CITATION: 	The Queen v Roe [2017] NTCCA 7

PARTIES:	THE QUEEN

	v

	ROE, Chad

TITLE OF COURT:	COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:	CRIMINAL APPEAL from SUPREME COURT exercising Northern Territory jurisdiction

FILE NO:	CA 11 of 2016 (21556213)

DELIVERED ON:	25 July 2017

DELIVERED AT:	Darwin

HEARING DATE:	6 April 2017

JUDGMENT OF:	Grant CJ, Southwood and Blokland JJ

APPEAL FROM:	Barr J

CATCHWORDS:

CRIMINAL LAW – DRUG OFFENCES – JUDGMENT AND PUNISHMENT

Crown appeal against sentence on the ground of manifest inadequacy – supply of a commercial quantity of methamphetamine over an extended period – cross-border importation – primary sentencing purposes are punishment, denunciation, community protection and deterrence – inordinate weight given to rehabilitative purposes – appeal allowed and offender re-sentenced.

Criminal Code (NT) s 414(1A)
Misuse of Drugs Act (NT) s 5, s 23(6)

DPP (Cth) v Gregory (2011) 34 VR 1, DPP v Leach (2003) 139 A Crim R 64, Everett v The Queen (1994) 181 CLR 295, Green v The Queen (2011) 244 CLR 462, Griffiths v The Queen (1977) 137 CLR 293, Hili v The Queen (2010) 242 CLR 520, House v The King (1936) 55 CLR 499, Lacey v Attorney-General (Qld) (2011) 242 CLR 573, R v BJW (2000) 112 A Crim R 1, R v Henry (1999) 46 NSWLR 346, R v Hitanaya [2010] NTCCA 3, R v Indrikson [2014] NTCCA 10, Islam v R [2016] NSWCCA 233, R v Koumis (2008) 18 VR 434, R v MacDonnell (2002) 128 A Crim R 44, R v McKee & Brooks (2003) 138 A Crim R 88, R v McDonnell [1997] SCR 948, R v Osenkowski (1982) 30 SASR 212, R v Proom (2003) 85 SASR 120, R v Riley (2006) 161 A Crim R 414, R v Wilson (2011) 30 NTLR 51, Re Attorney-General’s Application (No 1) (1999) 48 NSWLR 327, Truong v The Queen (2015) 35 NTLR 186, Wong v The Queen (2001) 207 CLR 584, referred to.

A Freiberg, Fox and Freiberg’s Sentencing State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014).

REPRESENTATION:

Counsel:
	Appellant:	D Morters
	Respondent:	S Cox QC

Solicitors:
	Appellant:	Office of the Director of Public Prosecutions
	Respondent:	Northern Territory Legal Aid Commission

Judgment category classification:	B
Number of pages:	106

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The Queen v Roe [2017] NTCCA 7
No. CCA 11 of 2016 (21556213)

	BETWEEN:

	THE QUEEN
	Appellant

	AND:

	CHAD ROE
	Respondent

CORAM:	GRANT CJ, SOUTHWOOD AND BLOKLAND JJ

REASONS FOR JUDGMENT

(Delivered 25 July 2017)
GRANT CJ AND SOUTHWOOD J:
[1]	This is a Crown appeal against a partially suspended sentence of imprisonment that was imposed on the respondent by the Supreme Court on 12 October 2016.
[2]	On 4 August 2016 the respondent pleaded guilty to a single count on an indictment dated 5 May 2016.  The count charged that contrary to ss 5(1) and (2)(b)(iA) of the Misuse of Drugs Act (NT) between 22 July and 21 October 2015 the offender unlawfully took part in the supply of a commercial quantity of methamphetamine.  The supply pleaded on the indictment was constituted by a number of instances of supply to different persons forming part of a series of offences of the same or similar character over a continuous period of approximately three months.  The maximum penalty for this offence is imprisonment for 25 years. 
[3]	On 12 October 2016 the respondent was sentenced to imprisonment for three years and nine months backdated to 10 November 2015.  The sentence of imprisonment was suspended on conditions after the respondent had served one year and nine months in prison.  The sentence was suspended after one year and nine months instead of two years because it was a condition of the suspended sentence that the respondent was to enter a 12 week residential rehabilitation program immediately upon being released from prison.  An operational period of two years from the date of the respondent’s release from prison was fixed.
[4]	The conditions of the suspended sentence were as follows.
For the operational period of two years from the date of release from prison –
1.	The respondent will be under the ongoing supervision of a probation and parole officer.  He must obey all reasonable directions from his probation and parole officer and he must report to his probation and parole officer within two clear days after his release from prison.
2.	The respondent must tell his probation and parole officer of any change of address or employment within two clear working days after the change.
3.	The respondent must not leave the Northern Territory, except with the permission of his probation and parole officer.
4.	On the respondent’s release from prison and as directed by his probation and parole officer, the respondent will immediately enter into the Sunrise Centre Residential Rehabilitation Program or any other program assessed as suitable for him, participate fully in that program and do nothing to cause his early discharge from that program.
5.	The respondent shall not consume a dangerous drug and he will submit to testing, as directed by his probation and parole officer for the purpose of detecting the presence of dangerous drugs.
6.	The respondent will participate in assessments, counselling and/or treatment, as directed by his probation and parole officer.
7.	The respondent will submit to a curfew as directed by his probation and parole officer and he will not leave the nominated residence without prior permission from his probation and parole officer, except in the case of medical or dental emergency.
8.	While residing and participating in the residential rehabilitation facility, the respondent will wear or have attached an approved monitoring device and allow the placing or installation in and retrieval from the premises occupied by the respondent any equipment necessary for the effective operation of the monitoring device.
9.	The respondent will comply with the electronic monitoring rules as stipulated in the Rules for Electronic Monitoring document.
[5]	A number of observations may be made about those conditions.  
[6]	First, the prohibition on the consumption of dangerous drugs and the obligation to submit to testing for those substances during the two-year operational period cannot be characterised as punitive or onerous in nature.  It is simply a requirement that the respondent comply with the law during a period in which he remains subject to sentence and would otherwise have been imprisoned.  
[7]	Secondly, the requirement to submit to a curfew as directed and not leave the nominated residence without prior approval during periods of curfew would subsist only if directed by the probation and parole officer.  Whether such a direction is made would depend on the probation and parole officer’s assessment of the respondent’s progress in the residential rehabilitation course.  If the respondent performed well and received a positive exit report from the Sunrise Centre it is unlikely that a curfew would be imposed unless the respondent failed to comply with his other conditions of supervision.  If there were concerns about the respondent’s progress at the Sunrise Centre, a curfew might be imposed for a short period of time.  It is most unlikely that the respondent would be subject to a curfew for the whole period of his supervision.  
[8]	Finally, the requirement that the respondent wear an electronic monitoring device while residing and participating in the residential rehabilitation facility was directed to the 12 week residential rehabilitation program at the Sunrise Centre the appellant was required under condition 4 to undertake immediately upon his release.  There was no other residential rehabilitation program in contemplation.  Again, it would be incorrect to suggest that the respondent would be subject to that requirement throughout the whole of the two-year operational period.
[9]	The sole ground of appeal is that the sentence of imprisonment is manifestly inadequate.
Crown appeals
[10]	This Court has recently had occasion to review and consider the principles governing Crown appeals against sentence.  For ease of reference we repeat those observations here.
[11]	Crown appeals against sentence should be a rarity brought only to establish some matter of principle, and to afford an opportunity to the Court of Criminal Appeal to perform its proper function in this respect; namely, to lay down principles for the guidance of courts sentencing offenders.  The reference to a “matter of principle” must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which constitutes an error in point of principle.
[12]	As to what will constitute an error in point of principle, in R v Riley this Court stated:
In R v Barbara (NSW Court of Criminal Appeal, unreported judgment number 60638 delivered 24 February 1997), Hunt CJ at CL, with whom the other members of the Court agreed, pointed out that the passage from the judgment in Everett cited by Thomas J was not limited to laying down some new point of principle.  His Honour said:
“It is usually overlooked by respondents that the High Court has at the same time also clearly indicated that sentences which are so inadequate as to indicate error or departure from principle, and sentences which depart from accepted sentencing standards, 

constitute error in point of principle which the Crown is entitled to have this Court correct.”
[13]	These remarks do not operate to displace the principle expressed by King CJ in R v Osenkowski, namely:
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 the judge’s sympathies are reasonably excited by the circumstances of the case.  There must always be a place for leniency which has been traditionally 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 an offender’s life might lead to reform.  The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.
[14]	The principles enunciated in House v The King remain applicable to the determination of manifest inadequacy.  In the oft-quoted passage from that decision, the High Court stated:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles.  It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his, if 
it has the materials for doing so.  It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.  Unlike courts of criminal appeal, this court has not been given a special or particular power to review sentences imposed upon convicted persons.  Its authority to do so belongs to it only in virtue of its general appellate power.  But even with respect to the particular jurisdiction conferred on courts of criminal appeal, limitations upon the manner in which it will be exercised have been formulated. Lord Alverstone LCJ said that it must appear that the judge imposing the sentence had proceeded upon wrong principles or given undue weight to some of the facts (R v Sidlow).  Lord Reading LCJ said the court will not interfere because its members would have given a less sentence, but only if the sentence appealed from is manifestly wrong (R v Wolff.). Lord Hewart LCJ has said that the court only interferes on matters of principle and on the ground of substantial miscarriage of justice (R v Dunbar).
[15]	In Hili v The Queen, the plurality reasons contain the following observations concerning the assessment of manifest inadequacy, in the absence of any assertion of specific error, on the basis that the sentence subject to appeal was unreasonable or plainly unjust: 
[A]ppellate intervention on the ground that the sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at is markedly different from other sentences that have been imposed in other cases”.  Rather as the plurality went on to say (72) in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes there must have been some misapplication of principle, even though where and how is not apparent from the statement of the reasons.
[…] But what reveals manifest excess, or inadequacy, of sentence is consideration of all the matters that are relevant to fixing the sentence.  The references made by the Court of Criminal Appeal to the circumstances of the offending and the personal circumstances of each offender were, therefore, important elements in the reasons of the Court of Criminal Appeal.
The applicants’ submissions criticising the sufficiency of the reasons given by the Court of Criminal Appeal pointed out that the Court of Criminal Appeal identified no specific error in the sentencing judge’s findings of fact or reasons.  That is right, but because the only ground advanced by the Director was the ground of manifest inadequacy, it had to be assumed that the Director alleged no specific error.  That the Court of Criminal Appeal identified no specific error is, therefore, unsurprising.  The absence of identification of such an error does not bespeak error on the part of the Court of Criminal Appeal.
[16]	Even where manifest inadequacy is found, this Court retains a residual discretion as to whether the respondent should be re-sentenced.  In R v BJW the New South Wales Court of Criminal Appeal stated:
The right of the Crown to appeal against a sentence on the grounds of inadequacy is exceptional.  However, where sentences imposed are so inadequate as to indicate error or departure from principle, or depart from accepted sentencing standards, they demonstrate error in point of principle which the Crown is entitled to have this Court correct.  The case must be a compelling one before this Court will interfere.  It is not sufficient that this Court would itself, in the position of the sentencing judge, have imposed a more severe sentence.  However, sentences outside the permissible range of those the product of a properly exercised sentencing discretion prima facie manifest error.  Even so, in the case of a Crown appeal, there remains a residual discretion as to whether the Court will interfere.  (Footnotes omitted)
[17]	As to the exercise of the residual discretion, in Green v The Queen the plurality of the High Court stated:
A primary consideration relevant to the exercise of the residual discretion is the purpose of Crown appeals under s 5D which, as observed earlier in these reasons, is “to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.”  That is a limiting purpose.  It does not extend to the general correction of errors made by sentencing judges.  It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion.
[18]	That principle has been accepted and applied by this Court in R v Hitanaya and R v Wilson.  In R v Hitanaya this Court stated:
The principles governing Crown appeals are not in doubt and are well known.  They were discussed in R v Riley [(2006) 161 A Crim R 414 at [18]-[20]] and it is unnecessary to repeat that discussion.  Even if the manifest inadequacy is such as to demonstrate error in point of principle, the Court must carefully consider the next step which involves determination as to whether this is one of those rare and exceptional cases in which the Crown appeal should be allowed and the respondent resentenced.
[19]	Following Hitanaya, and before Wilson was decided, s 414(1A) of the Criminal Code was enacted to provide that in exercising its discretion on an appeal against sentence with respect to an indictable offence, the Court must not take into account any element of double jeopardy when deciding whether to allow the appeal or impose another sentence.  In R v Wilson Riley CJ considered the impact of s 414(1A) of the Criminal Code on the Court’s residual discretion, and described the ambit of the discretion in light of that section.  His Honour stated:
[Section 414(1A) of the Criminal Code] removes any need for the Court of Criminal Appeal to give consideration to ensuring that Crown appeals are “rare and exceptional”.  Responsibility in that regard rests with the Director of Public Prosecutions.
….
Apart from double jeopardy considerations, the Court retains a residual discretion to determine that, despite error having been established and being satisfied that a different sentence ought to have been passed, a Crown appeal should be dismissed or a reduced sentence should be imposed.
Factors that may be relevant to the exercise of the residual discretion to dismiss an appeal, despite inadequacy of sentence, include the presence of unfairness arising from such matters as delay, parity, the totality principle, rehabilitation and fault on the part of the Crown.
[20]	Accordingly, the principle of double jeopardy no longer requires this Court to ensure that appellate intervention is rare and exceptional in the manner spoken of in Hitanaya.  It remains the case, however, that this Court will not intervene where no point of principle arises, and will be slow to intervene where there is a countervailing factor which may warrant the exercise of the residual discretion.
The facts
[21]	The facts of the offence committed by the respondent are as follows.
[22]	On 4 June 2015, Drug and Organised Crime Squad detectives commenced an operation codenamed ACOSY to investigate the supply and distribution of methamphetamine through a syndicate operating in Darwin.  The respondent was identified as the primary target of the operation.  Between 23 July and 20 October 2015 detectives monitored the movements of and communications between the respondent, co-offenders and others involved.
[23]	While the respondent was residing in Darwin between 23 July and 22 August 2015, he engaged in the supply of a commercial quantity of methamphetamine.  He obtained quantities of methamphetamine from unknown sources and sold the drug for profit.  Typically, the offender obtained methamphetamine in quantities known as an “eight-ball” and then sold the drug to end users in smaller quantities.  An eight-ball contains 3.5 grams of methamphetamine (or 1/8 of an ounce in the Imperial measure).  The respondent sold the drug in “point” (0.1 gram), “quarter” (0.25 gram), “half” (0.5 gram), “full” (1 gram), and “half-ball” (1.75 grams) quantities.
[24]	In the period between 23 July and 22 August 2015 the respondent obtained each eight-ball of methamphetamine for between $2,200 and $2,600.  He sold a point for between $100 and $150, a quarter for between $250 and $300, a half for between $500 and $600, a full for between $1,000 and $1,200, and a half-ball for between $1,250 and $1,500.  Each eight-ball obtained by the offender was divided and sold for varying amounts up to $5,250.
[25]	Between 23 July and 22 August 2015 police intercepted 670 SMS messages and 234 telephone calls between the respondent and the drug users he supplied.

[26]	From his involvement in the supply of methamphetamine in Darwin the respondent became aware that methamphetamine could be obtained for significantly lower prices in the southern States.  At some time prior to 22 August 2015 the respondent made arrangements with unknown parties in Melbourne to purchase ounce (28 gram) quantities of methamphetamine for between $3,000 and $4,000.  On 22 August 2015 he flew to Melbourne and resided there until 12 November 2015 when he was extradited to the Northern Territory.
[27]	While in Melbourne the respondent purchased ounce and half ounce quantities of methamphetamine which he transported to Darwin by various means to be sold.  Sometimes the methamphetamine was transported to Darwin by the respondent’s associates flying to Darwin with the drug.  Sometimes the methamphetamine was transported to Darwin by secreting the drug in various packages together with other items and mailing the packages containing the drug to Darwin.
[28]	Upon arrival of the methamphetamine in Darwin the respondent would provide instructions to associates in Darwin on how to distribute the drug to his pre-existing customers.  On occasions the respondent would facilitate contact between his users and those selling the drug on his behalf.  If sold by the point an ounce of methamphetamine could be sold for up to $42,000.  The offender thereby made a profit.
[29]	Between 22 August and 20 October 2015 police intercepted 464 SMS messages and 191 telephone calls about the supply of methamphetamine which were sent from and received by the respondent’s mobile telephone.  During this period the respondent was engaged in the supply of a commercial quantity of methamphetamine.  It is irrelevant for these purposes whether those messages and calls – or the 670 messages and 234 drug-related calls from the previous month in Darwin – went to a few individuals on a number of occasions or to a great many different persons.  It was an agreed fact that the respondent was operating a supply network, and the messages and calls were necessarily directed to the operation of that network.  The objective seriousness of the offending does not depend on whether the appellant was communicating directly with the users at the bottom of that network, or was conducting the supply operation by dealing with a limited number of people at higher levels in the network.
[30]	It is estimated that the respondent supplied in excess of 200 grams of methamphetamine in the Northern Territory.  The respondent agreed with this estimate.
[31]	On 10 November 2015 the respondent was arrested in Melbourne, and on 12 November 2015 he was extradited to Darwin.  He arrived in Darwin on 13 November 2015 and was remanded in custody on 16 November 2015.
[32]	On the basis of those matters, the sentencing judge made the following observations: 
Although the Crown has not been able to accurately quantify the amount of methamphetamine supplied by you during the relevant period, it is estimated, and you agree with the estimate, that the quantity supplied was in excess of 200 grams.  It is not part of the agreed facts but I have calculated that if the 200 grams had been sold by the point, at $150 per point, that would have generated gross receipts of some $300,000.
I acknowledge that, at least after you moved to Melbourne, you were not selling methamphetamine by the point, and that even prior to moving to Melbourne, you were probably not selling all of the methamphetamine by the point.  I also acknowledge that my calculation assumes a premium price of $150 per point, which was not necessarily the case in relation to all of the methamphetamine sold by you or by those who sold it on your behalf, or those that bought it from you for further resale.  That is still a lot of money.
[33]	His Honour also found:
In your case, I am by no means convinced that your usage of methamphetamine, even your addiction to methamphetamine, provides very much by way of mitigation.  You engaged in a business with the aim of making substantial profits.  When you realised that even greater profits could be made by procuring the drugs interstate and importing them into the Darwin market, you made that business decision.
[34]	The effect of this finding is that there is not a causal relationship of any significance between the respondent’s misuse of methamphetamine and his offending.  For that reason, he is not less responsible or culpable for his actions due to his drug addiction.
Objective seriousness
[35]	The offending is objectively very serious.  The maximum penalty for the offence is imprisonment for 25 years.  Methamphetamine is a particularly dangerous and insidious drug which causes considerable harm in the community.  Such offences are prevalent.  During the period of three months pleaded on the indictment it is estimated the quantity of methamphetamine supplied by the respondent was more than five times the commercial quantity of methamphetamine.  Within that period of three months he expanded his business to a stage where he was importing the drug from Melbourne, engaging couriers to bring the methamphetamine to Darwin from Melbourne, and engaging drug dealers to sell the drug for him in Darwin to a network of drug users that he had established while he was in Darwin.  He became the principal of a drug trafficking business.  
[36]	The respondent did not come from a deprived background.  He had been in well-paid employment and, as a mature adult, he deliberately chose to engage in criminal activity to make a profit.  The respondent made a significant amount of profit.  He grossed hundreds of thousands of dollars in a short period of time and only ceased his drug trafficking business when he was arrested in Melbourne following a covert police operation.
[37]	As Professor Freiberg has stated, “The amount of money involved in an offence, and particularly the profit gained or sought to be gained by a criminal venture, is a significant matter in determining the degree of criminality.”  In DPP (Cth) v Gregory the Victorian Court of Appeal stated:
The size of the benefit obtained by an offender from the commission of the offence is a relevant sentencing factor even if “benefit” is not an element of the offence as it may have a significant bearing on the moral culpability of the offender or the need for deterrence.
[38]	The greater the actual or expected gain for a drug offence, the higher the offender’s moral culpability and the more severe the sentence should ordinarily be.  Commercial criminal ventures such as trafficking in drugs will be treated more severely than offences with lesser profit margins.
[39]	The offence is aggravated by the facts that it was committed in company with others and it involved substantial planning and organisation.
Subjective factors
[40]	 The respondent was born on 3 September 1983.  He was 31 years of age when he committed the offence which is the subject of this appeal.
[41]	The respondent completed year 10 of high school.  He has a good employment history.  He has worked in the mining industry since leaving school.  He is a qualified machine operator.  The respondent and his partner travelled to Darwin in 2012 and he took up employment with the Ranger Uranium Mine at Jabiru.  He remained in that employment for about two years.  He stopped work at the Ranger Uranium Mine when he and his partner started having relationship problems.  He then obtained employment at the INPEX construction site.  His partner also worked at that site.
[42]	In 2015 he ceased employment at INPEX because he could not stop using methamphetamine.  Not long after he stopped work, he and his partner separated.
[43]	The respondent has used methamphetamine since he was 19 years of age.  He started taking the drug during his rostered days off while he was working in Kalgoorlie.  His drug taking increased during the two years prior to his arrest and he claims he was using a gram of methamphetamine a day when he was arrested.  As already noted, the respondent did not come from a deprived background.  Even if it were accepted that the commission of the offence was somehow a consequence of his use of or addiction to drugs, there is nothing to suggest that use or addiction was the result of social or economic disadvantage, poor education or emotional or physical abuse so as to lower his moral culpability.
[44]	The respondent has a very minor criminal history in Western Australia.  All his convictions in Western Australia are for driving offences.  The respondent has two prior convictions for minor drug offences in the Northern Territory.  He has been convicted of possessing an implement used to administer a dangerous drug and possessing a traffickable quantity of methamphetamine.  He committed those offences in February 2015 and he received an aggregate fine of $1,250 for those offences.
[45]	The respondent’s misuse of methamphetamine makes his prospects of rehabilitation difficult to assess at this point in time.  The completion of the Safe Sober Strong Program does not necessarily mean that the respondent has taken any significant step to overcoming his misuse of drugs.  That rehabilitation program is an introductory level program and it is recognised that addiction to methamphetamine is a chronic, relapsing condition which is a counter-indicator of good prospects of rehabilitation.  In R v Proom Doyle CJ stated:
Addiction to drugs may indicate that assurances by an offender of a desire to be rehabilitated are unreliable, or must at least be treated with caution, and sadly may mean that even a genuine wish to rehabilitate may have to be treated with caution.  In the worst case, if there is no reason to think that the addiction will be broken, there will be no basis for leniency by reference to the prospect of rehabilitation.
[46]	In this case the respondent has been using an insidious, highly addictive drug.  The drug can quickly lead to addiction and a resistance to any form of treatment.  As is apparent from the offender’s particular circumstances, the loss of his job, the loss of his partner, and the convictions for drug offending in 2015 proved insufficient incentive for him to seek assistance to overcome his misuse of the drug at that time.
Sentencing principles for drug offences
[47]	The supply and use of methamphetamine are matters of widespread concern in the community.  Such offending is prevalent.  The supply and use of the drug has an immediate and primary impact on individual users who suffer adverse physical and mental health outcomes.  Methamphetamine use also has obvious and predictable adverse consequences for the family of the individual user.  The proliferation of the drug is also detrimental to the wider community, as use of the drug quickly leads to antisocial and criminal conduct including violent behaviours.  As a consequence, punishment, denunciation and deterrence are the main sentencing objects.
[48]	In recent times, the community generally and this Court specifically have become increasingly vigilant concerning the dangers presented by the methamphetamine trade.  The decision of this Court in Truong v The Queen was something of a watershed in this respect.  In Truong, this Court stated:  
The courts in the Northern Territory have an obligation to protect the Northern Territory community from the dreadful effects of methamphetamine usage and addiction.  Courts have for many years stressed the need, in cases such as the present, for sentencing judges to impose condign sentences which appropriately reflect the elements of retribution, punishment and deterrence, both personal and general.
….
General deterrence was particularly important in the sentencing of the applicant.  There was a clear need to send a strong deterrent message to people like the applicant: an interstate resident who supplied methamphetamine into the Darwin market, who was prepared to run the risk of detection in the expectation of significant profit, perhaps a greater profit than could be made supplying methamphetamine in his home State.  In terms of general deterrence, the message applicable to both Territory and interstate residents is that any offenders who import commercial quantities of dangerous drugs into the Northern Territory from interstate risk lengthy terms of imprisonment.
[49]	The assessment of moral culpability and objective seriousness in these circumstances requires consideration of the following relevant factors: the great social consequences that follow from the commission of the offence; the existence of a commercial venture in the supply of drugs; the role of the offender in that enterprise; the level of his or her participation in the offence; the reward which the offender hoped to gain from participation in the offence; the difficulty in detecting the offence; and the quantity of drugs involved.
[50]	In Wong v The Queen, which was a heroin importation case, the plurality of the High Court stated:
In general, however, the larger the importation, the higher the offender’s level of participation, the greater the offender’s knowledge, the greater the reward the offender hoped to receive, the heavier the punishment that would ordinarily be exacted.
[51]	In R v MacDonnell Wood CJ at CL stated:
It is also to be accepted that the mere quantity of the drugs is not the sole, or even the principal, determinant for sentencing in relation to drug offences.  What is more important is the role of the offender, and the level of his or her participation in the offence; subject of course to the fact that, in relation to supply offences under State law, there is a gradation of seriousness reflected by an increase in penalty as the quantity of drug involved moves into those levels which answer the descriptions of a commercial quantity, or of a large commercial quantity.
[52]	The statements of principle in Wong v The Queen and MacDonnell are important.  They recognise that there is a hierarchy of drug offences based on the factors which have been identified in those passages.  A person who engages in a business of trafficking in drugs of dependency usually commits a more serious offence than a person who acts as a drug courier on one occasion.  There are identifiable ranges of sentences which reflect the level of drug offence committed by an offender.
[53]	It is also well established that when sentencing offenders for trafficking in commercial quantities of drugs of dependence, denunciation, community protection and deterrence will be the dominant sentencing purposes while rehabilitative purposes will be of secondary importance.  As Fox and Freiberg observe: “Any mitigating aspects of the offence may be overridden.”
[54]	In DPP v Leach Batt JA stated:
[T]he very serious nature of this offence of trafficking in methylamphetamine in a commercial quantity, objectively considered, required general deterrence and denunciation by the court of the respondent's conduct to prevail over the rehabilitation of the respondent as the principal purposes to be effectuated by the sentence.  As Charles JA said in R v Howden, there is little distinction to be drawn between those who traffic in methylamphetamine and those who deal in heroin.  Amphetamine, as his Honour went on to say, is a very deleterious substance.  Parliament's view of the seriousness of the offence is shown by the maximum penalty it has fixed.  In this case, the applicant engaged in the trafficking with her eyes open as to the seriousness of the offence and the seriousness of the consequences, if she were to be discovered.  She required a high price for her participation (although its precise quantification is not known).  She knowingly played for high stakes.  The quantity of the drug trafficked in was almost twice that defined as the minimum for a commercial quantity of this drug.
[55]	That same approach was adopted by this Court in R v Indrikson, where it stated:
While the respondent had no relevant prior convictions, he was not a first offender and his prior good character and prospects of rehabilitation do not carry much weight in the circumstances of this case.  As the respondent was highly placed in an enterprise he established for the importation, distribution and sale of drugs, the principal sentencing objectives are general deterrence and protection of the community, punishment and denunciation.
[56]	Finally, drug addiction is not a factor that will necessarily weigh heavily, or at all, in the sentencing process.  In R v Proom Doyle CJ stated:
The unlawful trade in drugs, and drug addiction, with all their adverse consequences for individuals, their families and for society, are major problems in our society.  To treat drug addiction as a routine mitigating circumstance when sentencing an offender, would conflict with attempts made through the criminal law and by other means to deal with unlawful trading in drugs and with drug addiction.  To say that is not to deny that addiction may be a form of illness.  But Parliament has made it clear that the courts must treat unlawful dealing in drugs severely.  It would seem curious in that context to treat as a mitigating factor, the 

fact that a crime was committed to obtain money with which to purchase drugs in breach of the law.
[57]	In a similar vein, in R v Koumis the Victorian Court of Criminal Appeal stated:
Drug addiction is not of itself a factor that necessarily calls for a lesser sentence than would otherwise be appropriate.  The sentence to be fixed has to reflect the seriousness of the crime of trafficking in substantial quantities of a drug of dependence.  Denunciation and general deterrence assume particular importance as the purposes to be effectuated by the sentence.  Generally speaking, addiction and any consequential impairment of judgment will not have any significant mitigatory effect upon those sentencing considerations.
[58]	As already noted, the sentencing judge did not find any causal relationship of significance between the respondent’s misuse of methamphetamine and his offending.  Even if that were not the case, self-induced addiction at an age of rational choice establishes moral culpability for the predictable consequences of that choice.  The predictable consequences of drug addiction include involvement in the illicit drug trade in at least some degree.  In this case the respondent determined his involvement would include the supply the drug for commercial gain.  In that endeavour he was motivated by greed.  That motivation and his subsequent conduct perpetuated the trade and facilitated the supply of a significant quantity of methamphetamine into the Northern Territory community.  In those circumstances, the sentencing exercise is appropriately undertaken on the basis that the respondent’s character for the purpose of this offending is that of the drug dealer rather than the drug addict.
Comparable sentences
[59]	The salient features of the crime committed by the respondent are that: for a continuous period of two months the respondent was the principal in a drug trafficking business that was conducted from Melbourne; the business involved the shipment of drugs into the Northern Territory to a group of drug users connected to the respondent; drug couriers engaged by the respondent were used to take the drugs to the Northern Territory; in addition, packages were mailed from Melbourne containing methamphetamine secreted in lawful goods in an attempt to avoid detection; and the respondent engaged drug dealers to sell the methamphetamine in Darwin.  The respondent took a commercial approach to the undertaking.  He moved his drug trafficking business from Darwin to Melbourne in order to maximise his profits.  As has already been described, the respondent supplied more than five times the commercial quantity of methamphetamine and the business had the capacity to produce gross revenue of approximately $300,000 over a period of three months. 
[60]	The Crown submits that the primary error of principle made by the sentencing judge was the adoption of the wrong “starting point” for offending of the type committed by the respondent.  This appears to be a reference to the Canadian approach to guideline sentences by appellate courts.  In R v McDonnell, McLachlin J stated:
The starting point approach was developed as a way of incorporating into the sentencing process the dual perspectives of the seriousness of the offence and the need to consider the individual circumstances of the offender.  It represents a restatement of the long standing practice of sentencing judges of beginning by considering the range of sentence that has been imposed for similar criminal acts followed by a consideration of the factors peculiar to the case and the offender before them.
[61]	The Crown submission is that the nature of the drug supply activity engaged in by the respondent should have been the primary focus in the sentencing exercise, and the nature of the respondent’s activity is clearly distinguishable from the offending under consideration in cases such as Truong v The Queen.  By his conduct, the respondent placed himself in a significantly higher category of supply activity.  He became, in effect, the number two in the ranks of this particular syndicate.  His operation developed into a far more sophisticated and sustained operation than was apparent, for example, in Truong.  The Crown submission is ultimately that it is apparent from the relevant comparable sentences that the proper starting point was well above the five-year term adopted by the sentencing judge for this offence.
[62]	In Wong v The Queen, Gleeson CJ stated that, both in submissions and in reasons for judgment, “inadequacy or excessiveness is often demonstrated by a process of comparison” and that “[s]uch a process is a legitimate forensic tool for advocates and judges; and has been employed for many years”.  However, caution must be exercised not to adopt an artificially rigid approach to the process of comparison, because it is not for the courts to create subsets of a legislatively prescribed offence.  Consistency in sentencing is an important outcome, but does not resolve to “numerical equivalence”.  Like cases are to be treated in like manner whilst preserving the legitimate breadth of the sentencing discretion.  
[63]	Counsel for the Crown submitted that apart from one sentence, the comparable sentences relied on by counsel for the respondent involved offending of a different and much less serious character than the offending which is the subject of this appeal; the majority of comparative sentences relied on by the respondent were imposed on the respective offenders for offences of acting as a drug courier on a single occasion, or for possession of methamphetamine on a single occasion; and the majority of those sentencing exercises did not involve offenders acting as principals in drug trafficking businesses conducted over a sustained period of time, or offenders who had engaged others to conduct drug trafficking on their account. 
[64]	As can be seen from the survey of sentencing dispositions conducted below, the Crown’s submission concerning the comparable sentences relied on by the respondent is not entirely accurate.  A number of the cases to which reference was made by the respondent involved continuing offending which was carried on for commercial gain.  However, demarcation lines between certain categories of offending do emerge from a survey of the comparable sentences to which reference was made by the parties. 
[65]	In Truong v The Queen the offender was sentenced as a drug courier.  He pleaded guilty to one count of supply a commercial quantity of methamphetamine.  He flew from Sydney to Darwin with 55.81 grams of methamphetamine hidden inside his underwear.  Further investigation by police revealed that in the period leading up to the offending the offender had received regular payments totalling $16,800 via Western Union and $2,500 via Australia Post.  The mobile telephone in his possession contained numerous messages indicating he was involved in the supply of dangerous drugs.  The offender admitted that he was involved in the business of drug supply for commercial gain and was bringing the methamphetamine to Darwin in furtherance of that purpose.  
[66]	The offender was 27 years of age.  He had a criminal history including prior convictions for drug offences and he was on bail in relation to supply charges pending in the New South Wales District Court which had not been resolved at the time of his arrest in the Northern Territory.  The offender started using methamphetamine when he was 17 or 18 years of age, but he chose not to give evidence about being addicted to methamphetamine when he committed the offence.  He was sentenced as a courier to four years and 10 months’ imprisonment with a non-parole period of two years and five months.  The starting point was a sentence of imprisonment of six years.  
[67]	Advertence to the offender’s unresolved charges in New South Wales and the fact that he was involved in drug supply for commercial gain cannot obscure the fact that this particular offender was prosecuted for and convicted of a single incident of supply of methamphetamine.  The further information obtained by police was only relied on by the Crown to put the offending in context, and to rebut certain false statements the offender had made about his motive or purpose for committing the offence.  The nature of the offending dealt with in Truong stands in sharp contradistinction to the seriousness of the respondent’s offending having regard to such matters as duration, organisation, place in the network, quantity and commercial gain.  The latter offending was obviously and irrefutably far more serious in nature.
[68]	In The Queen v Leo Salandanan the offender was sentenced for one count of supplying 42.6 grams of methamphetamine, which is 2.6 grams more than the commercial quantity of the drug; and one count of being in possession of a forged driver’s licence, knowing it to be forged with the intent that it be uttered.  The offender came to Darwin to obtain the methamphetamine and supply it to others.  For the count of supplying methamphetamine the offender received a sentence of imprisonment of two years.  The total sentence was two years and four months’ imprisonment which was suspended after 12 months.  The offender was fifty years of age at the time he was sentenced and had one prior conviction for armed robbery and burglary in Victoria in 2006.  The circumstances of that case were clearly very different to this case.
[69]	In The Queen v Barry Esparon the offender pleaded guilty to three counts on an indictment and one count on complaint.  Count one on the indictment was the unlawful possession of 172 grams of methamphetamine.  Count two on the indictment was the unlawful possession of 15.84 grams of MDMA.  Count three on the indictment was the unlawful supply of GHL.  The count on complaint charged the offender with taking a flight on an aeroplane on a ticket with a false name.  The offender acquired the dangerous drugs in Melbourne for the purpose of taking them to Darwin to sell for profit and to support his drug dependency.  The offender was 34 years of age and had a relatively limited criminal history.  He received an aggregate sentence of imprisonment for five years for the three counts on the indictment plus a sentence of eight months’ imprisonment for the count charged on the complaint.  Four months of the eight months’ sentence of imprisonment was ordered to be served cumulatively on the sentence of imprisonment of five years, giving a total sentence of imprisonment of five years and four months.  A non-parole period of 32 months was fixed.  The offender received a discount of 18 percent for his pleas of guilty, giving a starting point of approximately six years’ imprisonment.
[70]	In The Queen v Joel Condello the offender pleaded guilty to a single count of possessing 110.64 grams of methamphetamine.  He purchased the methamphetamine in Melbourne and flew to Darwin with it.  His plan was to sell the methamphetamine in one ounce lots.  He intended to make a substantial profit.  The offender was 28 years of age.  He had a minimal criminal history with no prior convictions.  He had previously received a no conviction bond for the offence of using a carriage service to menace a person.  Despite the fact he was not drug dependent, the offender was accepted as suitable for the Banyan House Rehabilitation Program.  He was sentenced to four years’ imprisonment which was suspended after he had served eighteen months.  It may be noticed that the head sentence imposed on this offender was greater than the head sentence imposed on the respondent to this appeal.  The sentence was discounted by 20 percent, giving a starting point of imprisonment for five years. 
[71]	In The Queen v Anthony David Orrell the offender pleaded guilty to five counts on an indictment, including one count of supplying methamphetamine and one count of possessing 191.39 grams of methamphetamine.  The offender and a co-offender, Zayley Ainslie, came into possession of a quantity of methamphetamine, sold some of that quantity to a number of associates, and stored the remaining 191.39 grams of the methamphetamine at the home of another co-offender.  The offender and co-offender were found to be in possession of more than 20 mobile telephones.  
[72]	The offender was 31 years of age and had an extensive criminal history, including a number of prior convictions for drug offences.  The sentencing judge found the offender to be a person of settled criminal habits. After a discount of 20 percent for his pleas of guilty, the offender was sentenced to four years and nine months’ imprisonment, giving a starting point of six years’ imprisonment.  The offender was also dealt with for other offences.  He ultimately received a total sentence of six years with a non-parole period of three years.  The sentencing judge stated that even if the offender was only dealt with for the first lot of offences a non-parole period would have been fixed. 
[73]	The offending committed by Mr Orrell was similar but arguably more serious offending than that engaged in by the respondent to this appeal before he moved to Melbourne.  During the period he was in Darwin the respondent typically obtained methamphetamine in 3.5 grams lots and sold the drug in smaller amounts.  What had to be acknowledged in the respondent’s sentencing process, however, was that the nature of his offending changed materially and substantially following his move to Melbourne.
[74]	The offender in The Queen v Zayley Ainslie was the co-offender of Anthony David Orrell.  She pleaded guilty to the same counts.  The offender had seven prior convictions for the possession of drugs.  The sentencing Judge found the offender was engaged in the ongoing commercial supply of significant quantities of methamphetamine.  She made a substantial amount of money and she stood to make considerably more.  She was 26 years of age and had a two year old daughter.  She had become addicted to methamphetamine as a teenager.  She started the Safe Sober Strong Program while on remand and was bailed to Banyan House to undertake a residential rehabilitation program.  She was still in Banyan House at the time she was sentenced and her progress in the rehabilitation program had been positively reported.  
[75]	The offender received a discount of 20 percent for her pleas of guilty and was sentenced to four years and nine months’ imprisonment suspended after five months on conditions that she be supervised for three years.  The starting point adopted was six years.  The criminal activity involved was similar to that engaged in by the respondent before he moved to Melbourne.  This might be considered a lenient sentence.  However, the offender had a young child, the offender was undertaking a rigourous rehabilitation course in which she had made significant progress, and there is an understandable reluctance in some circumstances to send a person back to prison after they have embarked on a rehabilitation course in the community.  Of course, that reluctance is properly conditioned on the stringency and utility of the rehabilitation course, and the offender’s particular subjective circumstances.
[76]	In The Queen v Luke Coleman the offender pleaded guilty to three counts on an indictment for supplying a commercial quantity of methamphetamine over a two month period, supplying cocaine over a two month period, and supplying a commercial quantity of MDMA over a two month period.  He was the offender who supplied the drugs the subject of the sentence in the matter of Nigel Marsh (discussed further below).  He was a first offender.  After a discount of 50 percent for cooperation with the authorities and his pleas of guilty, he was sentenced to three years and six months’ 

imprisonment suspended after 18 months.  The matter is of little value as a comparator because of the extent of the offender’s cooperation with police.
[77]	In The Queen v Anthony Zappia the offender pleaded guilty to possessing a commercial quantity of cannabis and possessing a commercial quantity (56.3 grams) of methamphetamine.  During a trip to Adelaide to visit his family during the 2014/15 Christmas period the offender became aware that a large quantity of dangerous drugs was being sold cheaply.  He purchased the cannabis and methamphetamine for $25,000 from the proceeds of the sale of a house.  He intended to consume a significant quantity of the drugs himself.  He hid the drugs in various containers and placed them in the back of a utility owned by his father.  While driving to Alice Springs his utility broke down and the containers in which the drugs were placed were transferred to another vehicle which was intercepted by police. 
[78]	The offender was 33 years of age and his only prior convictions related to driving offences.  He had a good work history.  The offender was dealt with on the basis that he possessed the drugs for commercial gain and was motivated by greed.  For the charge of possessing 56.3 grams of methamphetamine he was sentenced to three years and nine months’ imprisonment following a discount of 25 percent for his guilty pleas.  The starting point for his sentence of imprisonment was five years.  He was sentenced to an aggregate sentence of five years’ imprisonment suspended after he had served two years in prison.  It may be noticed that this sentence was more severe than the sentence of imprisonment imposed on the respondent despite an obvious disparity between the objective levels of seriousness of the offending.
[79]	In The Queen v Dale Shirdon the offender pleaded guilty to taking part in the supply of a commercial quantity of methamphetamine between 29 March and 1 April 2014.  The offender was a courier who transported a commercial amount of methamphetamine from Sydney to Darwin.  He strapped 480 grams of methamphetamine to his body and flew to Darwin.  He was 24 years of age and had two prior convictions for minor drug offences.  He had participated in the Safe Sober Strong Program while on remand.  The offender was sentenced to four years’ imprisonment suspended after 18 months.  The starting point was five years and the sentencing judge stated that the starting point may well have been higher had it not been for considerations of parity arising from the sentence imposed on a co-offender.
[80]	Counsel for the Crown submitted that the sentences imposed on the offenders in The Queen v Nigel Marsh, The Queen v Benjamin Glenn Watts and The Queen v Darryl Paul Milton involved comparable offending and comparable circumstances to the offending in this case.  In each of those cases the starting point was significantly higher than the starting point in the case on appeal.
[81]	In The Queen v Nigel Marsh the offender pleaded guilty to four counts on an indictment including supplying a commercial quantity of methamphetamine over a period of two months, supplying cocaine over the same period, and supplying a commercial quantity of MDMA over the same period.  The offender was involved in the supply of a significant quantity of drugs over a two month period.  The offender supplied 196 grams of methamphetamine to others that was provided to him in three separate instalments by a co-offender who sourced the drugs in Brisbane (dealt within the matter of The Queen v Luke Coleman, discussed above).  He was to receive a further amount of 156.74 grams of methamphetamine but the co-offender was arrested.  That gave a total notional supply of 352.74 grams of methamphetamine.  
[82]	The offender distributed the drugs with the use of five drug dealers.  He had completed the Safe Sober Strong Program while on remand and had been assessed as suitable for the Banyan House Residential Program.  It was found that the offending was at such a level of objective seriousness that it considerably outweighed the weight to be given to the offender’s prospects of rehabilitation and mitigation.  After a discount of 25 percent for his pleas of guilty the offender was sentenced to five years and three months’ imprisonment with a non-parole period of two years and eight months.  The starting point was a sentence of seven years’ imprisonment.  The starting point was constrained by the principle of parity and the sentence that had been imposed on the co-offender who supplied the drugs from Brisbane.  The offending is similar to the offending engaged in by the respondent.  The main distinguishing features are that the offender in that matter did not supply the drug from interstate and did not engage couriers to bring the drugs to Darwin from interstate.
[83]	In The Queen v Benjamin Glen Watts the offender pleaded guilty to three counts on indictment that between 1 October 2015 and 1 February 2016 he unlawfully supplied a commercial quantity of methamphetamine, unlawfully possessed a commercial quantity of MDMA, and unlawfully possessed Testosterone Enanthate.  On 9 February 2016 the offender was arrested and his motor vehicle and back pack were searched.  Police found 87 grams of methamphetamine, 190 MDMA pills, a vial of Testosterone Enanthate, $17,650 in cash, a blue notebook or ledger with various entries starting on 1 October 2015, a set of digital scales, three mobile telephones and firearms with ammunition.  The offender’s mobile telephones and SIM cards were examined and found to contain text messages concerning the supply of dangerous drugs.  
[84]	The offender was interviewed by police and admitted the $17,650 in cash constituted proceeds from the sale of drugs.  His blue notebook recorded sales and money owed from sales of dangerous drugs to persons unknown since 1 October 2015.  The total value of drug sales recorded in the ledger was $366,000 over a four months period.  The offender admitted to dealing in commercial quantities of methamphetamine.  He had acquired significant assets as a result of his drug dealing.  The offender was a 27 year old man who had a history of misusing dangerous drugs.  He started misusing methamphetamine when he was 24 years of age.  He had one prior conviction for supplying methamphetamine on 14 April 2015.  For the count on the indictment of supplying methamphetamine he was sentenced to seven years and six months’ imprisonment.  A discount of 25 percent had been allowed, from a starting point of imprisonment for 10 years.  He received a total sentence of eight years’ imprisonment and a non-parole period of four years was fixed.
[85]	In The Queen v Darryl Paul Milton the offender pleaded guilty to supplying a commercial quantity of methamphetamine between 6 and 24 June 2014 and to receiving $20,500 obtained directly from supplying a dangerous drug to another person.  The offender was a fully patched member of the Hells Angels and he had been placed under observation during operation Navistar, which was conducted by the Drug and Organised Crime 

Squad Gangs Task Force.  During the period that he was under observation it is estimated that he came into possession of at least 280 grams of methamphetamine.  
[86]	The offending involved a continuing commercial operation, it involved a number of transactions including a number of discrete receipts and supplies of methamphetamine, it was conducted for profit, and it involved a large number of consumers of the drug and substantial organisation and planning.  The offender had a criminal history in both New South Wales and the Northern Territory.  He misused drugs from time to time but was motivated to change his life and had expressed a willingness to attend counselling.  He had participated in the Safe Sober Strong Program while in prison.  The offender was sentenced to eight years and six months’ imprisonment with a non-parole period of four years and three months.
[87]	As to offending towards the higher end of the range of such offences, counsel for the Crown referred the court to the sentencing remarks in The Queen v Carlo Betti and The Queen v Mark Simpson. 
[88]	Carlo Betti was involved in selling drugs which he sourced from a drug supply syndicate in Sydney.  Mr Betti transported an average of 280 grams of methamphetamine from Sydney to Darwin each two weeks between November 2013 and April 2014.  He used a supply chain established by the syndicate to purchase the methamphetamine.  The methamphetamine was transported to Darwin using various methods, including strapping it to couriers and sending parcels through Australia Post.  He would then distribute the drug to street-level users and suppliers.  The syndicate transported on average $140,000 from Darwin to Sydney each two weeks.  
[89]	Against that background, in The Queen v Carlo Betti the offender was sentenced to imprisonment for 10 years and six months with a non-parole period of five years and six months.  The sentencing judge started with a head sentence of 13 years’ imprisonment.
[90]	Mark Simpson became involved with Mr Betti in the organisation and assisted with distributing the drugs delivered from Sydney, collecting debts with the use of firearms on behalf of Mr Betti, and maintaining contact with him while he was conducting his drug trafficking business from Sydney.  Mr Simpson would sell methamphetamine from Mr Betti’s apartment and as time went on he became more deeply involved.  He collected drug parcels from the post office and assisted with the importation of the final shipment of methamphetamine to Darwin.  Mr Simpson became actively involved in Mr Betti’s enterprise, and not simply employed by him.  
[91]	Against that background, in The Queen v Mark Simpson the offender pleaded guilty to taking part in the supply of a commercial quantity of methamphetamine in the first two months of 2014, and to having made a demand with menaces on 16 January 2014 to obtain a motor vehicle for himself.  The offender was 39 years of age and had a lengthy criminal history including convictions for drug related offences.  The offender was sentenced to imprisonment for 10 years with a non-parole period of six years.  For his pleas of guilty his head sentence was discounted by three years.  The starting point in that case was also 13 years.
[92]	Care must be exercised when conducting a survey of comparative sentences.  As the plurality stated in Wong v The Queen:
To focus on the result of the sentencing task, to the exclusion of the reasons which support the result, is to depart from fundamental principles of equal justice.  Equal justice requires identity of outcome in cases that are relevantly identical.  It requires different outcomes in cases that are different in some relevant respect.
[93]	The bare sentence which a court imposes on an offender reveals very little about the reasons for fixing that sentence.  Further, in cases where the ground of appeal is that the sentence imposed on the offender was manifestly inadequate, appellate intervention is not justified simply because the sentence passed by the court below is markedly different from sentences that have been passed on other cases.  As the High Court has observed, “[i]ntervention is warranted only where the difference is such that in all the 

circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”.  
[94]	If a sentence is to be disturbed on the grounds of manifest excess or inadequacy it is necessary for the appellate court to make explicit the sentencing principles that are engaged.  As the High Court has further observed, “[t]hus, there will be cases where, for example, it may be appropriate to conclude that sentencers should give chief weight to general deterrence in sentencing for a particular kind of offence”.  The features relevant to the exercise of sentencing those engaged in the supply of methamphetamine have already been touched on in the preceding discussions of objective seriousness and general sentencing principles for drug offences.  
[95]	They include such matters as the social consequences that are likely to have followed from the supply, the quantity of the drug involved, the number of transactions and period over which the supply took place, the offender’s role in the supply, the extent to which the offender is engaged in cross-border importation or exportation, and the amount of profit or reward the offender hoped to gain.  As the High Court observed in Wong, “[i]t is by these kinds of criteria that comparisons are to be made between examples of the offence and the sentences that are or were imposed”.
[96]	The comparable sentences referred to by the parties identify some cases that are relevantly very similar and some cases that are materially different to the case on appeal.  Although there are one or two anomalies apparent from that survey, three broad categories of case involving the supply of commercial quantities of methamphetamine may be identified.  
[97]	First, there are cases which involve a one-off transaction by a single individual for commercial gain which is committed over a short and discrete period of time.  These cases involve people who are in relatively low positions in the drug supply chain.  They are often couriers at one level or another.  The starting point in these cases is ordinarily a sentence of five to six years of imprisonment, but may be lower having regard to the particular subjective circumstances of the offender. 
[98]	The second category of case involves offenders who are in effect convicted of conducting a drug trafficking business for a continuing period of time.  These offenders are characteristically higher up the level of the drug supply chain and they may have established a small organisation in which they use other people as couriers and suppliers to drug users.  The starting point in these cases is ordinarily a sentence of seven to 10 years’ imprisonment. 
[99]	The third category of case involves those offenders who are part of drug trafficking syndicates of various sizes who are at relatively high levels in the drug supply chain who stand to make very large profits.  The starting point in these cases is a sentence in the vicinity of 13 years’ imprisonment (again depending upon the particular subjective circumstances of the offender), which is a starting point of approximately 50 per cent of the maximum sentence.
[100]	The comparative sentences reveal that many drug offenders have similar subjective circumstances.  Many of them have misused dangerous drugs to various degrees and after they are charged with significant drug offences virtually all enrol in rehabilitation programs or are assessed for that purpose.  Many of them are capable of obtaining meaningful employment and claim that they intend to return to meaningful employment when they are released from prison.  They relatively quickly obtain employment in the prison system, and in the Northern Territory many of them obtain employment under the Sentenced to a Job Program.  
[101]	For offenders whose crimes fall into the second and third categories of offending described above, the weight to be given to punishment, denunciation and deterrence usually significantly outweighs the weight to be given to rehabilitation.  Indeed, in these kinds of cases the prospects of rehabilitation do not carry much weight at all, and circumstances justifying suspension of a term of imprisonment are unlikely to be found in what are the common and prevalent aspects of this type of offence.  This is because methamphetamine is an extremely dangerous drug, and the offenders have made an informed choice as adults to engage deliberately and persistently in very serious criminal activity for profit.
The remarks of the sentencing judge
[102]	After referring to the facts the sentencing judge made the following remarks concerning the respondent’s personal circumstances.
A number of testimonials have been provided to the court on your behalf.  In her reference provided to the court, your mother says that you were troubled after the death of your 20-year old brother in 2002 in a motor vehicle accident; and, more recently, the break-up of a long-term relationship.  Your mother says that you sought solace in illicit drug-taking to numb your pain. 
At birth, you suffered craniosynostosis; a birth defect in which one or more of the joints in your skull had closed prematurely, before the brain was fully formed.  In your case, the lambdoid suture was the affected joint.  You had to undergo surgery to separate the fused bones and to allow your brain adequate space to grow and develop. 
Your mother explains that you then experienced clinical and behavioural changes and at the age of 4, you were diagnosed with Attention Deficit Disorder and also epilepsy.  You started to suffer episodes of petit mal. 
Your parents separated when you were 7 years of age.  When you were 14, your mother was suffering advanced breast cancer and required 12 months of invasive therapy.  This was a stressful time for you.  Then, at the age of 19, your brother, Todd, was killed in a motor vehicle accident which I referred to earlier and was incinerated in the vehicle in which he was travelling. 
Your mother says that you are a remorseful young man with a good work ethic, a great sense of humour and loyal to your friends; and a new respect for family and those who have always cared for you and supported you.  She says that you lost your way with drugs, but you have your family’s unconditional support to assist with your rehabilitation.  Your mother also says that you are a hands-on labourer and an experienced plant operator. 
In relation to your work history, a deal of information has been set out in the comprehensive pre-sentence report.  It appears that you are an experienced machine operator.  You have worked for some years in the mining industry, both in Western Australia and in the Northern Territory.  You commenced working in the mining industry shortly after leaving school.  You gained your qualifications and experience as a machine operator, working for Hamersley Iron, then Mincor mining in Kalgoorlie, and more recently, Norwest Sand & Gravel in Karratha. 
In 2011, you lived in Perth and worked as a fly-in fly-out employee with Norwest Sand & Gravel.  In 2012, you and your partner moved to Darwin and you took up employment with Ranger Uranium at Jabiru.  You worked there for about two years.  In 2014, you commenced work at the INPEX construction site, not far out of Darwin. 
You told the author of the Pre-sentence Report that you became increasingly aware that your use of “Ice” was affecting your ability to work and that it was no longer safe for you to continue working as a machine operator.  You ceased your employment in 2015.
[103]	 There are a number of things to note about these remarks.  The offender was a young adult of 18 or 19 years of age when his brother died.  The offender told the probation and parole officer who prepared the pre-sentence report that he started using methamphetamine when he was working in Kalgoorlie in 2002.  He began using it on rostered days off.  He did not say that his use of the drug at that time had anything to do with the death of his brother.  The inference is that the respondent, like a significant number of workers on mine sites in remote locations, chose to use methamphetamine recreationally on his rostered days off.  The respondent attributes the breakup of his relationship to his use of methamphetamine, not the other way around.  There is nothing to connect the offender’s use of methamphetamine to the birth defects described, his diagnosis of Attention Deficit Disorder and epilepsy when he was about four years old, his taking of the prescription medication Dexamphetamine as a child, or his mother’s cancer. 
[104]	Counsel for the respondent before the Supreme Court properly conceded the following matters during his submissions on sentence:
I am not in a position however today to produce a report linking these childhood mental health issues to his conduct in the lead up to these offences.  However, your Honour, I can say that his mother certainly believes that there is some sort of link but I am asking the court just to bear it in mind to put it in context.
I can’t stand here and say that the fact that he had Dexamphetamine for a number of years as a child to treat ADD therefore has created a propensity for amphetamine type stimulants and hence the nature of the addiction.  But your Honour I am not going to put it any higher than that. 
[105]	After referring to the respondent’s personal circumstances and to the principles referred to in paragraphs [34] and [36] of the Court’s judgment in Truong v The Queen, the sentencing judge made the following remarks.
Some of those observations are particularly relevant to the second period of your offending, from 28 August through to 20 October, when you were living in Melbourne and supplying methamphetamine into the Darwin market. 
In your case, I am by no means convinced that your usage of methamphetamine, even your addiction to methamphetamine, provides very much by way of mitigation.  You engaged in a business with the aim of making substantial profits.  When you realised that even greater profits could be made by procuring the drugs interstate and importing them into the Darwin market, you made that business decision. 
This court, in sentencing you, must do what it can to send a message to the community that drug entrepreneurs; that is, those who traffic in commercial quantities of drugs, will receive substantial prison sentences.  That will still be the case, even if offenders are or are said to be addicts or heavy users. 
References tendered to the court demonstrate that you have strong support from family and close friends for your rehabilitation.  That is a positive matter which I take into account in your favour. 
It is most unfortunate, in my view, for you and the community, that you were not motivated to seek help for your methamphetamine use after being convicted in February 2015 for possession of a traffickable quantity of methamphetamine.  That was an opportunity which was available to you and which you did not take advantage of.  I note, however, that you are remorseful and that you are now highly motivated to address your drug misuse.  You have been assessed as suitable to enter the Sunrise residential rehabilitation program. 
Chad Roe, the offence to which you have pleaded guilty carries a maximum penalty of 25 years’ imprisonment.  While I take the view that your offending is serious, it is far from being in the high range of seriousness for this kind of offending.  I note also that your record of prior offending is relatively modest.  Nonetheless, I repeat my view that your offending is serious, as it was definitely commercially motivated and potentially deleterious to the Darwin community. 
In sentencing you, I take as my starting point a term of imprisonment of 5 years.  However, I take off 15 months for your plea of guilty, reflecting as it does your remorse, as well as its utilitarian value. 
I formally convict you and sentence you to a term of imprisonment of 3 years and 9 months.  That sentence should be backdated and deemed to have commenced on 10 November 2015, to reflect time in custody in connection with your extradition from Victoria to the Northern Territory; and, subsequently, your time on remand. 
I was minded to fix a non-parole period in your case of 2 years.  But, having considered the Pre-sentence Report and having heard the submissions of counsel in court today, I have decided that I should direct that your sentence be suspended after you have served 1 year and 9 months of your sentence. 
I fix an operational period for the suspended sentence of 2 years, to date from the date of your release from prison. I want to read out now in court the conditions which will apply to your suspended sentence after you are released from prison: [His Honour then read out the conditions.]
[106]	There are a number of things to note about these remarks also.  The respondent has always had a supportive family.  That support did not prevent him from engaging in this offending over a period of three months.  Despite that support and his family’s knowledge of his drug use, the respondent took no steps towards treatment or rehabilitation until he was incarcerated.  It is well-known among offenders that participation in rehabilitation courses may reduce the length of an offender’s sentence of actual imprisonment.  The respondent has not told the police the names of his customers, or the names of the persons who he used as mules and dealers, or the names of the persons from whom he purchased the methamphetamine.  He has not told the authorities with any specificity the quantity of the methamphetamine he supplied or how much money he made from the supply of the dangerous drug. 
[107]	There is no substantive basis for findings that the offender is remorseful and highly motivated to address his drug misuse.  The content of the pre-sentence report is based largely on the respondent’s self-reporting and, in any event, his primary motivation for offending was profit.  As the New South Wales Court of Criminal Appeal has recently observed::
Assessment of the genuineness of remorse is likely to be better informed in circumstances where it is expressed directly, as remorse is an intrinsically subjective matter, the evaluation of which depends upon human interaction — limited weight to be given to self-serving, untested statements in the report of a health professional — the fact that the offender did not give evidence of contrition was a relevant and important aspect bearing upon the exercise of the sentencing discretion.
[108]	The sentencing judge specifically found that the respondent’s drug dependency was not the cornerstone of the respondent’s offending.  There was no report from a psychologist tendered in evidence which confirmed that the respondent met the criteria for a drug dependent person.  The offending is in the upper middle range for this type of offending.  Against that background, the remarks do not explicate why the pre-sentence report and the submissions of counsel warranted the imposition of a partially suspended sentence of imprisonment; but that is a secondary consideration.  If the sentence properly imposed is a term of imprisonment of more than five years it is not open to make an order suspending the sentence.
Consideration
[109]	On review of all the evidence and the sentencing remarks it must be concluded that the sentence imposed on the respondent was manifestly inadequate.  The chief considerations which point to inadequacy are the harm caused in the community by the organised supply of this insidious drug of dependency; the level and nature of the respondent’s offending; the lack of a significant causal connection between the respondent’s misuse of methamphetamine and the offending; the fact that the respondent by his own experience with methamphetamine was capable of appreciating how dangerous the drug was; and the sentences that have been imposed in those cases most closely comparable with the matter on appeal.  
[110]	It is also necessary to say something about the amount of the drug involved in this matter.  As already noted, the quantity of the drug trafficked was approximately five times the threshold for a commercial quantity.  Although the amount of the drug involved is not the most important factor to be taken into account in sentencing, and although it was not in the same amounts which characterise the most serious category of cases, it does have a role to play in fixing the sentence.  The significant extent by which the amount involved exceeded the commercial threshold operates to increase the objective seriousness of the offending.  It also informs the assessment of the issue of financial gain with the same effect.
[111]	For the reasons already given, the offender’s personal misuse of methamphetamine and his prospects of rehabilitation do not call for a lesser sentence.  Neither drug addiction nor a preparedness to undertake low-level rehabilitation programs necessarily call for lower sentences.  This is a case in which any mitigating aspects of that type were overridden by the objective seriousness of the offending.  The subjective circumstances relied on by the respondent are both unremarkable and common in cases such as this.  They do not justify a suspended sentence.  In making that disposition the sentencing judge accorded excessive weight to rehabilitation and addiction.  Once it was conceded that there was no real and immediate causal nexus between the respondent’s childhood experiences and his addiction, and once the sentencing judge had found that the respondent engaged in a business with the aim of making substantial profits, there was no basis for granting the respondent any significant leniency.  
[112]	Further, it is too early to determine if the assurances by the respondent of a desire to be rehabilitated are reliable.  His assurances in that respect should have been treated with great caution given his previous failure to avail himself of that opportunity notwithstanding the loss of his job and his relationship.  At the time of sentencing he had not taken any significant steps towards rehabilitation and his primary motivation for doing the Safe Sober Strong Program and submitting to assessment for the Sunrise Program is likely to have been to minimise his time in prison.  The respondent will have the opportunity to participate in the Intensive Alcohol and Other Drugs Program in prison and to participate in the Sentenced to a Job Program.  He will no doubt continue to be supported by his family when he is released from prison.
[113]	The sentence imposed in the court below is manifestly disproportionate to the objective seriousness of the offending and does not adequately reflect the sentencing objects of punishment, denunciation and deterrence which are the predominant purposes in cases such as this.  The sentence to be fixed must reflect the seriousness of running a drug trafficking business, over a considerable period of time, which involved the supply of substantial quantities of methamphetamine for profit.  In this case, the respondent engaged in the business of trafficking in methamphetamine with his eyes open as to the seriousness of the offence and the seriousness of the consequences.  He knowingly played for high stakes.  
[114]	As to the Court’s residual discretion, in this case the appeal does not give rise to any unfairness in the relevant sense, there is no fault on the part of the Crown, no issues of parity or totality arise, and the respondent’s rehabilitation will not be adversely affected in any real and substantial sense.  In the circumstances, there is nothing to warrant the exercise of the residual discretion so as to leave an otherwise manifestly inadequate sentence undisturbed.
Disposition
[115]	The appeal is allowed.  The appropriate starting point was a sentence of eight years’ imprisonment.  Despite the reservations expressed above in relation to the level of the respondent’s remorse, the sentencing judge’s assessment of a 25 percent reduction for the plea of guilty is not disturbed.  The respondent is sentenced to six years’ imprisonment backdated to 10 November 2015.  A non-parole period of three years is fixed.  

BLOKLAND J:
Introduction 
[116]	This is a Crown appeal against a sentence imposed by the Supreme Court on 20 October 2016. The sole ground of appeal is: “The learned sentencing judge erred in imposing a sentence which was manifestly inadequate in all the circumstances”. 
[117]	The respondent pleaded guilty to one count of unlawfully supplying a commercial quantity of a dangerous drug, namely methamphetamine, contrary to s 5(1) and (2)(b)(iA) of the Misuse of Drugs Act. He was sentenced to three years and nine months imprisonment, to be suspended after he had served one year and nine months imprisonment.  
[118]	The sentencing judge fixed an operational period of two years from the date of release, during which the respondent was not to commit an offence punishable by imprisonment, otherwise he may be ordered to serve the balance of the term. At the outset it is important to note that the respondent was not simply to be released after serving part of the term. The sentencing judge imposed conditions that would operate after release for the entirety of the two year operational period. The conditions included supervision by a probation and parole officer, reporting obligations, immediate entry into the Sunrise Centre Residential Rehabilitation Program or other suitable programme, a prohibition on the consumption of dangerous drugs and an obligation to submit to testing for dangerous drugs. Further, he was ordered to participate in assessments, counselling and treatment as directed by a probation and parole officer. He was to submit to a curfew as directed and 

not leave the nominated residence without prior approval from his probation and parole officer. While residing and participating in the residential rehabilitation facility, he was ordered to wear an approved monitoring device. These conditions were to apply throughout the whole of the two year operational period. 
[119]	For the reasons that follow, in my view, manifest inadequacy has not been made out. The gravity of the offending to be discussed was appropriately acknowledged by the sentencing judge. The emphasis on the more punitive sentencing principles that operate in cases of this kind were reflected in the sentence, both with respect to the term of imprisonment set as well as the nature and length of the post-release conditions. The sentence imposed may well be considered towards the lower end of the range of sentences available for offending of this kind. However, in my view, the sentence did not create a level of disparity with other sentences involving like offending and offenders to such a degree as to require intervention or correction by this Court. The sentencing judge embarked on an orthodox approach to the sentencing process. Whatever disparity may be found with other sentences for like offending, in my opinion, was within the “boundaries of reason” and does not lead to the conclusion that the sentence was plainly or obviously inadequate.  Even accepting the sentence may be regarded as towards the lower range, it nevertheless reflected the dominance of the 

principle of general deterrence. The sentence was, however, appropriately calibrated to give effect to the finding that there were strong supports in place to underpin rehabilitation. Further, the pre-sentence report was favourable in terms of the respondent’s motivation and capacity to reform. Overall, the terms of the sentence shows primary regard was had to general and personal deterrence and, with respect the latter, was directed to reducing the risks of re-offending. In this way the sentence was constructed to benefit the community in the longer term. The sentence was reasonably open to the sentencing judge in all of the circumstances. 
[120]	The role of Crown appeals is to correct error or departure from principle or to correct sentences which depart from accepted sentencing standards. Appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons. The relevant test is whether the sentence is unreasonable or plainly unjust. The sentence under consideration cannot be characterised as unreasonable or plainly unjust. Neither does the sentence undermine the concept of systemic fairness. In Truong v The Queen, this Court made the following observation:
In Hili v The Queen [(2010) 242 CLR 520 at [47]-[56], per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ], the High Court discussed general concepts of “systematic fairness” and “reasonable consistency” in sentencing, as an aspect of the administration of federal criminal justice. Those concepts apply to persons charged with similar offences arising out of unrelated events. The consistency they require is “consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence” [Hili v The Queen (2010) 242 CLR 520 at [18], per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ]. Further, as Heydon J observed in a separate judgment in Hili:
[77] Sentences must be reasonably consistent. But it does not follow that disparities between them may not exist … where marked disparity renders sentences vulnerable on appeal, it cannot be said that any particular disparate sentence is necessarily wrong merely because it is disparate. Indeed, even within a single jurisdiction, one court … may arrive at sentencing results in particular cases which are different from those reached by earlier courts in that jurisdiction without being open to appellate reversal or criticism for “error” merely because of those differences. 
The sentencing facts 
[121]	The offending broadly involved two identifiable periods. The first period was from 23 July 2015 to 22 August 2015. The second period was from 22 August 2015 to 20 October 2015. In June 2015 the respondent became the subject of an investigation for the supply and distribution of methamphetamine through a syndicate in Darwin and from interstate. A 

telecommunication interception warrant was obtained on 23 July 2015 for the mobile phone he used. 
[122]	The period of police surveillance of the respondent and co-offenders was from 23 July to 20 October 2015. During the first period, the respondent was living in Darwin. During that time he would obtain quantities of methamphetamine from unknown sources and on sell the drug in smaller amounts for a profit. Typically, he would obtain an “8-ball” or 3.5 grams of methamphetamine, and then sell the drug by “the point” (a quantity of .1 of a gram) or through a range of other quantities up to 1.75 grams, a “half-ball”. 
[123]	The intercepted communications revealed the respondent was obtaining “8-balls” of methamphetamine for between $2200 and $2600. He would then sell, depending on the quantity, amounts of the drug for sums between $100 and $1500. During that period, it was accepted by the sentencing judge that if an entire “8-ball” was sold at $150 a point, the respondent could have grossed $5250. 
[124]	During the first period of offending, police intercepted 670 SMS messages and 234 phone calls sent from and received by the respondent’s mobile phone service related to the supply of methamphetamine. 
[125]	The respondent became aware he could obtain methamphetamine interstate for significantly lower prices than he paid in Darwin. He made arrangements in Melbourne to obtain “ounce” quantities (28 grams) of methamphetamine, for between $3000 and $4000 an ounce. 
[126]	During the second period of offending between 22 August and 20 October 2015 the respondent lived in Melbourne. He obtained methamphetamine by the ounce or half ounce. He would then transport the drug to Darwin for distribution by arranging an associate to take the methamphetamine on their person. That person would then fly to Darwin or the respondent would send the methamphetamine by post in packages with other items. The respondent would also provide instructions to associates on how to distribute the methamphetamine within his pre-existing network. On occasions this included the facilitation of contact between customers and those selling the drug on his behalf. The respondent was motivated to obtain a percentage of the profits realised from the sales in Darwin. Based on the sale prices for methamphetamine, the sentencing judge found that if an ounce of the drug was on-sold for $150 per point, the sales could realise a gross amount of $42,000. 
[127]	During the second period of offending, police intercepted 464 SMS messages and 191 phone calls received or sent by the respondent’s mobile phone relating to the supply of methamphetamine. 
[128]	The respondent agreed that throughout both periods of the offending he was involved in the supply of a commercial quantity of methamphetamine. He was arrested in Melbourne on 10 November 2015 and extradited to Darwin. Bail was refused. By the time he was sentenced on 12 October 2016 he had been in custody since 10 November 2015. 
[129]	In terms of the quantity of the drug supplied, the Crown was not able to accurately quantify the amount of methamphetamine supplied. It was estimated that the quantity of the drug supplied was in excess of 200 grams. The respondent agreed with that estimate. The sentencing proceeded on that factual basis. The sentencing judge calculated that if 200 grams had been sold at $150 per point, the gross amount received would have been around $300,000. His Honour qualified his calculation, acknowledging that the respondent was probably not selling all of the drug by the point and in any event may not have sold the drug at the premium price of $150 per point.
[130]	In terms of relevant previous convictions, the respondent had been dealt with in the Darwin Court of Summary Jurisdiction in February 2015 for one count of possession of a traffickable amount of methamphetamine and one count of possess a thing to administer a dangerous drug. A traffickable quantity of methamphetamine is 2.00 grams or over but less than the commercial quantity of 40 grams. The Court of Summary Jurisdiction imposed an aggregate fine of $1,250. The respondent’s prior offending in Western Australia from 2004-2007 involved traffic offending and is not relevant for current purposes. 
[131]	Before his arrest for this offending, the respondent had not previously served a term of imprisonment. 
The respondent’s personal circumstances 
[132]	The sentencing judge ordered and received a pre-sentence report from the Department of Correctional Services. Much of the material taken into account by the sentencing judge was drawn from the pre-sentence report. A further source of information was from letters of reference provided by the respondent’s mother, other family members and friends. None of the material relevant to the respondent’s personal circumstances was disputed before the sentencing judge. It has not been disputed in this Court. Part of the appellant’s complaint is that these factors were given too much weight. 
[133]	The respondent was 32 years old at the time of the offending. Drawing on the material provided, the learned sentencing judge noted that at birth the respondent suffered a birth defect requiring surgery to separate fused skull bones to allow adequate space for his brain to grow and develop. He experienced clinical and behavioural changes at the age of four and was 

diagnosed with attention deficit disorder and petit mal epilepsy. Information provided by the respondent’s mother to the author of the presentence report indicated the epilepsy impacted on his schoolwork; he struggled with concentration and as a consequence his self-esteem was low. He tended to gravitate towards other children who were risk takers and he sometimes lacked the ability to make decisions and consider the impact his choices had on others. The respondent’s parents separated when he was seven years old. When he was 14, his mother suffered advanced breast cancer. It was said to be a stressful time for the respondent during her treatment. 
[134]	When the respondent was 19 years old his brother was killed, incinerated as a result of a motor vehicle accident. More recently the respondent’s long term relationship had broken up. His Honour noted the respondent’s mother told the Court the respondent sought solace in illicit drug-taking to numb his pain.
[135]	His Honour took into account the respondent’s mother’s comments that he was remorseful, with a good work ethic, sense of humour and loyalty to his friends. She said he had new respect for family and those who had always 

cared for him and supported him. She said he had lost his way with drugs but he had his family’s unconditional support to assist with rehabilitation.
[136]	The sentencing judge considered the material set out in the presentence report concerning the respondent’s employment history. The respondent is an experienced machine operator. He commenced working in the mining industry shortly after leaving school and worked for a number of mining companies in both Western Australia and in the Northern Territory. In 2012 he moved with his partner to Darwin and was employed by Ranger Uranium at Jabiru for two years. In 2014 he commenced work at the Inpex construction site.
[137]	In terms of the respondent’s previous drug use, the respondent told the author of the pre-sentence report that his previous drug offending, dealt with in the Court of Summary Jurisdiction in 2015, corresponded with his escalating drug addiction at that time. That led him to end his employment at the Inpex site. He then left the Northern Territory and went to Melbourne. He told the author of the pre-sentence report he became increasingly aware his addiction to ice was affecting his ability to work and it was no longer safe for him to continue working as a machine operator. The respondent reported he engaged in significant drug use when he was in Melbourne, namely a gram of methamphetamine each day. The pre-sentence report also 

mentioned that Dexamphetamine had been his prescription drug for attention deficit disorder. He had taken Dexamphetamine at around the age of 13 to 14 years. The respondent perceived use of this drug increased his energy and made him more alert. 
[138]	Counsel for the respondent before the sentencing judge acknowledged that he was not in a position to produce a report linking childhood mental health issues to the respondent’s conduct in the lead up to the offending. Counsel submitted that the respondent’s mother believed there was some sort of link and the Court was asked to put the offending into that context. Counsel referred his Honour to the presentence report that outlined those background matters and the respondent’s other subjective circumstances. As is usually the case with material relevant to subjective circumstances, it was not suggested there was a causal link to the offending. It is background material to assist a sentencing judge to form a view, if possible, about the character and circumstances of the person to be sentenced. What weight is to be given to such material is classically a part of the exercise of the sentencing discretion. 
[139]	His Honour referred to the strong support the respondent enjoyed from family and close friends as being relevant to his rehabilitation. He had been assessed as suitable to enter the Sunrise Residential Rehabilitation Program and was suitable for supervision from correctional services. In February 2016 while on remand he had completed the prison-based Safe, Sober, Strong program. The pre-sentence report described the objectives of the program, namely that it enhances awareness of the effects of an individual’s actions on themselves and others, as well as providing effective ways to manage stress, anger and other strong emotions. The program also enhances problem solving skills to achieve positive outcomes in challenging situations and encourages participants to make plans for the future, identifying skills and support they need. 
The gravity of the offending
[140]	The appellant submits the gravity of the offending was not reflected in the sentence imposed, leading to a manifestly inadequate sentence requiring correction by this Court. There is no doubt offending of this kind, with a strong commercial element and the establishment of or engagement in a supply network, is serious offending for sentencing purposes and attracts the primacy of the principle of general deterrence. 
[141]	His Honour well acknowledged the offending required sentencing measures that reflected general deterrence. His Honour referred to the maximum penalty of 25 years imprisonment. He took into account the commercial motivation of the respondent and the potentially deleterious impact to the Darwin community. His Honour referred to the sentencing considerations of this Court in Truong v The Queen. In the course of sentencing the respondent, his Honour said:
I want to say something about the sentencing considerations in this matter. As was said by the Northern Territory Court of Criminal Appeal in the case of Truong v R (2015) NTCA 5 at par 34:
The courts in the Northern Territory have an obligation to protect the Northern Territory community from the dreadful effects of methamphetamine usage and addiction. Courts have for many years stressed the need for sentencing judges to impose condign sentences which appropriately reflect the elements of retribution, punishment and deterrence, both personal and general. 
Later, the Court said at par 36:
There was a clear need to send a strong deterrent message to people like the applicant – that is the applicant in that case – an interstate resident, who supplied methamphetamine into the Darwin market who was prepared to run the risk of detection in the expectation of significant profit, perhaps a greater profit than could be made supplying methamphetamine in his home state. In terms of general deterrence, the message applicable to both Territory and interstate residents is that any offenders who import commercial quantities of dangerous drugs into the Northern Territory from interstate risk lengthy terms of imprisonment. 
Some of those observations are particularly relevant to the second period of your offending, from 28 August through to 20 October, when you were living in Melbourne and supplying methamphetamine into the Darwin market. 
In your case, I am by no means convinced that your usage of methamphetamine, even your addiction to methamphetamine, provides very much by way of mitigation. You engaged in a business with the aim of making substantial profits. When you realised that even greater profits could be made by procuring the drugs interstate and importing them into the Darwin market, you made that business decision. 
This Court, in sentencing you, must do what it can to send a message to the community that drug entrepreneurs; that is, those who traffic in commercial quantities of drugs, will receive substantial prison sentences. That will still be the case, even if offenders are or are said to be addicts or heavy users. 
[142]	There is no doubt the sentencing judge made a point of applying the relevant authorities that emphasise the primacy of general deterrence in cases of this kind, particularly with respect to the most egregious aspect of the offending, namely arranging to bring drugs into the Northern Territory. His Honour did not entertain an exception to the application of those principles for reasons of addiction or heavy drug use, although his Honour acknowledged the respondent’s use of drugs. Before the sentencing judge, counsel for the Crown indicated there was no disagreement with the material in the pre-sentence report that indicated dependency issues operated to some extent. However, consistent with the authorities, counsel for the Crown properly emphasised the primacy of general deterrence. 
[143]	The sentencing judge determined the starting point for the sentence under consideration, before the reduction for the plea of guilty, was five years imprisonment. In my view this appropriately reflected the gravity of the offending, with some consideration given to the respondent’s personal circumstances, including some regard given to how he came to commence using drugs. Consistent with accepted sentencing methodology, an 

adjustment was made to reflect both the utilitarian value of the early plea of guilty and the respondent’s remorse. It has been held by this Court that the starting point of a particular sentence under appeal is the “critical question” in determining whether the sentence is outside the proper range of a sentencing discretion “having regard to the gravity of the total criminal conduct and all other relevant circumstances”. The sentence to be scrutinised on appeal, however, is the sentence actually imposed rather than the notional sentence. The question is whether the sentence of imprisonment for three years and nine months, suspended after one year and nine months, was plainly and obviously inadequate having regard to all of the circumstances, including the weight given to the plea. 
[144]	The relevant sentencing principles for cases of this kind are well established in numerous authorities from both this Court and courts in other jurisdictions. 
[145]	While all cases of this kind are serious for sentencing purposes and must be dealt with in a manner consistent with the authorities, proportionality remains a fundamental consideration and is required to be observed in a meaningful way. This was at least implicit in the following part of his Honour’s remarks where his Honour had regard to proportionality:
Chad Roe, the offence to which you have pleaded guilty carries a maximum penalty of 25 years’ imprisonment. While I take the view that your offending is serious, it is far from being in the high range of seriousness for this kind of offending. I note also that your record of prior offending is relatively modest. Nonetheless, I repeat my view that your offending is serious, as it was definitely commercially motivated and potentially deleterious to the Darwin community. 
[146]	Counsel for the appellant emphasised that the quantum of drugs supplied and the personal subjective circumstances of an offender are to be given less weight in the overall sentencing exercise. Further, it was submitted the offender’s role within the drug supply network is the chief determinative factor in assessing both the moral culpability of the offender and the objective seriousness of the offending. An assessment of the role of an accused is the most important of the sentencing considerations. Those whose level in an operation is at the higher level of a hierarchy are more culpable. While it was determined by Wong v The Queen that the weight of the drug is not of chief importance in determining the appropriate sentence, it remains a relevant factor, particularly in the context of harm attributed to the distribution of the drug. The motivation for the offending is also relevant. Profit motivation elevates the gravity of the offending. However, none of these important factors are the sole determinants of the sentence. All relevant elements must be taken into account. 
[147]	This too was made clear by the High Court in Wong v The Queen. It was held that the multitude of factors must be taken into account. Of the reasoning engaged in by the Court appealed from, their Honours said (footnotes omitted):
It departs from principle because it does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong. We say “may be” quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an “instinctive synthesis”. This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features. 
[148]	Clearly the respondent was engaged in a commercial operation. That is not, however, the only factor to be assessed. His own significant use of methamphetamine, including the use of methamphetamine resulting in the previous convictions, indicated he had involvement in drug activities for some significant period. The material submitted on his behalf indicated a 

drug problem since about the age of 19 years. Despite his own use or addiction, the offending was still a commercial operation. As was noted in the sentencing remarks, a significant amount of money was generated through the sale of the methamphetamine. 
[149]	In relation to the proceeds, it was acknowledged by counsel for the appellant before this Court that some caution needs to be applied when assessing the level of possible proceeds. Counsel indicated it could be “dangerous” when police statistics are used to calculate how much particular drug activities are worth; it is difficult to assess the extent of gain given how difficult it is to measure. It was submitted, correctly in my view, the preferred approach was to measure the level of activity. There is no suggestion, however, that his Honour was wrong to attempt to quantify the potential gain based on police statistics. It may also be noted his Honour qualified his assessment of the possible gross receipts generated. He acknowledged the variables that may apply to an assessment of that kind.
[150]	While clearly a commercial operation, there was little material before the sentencing judge to suggest what the financial or other benefit to the respondent was. There was no property seized that might indicate enrichment. Counsel before the sentencing judge said, “Your honour, he has nothing to show from his criminal behaviour. He’s not someone who’s 

brandishing about large sums of money living a flashy lifestyle. It has been a complete disaster for him. The organisational aspect of it isn’t particularly sophisticated.” Nevertheless, the financial motivation as urged by the Crown was accepted by his Honour, particularly given the respondent’s move to Melbourne and the knowledge the respondent had of the availability of cheaper drugs for himself and others, and therefore greater financial gain. 
[151]	There is no doubt the gravity of the offending was magnified by the respondent moving interstate and operating from interstate as a commercial supplier to his associates in Darwin. He was utilising other persons to bring drugs to Darwin. Sometimes the drugs were sent by post secreted in other objects in packages. This aspect of the offending was clearly an aggravating feature. The greater objective seriousness attributed to the act of bringing drugs into the Northern Territory from interstate was emphasised in Truong v The Queen, where the Court said there was a clear need to send a strong deterrent message to interstate residents who supplied methamphetamine into the Darwin market and who were prepared to run the risk of detection in the expectation of significant profit. This feature is particularly pertinent to the Northern Territory given the significant proportion of vulnerable persons in the population. A further feature is the prevalence of offending of this kind. 
[152]	The high level of objective criminality is somewhat qualified by the following factors, although it is appreciated these are not the primary considerations. While the number of phone calls and text messages to and from the respondent’s mobile phone were numerous, the extent to which the number of calls represented a broad syndicate or network is not known. For instance, it is not known whether all of the calls went to a few individuals on a number of occasions or to a great many persons. The agreed facts refer to a pre-existing supply network but the extent of that network is not revealed by the number of calls. The number of calls or contacts demonstrate the respondent’s activities but do not demonstrate how many contacts resulted in an actual sale or supply of drugs. In terms of the level of sophistication of the offending, for the reasons already outlined, the offending was grave. However, it may also be noted the respondent’s operation involved utilising a single mobile phone to contact his pre-existing network. Fortunately the calls made were intercepted during the police investigation. Use of a single mobile phone service for these purposes does not demonstrate a high level of sophistication when compared with other cases involving drug syndicates. A number of cases demonstrating significantly higher levels of sophistication were referred to this Court by counsel for the appellant. Here there was no enrichment alleged beyond the turnover inherent in the sales. It was a relatively short period of offending. 
[153]	The sentencing proceeded on the basis that the amount sold was over 200 grams. While over 200 grams is a significant amount of methamphetamine, especially bearing in mind the commercial threshold provided by the Misuse of Drugs Act (NT) is 40 grams, it is not at the higher levels seen in a number of cases referred to this Court for comparative reasons. The appellant placed strong reliance on Wong v The Queen. In Wong v The Queen, guidance was given on the sentencing of persons convicted of the importation into Australia of heroin. The High Court held that the New South Wales Court of Criminal Appeal had exceeded its jurisdiction by promulgating a guideline judgment in R v Wong in respect of the range of sentences appropriate for couriers and persons low in the hierarchy of a drug importation enterprise. In that context, the High Court was critical of the Court of Criminal Appeal’s reliance upon the quantity of the drug as the chief factor relevant to determining the appropriate sentence. 
[154]	Since the High Court decision in Wong v The Queen, a number of cases have confirmed that the weight of the drug remains a relevant factor to which a sentencing Court must have regard in determining the seriousness of the offence. For example, in R v Lee, the New South Wales Court of Criminal Appeal discussed the application of Wong v The Queen. Chief Justice McClellan at CL, with whom Howie and Hall JJ agreed, explained that the High Court in Wong was concerned to emphasise that the weight of the narcotic imported was not the most important factor to be considered when fixing a sentence. His Honour explained: 
The Court was apparently influenced by the consideration that an offender who is caught up in the illegal activity may not, in many cases, be aware of the amount of the drug proposed to be imported. However, the size of the importation is a relevant factor to which the sentencing court must have regard. It will have increased significance when the offender is aware of the amount of drugs to be imported. 
[155]	In an appropriate case, the amount of the drug involved may be a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type. While it is not of chief importance, the quantity of the drug is a relevant factor particularly in the context of the harm from its distribution effects. It has relevance in determining the extent of the offender’s objective criminality, although it is not the sole or key determinant. This was not in the highest order of quantities dealt with by the courts. For example, in R v Koumis, relied on by the appellant for other purposes, the Victorian Court of Appeal dealt with a number of offenders who argued 

their sentences were manifestly excessive. The appellant in Koumis was charged with trafficking a commercial quantity of drugs, “close to” a kilogram of heroin and “about” half a kilogram of methamphetamine. A number of other cases dealt with in this jurisdiction referred to by counsel for the appellant involved greater quantities. While this case involved a significant quantity of drugs, proportionality required some consideration of the quantity of the drug. 
[156]	The sentencing judge did not over value the factor of addiction or the respondent’s heavy use of the drug. He did not consider addiction as particularly mitigating, although it may be inferred from the conditions ordered on the suspended sentence that his Honour accepted the respondent had a drug problem. However, his view of the addiction issue was that people who traffic in commercial quantities of drugs will receive substantial prison sentences, even if they are addicts or heavy users. 
[157]	In relation to the question of addiction, counsel for the appellant referred to the following passage in R v Koumis (citations omitted):
A number of general propositions may be stated about the relevance of addiction to the question of moral culpability and whether it should be viewed as a mitigating circumstance for the purpose of sentence. Drug addiction provides no justification for the purposes of sentencing. Drug addiction is not of itself a factor that necessarily calls for a lesser sentence than would otherwise be appropriate. The sentence to be fixed has to reflect the seriousness of the crime of trafficking in substantial quantities of a drug of dependence. Denunciation and general deterrence assume particular importance as the purposes to be effectuated by the sentence. Generally speaking, addiction and any consequential impairment of judgment, will not have any significant mitigatory effect upon those sentencing considerations. 
[158]	Neither the sentencing remarks, nor the sentence that was passed, were incompatible with those general principles. In Koumis the Court went on to consider the various ways in which addiction may be considered. It was acknowledged there may be circumstances in which the offender’s drug addiction will have a particular bearing on moral culpability. The Court said addiction will usually be of relevance to the question of rehabilitation. 
[159]	The Court in Koumis also discussed the general reluctance of courts to take drug addiction into account because the decision to begin to use drugs was voluntary and the commission of crimes to feed the addiction was a likely consequence of that choice. The Court, however, also referred to the protection of the public which is “interlinked” to the rehabilitation of the offender. Some of the appellants in Koumis were successful in their respective appeals as the Court found the likely motivation for their trafficking was to feed addiction rather than enrichment; the funds obtained were for the sole purpose of acquiring drugs for their addiction. Accordingly, a related submission that there had been error in the assessment of the level of seriousness of their trafficking was accepted. In my view, given the material and submissions before his Honour about the respondent’s drug use or addiction, there was no error in his Honour’s approach to rehabilitation and addiction. Rather, given all of the circumstances, it was appropriate that an aspect of the sentence reflected rehabilitation and therefore protection of the public. 
Comparative cases
[160]	On behalf of the appellant it was conceded there is no tariff for offending of this kind; that the circumstances of individual offending and offenders make previous sentencing decisions of limited assistance. The appellant submitted, however, that it is a particular function of this Court to minimise disparities of sentencing standards. Consistency in sentencing is important in terms of the application of relevant legal principles, with the qualification that this is not to be reduced to “numerical equivalence”. Like cases, however, are to be treated in like manner, whilst preserving the legitimate breadth of sentencing discretion. 
[161]	In Emitja v The Queen this Court confirmed that a range of appropriate sentences may comprise a “standard” for a particular crime, but not a fixed range departure from which will necessarily found demonstrable error. In the context of the role of Crown appeals, this is an important principle. Of sentencing standards the Court in Emitja made the following observations (footnotes omitted): 
In entertaining and determining an appeal against sentence it is a particular function of this Court to minimise disparities of sentencing standards, while maintaining the reasonable and just area of discretion of the sentencing judge. As this Court has observed, “the orderly administration of the criminal law necessitates … the preservation of relativity in fixing head sentences and non-parole periods, whilst recognising the width of the range of criminality … and the consequent extent of the variation between sentences in individual cases. 
As counsel for the respondent contended, those observations reflect that while there is a range of appropriate sentences that can be said to comprise the sentencing “standard” for a particular crime, a sentencing standard is not a fixed range departure from which will necessarily found demonstrable error. As Martin (BR) CJ and Riley J observed in Daniels v The Queen: 
The role of sentencing standards must be properly understood. They do not amount to a fixed tariff, departure from which will inevitably found a good ground of appeal. We respectfully agree with the observations of Cox J in R v King (1988) 48 SASR 555 as to the proper role of sentencing standards (557):
“... In a word, this case is about sentencing standards, but it is important, I think, to bear in mind that when a standard is created, either by the cumulative force of individual sentences or by a deliberate act of policy on the part of the Full Court, there is nothing rigid about it. Such standards are general guides to those who have to sentence in the future, with certain tolerances built into or implied by the range to cater for particular cases. The terms of approximation in which such standards are usually expressed – “about” and “of the order of” and “suggest” and so on – are not merely conventional. ... It follows that a particular sentence will not necessarily represent a departure from the standard because it is outside the usual or nominal range; before one could make that judgment it would be necessary to look at all of the circumstances of the case. Those circumstances will include, but of course not be confined to, the questions whether or not the offences charged are multiple or single and whether the defendant is a first offender with respect to the particular crime charged. That is not to undermine the established standard but simply to acknowledge that no two cases, not even two “standard” cases, are the same. ...”
Those observations apply a fortiori in these circumstances given the frequently expressed observation that there is no tariff in respect of penalties to be imposed for the crime of assault. As this Court observed in The Queen v J O, having just cited the passage from Daniels extracted above:
In the absence of a tariff for crimes of the type under consideration, a comparison with previous individual sentences is of limited assistance. However, some guidance can be obtained from previous decisions, particularly those of the Court of Criminal Appeal.
That statement reflects previous observations to the effect that where the ground of appeal is that a sentence is manifestly excessive, reference to comparable sentencing cases can be useful, subject to those limitations. Each case must be dealt with on its own merits having regard to the objective gravity of the particular offence, and to the subjective circumstances of the offending and of the offender. In undertaking that assessment, “[i]t is not this Court’s task to see whether the sentencing under appeal is more severe or lenient than a particular sentence within the range, imposed on a person not a co-offender in the particular crime”. Nor is it the task of this Court to “tinker” with sentences imposed by the Supreme Court. 
[162]	Recently, in R v Kilic, the High Court considered s 5(2)(b) of the Sentencing Act 1991 (Vic) requiring courts in Victoria to have regard to “current sentencing practices”. The purpose of the section was said to “promote consistency of approach in the sentencing of offenders”. In Kilic, the High Court held that previous similar cases may provide a yardstick which assists in achieving consistency in sentencing, but that the yardstick:
… does not mean that the range of sentences imposed in the past fixes the boundaries within which future sentences must be passed; rather the range of sentences imposed in the past may inform a “broad understanding of the range of sentences that would ensure consistency in sentencing and a uniform application of principle”.
[163]	Kilic confirms that if the offending is not so grave as to warrant the imposition of the maximum sentence, “a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the “spectrum” that extends from the least serious instances of the offence to the worst category, properly so called”. This approach underlines the importance of the application of proportionality, requiring a sentencing judge to consider the spectrum. 
[164]	Counsel for the appellant submitted that reflecting on comparative sentences demonstrated that the sentence under consideration was a departure from acceptable sentencing standards. In my view, the majority of cases relied on by the appellant reflect higher levels of criminality, often multiple charges, offenders with significant previous convictions and sinister features such as the possession of firearms and the use of intimidation to enforce drug debts. Enrichment is present in a number of cases with large amounts of cash or assets seized. Essentially, a number of the cases involved hardened criminals. While the sentences in most instances were more severe than the sentence under consideration, the overall circumstances in those cases were significantly more serious. All sentences referred to below included meaningful reductions for relatively timely guilty pleas. 
[165]	The appellant referred the Court to R v Darryl Paul Milton. Milton involved a plea of guilty of two counts: one count of unlawfully supplying a commercial quantity of methamphetamine and one count of receiving $20,500 obtained directly from the commission of the offence. Both offences carried a maximum penalty of 25 years imprisonment. The Crown facts included references to the offender being a fully patched member of the Hells Angels outlaw motorcycle gang. Police had obtained warrants to install various devices in his vehicles and premises. Police monitored his movements over a period of months in 2014. He was seen using and supplying methamphetamine to a number of persons; he secreted methamphetamine in various premises and in a box containing a semiautomatic pistol and loaded magazines. While under surveillance for various elements of the supply, he removed and replaced a police tracking device from one of his vehicles. The amount of methamphetamine involved was at least 280 grams. A forfeiture order was made for $20,500 as well as for electronic scales, clip seal bags and associated notebooks. 
[166]	The aggravating factors were found to be: the continuing nature of the commercial operation; the pistol and magazines loaded with ammunition were found to be suggestive of a preparedness to use a weapon; and it was a substantial quantity of methamphetamine. Milton had a criminal history in both New South Wales and the Northern Territory, including a conviction for dangerous driving occasioning death. At the time of that offending he was driving with methamphetamine in his system. His previous convictions also included unlawful possession of property and the possession of prohibited weapons and ammunition. The sentencing judge was not satisfied as to remorse. It was found that depending on how the drug was sold, the street value would be somewhere between $280,000 and $700,000. An aggregate sentence was imposed across both offences of 8 ½ years’ imprisonment. A non-parole period of four years and three months was set. Clearly this offender had a significantly more serious criminal background than the respondent and was engaged in far more sinister activities associated with drug supply. He had much poorer future prospects.
[167]	In R v Mark Simpson the offender pleaded guilty to three offences: taking part in the supply of a commercial quantity of methamphetamine and two counts of demand money with menaces with intent to obtain a motor vehicle. A co-offender, Carlo Betti, whose case is discussed later, was being investigated by police for bringing methamphetamine into Darwin from Sydney. The facts indicated that 280 grams of methamphetamine was being brought from Sydney to Darwin every two weeks for a period between November 2013 and April 2014. The syndicate transported on average 

$140,000 cash to Sydney from Darwin each two weeks. It was the co-offender Betti who was actively involved in sourcing the methamphetamine and delivering it to Darwin. He did this by various methods, including strapping it to the body of a courier and sending parcels. Simpson became involved by assisting Betti, collecting debts on his behalf and maintaining contact with him while Betti was conducting drug business in Sydney. Simpson sold methamphetamine at Betti’s apartment. He dealt with drugs in his own right and was an important part of the business. The charges of demand money with menaces related to threats of violence towards persons in order to collect drug debts. Large amounts of cash were involved in the various purchases of drugs. Ledgers with lists of names and amounts of money owed by persons were found by police. 
[168]	Simpson also had extensive previous convictions. Although his previous drug offending was not as serious as the matter under discussion, he had previously served seven months imprisonment for possession of a traffickable quantity of a dangerous drug. He had also served reasonably significant prison sentences for the offences of causing grievous harm, depriving a person of their liberty, aggravated assault and engaging in violent conduct. It was acknowledged he was an ice user and the prospects of rehabilitation were poor. As all of the offending was part of one criminal enterprise, including demands with menaces, enforcement and involving intimidation and threats of violence, he was sentenced to 10 years imprisonment with a non-parole period of six years. 
[169]	The matter of R v Carlo Betti involved the co-offender in the same matter as Simpson. The offending involved the transportation and supply of methamphetamine every two weeks from Sydney to Darwin between November 2013 and April 2014. Betti was also dealt with for two offences of having made a demand with menaces with intent to obtain a motor vehicle and an additional charge of making a false statutory declaration. It was accepted by the sentencing judge that Betti became involved in the offending through his own drug history. He had a drug problem and had also acted as a courier. He was then contacted by syndicate members to whom he owed money. He had previously been sentenced for drug matters and had previously attempted rehabilitation. In relation to one previous offence of possessing methamphetamine, it was accepted he was a courier. He had two previous convictions for using an air ticket obtained with false information identification. He received a term of imprisonment for that offending. The total term of the sentence was 10 years and six months imprisonment. A non-parole period of five years and six months was set. 
[170]	In relation to R v Benjamin Glen Watts, the offender pleaded guilty to three counts: unlawfully supply a commercial quantity of methamphetamine; unlawfully possess a commercial quantity of MDMA; and unlawfully possess testosterone enanthate. The offending came to light when he was arrested and searched. The drugs he possessed were 87 grams of methamphetamine, 190 MDMA pills and one vial of testosterone enanthate. He was also in possession of $17,650 in cash, a ledger with a series of entries, digital scales, three mobile phones and firearms with ammunition. Interrogation of the phones and sim cards revealed communications concerning the supply of drugs. The sales in the ledger recorded total drug sales of $366,000. He made admissions to the offending and agreed the $17,650 found in his backpack was from the proceeds of drug sales. He was 27 at the time of sentence. He had a history of drug use from the age 24. 
[171]	Watts had one previous conviction for supplying methamphetamine shortly before the offending he was sentenced for in the Supreme Court. For that offence he received a prison sentence of four months and an additional four months imprisonment for two other offences. The total sentence was suspended after four months. He also had previous offending for property offences. An aggravating feature of his circumstances was that while he was on remand he made a series of calls from the Darwin Correctional Centre to organise the collection and distribution of personal property which had been acquired with the proceeds from the sale of dangerous drugs. He organised his associates to take possession of and store in excess of $50,000 and various motor vehicles. For all of the offences he received a total sentence of eight years imprisonment and a non-parole period of four years. The sentence for the supply methamphetamine was seven years and six months imprisonment. The matter of Watts was not aggravated by any interstate importation but other features point to a more sophisticated and serious example of offending. 
[172]	Both parties referred to Truong v The Queen, a decision of this Court that the appellant argues is particularly apt. There is no doubt the principles enunciated in Truong are particularly important in cases of this kind. This Court did not find a sentence of four years and 10 months imprisonment with a non-parole period of two years and five months to be manifestly excessive for the offence of unlawfully supplying a commercial quantity of methamphetamine. The quantity involved was a much lesser quantity, 55.81 grams. The Court found that the starting point of six years in Truong was towards the high end of the range, but not outside of the bounds of sound sentencing discretion. In Truong the offender, who was aged 27 years, flew from Sydney to Darwin carrying a sealed cryovac bag with methamphetamine hidden inside his underwear. When arrested at Darwin airport he made admissions. He said he was only the courier, transporting the drugs for others to satisfy a gambling debt. He said that he was in fear of others and refused to “name names”. Further investigation revealed he had recently received regular payments of large sums of cash from persons in Darwin: amounts totalling $16,800 received via Western Union and $2,500 from Australia Post. Numerous messages on his mobile phone related to drugs. This material was placed before the sentencing Court to put into 

context the nature of his engagement in commercial activities. He admitted he was involved in drug supply for commercial gain and that was the purpose for bringing the drugs to Darwin. The street value of those drugs based on a sale price of $150 per point was agreed to be $83,400. 
[173]	A further feature highlighted in Truong was that only eight days prior to bringing the methamphetamine to Darwin, he had been sentenced by the Local Court in New South Wales for drug offending. At the time of his offending in Darwin he was still awaiting sentence by the District Court for drug offending, including for the offence of presumed supply of amphetamine. While the amount of drugs involved in Truong was less than in this matter, Truong was found to be part of a broader commercial operation, although was a courier with respect to the supply in question. At the time of his offending he was on bail for unresolved drug offences. Further, in Truong, both the Crown and the Court rejected the submission made on his behalf that he was a seriously drug addicted individual. He declined to give evidence about his claimed addiction. A further point that may be noted is that in Truong the Court was not satisfied the offender was remorseful and his prospects of rehabilitation were uncertain. Although Truong was sentenced for one instance of supply, the surrounding circumstances including his proven involvement in regular drug supply activity elevated his culpability. 
[174]	Senior counsel for the respondent referred the Court to R v Nigel Marsh. The offender Marsh pleaded guilty to four counts: unlawfully supply a commercial quantity of methamphetamine; unlawfully supply cocaine; unlawfully supply a commercial quantity of MDMA; and possess $4895 cash obtained directly from supplying drugs. He was 46 years old. He had a good employment history and worked as a fly-in, fly-out worker to Aboriginal communities. There was an interruption to his work and he relocated to Darwin. He had a relatively short history of drug use that became significant after his loss of employment, anxiety and depression. He became involved in drug trafficking to support his drug use. He had previous convictions for minor drug offending. 
[175]	A co-offender purchased drugs in Brisbane, transported the drugs to Darwin and sold them to Marsh in Darwin. They were then sold by Marsh in Darwin. Commercial flights were used in the endeavour. The first occasion involved 28 grams of methamphetamine and 500 MDMA pills (110 grams); the second occasion involved 56 grams of methamphetamine and 700 MDMA pills (154 grams); the third occasion involved 112 grams of methamphetamine, 1,000 MDMA pills (220 grams) and 3.5 grams of cocaine; on the final occasion the co-offender brought 156.74 grams of methamphetamine, 1,800 MDMA pills (373.32 grams) and 25.99 grams of cocaine. Further, relatively small amounts of drugs, ledgers and other drug 

paraphernalia were found at Marsh’s apartment. The total amount of methamphetamine was 352.74 grams. It was found the methamphetamine could yield $352,740. The total amount of cocaine was 29.49 grams. The total quantity of MDMA was 857.32 grams or 4,000 pills that would yield $120,000. 
[176]	Marsh was found to be at a similar level of culpability as the co-offender. Both offenders had been “hotel-hopping” for nine months selling drugs. Marsh had a network of five suppliers. Marsh had developed some insight into his offending, had expressed regret, completed the Safe, Sober, Strong program while on remand and was assessed as suitable for Banyan House. The period of supplying drugs was an 11 month period. It was too early to assess his prospects of rehabilitation. A sentence of five years and three months imprisonment was imposed with a non-parole period of two years and eight months. Parity issues played a part in determining the length of the sentence. The matter of Marsh involved significantly more drugs of different types and greater organisation than is apparent here. The prospects for Marsh were unable to be assessed. 
[177]	Counsel also referred to the matter of R v Leo Salandana. The offender pleaded guilty to two counts: the unlawful supply of a commercial quantity of methamphetamine, 42.6 grams, and that he had in his possession a forged Victorian driver’s licence with intent that it be uttered. He was 49 years old at the time of the offending, born in the Philippines and came to Australia in 1995. He had qualifications as a civil engineer and a substantial and varied work background. After being made redundant and subject to personal stresses and pressure he commenced methamphetamine use, increasing to approximately 1 gram per day. He was well engaged in activities and was rated positively at the prison; he had been unable, due to demand for the course, to attend the Safe, Sober, and Strong program. He had a previous conviction in Victoria for armed robbery, burglary and theft, committed in 2006. He came into possession of the methamphetamine in Darwin after flying from Melbourne via Cairns under a false name. When apprehended with the other co-offenders he gave a false name and produced the forged driver’s licence. His visa had expired. It was found he came to Darwin to obtain the drug and supply it to others. The plea was not found to indicate remorse, however it was accepted he had begun to show insight into his offending. He was sentenced to a total period of imprisonment for two years and four months, suspended after serving one year with an operational period of two years. His offending involved some pre-planning. His previous offending was reasonably significant. Overall, however, it is a less serious example of drug offending. 
[178]	The Court was referred to the case of R v Barry Esparon. The offender pleaded guilty to four offences: possession of a commercial quantity of 

methamphetamine, namely 172.84 grams; possession of a traffickable amount of MDMA, namely 15.84 grams; one count of unlawfully supply GBL; and one count of taking a flight having provided false identification. The methamphetamine and GBL were brought from Victoria to Darwin for the purpose of selling for profit and to support drug dependency in the knowledge of the higher price for the drugs in Darwin. Significant organisation was involved in packing the drugs and using a suitcase with a combination lock. He used a fake name to obtain a boarding pass. He obtained the MDMA in Darwin. Police apprehended him when he was driving in Darwin with the drugs. He told police he had no drugs and the bag they found was not his. He told police he did not know the combination of the lock on the bag. After seizing the bag, the drugs were found in clip seal bags. Two mobile phones were seized and $6,700 cash was seized from him. If sold in gram lots, the methamphetamine was worth $260,000 the MDMA $2160 and the GBL $1,000. 
[179]	Esparon did not attempt to rebut the presumption of commercial gain. A degree of planning was found. His criminal history involved analogous dishonesty offences including deception, handling and receiving stolen goods, assaults and one count of possessing methamphetamine. He was 34 at the time of committing offences. He had a difficult childhood with an abusive father. He had a varied but established work history. He had a long history of drug use and met the DSM-5 criteria for severe substance use disorder, and had progressed to addiction. He had been engaged in the past with multiple rehabilitation programmes and was assessed as suitable for Banyan House. The total sentence was imprisonment for five years and four months. A non-parole period of 32 months was set. The offending was not of an ongoing nature and in that regard was not as serious as the sentence under consideration, but was serious for other reasons, including the deception and organisation involved in the enterprise. The previous convictions were of a more significant nature. 
[180]	The matter of R v Joel Condello was referred to the Court. The offender pleaded guilty to one count of possession of a commercial quantity of methamphetamine, namely 110.64 grams. He did not attempt to rebut the commercial presumption. On the sentencing facts accepted, he was involved with the respondent in this matter. He obtained 110.64 grams of methamphetamine, hid it in his luggage and flew to Darwin. Detectives searched the hotel room he was staying in and located the drug with a smoking pipe and 40 grams of another substance to be used to cut the methamphetamine. Police also found acetone, disposable gloves, surface cleaner, digital scales, multivitamins and two mobile phones. He had intended to cut the methamphetamine before distributing it. The drug would have sold for $165,000. 
[181]	He was 28 years old and had one previous offence, for which he did not receive a conviction, for using a carriage service to menace. A psychiatric report revealed childhood tragedies. He had been in continuous employment as a boilermaker and concreter. He had worked on a fly-in fly-out basis in the Northern Territory and Western Australia. He had positive references. He had a long history of methamphetamine use but was not addicted. The psychiatrist said he used the drug to switch off from unresolved tragedies. His prospects were considered good. He was sentenced to four years imprisonment; the sentence was suspended after serving 12 months on conditions. The offending was not as serious as the sentence under consideration, however the sentence was suspended after 12 months. 
[182]	The case of R v Anthony Orrell was referred to this Court. The offender Orrell pleaded guilty to five charges: unlawfully possessing a commercial quantity of methamphetamine, 191.39 grams; receiving $5,500 in cash obtained from the commission of a crime; taking part in the supply of methamphetamine, 191.39 grams; receiving $5000 obtained from the commission of a crime; and unlawful possession of testosterone enanthate. With a co-offender, Orrell stored some of methamphetamine they had obtained in a safe. He and a co-offender sold the drug in Darwin. Cash proceeds were kept in the safe and were found with scales, a spoon and 191.39 grams of methamphetamine. A further search revealed the testosterone, $5,000 cash and in excess of 20 mobile phones. If sold by the gram, it was found the methamphetamine would sell for $191,000. Orrell 

had two previous drug possession offences in Queensland and 10 in the Northern Territory, including two for possessing amphetamines. He also had a previous conviction for dangerous driving causing death or grievous harm, two convictions for assault, one for aggravated assault, one for making threats of reprisals in relation to court proceedings, dishonesty offences, and nine breaches of bail. 
[183]	He was 31 years old. His current partner was a co-offender. They had a two year old daughter. While on remand he completed the Safe, Sober, and Strong program. He struggled with addiction withdrawal and sought counselling in prison. He suffered depression from an early age, referrable to a car crash resulting in serious injury to an occupant in the vehicle and injury to himself. The drug operation was considered to be sophisticated, well planned and continuing. Orrell was sentenced to four years and nine months imprisonment. When adjustments were made to incorporate another sentence he received a total sentence of six years with a non-parole period of three years. The offending was very serious but, unlike the sentence under consideration, did not involve bringing drugs from interstate. Orrell, however, had much more serious antecedents and was dealt with for five counts. 
[184]	The Court was referred to the sentence of R v Zayley Ainslie. Ainslie was the partner of and co-offender with Anthony Orrell. She also faced five counts. The facts were substantially the same as Anthony Orrell’s. She was 26 years old. She had seven previous possession of drug offences, mostly cannabis. She had one previous conviction for the supply of cannabis, three offences of dishonesty, breach of a home detention order and five breaches of bail. While on bail she attempted rehabilitation at Banyan House and received a positive report. She was considered a person of settled criminal habits. References before the Court indicated she had addictions from her teen years. Her two year old daughter was being cared for by her grandmother. Given her efforts at rehabilitation and that she was the mother of a young child, she was sentenced to four years and nine months imprisonment, to be suspended after five months, on conditions for three years. 
[185]	The matter of R v Anthony Zappia was referred to the Court. Zappia pleaded guilty to two counts: possession of commercial quantity of cannabis, 4,590.9 grams and possession of a commercial quantity of methamphetamine, 56.3 grams. Zappia purchased the drugs in Adelaide for a total cost of $25,000. He claimed he intended to sell half of the cannabis and smoke some of it, and smoke most of the methamphetamine, selling only enough to break even. This explanation was largely rejected. He hid some of the drugs in containers in an esky and some in jerry cans. He drove to Alice

Springs, but changed vehicles in Marla and met another vehicle and travelled in convoy. Police intercepted the vehicle he travelled in. 
[186]	He was 33 years old. He was a qualified chef. He used drugs for some time. Amphetamines and then methamphetamine were used by him to stay awake. The Court was told he had a significant habit. The offending was found to be pre-meditated, for substantial profit and greed, in addition to financing his habit. As he had made efforts towards rehabilitation, the sentence was partially suspended. Of the total sentence of five years imprisonment, the methamphetamine count attracted imprisonment of three years and nine months, however partial accumulation left a total sentence of five years, suspended after serving two years on conditions. 
[187]	The matter of R v Dale Shirdon was referred to the Court it involved one count of supplying a commercial quantity of methamphetamine. The offender been under surveillance. Co-offenders sourced methamphetamine in Sydney. Shirdon was a courier and was involved in the delivery of commercial quantities of methamphetamine to Darwin and other locations across Australia. This occurred on a regular basis until his arrest. He entered into an agreement to bring methamphetamine to Darwin and was paid to bring it from Sydney. It was strapped to his body. The amount was 17 ounces or 480 grams. He and a co-offender began to supply methamphetamine to persons in Darwin. When police searched the hotel room where he was staying, they located various amounts of methamphetamine hidden in locations in the room. Although sentenced for the one count of supply, the Court considered it was not an isolated incident. The offending was regarded to be at the middle range of seriousness. He had minor previous drug offences where he had received good behaviour bonds and a moderate fine. 
[188]	Shirdon was 23 when he committed the offences. He had almost completed a marine craft construction apprenticeship. He had worked in various positions until a work place accident in 2012 that impacted on his ability to work, although he continued to undertake labouring work. 
[189]	He had commenced drug related errands around Brisbane that escalated in significance and had developed a methamphetamine habit. He owed substantial amounts to a dealer who had made threats to him. He had significant family support in Queensland and some tragic events in his life. He was sentenced to four years imprisonment, suspended after 18 months on conditions for three years. 
[190]	The Court was also referred to the matter of R v Luke Coleman. Coleman pleaded guilty to three offences: unlawful supply of a commercial quantity of methamphetamine, 352.75 grams; supply of a traffickable amount of cocaine, 29.49 grams; and unlawful supply of a commercial quantity of MDMA, 857.32 grams. Between October 2014 and December 2014 he personally transported and facilitated the transport of drugs from Queensland to Darwin by commercial airlines on three separate occasions. The drugs were then sold by the co-offender Marsh. Coleman would then return to Brisbane and obtain more drugs. On the fourth occasion he was apprehended. Unlike almost all other cases referred to the Court, Coleman made admissions and implicated others. He had previously been in the Navy and received an honourable discharge. He had run a business in Brisbane. The offending was treated as greed. His co-operation and assistance to authorities was found to be of real value. He had previous property and street offences that had been dealt with by way of fines. He was treated as a first offender. A fifty percent discount was given due to his plea and cooperation. He was sentenced to an aggregate sentence for all offences for three years and six months, to be suspended after 18 months, with an operational period of two years. 
[191]	It is rare for this level of co-operation to be given. This is a factor that differentiates Coleman from almost all matters, including the sentence under consideration. Coleman was, however, an example of very grave drug offending motivated by greed and he was dealt with for three counts. 
[192]	A number of the cases referred to the Court on behalf of the respondent are distinguishable from the sentence being considered. While serious, a number involve one single episode of supply. There are, however, many common elements with respect to the sentencing principles and how they have been applied in all of the cases. Some cases involve multiple counts, some with greater or lesser amounts of the drug or drugs supplied. Various motivations are present, from those largely related to supporting drug dependency through to pure commercial gain or greed. A number have previous convictions of significance. Few offenders received further adjustments for cooperation beyond the discount for a guilty plea. The extent to which prospects of rehabilitation are considered varies greatly, as might be expected. In all of the cases referred to the Court, offenders received meaningful adjustments because of pleas of guilty. Bearing in mind all of the variables operating, the lowest of the sentences referred to on behalf of the respondent was two years and four months imprisonment, to be suspended after 12 months, through to the highest being six years imprisonment with a non-parole period of three years. In my view this collection of sentences cannot be said to constitute a range. However, a number of sentences with similar elements to the sentence under consideration are not so divergent that it can be concluded this sentence stands apart as manifestly inadequate. 
[193]	The cases referred to the Court on behalf of the appellant, that in my view are more serious cases for reasons already discussed, attracted sentences of between seven years and six months and 10 years and six months. The more serious cases referred to on behalf of the appellant had non-parole periods set. A non-parole period was required for any sentence over five years given 

the limitation on suspended sentences. Including Truong v The Queen, of the nine cases referred to the Court on behalf of the respondent, six of the sentencing dispositions involved the imposition of a partially suspended sentence, while three involved the imposition of a non-parole period. 
[194]	In my view, there was no error with respect to the decision to partially suspend the sentence, rather than set a non-parole period, nor does it lead to the conclusion that the sentence is inadequate. This is particularly so given the strict conditions imposed as part of the suspended sentence. None of the subjective features, including remorse or the motivation to change were disputed before the sentencing judge. During the sentencing hearing before his Honour, although the learned Crown prosecutor made it absolutely clear that the Crown did not support a sentence that would allow a suspended sentence, it was acknowledged on behalf of the Crown that there was an abundance of material contained within the pre-sentence report that would operate in the respondent’s favour. The relevant exchange took place as follows:
MR STUCHBERY: 	Has your Honour had an opportunity to consider the written submissions that I had sent through on an earlier occasion?

HIS HONOUR: 		Yes I have, Mr Stuchbery. You contend that a non-parole period should be imposed rather than a suspended sentence.
MR STUCHBERY: 	I do, your Honour.
HIS HONOUR: 		What I wanted to ask you is this: does it make any difference if he’s released on parole? Presumably the parole authorities would require that he undergo some formal rehabilitation program. If he’s released on a suspended sentence the same conditions would apply. Indeed, conditions in relation to the very same matters recommended by the author of the pre-sentence report. Why do you contend that a non-parole period is preferable in these circumstances?
MR STUCHBERY: 	Well, ultimately, your Honour, we say that proper consideration of all the sentencing principles, referable to the maximum penalty of 25 years and an assessment of this offender’s moral culpability, the objective seriousness of this offence, the need for general deterrence as a primary factor in cases of this kind mean that a non-parole period would be the preferred option. Simply because the head sentence that we say ought to be imposed would exceed five years.
HIS HONOUR: 		Yes.
MR STUCHBERY: 	Without going as far as submitting on a quantum which, of course, I’m not doing and I’m not permitted to do in any event. We say the proper consideration of all the sentencing factors, your Honour, would leave your Honour with no option but to impose a non-parole period. 
HIS HONOUR: 	But if it’s five years I can indicate to you I wasn’t proposing to sentence this offender to five years although that’s very close to or if not my starting point I must say, and working from there. But provided the sentence is less than five years there’s no reason why it can’t be suspended under the Sentencing Act.
MR STUCHBERY: 	I agree.
HIS HONOUR: 	But I just wanted to, assuming that it is less than five years, on that basis is there any significant difference between suspension and a non-parole period?	
MR STUCHBERY: 	There’s not, your Honour, and I concede that there’s an abundance of material contained within the pre-sentence report that would certainly operate in Mr Roe’s favour. Certainly with respect to his antecedent history, his prospects of rehabilitation, prospects of ongoing employment that would certainly weigh heavily in your Honour’s consideration of that disposition over a non-parole period.
I concede that at the outset. The Crown’s main submission however, your Honour, is that the objective seriousness of this offence, this offending, coupled with a proper assessment of Mr Roe’s moral culpability in line with the Court of Criminal Appeal’s observations in the matter of Truong which I’ve referred to in my submissions. I know that your Honour was part of---
HIS HONOUR: 		Yes, I was member of the court in that.
[195]	Once the decision was made that after the reduction for the plea the sentence would be less than five years, it was open to the learned sentencing judge to impose a partially suspended sentence. It was a matter of discretion. Although the respondent had a long history of drug use, he had only once previously been dealt with by a court for drug offending. Expressions of remorse were noted in the references tendered on his behalf and by the author of the pre-sentence report. He was assessed as suitable for supervision. He was assessed as not suitable for the COMMIT program as he had not been subject to time in prison prior to being remanded on the current offending and he had not been subject to a community based order for which he had shown non-compliance. In all of the circumstances there was nothing inappropriate in the exercise of the discretion to partially suspend the sentence rather than impose a non-parole period. 
[196]	In R v Minor, in the context of a Crown appeal against a sentence, Asche CJ expressed his view that he thought it was more desirable to set a non-parole period rather than the conditional release that had been ordered by the sentencing judge. His Honour emphasised the discretionary nature of such a decision and although he thought a non-parole period was preferable, declined to intervene. He explained his reasoning as follows:
Much may change in four years and the Parole Board with the assistance of the very competent assessments provided by its officers, would normally be in a better position than a court to assess the prospects of successful parole at the end of that period. But to alter the sentence in that way would, in my view, merely be substituting one discretion for another. This court should not so act unless there is a real error by the sentencing judge in the exercise of his discretion applying the classical tests laid down in such cases as R v Tait and Bartley (1979) 24 ALR 473. To disagree is not enough. 
[197]	Minor was considered by this Court in Stuart v The Queen, which overturned the setting of a non-parole period for historical sex offences and 

instead imposed a partially suspended sentence as part of the re-sentencing process. Referring to Minor, the Court in Stuart v The Queen reiterated the circumstances upon which it would be appropriate for a sentencing judge to impose a non-parole period rather than a partially suspended sentence. An offender who has a fixed release date does not have the same incentive to be of good behaviour whilst in prison and so earn early release on parole. A prisoner who needs to be given the opportunity of proving himself capable of resuming a responsible attitude to life may benefit from the opportunity of the imposition of a non-parole period. A further consideration was that the Parole Board is often in a better position to determine whether it is appropriate that a prisoner be released than a sentencing judge. 
[198]	In my view, either a partially suspended sentence or a non-parole period could have been justified in this particular case. Aside from the most serious cases of this kind referred to the Court, it appears it is not uncommon for partially suspended sentences to be imposed for offending of this kind. 
[199]	Much of the appellant’s case is based on the assertion the sentencing judge gave too much weight to rehabilitation and the personal circumstances of the respondent and insufficient weight to the need for general deterrence. It was argued this led to an outcome so manifestly inadequate as to “shock public confidence”. The sentence was not out of step with other comparable sentences when the complexity and the totality of all of the circumstances are considered. All circumstances must be considered. Grounding an argument based largely on the weight given to particular factors in the absence of any challenge to the sentencing judge’s findings is the wrong approach. In Bugmy v The Queen the plurality said (footnotes omitted): 
Sentencing is a discretionary judgement and there is no single correct sentence for an offender and an offence. Plainly enough the Court of Criminal Appeal disagreed with the sentence imposed by judge Lerve and favoured a more severe sentence. The difference between the Court of Criminal Appeal’s assessment of the appropriate sentence and judge Lerve’s assessment may be explained by saying that judge Lerve gave too little weight to some factors and too much weight to other factors. However, within a range of sentences for this offence and this offender, the weight to be given to the evidence and the various, conflicting, purposes of sentencing was a matter for judge Lerve. The authority of the Court of Criminal Appeal to substitute a sentence for that imposed by judge Lerve was not enlivened by its view that it would have given greater weight to deterrence and less weight to the appellant’s subjective case. The power could only be engaged if the Court was satisfied that judge Lerve’s discretion miscarried because in the result his Honour imposed a sentence that was below the range of sentences that could be justly imposed for the offence consistently with sentencing standards.
[200]	In my opinion the manifestly inadequate ground is not made out. I would not allow the appeal. 

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