SUPREME COURT OF QUEENSLAND

[1]  HOLMES JA:  On 17 October 2007, the applicant pleaded guilty to two counts of trafficking in methylamphetamine, two counts of possessing methylamphetamine (one count possession simpliciter, and the other with a circumstance of aggravation, that the quantity exceeded two grams), and two counts of possessing cannabis sativa.  He was subsequently sentenced to 10 years imprisonment in respect of the first count of trafficking, which was said to have occurred between 31 May 2003 and 14 August 2004; five years imprisonment in respect of the second trafficking count, between 13 January 2005 and 13 February 2005; three years imprisonment for possession of methylamphetamine with a circumstance of aggravation; and six months imprisonment in respect of the remaining possession charges.  Thirty-four days spent on remand were declared as time already served under those sentences.  A serious violent offence declaration was made in respect of the first of the trafficking offences, as s 161A and s 161B of the Penalties and Sentences Act 1992 required.  The applicant seeks leave to appeal against the sentence of 10 years imprisonment, with the declaration, imposed on that count.

The facts on which the applicant was sentenced

[2] At sentence, the Crown relied on an agreed schedule of facts.  According to it, from February 2003, the applicant supplied T, a street level dealer and addict, with methylamphetamine for sale.  The applicant sold T methylamphetamine at $5,000 an ounce; T cut it and sold it on to his clients, as many as 200 in number.  T paid the applicant by depositing funds in the latter’s TAB account.  He was frequently in debt to the applicant, who nevertheless continued to supply him while pursuing him for the money owed.  T’s most profitable period of sale was over the three days of the Rockhampton Show, when he sold $5,000 to $10,000 worth of methylamphetamine per day.

[3] The applicant admitted in a record of interview to supplying T; he said that T had deposited sums into his account, ranging from $2,000 to $10,000, approximately three times per month.  He estimated that he had provided T with drugs worth $20,000 to $50,000 per week, but he did not receive the proceeds.  Rather, he acted as a middleman for an unnamed third person to whom the money went and was himself paid $1,000 for each transaction.  On 13 August 2004, T was arrested.  He was found to be in possession of 47.191 grams of powder which was 6.4 per cent pure methylamphetamine, yielding 3.438 grams.  It had been supplied by the applicant a few days earlier; T and his partner had already used some of it.

[4] Those facts were the basis of the first count of trafficking, involving a period of some 14 and a half months.  The second count of trafficking involved a brief period of dealings between T and the applicant over a month between January and February 2005.  At this time T was acting as a police informant.  On 19 January 2005, the applicant arranged for T to place $1,000 in his TAB account, and gave him instructions to travel to a rural location and pick up a milk carton which contained methylamphetamine.  The powder weighed 6.364 grams; it was 9.8 per cent pure, yielding .623 grams of methylamphetamine. 

[5] Two days later, the applicant offered T half an ounce of cut methylamphetamine for $2,500, or the substance uncut for $3,000.  The two continued to have discussions and T deposited $1,400 into the TAB account.  Subsequently, he told the applicant that he had $4,500 available, which, the applicant told him, would get him an ounce of methylamphetamine and a reduction of the monies he owed by $500.  T deposited $2,000 and eventually was given instructions to go to another location where he found a bottle containing 12.603 grams (a little less than half an ounce) of powder, 4 per cent pure, amounting to .504 grams of methylamphetamine. 

[6] Later, T spoke to the applicant and said that he had expected an ounce.  The applicant said he had half an ounce available and gave T instructions to deposit another $2,000.  Upon his doing so, he was sent back to the same location, where he found a packet with 10.954 grams, containing .416 grams of methylamphetamine (with a purity of 3.8 per cent).  There were subsequent discussions between the two about supply of methylamphetamine, but no further transactions.  Over the period between 19 January 2005 and 12 February 2005 (when the applicant was arrested), he had supplied T with a total of 29.921 grams, which was 1.543 grams of pure methylamphetamine, for an amount of $6,400.  When interviewed, the applicant admitted the supplies to T and receiving monies for the transactions into his TAB account, from which he had drawn $2,000.

[7] When the police arrested the applicant, they searched his car and house and in various places found 60 grams of powder containing 12.7 grams of methylamphetamine (21.3 per cent pure); 100 grams of cannabis in a bag; a clip seal bag of methylamphetamine, .54 of a gram, at 14.9 per cent purity giving .08 of a gram; 240 grams of cannabis; and clip seal bags, sugar and electric scales.  Of the larger amount of methylamphetamine, the applicant said that he had bought one ounce two days prior for $3,000, and had cut it with castor sugar to produce the 60 grams found.

[8] The search of the applicant’s residence also located a motorcycle, a box trailer and three jet skis.  A financial analysis of the applicant’s income and expenditure from 1 May 2003 to 12 February 2005 showed that he had spent $215,000 which could not be accounted for from legitimate sources of income.  The sentence proceeded on the basis that that figure represented the amount the applicant had derived from the trafficking in the two counts on the indictment.

The sentence hearing

[9] At sentence, there was some discussion of whether the applicant was addicted to amphetamines.  The applicant’s counsel suggested at one stage that he would call the applicant to give evidence on the subject, but in the event he did not do so.  Instead, a statutory declaration from the applicant’s partner was tendered; it said that he had used amphetamines over the period of the trafficking.  The learned judge indicated that she considered the evidence showed that the applicant was a user, but not an addict, and she ultimately proceeded on that basis.  The applicant’s counsel pointed to his co-operation with the police; he had undergone a lengthy interview in which he had made admissions to dealing in methylamphetamine.  After his brief period in custody, he had worked as a motorcycle mechanic and had also operated a cleaning business with his former wife, by whom he had four children.  He was 32 years old at sentence; 27 to 28 at the time of the first count of trafficking, and 29 at the time the other offences were committed.

[10]  The applicant’s criminal history consisted of a number of offences dealt with in the Magistrates Court.  Most were minor – possession of a pipe, disorderly behaviour, wilful damage.  Of more significance were convictions on 3 September 2001 for possessing, supplying and producing dangerous drugs.  The applicant had been in possession of 50 grams of cannabis and a gram of white powder which he admitted was methylamphetamine.  He had some $2,490 in cash and scales; he admitted that the cannabis, which was packaged in 13 bags, was to be sold by him.  On 23 August 2002, he was convicted again of possessing dangerous drugs, possessing property suspected of having been acquired for the purpose of committing a drug offence and possessing utensils.  On this occasion the police had found scales, $1,800 in cash and four clip seal bags of cannabis, weighing 25 grams each, in his possession. 

[11]  The learned sentencing judge described the applicant as involved in “substantial trafficking in a schedule 1 drug over a prolonged period” which had a significant commercial aspect and resulted in the applicant’s deriving substantial income.  It involved, she said, the use of an addict to further the trafficking process.  The applicant did not have the benefit of youth, and the evidence did not indicate that the trafficking was undertaken to support an addiction.  It was, however, in his favour that he had pleaded guilty and had co-operated by providing a statement to the police. 

The application in this Court

[12]  In this application, it is complained that the learned sentencing judge failed to take the applicant’s personal circumstances into account; that the learned judge should have found that the applicant was an addict, or, alternatively, treated the fact of his being a user of methylamphetamine as a mitigating circumstance; and that the applicant was not given any allowance for assistance to the police as a registered informer.  The last contention is indubitably correct, since the sentencing judge was not informed of the fact; the applicant did not place any material before the court in respect of such assistance. 

The evidence regarding the applicant’s assistance to the police and his instructions to counsel

[13]  The applicant sought to adduce new evidence, by way of affidavit and oral testimony, as to assistance given.  Its effect was that he gave the police information and responded to questions about a particular target.  On one occasion, he took an undercover police officer to buy methylamphetamine from a named individual, R, who was later arrested and had threatened to kill the applicant.  The applicant was under the impression, he said, that if he assisted the police he would not go to jail.  He deposed, and said again in evidence, that he had told his barrister, Mr Murray, about his assistance. 

[14]  The applicant said that he had also told his solicitor, Mr Pilgrim, about the assistance; the latter advised him to bring it to Mr Murray’s attention.  Mr Pilgrim was, it seems, approached by the Crown to provide an affidavit but declined to do so.  However, at the time of that approach, there was nothing for him to respond to: it was not until the day of the hearing of the application in this Court that the applicant deposed in an affidavit to having told Mr Pilgrim anything of the sort.  In those circumstances, in the absence of any evidence from Mr Pilgrim, I would not be prepared to make any finding that the applicant had informed him about the matter.

[15]  The information the applicant gave Mr Murray was, he claimed, quite specific.  He told Mr Murray about having arranged the meeting between the covert police operative and the dealer and about having been registered by the police as an informant.  He also told Mr Murray he had been promised a letter of comfort and Mr Murray responded that he had never come across anything of the sort; it did not exist.  In the applicant’s presence, Mr Murray telephoned someone he told the applicant was the prosecutor.  The applicant heard Mr Murray in the course of the conversation stressing the assistance he had given, but when the call ended, Mr Murray told him the prosecutor had denied that there was any such assistance. 

[16]  Mr Murray gave an affidavit, and gave evidence and was cross-examined before the Court.  He said that he was not given any information about the applicant’s co-operation, although he had indicated to the applicant, as was his general practice, that there was a benefit to be had by assisting police in identifying other offenders.  The applicant’s response was that he did not want to be known as a “fucking dog” like T.  Mr Murray was adamant that had he been aware of the assistance that the applicant had given police, he would certainly have raised it on the sentence.  No-one else with whom he had contact in relation to the case – police officers or the prosecutor – mentioned any assistance.  Mr Murray went on to say:

“using the terms we do, any sort of letter of comfort was never mentioned to me.”

[17]  The Crown obtained affidavits from police officers confirming the applicant’s co-operation: he was a registered informant and had arranged and attended the meeting between a covert police officer and the dealer, R, from whom methylamphetamine was purchased.  It had been intended, however, that the applicant be involved in further purchases, but when next contacted some two weeks after the first transaction, he said that he would not assist any more because he had been threatened.  Consequently, his assistance resulted in the prosecution of R for one charge of supplying a dangerous drug.  R was eventually charged with trafficking, but that was on the basis of evidence independently obtained by the police. 

Finding

[18]  I do not accept the applicant’s evidence that he raised with Mr Murray the assistance he had given the police.  If he had done so, it is most improbable that Mr Murray would not have wished to raise the matter on sentence.  There seems no prospect of there having been any sort of confusion or cross-purposes involved in their conversation.  The applicant was specific in saying that he had told Mr Murray that he was a registered informant, a term which Mr Murray could not have misunderstood.  It is clear that Mr Murray was entirely familiar with the term “letter of comfort”, and would not have told the applicant that such a thing did not exist, or that he had not come across one in the past. 

[19]  Finally, it is also implausible that had Mr Murray rung the prosecutor, as the applicant claimed, the prosecutor would, without further inquiry, have denied the giving of any assistance.  That was something the prosecutor would have had to ascertain from the police involved in the investigation; and had he done so, the response would have been in the affirmative.  I reject the applicant’s evidence and conclude that he chose not to tell Mr Murray about the assistance.  I would infer that the true situation is reflected in what the applicant said to Mr Murray: that he did not want to be perceived as a “dog”.  Given the threat which R had made to him and the imminent prospect of the applicant’s going into custody, that is not a surprising response.

The evidence as to the applicant’s background and drug addiction

[20]  Very little information about the applicant’s personal circumstances and background was put before the learned sentencing judge.  Counsel submitted, in effect, that the applicant had worked and had not been charged again since his arrest.  I do not think it is surprising that the learned judge did not think it necessary to refer specifically to that submission.  Here, the applicant sought to improve matters by seeking leave to place before the Court a psychologist’s report prepared after the date of sentence.  The report gives a history of the applicant’s having been physically and sexually abused as a child, which, according to the psychologist, had left him with symptoms of chronic post traumatic stress disorder, anxiety and depression. 

[21]  The applicant also sought to have this Court receive and act on his deposition that he was addicted to methylamphetamines between 2000 and 2005, using the drug on a daily basis, and that he had used his earnings to buy methylamphetamine.  The applicant did not mention addiction in his lengthy police interview, but he had, Mr Murray confirmed, given instructions that he was a chronic user.  Mr Murray was asked in cross-examination why he had not called the applicant to give evidence of addiction.  He said that he could not recall, but if there were no evidence other than the applicant’s contention (by way, for example, of medical records) he would not have done so. 

Should the new evidence be received now?

[22]  No explanation was offered as to why a psychologist’s report was not obtained for the sentence; one does not know whether the applicant was willing to co-operate by being interviewed, or to pay for such a report.  No basis is established for its receipt now.  As to the question of addiction, it seems that Mr Murray may have preferred to rely on the statutory declaration of the applicant’s partner, rather than exposing his client to cross-examination.  That would be a reasonable forensic decision, and one by which the applicant should be regarded as bound.  I would not receive new evidence on the topic now. 

[23]  There remains the question of whether the applicant should be allowed to rely on the further evidence as to his assistance to the police, despite the position he took at sentence.  In R v Maniadis,[1] this Court discussed the power to admit evidence not adduced below, notwithstanding that it was not fresh.  It was not a discretion commonly exercised by an appellate court, but new evidence could be adduced on a sentencing appeal if its admission showed that some other sentence was warranted.  The Court continued:

“There will no doubt be cases in which, notwithstanding that, if such evidence were admitted some other sentence would be warranted, the evidence should nevertheless be excluded. Where the evidence was known to the appellant at the sentence hearing and deliberately withheld, that will generally be so.”[2]

The ultimate question in deciding whether such evidence should be received was

“whether, if it were excluded, there would be a miscarriage of justice.”[3]

[24]  As I have found, here, the evidence was known to the applicant and deliberately withheld.  The ultimate question, however, is whether there would be a miscarriage of justice if it were not admitted now.  One would not usually consider a sentence imposed in the absence of favourable information which the defendant chose not to disclose to involve any such miscarriage.  And there is, as counsel for the respondent pointed out, a public interest in holding a defendant to the basis on which he has relied at sentence, rather than permitting him to re-litigate it on appeal. 

[25]  But there is also, as counsel conceded, a public interest in rewarding assistance to law enforcement authorities.  In Webber,[4] McMurdo P and Chesterman J, delivering the majority judgment, observed that:

“a prisoner who provides tangible co-operation in the prosecution of others implicated in the prisoner’s or some other criminal offence should receive a significant reduction in sentence sufficient to afford an inducement to others to provide such co-operation.

Although the discount for co-operation must be discernible, and worthwhile, the adjusted sentence must nevertheless reflect the seriousness of the offence which is being punished.  The balance between these competing demands will not always be easy to strike…”[5]

Pincus JA, while dissenting as to the result, nonetheless agreed with that proposition.

[26]  The subject matter of the further evidence and the proportions of the assistance given take this case out of the ordinary course.  The assistance was verified by police officers; it was substantial; it was not confined to information, but involved the applicant in an undercover operation which exposed and may continue to expose him to real risk.  The last consideration probably also constitutes the reason for its non-disclosure.  I have come to the view that, subject to the question of whether its admission would show that some other sentence was warranted, this Court should receive the evidence to avoid a miscarriage of justice.

Was some other sentence warranted?

[27]  Counsel for the respondent, Mr Rutledge, argued that, even taking the assistance into account, a sentence of 10 years imprisonment could be supported, on the basis that this was a case in which a sentence of 12 years imprisonment would have been appropriate on a plea of guilty.  Accordingly, having regard to the assistance given to the police, ten years imprisonment was a proper sentence.  In the alternative, he submitted, the head sentence should be reduced by no more than one year’s imprisonment, with the serious violent offence declaration maintained.  On the other hand, Mr Locantro, the solicitor for the applicant, submitted that the sentence imposed was manifestly excessive whether it was approached on the basis that the new evidence offered was accepted, or on the basis on which the applicant was sentenced at first instance. 

[28]  The Crown at sentence had contended that the sentencing range for the major count of trafficking was between 10 and 12 years imprisonment after allowance for the mitigating factors.  At first instance and here, reliance was placed on R v Kashton[6] and R v Bradforth.[7]  In R v Bradforth, the applicant had pleaded guilty to one count of trafficking in cocaine, ecstasy and methylamphetamine over a period of 12 months.  On one occasion, he was in possession of 1,386 ecstasy tablets, 63 grams of cocaine and 7 grams of methylamphetamine separated into clip seal plastic bags; five mobile phones; and a book with the names of 10 customers owing him money, including an entry for a debt of $7,740.  According to the account of a woman with whom he was in some sort of relationship, in whose rented room the drugs and items were found, he had been selling drugs for the preceding 12 months and had succeeded to the extent that he had given up his day job six weeks or so before the police search.  On another occasion, while on bail, the applicant was in possession of 85 grams of gamma-hydroxybutyric acid, half a gram of cocaine, 22 grams of ecstasy and a set of scales. 

[29]  Bradforth was 26 years old and had convictions for offences of dishonesty, but no drug convictions.  He had spent nine months which could not be declared on remand.  He was not found to have any substantial sums of money and there was some evidence that he had started selling drugs to support a drug addiction.  This Court concluded that a sentence of 12 years imprisonment was manifestly excessive and substituted a sentence of 10 years to recognise an early plea of guilty and the fact that the applicant had spent nine months on remand.

[30] Bradforth involved an aggravating feature not present here: the re-offending on bail, and that applicant, unlike this one, trafficked in a range of drugs.  On the other hand, the time on remand was an additional consideration there, and Bradforth had in mitigation the fact that at least to some extent the trafficking was motivated by addiction.  Mr Locantro submitted that his client’s regular use of methylamphetamine was similarly a factor to be taken into account.  But in the absence of any evidence that the applicant was so in the grip of the drug that he was compelled to traffic to obtain supplies, and in the presence of evidence that he had in fact obtained some expensive chattels through his activities, I do not think that his being a user was of any consequence to the sentence.  And in Bradforth there was no feature of a criminal history involving drug offences; here, the applicant’s history, which includes a conviction for supply, works against him.

[31]  In Kashton, the applicant was sentenced to 10 years imprisonment for trafficking in heroin and methylamphetamine.  The trafficking had taken place over a period of almost two and a half years, during which the applicant was arrested three times.  His first arrest took place after a short police chase; although released on bail, he was re-offending some months later; and after his committal hearing he was again arrested for dealing in drugs.  On his first arrest, he was found in possession of methylamphetamine of almost 80 per cent purity and was in possession of some $2,510.  It appeared that he had been selling at a street level from his car.  A search of his home found 10.334 grams of pure heroin in 79.53 grams of powder, and 38.031 grams of pure methylamphetamine in 48.244 grams of powder, as well as about 38 grams of cannabis.  He was arrested again while on bail; in that instance the evidence of trafficking came from persons who had bought drugs from him.  Once again, the arrest came after a police car chase.  Over the trafficking period, he had made an apparent profit of $156,000. 

[32]  Kashton was a cannabis user, but not a user of heroin or methylamphetamine, and he had a substantial criminal history, although his past drug offending was limited to cannabis use.  Apart from his plea of guilty, there was little evidence of any willingness to co-operate in the administration of justice: he had tried to evade arrest; he had refused to be interviewed by police; he had offended while on bail; he required two committal proceedings to be conducted; and he did not assist as to the sources of his drugs.  Fryberg J referred to an applicable range of 10 to 12 years in concluding that the application for leave to appeal against sentence should be dismissed.  The other members of the Court (of whom I was one) agreed in that result, not by reference to that proposed range, but by reference to the scale of the trafficking and to sentences in cases involving comparable facts.  I think it is fair to say that Kashton was a worse case than this, particularly given the persistent re-offending on bail there.  However, since it was an unsuccessful application for leave to appeal against sentence, it demonstrates no more than that 10 years was not a manifestly excessive sentence for Kashton, rather than that a similar sentence here was beyond a proper exercise of discretion.

[33]  Mr Locantro relied on a number of cases.  Of them, R v Thompson[8] was of limited assistance.  It involved an unsuccessful application for leave to appeal against a sentence of seven years imprisonment, with parole eligibility after three years and three months, for an applicant convicted on a plea of guilty of trafficking in methylamphetamine over six months.  The only issue there, however, in relation to what seems to have been a relatively lenient sentence, was the question of parity of sentence as between the applicant and his co-offenders.  R v Taiapa[9] was also mentioned; the applicant there was sentenced to seven years imprisonment, cumulative on another sentence, with a parole eligibility date at something over four years.  The problem is that there was no application for leave to appeal against sentence; so far as that aspect is concerned, the case reveals no more than how a single judge exercised his discretion, without any exploration of his reasons.

[34] R v Coleman,[10] another case to which Mr Locantro referred, was an application for leave to appeal against a sentence of four years imprisonment, cumulative on an 18 month term, with parole eligibility date set after 25 months.  The applicant admitted to having sold one to two ounces of methylamphetamine per week to between 15 and 20 people over a period of four and a half months, at a profit of $1,500 per ounce.  The estimated profit from his activity was $143,000.  He was an amphetamine addict and it was accepted that his motivation was not commercial, but was to feed his habit.  He had pleaded guilty to an ex officio indictment and the trafficking charge was based on his admissions.  He had an extensive criminal history for drug-related offences and had trafficked while on a suspended sentence. 

[35]  The Court in Coleman dismissed the application for leave to appeal against sentence, observing that trafficking to the extent engaged in by the applicant could

“be expected to attract a sentence of imprisonment in the range between five and seven years after a plea of guilty.” 

Given the applicant’s level of trafficking and the fact that he had persisted on a suspended sentence, the Court concluded, his sentence plainly was not in any way excessive.  Coleman was a worse case than this in one respect: the trafficking on a suspended sentence.  On the other hand, Coleman was dealing at the bottom of the trafficking hierarchy, unlike the applicant here, who supplied to T in relatively large amounts for further distribution; Coleman’s period of trafficking was much shorter; and he was sentenced on the basis that he had been trafficking to feed an addiction.

[36] R v Johnson[11] concerned an applicant who was convicted of two counts of trafficking over a five year period, one count in relation to methylamphetamine and the other cannabis sativa.  He bought from wholesalers and sold at street level in small amounts, in transactions netting between $20 and $500.  He was an addict; he supplied his own habit and paid for his and his partner’s living expenses.  Over part of the trafficking period he was on probation.  He had a history of minor convictions for drug and street offences.  He had pleaded guilty on an ex officio indictment.  He was sentenced to nine years imprisonment on the count of trafficking methylamphetamine and seven years imprisonment on the count of trafficking in cannabis sativa. 

[37]  The Court in Johnson distinguished Coleman on the basis that the latter was entitled to a special degree of leniency because of his co-operation and the period of the applicant’s offending in Johnson was very much longer.  Keane JA, with whom the other members of the Court agreed, observed that the offending, even though it was over a period of five years, was less serious than those cases which the Court had regarded as attracting a sentence of 12 to 13 years before mitigating factors were taken into account.  He continued:

“There is much force in the submission … that the criminality of an addict who sells dangerous drugs at the retail level to support his habit is of a different order from that of a large retailer or wholesaler whose motivation is ‘cynically commercial’.”[12]

[38]  Taking into account the applicant’s position as a drug addict himself, and recognising that his offending was at a lower level of criminality relative to larger retailers or wholesalers, the Court set aside the sentence for trafficking in methylamphetamine and substituted one of imprisonment for eight years with eligibility for parole after one-third.  Those two bases for allowing the application are obvious points of distinction from the present case.

[39]  The last of the cases referred to by Mr Locantro was R v Taylor.[13]  The applicant for leave to appeal against sentence had pleaded guilty to trafficking in cocaine, methylamphetamine, 3,4-methylenedioxymethamphetamine (ecstasy) and 3,4-methylenedioxyamphetamine over a three and a half month period.  He was sentenced to seven years and four months imprisonment.  On eight occasions he had sold cocaine to an undercover police officer; on four of those occasions, half an ounce, and on the remaining occasions, an ounce.  He had been paid a total of $38,500 by the undercover officer.  When his home was searched, he was found to have 49 tablets in five clip seal bags, containing a mixture of ketamine and methylamphetamine.  The applicant was 21 years old and had only one previous conviction, for possession of a dangerous drug.  Since being charged, he had worked a full-time job, obtained a favourable reference from his employer and had undertaken regular testing for drugs with negative results.  The Court said that the head sentence was a proper one, but varied the sentence by fixing a parole eligibility date after two years and six months.  Obviously, that applicant, unlike the applicant here, had the advantages of youth and a minimal criminal history, as well as a compelling demonstration of rehabilitation; and his period of trafficking was very short.

[40]  Having regard to those authorities, I have formed the view that  the sentence of 10 years imprisonment in this case imposed without regard to the assistance given to the authorities was, while not manifestly excessive, at the higher end of an appropriate range for the applicant’s level of offending.  It follows that I conclude the evidence of assistance to police does point to a lesser sentence being warranted, and the applicant’s sentence should be adjusted accordingly.  A sentence of less than 10 years means, of course, that a serious violent offence declaration is no longer automatic.  While I acknowledge the force of Mr Rutledge’s submission that a sentence without that declaration risks being inadequate to reflect the criminality involved here, I do not think imposing such a declaration purely to ensure a sufficiently heavy sentence is an appropriate use of the mechanism.  In my view, the balance between recognising the applicant’s assistance and ensuring adequate punishment for the offending is met by substituting a sentence of nine years on the first trafficking count, with parole eligibility after approximately six years.

Orders

[41]  I would grant the application for leave to appeal against sentence, allow the appeal, set aside the sentence on count 1 and substitute a sentence of nine years imprisonment, fixing the parole eligibility date at 12 September 2013.

[42]  McMURDO J:  I agree with Holmes JA.

[43]  APPLEGARTH J:  I agree with the reasons of Holmes JA and with the order that her Honour proposes.