Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Trafficking in controlled substances - Whether sentence gave adequate weight to rehabilitation - No manifest excess.

Judgment Number: [2017] TASCCA 3

1. The appellant, Alexander Peter Cooper, appeals against a sentence imposed upon him by Blow CJ on 16 September 2016.
2. His Honour convicted the appellant of the crime of trafficking contrary to s 12(1) of the Misuse of Drugs Act 2001 and sentenced him to a period of 14 months' imprisonment with a non-parole period of seven months. The drug involved was the form of methylamphetamine commonly known as Ice.
3. The grounds of the appellant's appeal are that the sentence failed to give adequate weight to his rehabilitation and that the sentence was manifestly excessive.

1. The legal principles applicable to appeals against sentence on the ground of manifest excess or inadequacy are clear and well settled. They can be found succinctly stated in Braslin and Cowen v Tasmania [2010] TASCCA 1 at [31]-[34], per Porter J, and in Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1 at [8] per Pearce J. Whether the learned sentencing judge failed to give adequate weight to the appellant's rehabilitation can only be determined by examining the anterior question of whether the sentence was manifestly excessive.

1. The learned sentencing judge made the following comments on passing sentence, which comments adequately set out both the facts of the appellant's offending and his personal circumstances, including reference to his remarkable recovery from his addiction to the drug he was convicted of trafficking in:

"Mr Cooper has been found guilty by a jury on a charge of trafficking in a controlled substance. The controlled substance was crystal methylamphetamine. He made the mistake of leaving a small snaplock bag containing some of that drug in a car which he returned to a car rental company on 23 September last year. Police officers visited the place where he was living on 12 November, conducted a search, and found 18 snaplock bags containing various quantities of crystal methylamphetamine totalling 60.29 g. Mr Cooper was interviewed by police officers, and admitted having possession of all the packages, but said that some belonged to him, that the rest belonged to friends, that all of it was intended for his and their personal use, that none of it was intended for sale, and that he had never sold any of the drug.

There were a number of different bases upon which the jury could have found him guilty. I need to make findings of fact for sentencing purposes. Under the provisions of the Misuse of Drugs Act 2001, 25 g of methylamphetamine is a 'traffickable quantity'. Since Mr Cooper had possession of a greater amount, s 12(2) of that Act created a presumption that he intended to sell at least some of the methylamphetamine unless he proved otherwise on the balance of probabilities. He gave evidence to that effect, as well as relying on his answers during the police interview, but he was a most unconvincing witness. I am not satisfied on the balance of probabilities that none of the methylamphetamine in his possession was intended by him for sale.

There was a substantial body of circumstantial evidence of past trafficking in the drug by Mr Cooper. During his police interview he estimated that the quantity of methylamphetamine found in his possession was worth about $17,000. That equates to about $8,000 per ounce. He told the police that he had been able to purchase the drug at that price by buying in bulk. No doubt 60 g of the drug could have been sold for a great deal more than $17,000 if sold in smaller quantities. For example, Mr Cooper gave evidence of paying $100 for a 'point', meaning 0.1 g.

One of the bags in his possession contained 27.3 g of the drug, a little under one ounce. Eight of the bags each contained precisely 3.4 g, a little under one eighth of an ounce. There were two more bags that contained 1.8 g and 1.7 g - each about one sixteenth of an ounce. There were two bags that contained 0.5 g, two that contained 0.4 g, two that contained 0.2 g, and one that contained 0.09 g. I accept that Mr Cooper might have started to use the contents of some of the smaller bags. However his possession of eight bags each containing about an eighth of an ounce tends to indicate that at least those bags were merchandise ready for sale.

One piece of paper had on it some handwritten calculations which I consider particularly incriminating, as follows:

Those calculations tend to suggest that Mr Cooper calculated the value of various quantities of drugs in his possession, priced at $350 for half a gram, $600 for one gram, $800 for something called ½B, and $1,400 for something called B. The word 'tick' is commonly used to refer to monies owing for goods sold and delivered. The various papers are all consistent with being calculations relating to drug debts owed by others and drugs for sale.

In his answers to the police concerning methylamphetamine bought in bulk and shared with friends, Mr Cooper spoke of arrangements that resulted in him getting the drug a little more cheaply than his friends did. Firstly, he said that when he paid $8,000 and received an ounce, only $7,000 was the price of the ounce, and the other $1,000 was a part payment of a drug debt of a friend who was in custody. He said he had not told his friends of that arrangement, and that they each paid $2,000 for a quarter of an ounce. If that was true, he was buying for $7,000 per ounce, and re-selling at the equivalent of $8,000 per ounce.

Secondly, he told the police that he was making a small 'profit' by slightly reducing the quantities provided to his friends. Thus, although one eighth of an ounce is about 3.5 g, he was giving them bags containing only 3.4 g. Obviously, if that were true, the result was that his friends were paying a greater number of dollars per gram for their drugs than he was.

On the basis of the circumstantial evidence as to the quantity, value and packaging of the drugs found by the police, and of the various handwritten calculations, I am satisfied beyond reasonable doubt that Mr Cooper had been selling methylamphetamine on credit to at least 10 individuals prior to the police search. I accept that he was a user of the drug, and that a significant proportion of the methylamphetamine in his possession was intended for his personal use. I also accept that he was making only a very small profit from the supply of the drug to a few close friends.

Crystal methylamphetamine, commonly known as Ice, causes terrible problems for a lot of people. Mr Cooper was well aware of the way in which this drug can ruin people's lives. Addiction to Ice tends to result in individuals committing crimes to fund their purchases, and in dealers resorting to violence in order to collect drug debts. From what I know as to the scale of Mr Cooper's trafficking activities, it is clear that the only appropriate penalty for him is a sentence of imprisonment.

Mr Cooper is 32 years old. He has a number of prior convictions, most of them minor ones. He has not been to prison before. He received a suspended sentence of three months' imprisonment for assault in 2012. He was fined for using a drug and possessing a smoking device in 2013. He has three young children who live with their mothers. He is a builder. His business failed as a result of his addiction to Ice. Since the police search he has made a remarkable recovery from his addiction, and has been working for an employer who thinks very highly of him. He has a new partner who also thinks very highly of him. But, although he has taken commendable steps in rehabilitating himself, I consider that imprisonment is the only appropriate penalty. I have been told today that he appears to be in some sort of danger as a result of publicity that has been given to his case, and that it is therefore likely that imprisonment will involve special arrangements that will disadvantage him during the period that he serves his sentence. I accept that I should therefore impose a slightly shorter sentence than I would otherwise have imposed. Because of the progress he has made towards rehabilitation, I will make provision for parole.

Alexander Peter Cooper, I convict you and sentence you to 14 months' imprisonment with effect from 14 September 2016. You will not be eligible for parole until you have served half of that sentence. I order you to pay your victims of crime compensation levy of $50 within 28 days after your release from prison." (Emphasis added.)

1. In Roland v Tasmania [2016] TASCCA 20 at [38] I set out the following submissions made on behalf of the respondent. The case was one involving an appeal against sentence by the appellant on the ground of manifest excess.
2. In those submissions the following matters were accurately noted by counsel for the respondent, Mr Shapiro:

23 DPP v Williamson [2013] TASCCA 6 involved a plea of guilty to a 'commercial operation,' although the particulars related to a single day. He was in possession of a large amount of cash and a large number of capsules. The sentence was increased on appeal from two years imprisonment to four and a half years imprisonment.

24 In DPP v Williamson the learned Chief Justice summarised a number of previous sentences involving commercial trafficking of amphetamines, namely;

• Leicester (3 years and 4 months imprisonment, 12 months suspended).

25 Stebbins v Tasmania [2016] TASCCA 6 involved the most serious example of the crime of trafficking in Tasmania. This was reflected in the twelve and a half year sentence of imprisonment. The sentence imposed in Stebbins suggests that the upper end of the range for commercial trafficking operations in Tasmania is increasing.

26 In Stebbins v Tasmania Justice Estcourt summarised a number of sentences for commercial trafficking of amphetamines, namely;

• Oxford (3 years) ; Oxford v Tasmania [2006] TASSC 41

1. As can be seen, recent sentences imposed by judges of this Court in respect of the crime of trafficking in a controlled substance in a variety of different circumstances reflect a pattern of sentencing of substantially between 3 to 4½ years. However, as was observed by Blow CJ in Williamson (above) at [23]:

"23 Sentences of less than 3 years' imprisonment are a little more common in trafficking cases. I think it is fair to say that sentences in the vicinity of 2 years' imprisonment are generally attracted by involvement in commercial operations of a substantially smaller scale than the operation that is the subject of this appeal."

1. Nonetheless, in Sweetman v Tasmania [2016] TASCCA 5 at [36]- [41] I observed as follows:

"36 However, being outside a perceived range of sentences does not necessarily establish manifest excess. Sentencing judges should be 'accorded a wide measure of latitude': Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336.

37 It was pointed out by Underwood J (as he then was) in Inkson v The Queen [1996] TASSC 13; (1996) 6 Tas R 1 at 15, that having regard to a 'range of sentences imposed for a crime does not mean that every sentence must fall within that range'.

38 And Wright J said in R v Dowie [1989] Tas R 167 at 186:

'A court may frequently be aided by the provision of statistical data as to sentences previously imposed in this State ... but in my view, it cannot allow such material to overshadow or displace its own evaluation of the gravity of the offence before it in the light of all the known facts and circumstances.'

39 It remains true that 'gross departure from what might in experience be regarded as the norm may be held to be error in point of principle': Griffiths v The Queen (1977) 137 CLR 293 at 310 per Barwick CJ. However, in my view, in this case there has not been a 'gross' departure from what may be regarded as the 'norm'.

40 It is a matter for consideration whether this Court should, in an appropriate case, review whether what appears to be the norm remains appropriate, particularly in view of the scourge of methylamphetamine with which trafficking in cannabis is often associated. This is not an appropriate case, in my view, given that the appellant's plea of guilty was accepted by the respondent on the basis that he would have given a lot of the cannabis away, and that in the past he had bartered the cannabis he grew and gave away to friends in exchange for crayfish or beer.

41 For the moment it is sufficient to remember that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15], and the other cases referred to by this Court in Director of Public Prosecutions v CSS [2013] TASCCA 10."

1. I do not regard the sentence imposed on the appellant as being a gross departure from the norm given the sentences in the cases set out above. Taking into account the smaller scale of the appellant's trafficking relative to that involved in some of those cases, and making due allowance for the appellant's rehabilitation, as specifically addressed by the learned sentencing judge by the imposition of the minimum non-parole period, I am satisfied that the sentence with that allied non-parole period was reasonable, even lenient.

1. In this case I am not persuaded, in accordance with the traditional formula set out in House v The King [1936] HCA 40; (1935) 55 CLR 499, that the appellant has established that by reason of its severity, that the sentence imposed on him is "unreasonable or plainly unjust" so as to give rise to the inference that there has been a failure by the learned sentencing judge to properly exercise his discretion.
2. I should add that even taking into account that the appellant was a user of the drug, and that a significant proportion of the methylamphetamine in his possession was intended for his personal use, and that he was making only a very small profit from the supply of the drug to a few close friends, it remains that he was trafficking in an insidious drug. As Pearce J remarked in Sweetman (above) at [53]:

"In general, however, those who engage in trafficking in illicit drugs should expect harsh punishment. The Misuse of Drugs Act 2001 ('the Act'), s 12, provides that trafficking in a controlled substance is punishable by imprisonment for a term not exceeding 21 years. The penalty provision reveals a legislative intention that those who traffic in illicit drugs may be subject to heavy penalties."

1. I adopt with respect what was said by the learned sentencing judge in Williamson (above):

"It is perhaps well-known, but it needs to be restated that amphetamine use in the community is extremely costly in human or personal terms, and in economic terms. The drug causes much disruption in the community. Addiction is a health issue. Addiction leads to the commission of crime for funding. Use of the drug is often responsible for violence, some of which is dealt with by the courts, some of which is unseen and undetected. Police and emergency service resources are often involved in dealing with the consequences of its use and abuse."

1. On 2 March 2017 an order was made dismissing the appellant's appeal with an indication to the appellant that the reasons for doing so would be published at a later date. These are my reasons for joining in the making of that order.

1. Save that I would prefer not to express a view about the particular weight of the sentence, I agree with the reasons for judgment of Estcourt J. It was for those reasons that I joined in dismissing the appeal.