory minimum apt to attract a life sentence was 1 kilogram. In the third of those matters, it was not possible to say on the evidence exactly how much was involved in the offence; but the respondent's plea acknowledged that the amount was not less than 1 kilogram which was, once again, the statutory minimum apt to attract a sentence of life imprisonment.

111 Had the sentencing Judge been taken to the decisions in Mill and in Pearce, and invited to look, initially, at each offence individually, and to consider individually an appropriate sentence for that particular offence, then, in my respectful view, it must have become at once apparent to his Honour that, at least as to the second of the three offences earlier described, - that is to say, the one involving a trafficking in quantities in the order of 20 kilograms -, a sentence of life imprisonment was, in a real sense, an available option in respect of that particular offence. Whatever refined debating points can be made about whether a matter is, or is not, within the "worst case" category, it surely could not be doubted that an admitted offence which involved trafficking in illicit drugs to an extent 20 times greater than the minimum extent necessary to attract a penalty of life imprisonment, must entail, at the very least, the giving of serious consideration to the imposition of that statutory maximum penalty. A failure, - a fortiori an idiosyncratic refusal -, to give at least real and reasoned consideration to the foregoing proposition, entails, in practical terms, that the statutory maximum prescribed by Parliament is simply an empty statutory formality.

112 In addition, the Crown Prosecutor accepted in terms that the respondent "is entitled to a significant credit for his attitude" in the matter of his pleas of guilty. For reasons which I have earlier stated, I am of the opinion that this was, in the circumstances of the present particular case, a wholly inappropriate concession.

113 It is not to the point to regret that the deficiencies of which I have been speaking occurred. What is to the point is that the deficiencies did in fact occur; that they occurred without any attempt by the Crown Prosecutor to draw the attention of the sentencing Judge to the potential errors; and that, in any re-sentencing of the respondent, it is the Crown and not the respondent which should in fairness bear the practical consequences of those uncorrected defects.

The Re-sentencing of the Respondent: the Six Directly Drug-Related Offences

114 In the following table:

Column 1 contains a reference to the number of the particular count charged against the respondent. The numbering follows that used in paragraph 2 of this judgment.

Column 2 sets out the statutory minimum quantity of the drug in question in the particular count, being the threshold amount that attracts liability to the statutory maximum penalty for the particular offence.

Column 3 sets out the quantity of the particular prohibited drug that was established by the evidence in connection with the particular count.

Column 4 sets out the statutory maximum penalty.

Column 5 sets out the penalty in fact imposed.

[ IMAGE ]

115 In the next table, I have compared the statutory maximum penalties in terms of imprisonment with what I consider to have been a sentence reasonable to have been imposed at first instance; looking in that connection at each count individually and in the way required by the decisions in Mill and in Pearce; and assuming the absence of error in the sentencing process. In the table:

Column 1 sets out the number of the count, following once again the numbering in paragraph 2 of this judgment.

Column 2 sets out the statutory maximum penalty in terms of imprisonment.

Column 3 sets out the sentence that I would have regarded as a proper sentence at first instance.

[ IMAGE ]

116 On such an approach, it would have been necessary to have considered, next, whether these sentences should be made, in whole or in part, concurrent. In my opinion, it would have accorded with the principles explained in the decisions in Mill and in Pearce to have imposed in respect of count 2 the most severe of the sentences, - that count being, in my opinion, the most serious of the six drug-related charges -, and then to have imposed concurrent fixed terms in respect of each of the other five matters.

117 On that approach, it would then have been necessary to have considered the proper application of the principle of totality as explained in the passage, earlier herein cited, from the decision in Mill.

118 In that connection, I would myself have maintained the suggested sentence of life imprisonment in respect of count 2. Looking at the overall criminality of the six matters under consideration; and taking into account the virtual absence, as is in my opinion, the fact, of subjective matters of any real substance; I have seen no reasonable basis upon which there might have been imposed upon this respondent in respect of count 2, a sentence less than the statutory maximum sentence. I am strengthened in that view by the recent decision of this Court (Sully, Ireland and Hidden JJ) in Reg v Wing Pieu Chung (unreported: CCA (NSW) 22 October 1999).

119 I would have thought, therefore, that sentences properly structured ought to have been imposed at first instance somewhat in the following form, each of the suggested sentences being dated so as to make it concurrent with each of the other sentences.

[ IMAGE ]

120 Given the view that sentences of the order hitherto suggested would have been the appropriate sentences to have been passed at first instance, it becomes necessary to consider how such sentences should now be adjusted to take account of the constraints normally attending a Crown appeal against sentence.

121 In the present case, I think that it is fair to accept that there is, in the relevant legal sense, a real element of "double jeopardy". The respondent has found himself, through no fault of his own, sentenced to terms of imprisonment of, as I respectfully think, obvious, and obviously unjustifiable, leniency. The action which I consider should now be taken by this Court entails that the respondent, again through no fault of his own, will find himself burdened with sharply increased sentences. In such circumstances, I do not think that it would be correct, or indeed proper, in principle simply to ignore the need to make some adjustment, however conservative, in sentences that might be thought, otherwise, appropriate to be imposed by this Court.

122 Allowance must then be made for the fact that the Crown must bear, for the reasons earlier herein explained, the practical consequences of its not having attempted to deflect the sentencing Judge from making errors which his Honour had clearly foreshadowed.

123 To that end, I would favour orders which had the practical effect of imposing concurrent sentences as follows:

· In respect of Count 2: a sentence of imprisonment for 23 years, comprising a minimum term of 20 years and an additional term of 3 years.

· In respect of Count 1 a sentence of imprisonment for 18 years imposed as a fixed term.

· In respect of Count 6, a sentence of imprisonment for 14 years imposed as a fixed term.

· In respect of Count 3, a sentence of imprisonment for 12 years imposed as a fixed term

· In respect of Count 4, a sentence of imprisonment for 12 years imposed as a fixed term

· In respect of Count 5, a sentence of imprisonment for 5 years imposed as a fixed term.

124 I would date all these sentences so as to give them a common starting date.

The Re-sentencing of the Respondent: the Corruption Charge

125 As earlier noted, the respondent was sentenced to imprisonment for 4 years in connection with an offence attracting a statutory maximum penalty, upon conviction, of imprisonment for 14 years.

126 The learned sentencing Judge accumulated this sentence upon the sentences imposed by his Honour in respect of the six directly drug-related charges. In my respectful opinion, this was on the given facts of the present case a correct approach.

127 For reasons earlier herein explained, I would not disturb on this appeal the sentence of imprisonment for 4 years. I am, however, of the opinion that the apportionment upon which his Honour settled was inappropriate to the gravity of the offence. In my opinion, the head sentence of 4 years ought to have been apportioned between a minimum term of 2-1/2 years and an additional term of 1-1/2 years. Bearing in mind the constraints attending a Crown appeal, I am of the opinion that justice would be done if this Court intervened to the extent of readjusting the minimum and additional terms so as to divide the head sentence of 4 years equally between the minimum and additional terms.

128 The practical effect of such an approach would entail that the respondent would become liable to a head sentence on count 2 of 23 years, divided between a minimum term of 20 years and an additional term of 3 years; and an accumulated sentence of 4 years divided between a minimum term of 2 years and an additional term of 2 years.

129 In order to give practical expression to such an intended result, and, at the same time, to comply with the requirements of s.9 of the Sentencing Act 1989 (NSW), I would favour imposing, ultimately, in respect of the corruption count a sentence of imprisonment for a fixed term of 2 years, dating that sentence so that it began and expired before the commencement of the proposed sentence on count 2. The latter sentence would then be dated so as to commence immediately upon the expiration of the 2 year fixed term.

130 Such an approach would entail that the respondent will be called upon to serve aggregate sentences of 25 years' imprisonment, of which 22 years will be served in fact, the remaining 3 years being designated as an additional term in the sense contemplated by s.5 of the Sentencing Act 1989 (NSW).

Orders

131 I favour the following orders:

1. That the Crown appeals be allowed.

2. That the sentences passed upon the respondent on 6 May 1999 in the District Court at Sydney be quashed.

3. That the respondent be re-sentenced as follows, employing the same numbering of counts as is employed in paragraph 2 of this judgment:

Count 7 -: imprisonment for a fixed term of 2 years commencing on 30 September 1997 and expiring on 29 September 1999.

Count 2: imprisonment for 23 years to comprise a minimum term of 20 years and an additional term of 3 years. The minimum term is to commence on 30 September 1999 and to expire on 29 September 2019. The additional term is to commence on 30 September 2019.

Count 1: imprisonment for a fixed term of 18 years to commence on 30 September 1999.

Count 6: imprisonment for a fixed term of 14 years to commence on 30 September 1999.

Count 3: imprisonment for a fixed term of 12 years to commence on 30 September 1999.

Count 4: imprisonment for a fixed term of 12 years to commence on 30 September 1999.

Count 5: imprisonment for a fixed term of 5 years to commence on 30 September 1999.

132 I am conscious of a seeming disproportion between an effective minimum term of 22 years and an additional term of 3 years. In the present case I consider that such a relationship of minimum and additional terms is justified:

(a) by the manifest, preponderating need for exemplary punishment, and

(b) by the absence of any evidence demonstrating that the respondent has a need for a longer additional term in the interest of his rehabilitation from a life of crime.

IN THE COURT OF

CRIMINAL APPEAL

No: 60238/99

SULLY J

HULME J

HIDDEN J

4 February 2000

REGINA -v-Leslie George KALACHE

JUDGMENT

133 HULME J: On 6 May 1999, Judge Woods QC sentenced the Respondent to this Crown appeal in respect of a number of charges to which he had pleaded guilty. In summary, the charges were:-

1. That between 1 December 1995 and 31 January 1997 he knowingly took part in the manufacture of a prohibited drug, namely methylamphetamine, being an amount not less than the large commercial quantity for such drug.

2. That between 23 May 1997 and 11 August 1997 he knowingly took part in the manufacture of a prohibited drug, namely methylamphetamine, in an amount not less than the large commercial quantity applicable to that drug.

3. That between 11 January 1997 and 30 September 1997 he knowingly took part in the supply of a prohibited drug, namely methylamphetamine, in an amount not less than the large commercial quantity applicable to that drug.

4. That between 1 January 1997 and 30 September 1997 he knowingly took part in the supply of a prohibited drug, namely cocaine, in an amount not less than the commercial quantity applicable to that drug.

5. That between 1 January 1997 and 30 September 1997 he knowingly took part in the supply of a prohibited drug, namely 3,4-Methylenedioxymethylamphetamine, also known as ecstasy, in an amount not less than the commercial quantity applicable to that drug.

6. That between 1 January 1997 and 30 September 1997 he knowingly took part in the supply of a prohibited drug, namely cannabis leaf.

7. Between 2 July and 6 December 1997 he did an act, namely to incite members of the New South Wales Police to tamper with items seized by the New South Wales Police ... on 2 July 1997, with intent thereby to pervert the course of justice.

134 The charges I have numbered 2-6 were contained in one indictment. The charge I have numbered 1 (because it was earlier) was contained in a second indictment and the charge numbered 7 was contained in a third indictment.

135 The sentencing judge was asked to take into account 2 further matters, one under s527C of the Crimes Act of an offence of having goods in custody and one of possession of a prohibited drug. These items had been seized during a search of the respondent's home on 30 September 1997. The items the subject of the first charge were a quantity of clothing, a watch, 4 pens and $57,652. The drug the subject of the second was 0.7 grams of methyldioxymethylamphetamine (ecstasy), in the form of 2 tablets. His Honour said that he would take these matters into account on the second of the above charges.

136 In respect of the first six counts, the Respondent was sentenced to the following concurrent fixed terms of imprisonment, commencing on 30 September 1997, the date of the Respondent's arrest:-

First charge 5 years.

Second charge 6 years.

Third charge 6 years.

Fourth charge 3 years.

Fifth charge 3 years.

Sixth charge 3 years.

137 On the seventh charge the Respondent was sentenced to penal servitude for a minimum term of 1 year and 6 months from 30 September 2003 and an additional term of 2 years and 6 months. The effective overall sentence thus comprised a minimum term of 7½ years and an additional term of 2½ years. As will appear below, something over 2 years of the minimum term was concurrent with a sentence being served for breach of parole.

138 On 12 May 1999 the Director of Public Prosecutions signed a Notice of Appeal contending that the sentences were inadequate. Notice was served on the Respondent on 16 May 1999. Of course, mere inadequacy would not justify the interference of this Court and the appeal proceeded on the basis that the sentences were manifestly so.

139 To appreciate the basis of the appeal, it is necessary to refer briefly to some of the evidence which was before the sentencing judge. In large part the evidence was put before His Honour without objection in the form of Statements of Facts prepared by police officers. There was no cross-examination or challenge to this information and no evidence other than a letter from the Crime Commission with accompanying material and details of a Parole Order adduced on behalf of the Respondent. The Respondent did not give evidence.

140 There is no clear statement as to the quantity of drug involved in the first charge beyond that implicit in the terms of the charge itself. It may be that the quantity could be inferred from the quantities of chemicals, and in particular hydriotic acid, which were acquired in connection with the offence, and evidence relating to the third offence to the effect that about 3.5kgs of partially dried methylamphetamine was produced using 8kgs of pseudoephedrine, 8 litres of hydriodic acid and 1kg of red phosphorous. A comparison of these quantities with the hydriotic acid purchased apparently in connection with the first offence suggests that the quantity of methylamphetamine involved in that offence must have been very substantially in excess of the minimum large commercial quantity. However, there seems to have been no debate before the sentencing judge on this topic. His Honour made no findings and this Court should proceed on the basis that the quantity involved in the offence the subject of the first charge was the minimum amount which falls within the range of a "large commercial quantity".

141 It is clear from the Respondent's involvement in the obtaining or arranging for the supply of chemicals and in his other activities encompassed by the first charge that he was a, if not the, principal in the activities the subject of that charge. These encompassed at least one "cook" in which methylamphetamine was manufactured at Wollombi, the cleaning up in about August 1996 of a further illicit laboratory site at premises near Clovelly and, later in the year with an accomplice, the acquisition of approximately another 100 litres of hydriodic acid at $500 per litre.

142 Information relating to the other charges came from a large police operation which commenced in December 1996 into the activities of the Respondent and others. As His Honour found the Respondent "was the principal... He was the leader of an extensive and well organised network of persons involved in the manufacture of methylamphetamine and the distribution of large commercial quantities of prohibited drugs including methylamphetamine, cocaine, ecstasy and cannabis." His home was identified by the police as the focal point of the network's activities and subjected to intense surveillance, including by video camera and authorised listening devices. Over 1000 conversations were recorded by means of the listening devices at his premises. Generally, dealings were observed to occur on a daily basis, Monday to Friday between about 10am and 7pm. Between 5 and 20 persons per day visited the Respondent's premises in connection with his illicit activities.

143 In large part the effect of the evidence gathered by the police was summarised in the statements which were tendered before Judge Woods although transcripts of some of the telephone conversations or extracts therefrom were included in that material. These bear out much of the information contained within the summaries, although it is apparent that the quantities referred to must have been derived from the totality of the surveillance evidence.

144 The evidence relating to the second charge reveals the Respondent's participation in the planning and acquisition of chemicals for the production of methylamphetamine and that he came into possession of some 3.5kgs of partially dried methylamphetamine produced on or about 27 June 1997. Most or all of this was seized by police from a person with custody of it on 2 July 1997.

145 On 9 July the Respondent was detected participating in plans for a second "cook". This occurred on 11 August 1997. The police interrupted the activity but by the time they did so, another 3.5kgs of pure methylamphetamine had been produced.

146 Among the conversations of the Respondent relevant to this charge which were overheard was one in which he stated that he had arranged the acquisition of $70,000 of tablets to be used as a source of one of the chemicals needed in the course of manufacture and one in which he stated he intended to sell the product at $45,000 a pound (pure) and one in which the profit anticipated by selling in bulk was expected to be $70,000 per kilogram. On 2 August 1997, the Respondent was also overheard discussing with a co-offender that they should each net about $160,000 from the forthcoming "cook".

147 The third charge reflects an accumulation of the Respondent's supply of methylamphetamine. It was estimated that within the period covered by the charge, he supplied in excess of 20kgs of that drug, worth at least $800,000 at "bulk" prices and $1.5M at street level. The price per pound varied between $35,000-$50,000 for a high purity pound to between $7,500 and $10,000 per pound of street-level quality drug. The Respondent rarely dealt in amounts of less than 1 ounce (28.3g) and regularly supplied quantities of 1 pound (454gms).

148 So far as the fourth charge is concerned, from an analysis of the listening device material investigators estimate that during the course of the investigation, the Respondent supplied or had in his possession for the purposes of supply, in excess of 5 kgs of cocaine with an estimated street value of $1M. The extracts from the listening device material which were before Judge Woods make it appear that the Respondent was able to supply whatever amount of the drugs, the subject of the current charge, which was sought from him. At one stage he was selling or at least contemplating the sale of 10 ounces of cocaine every few days to one customer, buying the product for $3,500 an ounce and selling it for $4,000 per ounce. Overall, the Respondent's selling price varied between $3,800 and $4,500 per ounce. At the time of his arrest on 30 September 1997 some 360 gms of cocaine was seized during a search of his premises.

149 The events, the subject of the fifth charge, seem to have been concentrated in May and June 1997. It was estimated that during the course of the investigation the Respondent supplied, or had in his possession for the purpose of supply, at least 4,000 ecstasy tablets, each weighing about 0.2gm. These were said to have a street value of some $160,000.

150 The price at which the Respondent dealt in the tablets varied. In a conversation of 24 May 1997 for example, the price being discussed was $22 per tablet. In another conversation on 27 May he seems to have purchased 250 tablets for $28 each.

151 There was at least one incidence of supply of 650 tablets and on one occasion the Respondent indicated that if 1,000 were wanted, he could provide them. On another occasion he indicated to a person from whom he was contemplating obtaining some tablets that he could supply some 2,000-3,000 per week.

152 So far as the sixth charge is concerned, the statement of facts asserts that the Respondent's supply of cannabis leaf was not to the extent or as frequent as in the case of the other drugs. Quantities supplied vary between 1 ounce and several pounds at a time. Prices varied from about $200 to $250 per ounce and from $3,500 to $4,800 per pound for "hydro" (presumably cannabis grown hydroponically). "Bricks" of other type cannabis leaf seem to have cost from about $3,700 to $4,500 per kilogram. It was estimated that during the period of the investigation, the Respondent supplied cannabis leaf to a street value of approximately $200,000.

153 The seventh charge arose in consequence of the Respondent inducing a Detective Sergeant Irwin, a neighbour of the Respondent, to take steps to ensure that the Respondent's fingerprints were not on bags of the amphetamine which the police had seized on 2 July 1997. The steps included speaking to another police officer, Mr McDonald, who in turn made representations to one of the officers involved in the investigation concerning the seized drugs. That officer reported the approach.

154 It is unnecessary to detail all the contacts and discussions, whether or not involving the Respondent directly, which ensued. It is sufficient to record that in the course of the transaction, Mr McDonald paid the investigating officer $3,300 and, although the $3,300 may have been included in it, the Respondent paid at least $8,000 to Detective Sergeant Irwin.

155 Detectives Irwin and McDonald were sentenced by His Honour prior to dealing with the Respondent. This Court has previously allowed a Crown appeal against the sentence imposed on Detective Irwin and to this further reference will be made a little later.

156 The Respondent was born on 29 September 1967. At the time of the offences, the subject of the charges, the Respondent already had a criminal record. Putting aside offences of a relatively minor nature, this record included offences of:

possession of an unlicensed pistol, supplying cannabis and supplying heroin, for which offences he was sentenced in September 1987 to penal servitude or imprisonment for concurrent periods of 1, 4 and 5 years respectively;

a third offence of supplying a prohibited drug, for which in December 1987 he was sentenced to a further concurrent term of 3 years imprisonment; and

three further offences of supplying a prohibited drug in respect of which, in November 1993, sentence was deferred upon the Respondent entering into one recognisance for 3 years and 2 recognisances for 4 years to be of good behaviour.

157 On 30 September 1997, the Respondent was sentenced to the balance of the term, viz. 2 years, 1 month and 24 days for breach of parole granted in relation to the sentences imposed in September and December 1987. This period expired on 22 November 1999. Nevertheless, Judge Woods took the view that the Respondent's incarceration since 30 September 1997 was due to the offences with which this court is concerned. I doubt that view is correct. However, the Crown did not challenge it and I am content to proceed on the basis adopted by His Honour.

158 Apart from what it submitted was the manifest inadequacy in the sentences imposed, the Crown submitted that Judge Woods had erred in a number of findings he had made and took into account matters which were irrelevant.

159 One such finding was that the Respondent exhibited contrition. His Honour inferred this from the Respondent's plea of guilty and from the events, the subject of the letter from the Crime Commission. When one has regard to the strength of the Crown case, the extent of the possible benefit to Mr Kalache of a guilty plea, and to the fact that he gave no evidence on the topic, the plea provides no basis whatsoever for His Honour's conclusion. As Dixon CJ said in Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470 at 477, "an inference may be made only as the most probable deduction from the established facts, (and) it must at least be a deduction which may reasonably be drawn from them."

160 Elementary rules of logic and legal reasoning do not disappear just because the particular proceedings require judges to impose sentences. The matters to which I have referred make it impossible to conclude that contrition is more probable than naked self interest when the Respondent was facing a lengthy prison term and had nothing, or virtually nothing, else operating in his favour. Furthermore, although I do not need to rely on it, the length and extent of the course of criminality pursued by the Respondent for a decade or so prior to his arrest means that the burden of showing contrition could not be an easy one to satisfy. The burden was made no easier by the fact that the Respondent elected not to inform on any of the numerous persons with whom he had dealt.

161 Nor do the matters referred to in the letter and accompanying documents from the Crime Commission assist the Respondent in this regard. Those documents indicate that the Respondent provided certain information to the Commission which would seem to have made its task of identification and seizure of assets easier. However it is also clear that the Respondent sought and in fact obtained benefits in the course of his dealings with the Commission. The letter records that the Respondent had asked that the family home occupied by his de facto wife and son and the family car be excluded from a restraining order and indicated that, if his de-facto wife and his son were provided for, and a reasonable amount made available for his legal expenses, he was prepared to consent to the forfeiture of his and some other assets. A copy of the Court order with the letter makes it clear that the property excluded included a car, rings and one precious stone of the Respondent together with a significant quantity of jewellery, a motor vehicle, proceeds of a $65,000 loan and certain real estate described as belonging to his de facto wife.

162 Thus, it is clear that there were appreciable benefits derived by the Respondent from the arrangements made with the Crime Commission. Whether these were more than he was strictly entitled to, and whether the agreement was but a commercial settlement is impossible to judge but certainly given the limited amount of information there was, particularly as to the Respondent's motivation, it is impossible to conclude that, more probably than not, his actions vis-a-vis the Commission were motivated by, or an indication of, contrition. That finding was wholly unjustified.

163 As to the extent to which, otherwise, matters arising under the Criminal Assets Recovery Act 1990 may or should be taken into account in favour of a person in the Respondent's situation, I agree with Sully J.

164 Another matter to which exception was taken was the approach the sentencing judge took to the Respondent's criminal record. I have summarised that record above. All Judge Woods said was:-

"Good character is not put forward on his behalf because he has some previous convictions, and in particular he has served a significantly long sentence for similar misconduct in the past. So he does not have the benefit, which would otherwise might have been available to a person being sentenced in this Court, of previous good character."

165 His Honour did not refer to the fact that the Respondent was subject to recognisances at the time of the offences for which he was being sentenced or to the fact that, in light of his record, those offences demonstrated "a continuing attitude of disobedience of the law" - Veen v R [1988] HCA 14; (1987-1988) 164 CLR 465 at 477. In the particular circumstances of this case - in particular the magnitude of the sentences imposed - the absence of any such reference lead me to the view that His Honour had no proper regard to these matters.

166 Other findings or remarks of the sentencing judge's remarks which were criticised by the Crown included the following:-

"I should add in this respect that it is to the credit of the prisoner, notwithstanding the extensive surveillance of the premises... there is no suggestion in any of the materials I have looked at of any violence threatened or used by the Prisoner. Unhappily the business of illegal drugs often generates violence but I have not seen any evidence of that and he is not charged with that. At least the absence of that is a negative factor which I weigh in his favour."

167 The Respondent was not charged with any offence of violence. Had there been suggestions to it brought home to the Respondent but falling short of evidence of the commission of an offence - R v De Simoni [1981] HCA 31; (1980-1981) 147 CLR 383 - his attitude in this regard may have been an aggravating factor. However the absence of any evidence of violence could not go to mitigate the criminality involved in the offences with which he was charged.

168 Perhaps exhibiting similar error were statements made by Judge Woods to the effect "it can be said of the charges listed in the indictment that at least there are no charges relating to heroin" and "I said before that there is no heroin being sold in this exercise and I take that into account". The authorities do distinguish between various drugs in their seriousness, heroin being (one of) the worst - see e.g. R v Binahendali [1999] NSW CCA 409 at [14,15], R v Carapella (1986) 41 SASR 312 and R v Bellissimo (1996) 84 A Crim R 465. If that distinction and characterisation are justified, it may be relevant to point out in a particular case that the drug involved was not heroin. On the other hand, one of the charges against the Respondent did involve cocaine and this Court has said on a number of occasions that heroin and cocaine are to be regarded as equals for sentencing purposes - see e.g. Ferrer-Esis (1991) 55 A Crim R 231, Bernier (1998) 102 A Crim R 44, and Selim (unreported, CCA, 19 May 1998). See also R v Periera (1992) 66 ALJR 791. Judge Woods seems to have ignored these decisions. Furthermore, the Respondent's offending was to be judged at least principally and in very large degree by the statutory provisions relating to the drugs, the subject of the charges against him - see R v Peel (1971) 1 NSWLR 247 and the other cases cited below. There was clearly some error displayed by His Honour's reference to heroin but, in light of the other conclusions at which I have arrived, I do not find it necessary to come to a concluded view whether this affected the totality of his decisions.

169 Although the Crown did not rely on it, and accordingly I shall not, it may not be inappropriate to record that His Honour seems to have also had regard to another matter, equally as irrelevant as his reference to violence, viz. alcohol. After observing that of the drugs manufactured or supplied by the Respondent, methylamphetamine was the most destructive and dangerous, His Honour continued:-

"It needs always to be borne in mind, of course, that the most socially damaging drug which our community knows and uses , is alcohol; not a day goes by in this community when many people are not damaged by alcohol. Alcohol is a drug which promotes violence but it is a lawful drug and the community more or less manages to cope with it. The drugs involved in the present case are illegal. It is not my function to dilate upon the policies of the law. The fact is that the Parliament of this State, which makes the laws, decrees very severe penalties for all of the illegal drugs which have been referred to in these indictments."

170 It is not apparent what, if any, significance in terms of his ultimate conclusion His Honour attached to these views although his opening words in the passage quoted "It needs always to be borne in mind" suggest there must have been some. Certainly the sentences imposed do nothing to dispel this inference. In truth the Law's attitude to alcohol and its effect on the community was utterly irrelevant to His Honour's task.

171 However, the other errors to which I have referred demonstrate that the sentencing of the Respondent miscarried, even if the sentences imposed are not manifestly inadequate on their face. To that topic and some fundamental principles of sentencing I now turn.

172 The commencing point in any consideration of an appropriate sentence for a statutory offence is the statute itself. "In determining the proper penalty... the fundamental consideration is rather the degree by which, having regard to the maximum penalties provided by the Act in question, the Respondent's conduct would offend against the legislative objective of suppressing the illicit traffic in the prohibited drug" - R v Peel (1971) 1 NSWLR 247 at 262. See also R v Laurentiu and Becheru (1992) 63 A Crim R 402, R v Schaal (unreported, Wood J, 8 September 1989), and R v Bimahendali (supra).

173 It is also an elementary principle of sentencing that a maximum penalty laid down by the legislature "is intended for cases falling within the worst category of cases for which the penalty is prescribed: Ibbs v R [1987] HCA 46; (1987) 163 CLR 447" - Veen v R [No 2] [1988] HCA 14; (1988) 164 CLR 465 at 478. Nevertheless, as the majority of the High Court in the latter case went on to say, "That does not mean that a lesser penalty must be imposed if it be possible to envisage a worst case: ingenuity can always conjure a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognisably outside the worst category".

174 The Drug (Misuse and Trafficking) Act 1985 which proscribes the manufacture and supply of the drugs the subject of the charges against the respondent provides a range of penalties depending on the type and quantity of drug involved. So far as is relevant for present purposes, these are:-

[ IMAGE ]

175 The seventh of the offences with which the Respondent was charged arose was under Section 319 of the Crimes Act 1900 and carried a maximum penalty of 14 years penal servitude.

176 When one has regard to the magnitude of the Respondent's offending and the penalties prescribed for the offences with which he was charged, the manifest inadequacy of the sentences imposed on him is clear. To impose an effective minimum term of 6 years imprisonment on a principal offender who has committed, in my view six, but beyond argument five, very serious offences under the Drug (Misuse and Trafficking) Act is to make a mockery of what Parliament has provided.

177 The graduated scale of penalties contained in the Drug (Misuse and Trafficking) Act has implications. Below the categories to which I have referred is one entitled "Small Quantity". Expressly, as one moves from a quantity which is "small" to one which is "indictable", to one which is "commercial" and then to a quantity which answers the description "large commercial" the Act provides for higher penalties. Parliament has made it clear that, insofar as the gravity of an offence is to be measured by the quantity involved, the manufacture or supply of, for example, a large commercial quantity is more heinous than such dealing in a quantity not answering that description. It is an inevitable inference that Parliament also intended that, all other things being equal, within a category the higher the quantity, the greater should be the penalty. The provisions of the Drugs (Misuse and Trafficking) Act, and other statutes making possession and supply of drugs illegal, have been enacted in the belief that the use of the drugs is harmful and manufacturing and supplying them contributes to this harm. Other things being equal, doubling the quantity is calculated to double the illegal profits for those engaged in such enterprises and, if not to double, at least substantially increase the harm. When an offender knows the quantity in which he is participating, a fortiori when his earnings or profit are proportional to or vary with that quantity, considerable weight must be given to it in assessing his criminality.

178 The application of the remarks of the High Court in Ibbs and Veen to which I have referred, in light of the graduated scale of penalties, means also that cases of involving large commercial quantities should be considered against the benchmarks laid down for lesser quantities. This was the view of the Victorian Court of Criminal Appeal in Perrier and Richardson [1991] VicRp 38; (1990) 59 A Crim R 164 at 168-9 and 174. See also R v Bimahendali (supra) at [24] Of course, I do not suggest that quantity is the only consideration. Innumerable authorities indicate it is not and that matters such as the role of an offender, the degree of premeditation and planning, whether he is a drug addict and other subjective circumstances have to be brought into account.

179 It does not follow of course that because this Court regards a sentence imposed as manifestly inadequate or otherwise affected by error that that Court allows a Crown appeal. In this case it was submitted that the Court should not interfere and there are factors in the way the Crown conducted the proceedings before Judge Woods which argue in the Respondent's favour. However because of the extent to which the sentences imposed were inadequate, in this case the Court should allow the appeal. Furthermore, because of the extent of the Respondent's criminality, it is appropriate also to depart from usual practice and indicate the minimum sentences which should otherwise have been imposed at first instance before turning to consider whether any, and if so, what significance should be afforded to the Respondent's plea and to the conduct of the Crown Prosecutor and any other matters which impact on the exercise of this Court's discretion in the case of a Crown appeal.

180 Separate consideration must be given to each offence - Pearce v R (1998) 194 CLR 610 at 624 - although it is appropriate to take into account the Respondent's prior record as indicating that each offence is not "an uncharacteristic aberration" but a manifestation of "a continuing attitude of disobedience of the law" - Veen v R (No. 2) [1988] HCA 14; (1987-1988) 164 CLR 465 at 477. As the High Court went on to say:-

"In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind."

181 Given the Respondent's prior record, it is not necessary to have regard to the other offences charged when considering each offence individually, but the duration and multiplicity of the offences with which the Respondent stood for sentence also demonstrate "a continuing attitude of disobedience of the law".

182 Putting aside for the moment the question of quantity, in the case of the first six offences the Respondent's role, the fact that his activity seems to have been inspired simply by greed - there was no suggestion the Respondent was himself a drug addict - and record placed him in the worst category of offender. Indeed but for his plea of guilty, there is nothing whatsoever which can be said in his favour. All of these offences occurred while the Respondent was subject to two recognisances. Much of his activity the subject of the first charge occurred while the Respondent was subject to three. A long line of authority has made it clear that the commission of offences while on conditional liberty is a significantly aggravating factor. See e.g. R v Richards (1981) 2 NSWLR 464 and R v Redman (1990) 47 A Crim R 181.

183 Having regard to the matters referred to in the immediately preceding paragraph and the success of the manufacturing operation, it is only the matter of quantity which precludes the offence the subject of the first charge being regarded as in a worst category of offence involving a large commercial quantity of methylamphetamine. Without any qualification the offence was no less heinous than the worst case of the manufacture or supply of a commercial quantity of the drug. Putting aside for the moment his plea, if ever there was an occasion for the imposition of that statutory maximum, the Respondent's conviction in respect of the first charge was it. The total term of imprisonment imposed in respect of this offence considered in isolation should have been 20 years. For a worst offence in the "commercial" range, an offender who also fell well into a "worst" category and who had no mitigating features, any lesser penalty would be to defy the expressed will of Parliament.

184 For the same reasons, the second charge also required a sentence no less than 20 years. However the quantity involved of 7 kilograms meant that the sentence should have been substantially higher. The sentence should have been at least 25 years.

185 For the same reasons the third charge also required a sentence of not less, and in fact greater, than 20 years. However the quantity of 20 kilograms - 20 times that at the bottom of the large commercial range and 20 times that for which Parliament has indicated that 20 years is appropriate in a worst case - leads me to the view that the only proper sentence on this Respondent was one of imprisonment for life - and this notwithstanding the magnitude of such a sentence - see R v Chung [1999] NSWCCA 330. Again I make it clear that in reaching this conclusion I have not had regard to the other offences for which the Respondent stood to be sentenced by Judge Woods. However, if, as I think, regard may also be had to the overall enterprise in which the Respondent was engaged at the time of committing the offence the subject of the third charge as indicating "a continuing attitude of disobedience of the law", his "moral culpability... in the instant case, or... his dangerous propensity" - see Veen v R (No 2) (at 477) - the appropriateness of a sentence of life imprisonment is further demonstrated.

186 The unchallenged estimate that the quantity of cocaine was in excess of 5 kilograms means that the charge involving this drug could have referred to a large commercial quantity. However, it was not so framed and the matter must be dealt with as charged. Nevertheless, on all objective criteria the fourth charge was in a worst category of an offence involving a commercial quantity. Again, once one has regard also to the circumstances of the Respondent, the maximum term of imprisonment - 20 years - was called for.

187 The Drug (Misuse and Trafficking) Act does not provide for a large commercial quantity of Ecstasy, the drug the subject of the fifth charge. The estimate of quantity of at least 800 grams is something over 5 times the minimum bringing the offence into one involving a commercial quantity and taking it out of an "indictable" quantity. Parliament's selection of 15 years as the maximum term of imprisonment for the lower of these offences and only 20 years as the maximum whatever the quantity, does create some difficulties in trying to deduce the legislature's intention in cases where the quantity falls above .125 kg. For reasons stated when dealing with the first charge, no term below than the 15 years maximum for the lesser offence was appropriate. The term should however be 18 years to reflect quantity.

188 His Honour made no finding and there is no direct evidence as to the quantity of cannabis supplied and the subject of the sixth charge. The quantity must be derived from the evidence of the estimated value of approximately $200,000 and the price at which parcels were sold. Had it all been sold at the highest figure mentioned of $4,800 per pound, the quantity would have been a little under 42 pounds or 19 kg. Clearly not all was sold at that high price. At $4,500 per kilogram "brick" the quantity would have been 44kg. The charge did not allege a commercial quantity and, bearing in mind the necessity for the Court to be satisfied beyond a reasonable doubt of any matters to be used against the Respondent, it seems appropriate to proceed on the basis that the quantity was approximately 20 kilograms. Against the statutory indications, the total term of imprisonment appropriate for this offence, again considered in isolation and putting aside the plea of guilty, was not less than 8 years.

189 Sully J has taken the view that the circumstances of the seventh count brought it also into a "worst case" category. I would not have so characterised it although in terms of seriousness it certainly falls well within the upper half of the range of offences against s319. Involving as it did, the participation of 2 police officers, then Detective Sergeant Irwin and Mr McDonald, and what was hoped would be the participation of a third, in conduct designed to destroy evidence of the involvement of the Respondent in, judged by its penalty, one of the most serious offences known to the law, the seventh offence struck at the heart of law enforcement and, considering the Respondent's record, merited a sentence of at least 9 years. Unless justified by the principle of totality, the sentence of a minimum term of 18 months and an additional term of 2½ years was manifestly inadequate.

190 In this regard, I should refer further to the decision of this Court in R v Irwin [1999] NSWCCA 361. Mr Irwin pleaded guilty to offences of inciting a person to tamper with items seized by the police with intent thereby to pervert the course of justice and of knowingly giving false evidence to the Police Integrity Commission. On the first charge Judge Woods sentenced Mr Irwin to imprisonment for a minimum term of 12 months with an additional term of 4 months and on the second charge to a fixed concurrent term of imprisonment of 12 months. This Court increased the sentences imposed by Judge Woods on Mr Irwin to a minimum term of 3 years and an additional term of 1 year and, on the second charge to a concurrent fixed term of 2 years. I would have imposed a heavier sentence. In delivering reasons with which the third member of the Court agreed, Newman J made it clear that the sentence being imposed was much less than His Honour thought Mr Irwin should have received.

191 Mr Porter QC, appearing for the Respondent, submitted that the sentence appropriate for the Respondent was less than in the case of Mr Irwin because, being a detective sergeant at the time, Mr Irwin breached the trust which that position imposed on him whereas the Respondent was but a criminal. The argument is not attractive. The Respondent induced Mr Irwin to breach his position of trust and the Respondent's criminality is no less than Mr Irwin's. Indeed as he was the moving force, it might be regarded as greater. Furthermore, the Respondent's antecedents were quite different from Mr Irwin's. Given also the fact that the sentence imposed by this Court on Mr Irwin reflected the exercise of its discretion, I am not persuaded that the decision is of any assistance in concluding what sentence should have been imposed at first instance on the Respondent on the charge I have numbered 7.

192 In arriving at the minimum sentences which, putting aside the Respondent's pleas, should have been imposed in respect of the first 6 charges in this case, I have not thought it necessary to go beyond the terms of the legislation and to seek to compare the Respondent's conduct with, and judge it by, the statutory prescription of the offence (of course taking account also of his circumstances). However, it is not inappropriate to observe that no long experience in the courts or other areas of society is needed to become aware both of the grave harm that amphetamines, cocaine, ecstasy and cannabis do to the minds and lives of many who use them, and of the consequential damage that such users then inflict on the rest of society either in obtaining the funds to feed their habits or in consequence of the irrational or anti-social behaviour which such drugs can induce. As the sentencing judge said in this case, in a passage which was not the subject of challenge in the appeal:-

"The experience of the Courts is that methylamphetamine is a very dangerous drug. It causes endless strife between people. It creates psychotic episodes in those who take it. No expert evidence is required in this Court to support the proposition that it is a highly damaging product.

The activities of Mr Kalache, as indicated in the charges, have undoubtedly created a trail of destruction. ... More importantly, the number of people who have been physically and emotionally damaged by these drugs is incalculable."

193 I would further endorse the remarks of Wood CJ at CL in Schaal (unreported, NSWSC, 8 September 1989) "just as those stakes (in the drug trade) are high, so, however, must be the risks if caught" and those of Gleeson CJ in R v Swann (unreported, CCA, 17 July 1992), "The reason why drug dealing is as profitable as it is, is that it is illegal, and therefore, risky. It is consequently appropriate that, when a person who is engaged in such activity for profit is apprehended, the risk comes home".

194 I have not thought it necessary in arriving at the terms of imprisonment noted above to refer to decisions in other cases involving similar charges. Given the circumstances of the Respondent and the quantities involved, it has seemed to me both possible and preferable to approach the matter using first principles. At best, other cases are, after all, but the result of the application of those principles in different circumstances.

195 Nor did the very experienced counsel appearing for the Respondent attempt to justify the sentences imposed by reference to the sentences imposed in cases said to be similar. Perhaps he could find none. Certainly I am not aware of any which are really comparable. However, when recognition is given to their different circumstances, the following decisions provide some support for a number of the sentences at which I have arrived - R v Cool (unreported, CCA, 30 June 1992), R v Oldfield (unreported, CCA, 28 April 1998). See also R v Reardon (1996) 89 A Crim R 180

196 If one put to one side the sentence of life imprisonment which should have been imposed in respect of the third charge, and which, if imposed, would make questions of accumulation and totality irrelevant, the principle of totality would mean that the other periods to which I have referred should not simply be accumulated. However, nor should they simply have been made concurrent. The Respondent made a deliberate decision to break the law on a large scale. Not content with the profit to be made from one major offence or one drug, he chose to involve himself over significant periods with other drugs, presumably to maximise his return, and importantly, regardless of the cost and damage he did to others members of the community. Both from the point of view of retribution towards him and deterrence to others similarly inclined, there is importance in him being, and being seen to be, substantially punished for all of his offences.

197 If the offences are considered individually, there is nothing which argues for minimum terms in the case of those offences where I have indicated finite periods are appropriate being less than the three-quarters of the total terms as envisaged by s5 of the Sentencing Act and commonly imposed. Putting aside the third charge, there should have been imposed minimum or fixed terms totalling at least 30 years comprised of (approximately) 18 years for the second charge, fixed or minimum terms of 4 years for each of the first and fourth charges, a fixed or minimum term of 3 years in respect of the fifth charges, and fixed or minimum terms of 2 years in respect of each of the sixth and seventh charges. To those who would say that result is harsh, I would respond that it is less so than that suffered by many to whom drugs of the type dealt with by the Respondent are sold. In the terms of the Drug (Misuse and Trafficking) Act, Parliament has indicated with unmistakable clarity the seriousness with which it regards trafficking in drugs. Experience both in this Court and as a member of the community makes it equally clear that the penalties imposed by the Courts to this time have not been sufficient to preclude an increase in the trafficking which occurs.

198 I put to one side earlier the matter of the Respondent's pleas. During the course of the sentencing proceedings the Crown prosecutor conceded that the Respondent was entitled to a significant credit for his attitude and later Judge Woods QC indicated that he was allowing a "significant discount" for the Respondent's pleas, mainly for their utilitarian benefit. To the correctness of these views, I now turn.

199 Recognition of the utilitarian benefits to the justice system of a plea of guilty even when, as in this case, such a plea does not demonstrate remorse, is commonly appropriate. If all offenders pleaded not guilty, vastly more community resources would need to be devoted to administering the system - see R v Winchester (1992) 58 A Crim R 345 at 350, Bond v R (1990) 48 A Crim R 1 at 6-8. In this case, it cannot be doubted that by his plea, the Respondent avoided a lengthy trial which would have imposed substantial cost on the courts, the Director of Public Prosecution and on the police. On the other hand, the evidence before Judge Woods as to the nature and extent of the police surveillance operation leads to the conclusion that the Crown case was very strong, a conclusion which means that the Respondent's pleas have less weight - R v Winchester (at p350) R v El Karhani (1990) 51 A Crim R 123 at 134-5. This is yet another elementary principle of sentencing which finds no recognition in His Honour's remarks on sentence or in the sentences imposed.

200 Section 439 of the Crimes Act provides that the fact a person pleads guilty "must" be taken into account although the section then goes on to make clear that in that situation the Court "may" accordingly reduce the sentence that would otherwise have been passed. In that latter respect the section but echoes the law in force prior to its enactment - see R v Holder (1983) 3 NSWLR 245 at 261 and 269. In R v Ellis (1986) 6 NSWLR 603 at 604 Street CJ, with whose reasons the other members of the Court agreed, said that "the degree of leniency may vary according to the degree of inevitability of conviction as it may appear to the sentencing judge, but it is always a factor to which a greater degree or lesser degree of weight must be given.". However His Honour cannot be regarded as meaning that however heinous the offence or offences, and however inevitable the prospects of conviction, an offender who pleads guilty is entitled to less than the maximum penalty. Indeed, His Honour's remarks in R v Holder at 261 so indicate. The terms of s439 also are inconsistent with the view that some discount for a plea of guilty must be allowed.

201 In my view the Respondent's criminality, whether the third count is considered in isolation, or all the counts are taken into account, was such that despite the utilitarian value of his pleas, no discount should have been allowed to him for them. His criminality was such that, judged by the statutory provisions, the only proper conclusion is that he should remain in prison until his death. In that a discount for the utilitarian value of a plea is granted for the benefit of the criminal justice system and is not a consequence or entitlement arising from an offender's criminality exhibited in a particular offence, I see nothing in the decision in Pearce v R (supra) to preclude the Respondent's overall criminality being taken into account on this issue.

202 How bad criminality must be before the stage is reached that no discount will be allowed for pleas of guilty is obviously a matter on which minds may differ. Had the Respondent's offences not included that the subject of the third charge, I would not have taken the view expressed at the beginning of the preceding paragraph and would have made some reduction in the periods recorded above when dealing with the question of totality. However, as all but one of those periods already reflect very substantial reductions on account of totality, the reduction I would give on account of pleas would not be high. Again putting aside the third offence, that of supplying methylamphetamine, the Respondent's circumstances and criminality involved in the other offences still required total minimum actual custodial term or terms of at least 25 years. If that third offence were taken into account, but not as requiring life imprisonment, that period should be at least 30 or 35 years.

203 So far I have considered the matter upon the basis of what should have occurred at first instance. I now turn to the consequences of this being a Crown appeal and complications arising from the approach taken at first instance by the Crown prosecutor.

204 Even though an appeal by the Crown is, in New South Wales, as of right, the exercise of the right involves the respondent to such an appeal being subjected to "double jeopardy" - once at first instance and once on appeal - of punishment, generally imprisonment. The topic has been the subject of much discussion of which it only necessary to mention Cooke v Purcell (1988) 14 NSWLR 51 per Kirby J, and, in a wider context, Pearce v R (supra). Despite statutory authorship of the double jeopardy, sensitivity to it has led to restraint on the part of the Courts in allowing such appeals.

205 Hence, even where the Crown in an appeal under s 5D of the Criminal Appeal Act establishes appealable error in a sentence imposed, this Court possesses a discretion as to the course it will take. Sometimes that discretion will be exercised so as to refuse the appeal and sometimes it will allow the appeal but impose a sentence lower than it thinks should have been imposed at first instance - see- R v Holder (supra) at 269 and the cases there cited. R v Irwin (supra) was a case where the latter course was followed. In R v Allpass (1993) 72 A Crim R561 at 563 this Court said that that was the course "ordinarily" adopted. That statement was quoted in R v Warfield (1994) 34 NSWLR200 at 209. In R v Bang (unreported, CCA, 1 September 1992), Hunt CJ at CL, who was a party to those last mentioned decisions, expressed himself thus:-

"It is this element of double jeopardy involved in successful Crown appeals which results in the fresh sentence imposed by this Court usually being less than that which ought to have been imposed at first instance: Regina v Holder & Johnston [1983] 3 NSWLR 245 at 256, 269-270; Regina v Stephen Michael Anthony Baxter (CCA, 7 May 1991, unreported) at 4. It was accepted in the first of those two cases, and in many others, that the distress occasioned to a respondent to a Crown appeal by twice being put in jeopardy usually requires a discount to be applied by this Court. Indeed, so important is this consideration in Crown appeals that this Court will not infrequently exercise its discretion to dismiss the appeal because of the unfairness or injustice which would otherwise be occasioned to the respondent by reason of his double jeopardy: Regina v Holder & Johnston (at 255-256).

206 Sometimes the Court will impose the minimum sentence which should have been imposed at first instance - see R v Rose (unreported, CCA, 23 May 1996), R v Baugh [1999] NSWCCA 131. In R v Tony Giam (No 2) [1999] NSWCCA 378 at [28] it was said that "where a Crown appeal succeeds, the appropriate sentence is one which is at the bottom of the range". In R v Hanley (unreported, CCA, 9 October 1998), this course was described as "the practice of the Courts". Sometimes, as in R v Holder itself, this will involve the imposition of the maximum provided for by the statute.

207 I am not aware of any decision which contains a reasoned discussion of why one rather than another of these approaches should be adopted in a particular case. None was brought to the Court's attention during the hearing nor was there any debate on the topic. It may be that in practical terms the adoption of one rather than the other approach does no more than reflect what seems to individual judges to be the appropriate exercise of the discretion in the individual case.

208 In deciding what course to adopt following the demonstration of appealable error the Court will seek to take account of all relevant factors. From time to time these will include any delay in the institution or prosecution of a Crown appeal, the change in character from a non-custodial to a custodial sentence and the extent to which a sentence originally imposed has been served. Distress to a respondent in having a sentence increased has been inferred and recognised - see R v Tiege (unreported, CCA, 19 November 1982) and quoted by Priestley JA in R v Holder (at 269).

209 But in this case, given the Respondent's antecedents, I would not be prepared to infer that he was not at all times aware, not only of the existence of laws against dealing in drugs but also that there were provisions designed to facilitate the enforcement of those laws. Given his time in prison, I would not be prepared to infer that during the time he was committing the offences with which this Court is concerned and during and since the original sentencing proceedings, he did not at all times know that the Crown could appeal against sentences thought to be too low.

210 In the last paragraph I have largely expressed myself in the negative. I of course do not make any positive findings that the Respondent did know of the matters to which I have referred. I do not suggest that in all cases evidence concerning the impact of Crown appeals on a respondent is necessary but given this Respondent's antecedents and the circumstances of his offending with which the Court is concerned, before I would be prepared to conclude that there was any substantial impact on the Respondent arising in consequence of the fact of double jeopardy itself, I would require such evidence. This might well include whatever advice the Respondent received prior to being sentenced. Although I do not need to rely on the fact, I would suspect that the Respondent could not believe his luck at the sentence imposed.

211 Nor should it be forgotten that the jeopardy in sentencing which many offenders face is primarily of their own doing, particularly where their offending is premeditated and occurs for financial benefits seen to arise from it. Though not an immediate cause, it may fairly be said that their actions are also a not insignificant contributing factor to any double jeopardy which may arise. The prospect and risk of being sentenced for 7 very serious offences was not sufficient to deter the Respondent from committing one or more of them, almost on a daily basis for months. There is nothing to suggest that that daily jeopardy, voluntarily undertaken, unduly distressed him. Indeed, given the duration or magnitude of his offending, one might be pardoned for thinking he bore the risk with fortitude.

212 It is true that the occasion of being re-sentenced by this Court is due to error on the part of the justice system. Ideally, such fault should not occur but it is important to maintain some relativity between it and that of the Respondent.

213 One factor to which this Court pays particular regard in the exercise of its discretion is whether the error in sentence was due at all to the actions or the approach of the Crown Prosecutor. At times such conduct by the Crown has led to this Court declining to interfere notwithstanding error in the sentence imposed - see e.g. R v Jones (unreported, CCA, 9 October 1995), R v Chad (unreported, CCA, 13 May 1997) and R v Allpass (1993) 72 A Crim R 561. Nevertheless, in that latter case the Court said (at p565):-

"the Crown is not debarred, on appeal, from taking a stance different from that taken at first instance, but this Court, in the exercise of its discretion, is entitled to take account of the fact that, at first instance, the Crown acquiesced in the course that was taken by the sentencing judge: Jermyn (1985) 2 NSWLR 194; 16 A Crim R 269; Malvaso [1989] HCA 58; (1989) 168 CLR 227. The weight to be given to such a consideration depends upon the circumstances of the particular case, but it may be of considerable significance if the respondent was given a non-custodial sentence at first instance. Its weight may also vary with the degree to which the appellate court thinks the sentencing judge fell into error." -

214 Remarks of the High Court in Malvaso v R [1989] HCA 58; (1989) 168 CLR 227 themselves bear repetition. That was a case on appeal from the Court of Criminal Appeal of South Australia where leave was needed before the Crown could appeal from a sentence imposed. Leave had not been expressly granted but the Court of Criminal Appeal had proceeded to allow a Crown Appeal. In their majority judgment, Mason CJ, and Brennan and Gaudron JJ said (p232-3):-

"It cannot be assumed that leave was granted by implication, for the question whether leave should be granted was, in the circumstances of this case, distinct from the question of the inadequacy of the sentence imposed at first instance. The prosecution's bargain to stand mute when a suspended sentence was sought on behalf of the Applicant was carried into effect and the prosecution was thus compromised in its presentation of the arguments which might otherwise have led the learned sentencing judge to impose a sentence against which the Attorney General would not have sought leave to appeal. That is not to say that the agreement between the prosecuting authorities and the Applicant affected the duty either of the sentencing judge or of the Court of Criminal Appeal (if leave to appeal were given) to impose the sentence which appeared appropriate to the Court in the circumstances. The Court's sentencing discretion is to be exercised in the public interest; it cannot be fettered by a plea-bargaining agreement. Nor can such an agreement bind the Attorney General not to exercise his statutory power to seek leave to appeal and to appeal in any case where, in his opinion, the proper administration of criminal justice requires that power to be exercised. Nevertheless, if an agreement between the prosecuting authorities and an offender has affected the course of proceeding before the sentencing judge and the course of proceedings is relevant to the order which should be made on the Attorney General's application for leave to appeal, the Court may have regard to those circumstances in determining whether leave to appeal should be given."

215 Deane and McHugh JJ said at p240 that they agreed with, inter alia, the following comments in an earlier case in the South Australian Supreme Court:-

"In my opinion, this Court should allow the prosecution to put to it, on appeal against sentence, contentions which were not put to the sentencing Judge, only in exceptional circumstances which appear to justify that course."

216 In R v Jermyn (1985) 2 NSWLR 195 at 204-5 McHugh J expressed himself thus:-

"Only in the rarest of cases, if at all, would a private litigant be allowed to appeal against the exercise of a discretionary judgment in respect of a ground which he had expressly conceded was open in the court below. No doubt the public interest in having proper sentences imposed upon offenders makes the case of the private appeal an imperfect analogy. But when the Attorney General on behalf of the Crown asks the Court to set aside a sentence on a ground which was conceded in the Court below, I think that this Court in the exercise of its undoubted discretion should be slow to interfere. Nevertheless as Rowland J pointed out in R v Acerbi (1983) 11 A Crim R 90 at 92:

`... fairness to the Accused must play a secondary role to what should appear to be fair to the community as a whole and perhaps others who have been guilty of similar offences and who have received what appears to be quite disproportionate treatment'."

217 R v Duroux (unreported, CCA, 11 April 1991) provides an example of a case where the public interest resulted in a custodial sentence being imposed by this Court notwithstanding that the imposition of a community service order at first instance - an order which had in fact been served before the appeal - was in part due to the failure of the Crown to oppose a non-custodial sentence. I do not understand anything the High Court said in Everitt v R (1994) 181 CLR to require the conclusion that that decision was wrong.

218 In this case, error on the part of counsel appearing for the Crown was gross. She provided His Honour with but a short and wholly inadequate summary of 7 prior cases involving commercial or large commercial quantities of amphetamine or methyl amphetamine and a print-out of some Judicial Commission statistics. It is unnecessary to detail all of the inadequacies in the summary. It is sufficient to mention but 3. The first case referred to was R v Spyridis (unreported, CCA, 7 December 1998). The summary referred to the fact that the appellant in that case had been convicted of knowingly taking part in the manufacture of a large commercial quantity and of supplying methylamphetamine and that 13.5 kg of methylamphetamine had been recovered. The Reasons of this Court record, but the summary does not, that the purity of the methylamphetamine was 8%, thus yielding but 1.1 kg of pure methylamphetamine - under 5% of that with which the Respondent here was concerned. The summary does record that the sentence imposed included a minimum term of 5 years and an additional term of 2 years.

219 The second case mentioned in the summary was R v Oldfield (unreported, CCA, 28 April 1998). The summary of it was in these terms:-

"Plea of guilty to: conspiracy to commit offence outside NSW (to manufacture large commercial quantity of methylamphetamine near Cairns); supply commercial quantity (six incidents each involving 2.2kgs); supply by receipt of product of manufacture (3.3kgs); supply commercial quantity 3.1kgs ($70,000). Two further offences under Customs Act (importing precursor) on schedule taken into account.

Sentence: Conspiracy 11 yrs Minimum Term; 3 yrs Additional Term.

Appeal against sentence unsuccessful."

220 The summary did not record that the 6 quantities of 2.2 kg referred to were part of the quantity of about 14.3 kg (with a street value of at least $4M) produced pursuant to the conspiracy nor that the 3.3 kg was produced later at the factory established pursuant to the conspiracy, nor that the 3.1 kg was part of the 3.3 kg the subject of the preceding charge. More importantly, there was no mention of the fact that Oldfield was of prior excellent character, that he had been willing to give evidence against others and would accordingly suffer special hardship in prison and that the sentencing judge had expressed the view that "the objective gravity of the offences charged in the indictment is such that an aggregate sentence, without taking account the subjective matters, the pleas of guilty, and co-operation with the authorities, in the order of eighteen years imprisonment would be totally warranted".

221 The third case referred to was R v Larsson (unreported, CCA, 11 September 1997). The summary referred to the fact that Mr Larsson had pleaded guilty to knowingly taking part in the manufacture of a commercial quantity of amphetamine and that an appeal against a sentence of 7 years minimum term and 5 years additional term had been unsuccessful. The summary did not refer to the facts that the sentencing judge had approached the matter on the basis that a large commercial quantity of about 8 kg was involved, that because Mr Larsson was also serving another sentence including a minimum term of 6 years (which, to the extent of 7 months overlapped the sentence of 12 years), the principle of totality must have operated to reduce his sentence nor that this Court expressed the view that Mr Larsson was fortunate that the penalty imposed was not higher.

222 The Judicial Commission statistics reflected merely:-

5 cases of the supply (incl deemed supply) of a large commercial quantity of amphetamines - longest full term 10 years;

3 cases of the manufacture of a large commercial quantity of amphetamines - longest full term 8 years; long minimum term 6 years;

5 cases of the supply (incl. deemed supply) of a commercial quantity of cocaine - longest full term 6 years; and

1 case of the supply (incl deemed supply) of a large commercial quantity of cocaine - full term 6 years.

223 The statistics gave no details of the cases or offenders referred to.

224 Later, counsel appearing for the Crown drew Judge Woods' attention to the maximum penalties prescribed and the following exchange occurred. ("Counts 1 and 2" are the charges I have numbered 2 and 3. The "other indictment", mentioned by Ms Adey, consisted of the charge I have numbered 1.):-

"His Honour: Well it seems to me that, subject to argument, that it's appropriate in this case to approach it on the basis that so far as counts 1 and 2 are concerned, one would start calculations in double figures and work back from there that because the whole exercise so far as Mr Kalache was concerned, pivoted on his place at Clovelly that it would be appropriate to sentence globally but concurrently for all the drug matters but that there should be cumulative sentencing for the pervert the course of justice, and what do you say about that general approach? (sic)

Adey: Yes, I would concur with that approach. Your Honour, there's also the matter of the other indictment that's been presented this morning.

His Honour: Yes, of course, yes, what do you say about the proper approach to that? Isn't it part of the drug - I mean, shouldn't one look at that concurrently but globally with the methylamphetamine charges counts 1 and 2 in the other indictment?

Adey: Probably that's the way to go even though it was a completely separate set up.

His Honour: One can take a building block approach to this and, I mean, theoretically not a day went by when Mr Kalache wasn't doing something that could individually possibly attract 20 years goal so that we could set a world record and have a sentence of thousands of years but it wouldn't be appropriate, wouldn't be lawful, wouldn't be fair, but if I were to take an approach that has been taken in some other broadly similar cases, looking at this material globally - in one of the large cases recently, the court started at 11 and deducted some use (? years) for various factors. Some sort of approach along those lines is what I have in mind subject to argument."

225 The Crown Prosecutor did not demur notwithstanding her response should have pointed out emphatically that in a worst case the starting point was life imprisonment, that there were 3 offences rendering the Respondent liable to that penalty, and a major question was whether there was any justification for a lower sentence in this case.

226 What impact should this conduct of counsel appearing for the Crown have? Even by the standards apparent in the inadequate summaries of Spyridis, Oldfield and Larsson the concurrent sentences of 3 or 6 years or a little more (if some of the additional term is notionally attributed to these offences) for the 6 drug offences were woefully insufficient. Even when one has regard to all of what I see as the failures of counsel appearing, it is impossible to blame the Crown entirely, or perhaps even mainly, for the errors that occurred. That fact alone argues persuasively against dismissing the Crown appeal. Of course, as I indicated earlier, so too does the extent of the inadequacy of the sentences.

227 But what to my mind outweighs all of the factors arguing in favour of the Respondent is the magnitude of his criminality, and his antecedents. Were the Respondent's prior history one attracting leniency, were his offences not as serious, did they not constitute the massive assault on the community which they did, the conduct of counsel appearing for the Crown would have led me to the view that sentences somewhat more lenient than those which I favour should be imposed. However this is a case where those "exceptional circumstances" and the "public interest" referred to in Malvaso v R (supra) and R v Jermyn (supra) should be recognised and given full weight. Notwithstanding the errors by the Crown prosecutor, the Crown appeal should be allowed. Furthermore, in my view the sentence imposed on the Respondent should be the minimum which should have been imposed at first instance, even though this will be or include a sentence of life imprisonment. As Street CJ said in R v Holder (1983) 3 NSWLR 245 at p261 "the criminality involved ... was such as to call for a life sentence". Of course that decision was made under a different sentencing regime and on radically different charges: For immediate purposes, there is but a parallel in the magnitude of criminality.

228 In any judgment as to the "public interest" referred to in Malvaso v R (supra) and R v Jermyn (supra) it is probably unnecessary to go beyond the terms of the Drug (Misuse and Trafficking) Act. However, it may not be inappropriate to observe that illegal drugs and their consequences are one of the greatest problems facing society today. Many judgments of this Court have referred to these matters.

229 A large proportion of the persons with whom the criminal courts have to deal and of the jail population are in their situation because of their use of, or dependence on, such drugs. Many persons who have no such connection have to suffer violence or other crimes committed to pay for drugs of the nature of those supplied by the Respondent, in particular cocaine and methylamphetamines or in consequence of their use. Even persons not so victimised are affected by higher insurance premiums.

230 When persons at the top of the hierarchy of the trade are caught, particularly when they are repeat offenders or involved in repeat offences and participate for the money to be made out of the trade, it behoves the courts to ensure that penalties are imposed which reflect Parliament's intention and which, to the maximum extent possible consistent with the legislation and sentencing principles, will operate as a discouragement to others. In this case, these matters outweigh the argument for more lenient treatment in consequence of double jeopardy.

231 On the basis that a life sentence is imposed in respect of the charge I have numbered 3, it would be appropriate to make the sentences on the other charges fixed terms of ¾ of the sentences I regarded as the minimum which should have been imposed at first instance, concurrent, and each with the common commencement date of the Respondent's arrest. However as mine is a minority view, it is unnecessary that I formulate such orders.

IN THE COURT OF

CRIMINAL APPEAL

60238/99

SULLY J

HULME J

HIDDEN J

4 February 2000

REGINA v Leslie George KALACHE

JUDGMENT

232 HIDDEN J: I agree with the orders proposed by Sully J and, substantially, with his Honour's reasons.

233 I find it unnecessary to determine whether a sentence of life imprisonment for the second charge was called for at first instance. Certainly, it should have attracted a very lengthy determinate sentence.

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LAST UPDATED: 22/02/2000