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

Judgment Number: [2019] TASCCA 9

1. The appellant has lodged an appeal on two grounds. First, his sentence is manifestly excessive and second, the time he spent on bail awaiting trial was excessive. He was unrepresented at the hearing of his appeal. His main argument concerning his sentence of four years' imprisonment was that he had spent too long on bail awaiting trial. Implicit in his argument is that the sentence failed to adequately reflect the lengthy period he spent awaiting trial. The sentence has been scrutinised by Estcourt J for manifest excess and I agree with all that he has said. I wish to highlight a few matters in view of the appellant's grievance about delay.
2. The appellant argued that he spent nearly four years awaiting trial, and that other accused have not had to wait as long as he did. He was subject to harsh bail conditions, he appeared in the Supreme Court on a vast number of occasions, and his trial was listed as a "backstop" trial on three or four occasions.
3. A time-line was provided to the learned sentencing judge and unchallenged by the appellant's counsel at the sentencing hearing. There are number of matters that may be noted. The appellant was not on bail for nearly four years, he was awaiting trial for a period of three years and three months (some of which he spent serving terms of imprisonment). His trial would likely have proceeded at an earlier stage but for outstanding assault charges before the Supreme Court which had priority. His trial would likely have proceeded at an earlier stage if his counsel had informed the Crown that not all the evidence was disputed and concessions made just before the commencement of the trial had been made at an earlier stage. Additionally, it may be noted that the appellant's bail conditions were not harsh or particularly strict given the nature of the charges he faced. The appellant's bail conditions involved a curfew for the first 12 months and an obligation to "sign in" to a police station three days per week.
4. It is clear that it may be appropriate, depending on the circumstances, for undue or lengthy delay to be taken into account as a mitigating factor: Prehn v R [2003] TASSC 55 at [21]; R v Todd [1982] 2 NSWLR 517 at 519-520; R v Schwabegger [1998] 4 VR 649 at 659-660; Williams v Tasmania [2014] TASCCA 2 at [17]; Director of Public Prosecutions v Allen [2017] TASCCA 24, 27 Tas R 260 at [19]. However, a delay of three years and three months is not unusual for this type of case. The time taken is explicable given the nature of the crimes and the investigation, voluminous material, and listing considerations such as the expected duration of the trial and priority given to the appellant's other case. In comparing the appellant's experience with the experience of other people who have had their cases heard in the Supreme Court, there may be various differentiating factors influencing the listing of trials. For example, priority is generally given to the trials of accused who are not on bail but held in custody on remand.
5. An accused person can claim in mitigation that the period of delay has allowed him to demonstrate his reform. This is not the case here as the appellant committed offences in the period of delay, and in fact, served terms of imprisonment for offending committed in the time he spent waiting for his trial.
6. On the matter of delay, the learned sentencing judge stated:

"There has been a delay in the prosecution. The defendant was arrested on 2 December 2014. His trial did not commence until 14 March 2018. The delay was partly caused by some factors which are not attributable to the defendant. However, it is a factor of little weight. The defendant was promptly charged and committed to this Court. Some of the delay occurred because of the natural difficulty of prosecutions of this nature. There has been no indication of reform in the meantime."

1. There was no error in that approach. This is not a case in which delay was a significant mitigating factor. Noting these matters, and the substantive reasons given by Estcourt J, I agree the sentence was not manifestly excessive and did not reveal error. I would dismiss the appeal.

1. The appellant, Nathan Scott Davidson, appeals against a sentence imposed upon him by Pearce J on 14 November 2018.
2. The learned sentencing judge convicted the appellant of the crime of trafficking contrary to s 12(1) of the Misuse of Drugs Act 2001, and of six counts of dealing with property suspected of being the proceeds of crime contrary to s 66A of the Crime (Confiscation of Profits) Act 1993. His Honour imposed a single sentence of four years' imprisonment and ordered that the appellant not be eligible for parole until he had served half that term.
3. The sole ground of the appellant's appeal is that the sentence was manifestly excessive although he refers in his notice of appeal to the excessive period of four years spent on bail awaiting trial.

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.

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:

"On 22 March 2018 Nathan Davidson was found guilty by a jury of one count of trafficking in a controlled substance and six counts of dealing with property suspected of being the proceeds of crime. The trial was completed in the absence of the defendant because, on 20 March 2018, he absconded. His sentencing was thus delayed until his attendance could be secured following his arrest in New South Wales on 28 June 2018. He had spent 22 days in pre-trial custody and so the sentence will be expressed to commence on 6 June 2018.

Subject to the verdicts, it is my responsibility to make findings of fact for sentencing purposes. I may only make findings adverse to him if satisfied beyond reasonable doubt they have been proved, and I may only make findings of fact in his favour if they are proved on the balance of probabilities. The Crown case of trafficking was conducted on the basis that, during the period between 24 October 2014 and 2 December 2014, the defendant conducted a business of selling drugs. It follows from the verdict that, in accordance with directions the jury was given, it was satisfied beyond reasonable doubt that the defendant, for all or a substantial part of that period, engaged in a continuous drug selling activity of a commercial and systematic kind.

Between 24 October 2014 and 15 November 2014 calls and text messages from or to the defendant's phone were covertly intercepted. The messages and audio recordings of the calls were in evidence. The evidence establishes the defendant's trafficking business in a number of ways. On 24 October 2014 a male and female arriving at the Launceston airport were intercepted by the police and searched. The female had about 500 grams of methylamphetamine in bags taped to her torso worth somewhere between $200,000 and $500,000. The phone calls made to and from the defendant just before and just after the interception establish that he was expecting a delivery of the drug from the male and his disappointment on discovery that the delivery had been thwarted. Whether any and, if so, what proportion of the imported drug would eventually have made its way to the defendant cannot be established. However I am satisfied that the expression of the defendant's expectation demonstrates the nature and extent of his drug selling business. The quantity of drugs found in his possession during the indictment period also gives some indication of the nature and scale of the trafficking. At about 2.40 am on 2 November 2014 a car being driven by the accused was intercepted by two police officers. The defendant was in possession of a bag containing 2.3g of methylamphetamine and a bag containing 2.9g of morphine in the form of a brown powder. He attempted to run off. As he did so he threw away a bag containing 29.8g of methylamphetamine which had been concealed in his trousers. He was quickly apprehended and the bag was found. Five days later, on 7 November 2014, he was on his motor cycle with a female at the Perth Road house when he was approached by two detectives. The female was searched and found to be in possession of two small snaplock bags of methylamphetamine containing a total of 14.9g. In a later phone call the defendant admitted the drug was his, although he had prevailed on the female to take responsibility for it. On 11 November 2014 the defendant was searched after having arrived at a storage unit in Killafaddy Road. In his pocket he had a snaplock bag containing 6.0g of methylamphetamine and another bag containing traces of the drug. On 24 November 2014 a car the defendant was driving was intercepted by uniform police. He was searched. He produced from the front of his trousers a plastic container with six 30mg Ritalin tablets, four 100 mg MS Contin tablets, and two 30 mg MS Contin tablets. He also had a snaplock bag containing 1.0g of methylamphetamine. He was arrested and taken to the police station. When waiting in the laneway outside the charge room at the police station he ran from the police and attempted to tip into a drain the contents of a bag of methylamphetamine which had been concealed in his trousers. The salvageable contents were swept up, weighed and analysed, and found to be 9.4 grams of methylamphetamine. On 2 December 2014 a unit in which I find the defendant was living at the time was searched. The police found a bag containing 5.0g of methylamphetamine which I am satisfied was the defendant's. As to methylamphetamine, the total quantity found in the defendant's possession or control during the relevant period is 53.3 grams. Sold in point form the drug would have been worth about $53,000. If sold in larger quantities the return would have been less. The evidence establishes that the defendant was a drug user at the time. It is possible he may have used some of the drug himself. However I am satisfied, as the jury must have been, that he was in the business of selling it and most of it was intended for sale. I am also satisfied that throughout the indictment period the defendant was actively sourcing drugs to sell, and that the drugs found in his possession formed only an indeterminate part of his business.

Although the nature of the language used during the phone calls is guarded and indirect, the evidence establishes with clarity a consistent stream of enquiries to the defendant about the availability of drugs including methylamphetamine, morphine and cannabis, and his ability, willingness and availability to sell drugs already in his possession. There is no evidence of the sale of Ritalin, but the State adduced evidence of a black market for the drug and I am satisfied that the defendant possessed the drugs he had on 24 November, including both the Ritalin and the MS Contin, with that intention.

It also follows from the verdicts on the other counts on the indictment that the jury was satisfied that on 2 November 2014, 11 November 2014, 21 November 2014, twice on 25 November 2014 and again on 2 December 2014, the defendant dealt with property when there was, in each case, reasonable grounds to suspect that the property was proceeds of crime. When the defendant was pulled over by the police on 2 November he had $800 in cash, gold chains and a Hublot watch. Although there is no evidence of the value of the watch and chains, the defendant refers in a phone call to the watch as being worth upwards of $18,000. The evidence does not establish whether that value is accurate. On 11 November a storage shed at Killafaddy Road was searched by the police. It was full of items which I am satisfied were mostly stolen, including toys, power tools, hand tools, bed linen, jewellery and other things too numerous to list. There is direct evidence from the police and the true owners that some of the property was stolen. The inference that it was stolen can readily be drawn from the quantity and nature of the items. At least some of the toys came from a business in Launceston and were worth about $20,000. Beyond that, the value is not established by evidence except that in a phone call following the search the defendant complains that he has lost things worth about $100,000. Again, whether that is an accurate reflection of value cannot be established. It is likely to involve a level of bluster, but it gives an illuminating indication of what the defendant considered the value to have been and the extent of his criminal enterprise. The next count relates to a container of jewellery and miscellaneous items found at a house at Cressy on 21 November 2014. Although the house was not the defendant's, the jury was satisfied that the jewellery was in his possession. The evidence does not establish the value with certainty, but there are many items and the Crown asserted without dispute that it was worth about $35,000. The next counts concern the contents of storage sheds at Travellers Rest and at the Door of Hope facility searched on 25 November 2015. Like the shed at Killafaddy Road, both were very full of property. Again there is direct evidence from the police and the true owners, and it can readily be inferred, that much of the property was stolen. The value is not established by evidence with certainty but is likely comparable to the value of the goods in his other storage shed, at least in the defendant's mind. The only other indication of value comes from when some of the items of recovered property were returned to Bunnings, a hardware store in Launceston. A scan of barcodes on the material confirmed that it had been stolen from Bunnings and had a total value of just over $8,000. All of it was part of his commercial criminal enterprise. The final count concerns property found at the house in South Launceston in which the accused was living when it was searched on 2 December 2014. In the house and in the car parked outside, the police found items of a similar nature to that found elsewhere including power tools hand tools and automotive devices. The quantity is much less and my impression is that the value is much less also. The evidence of the phone calls makes clear the defendant's interest in property of the nature I have described and his trade in it, including in return for the supply of drugs. He encouraged trade in such property. The phone calls evidence numerous offers to supply goods for drugs. To that extent, the defendant's possession of the property it is related to the trafficking business. Some of the stolen items have been returned, but much of the property will be forfeited because the true owners cannot be found.

The defendant is aged 42. He has two adult children. He also has two young children, both born after these crimes were committed. About 18 months ago he formed a new relationship. While he has been in custody his partner lost her baby at about mid-term and he was not able to attend the funeral. He has struggled with abuse of illicit substances, principally methylamphetamine, but trafficking on this scale cannot be attributed to that. His criminal record dates back to 1994 but there is nothing of any consequence until about 2010 when some relatively minor drug offending commences. He has no prior convictions for trafficking. During the period since the crimes the defendant has been either on bail or in custody for other matters. In April 2015 he was sentenced to imprisonment for 12 months, wholly suspended, for summary offences committed during 2014 and 2015 including drug related driving offences, evading police, assaulting a police officer and one count of selling a controlled drug. He breached the suspended sentence by re-offending and some of the term of imprisonment was activated. On 25 February 2016 he was sentenced to imprisonment for five months for a serious assault committed in May 2014. He was again imprisoned for four months in May 2016 for offences of dishonesty and resisting police committed in 2015. Any offences committed after December 2014 are not prior convictions for sentencing purposes but are relevant to the prospect of his reform. The crimes for which he is now to be sentenced arise during the same period in which the serious assault was committed. He was on probation at the time, which is an aggravating factor. When he was sentenced in 2014 the court was told that he was then attempting to make a living from a picture framing business. Given what emerged during the trial about the nature of his criminal enterprise I place little store on that assertion.

There has been a delay in the prosecution. The defendant was arrested on 2 December 2014. His trial did not commence until 14 March 2018. The delay was partly caused by some factors which are not attributable to the defendant. However it is a factor of little weight. The defendant was promptly charged and committed to this Court. Some of the delay occurred because of the natural difficulty of prosecutions of this nature. There has been no indication of reform in the meantime.

Mitigation arises because of the defendant's co-operation in a completely unrelated matter and, as a result, the sentence I now impose will be reduced by 20%.

The defendant's dealing with the property suspected as being stolen involves substantial criminality. Much of the property was in fact stolen. The defendant is not to be sentenced on the basis that he knew the property was proceeds of crime, but I am satisfied that he strongly suspected that it was and encouraged its trade nevertheless. Much of it was acquired in return for drugs. Although the indictment period is relatively short, it is to be viewed in the context that the defendant was responsible as principal of a substantial criminal enterprise based on trafficking in drugs. The gravity of drug trafficking has repeatedly been emphasised by courts in this State and elsewhere. The drugs in which the defendant were trafficking, methylamphetamine in particular, are highly addictive and cause great harm to users and the general community. Use of the drugs is harmful to health and generates crimes of dishonesty and violence. This is a case in which it is particularly clear that the defendant balanced the risk of apprehension and punishment with the possibility of financial gain to be made from his criminal enterprise, and decided to proceed on a relatively large scale. He continued to offend despite his apprehension on a number of occasions even within the short indictment period. He was on bail for other offending throughout the indictment period. The defendant is not entitled to the mitigation a plea of guilty would have entailed, especially for a matter so difficult to investigate and prosecute, and has demonstrated no remorse. To the contrary, his conduct at the time and since shows an utter disregard for obedience to the law."

1. As to the crime of trafficking, in Roland v Tasmania [2016] TASCCA 20 at [38], and again in Cooper v Tasmania [2017] TASSCA 3 at [7], and then in Le v Tasmania [2017] TASCCA 21, I set out written submissions made on behalf of the respondent in Roland. Those cases also involved appeals against sentences for trafficking on the ground of manifest excess.
2. In those submissions the following matters were accurately noted by counsel for the respondent:

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;

• Maynard (4.5 years imprisonment),
• Delaney (4 years imprisonment),
• Billinghurst (4 years imprisonment),
• Wisniewski (4 years imprisonment), and
• 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
• Jones (4 years)
• Billinghurst (4 years)
• Pregnell (3 years)
• Daly (3 years)
• Picard (3 years)
• Reader (4.5 years)
• Swan, Royden (4 years)."

1. Thus it can be seen that at that time sentences imposed by this Court, and 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." (Emphasis added.)

1. In my view, even without the six convictions for dealing with property suspected of being the proceeds of crime, a term of four years' imprisonment could not be said to be manifestly excessive having regard to the range of sentences imposed in Tasmania by judges of this court in more recent times which show a pattern increased terms of imprisonment (see Billinghurst v Tasmania; Leaman v Tasmania [2018] TASCCA 16; Upston v Tasmania [2018] TASSCA 4; Le v Tasmania [2017] TASCCA 21; Farhat v Tasmania [2017] TASCCA 20; Cooper v Tasmania [2017] TASCCA 3; Roland v Tasmania [ 2016] TASCCA 20; Deakin v Tasmania [2016] TASCCA 19).
2. In any event, as I noted in Cooper, I observed in Sweetman v Tasmania [2016] TASCCA 5 at [36]- [41], a case involving trafficking in cannabis, 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'."

1. The six counts of dealing with property suspected of being the proceeds of crime clearly justified a sentence of imprisonment but because the appellant was charged with the crime of trafficking and the case against him was conducted on a Giretti basis the learned sentencing judge was clearly warranted in his comment that appellant's possession of the subject property was related to the trafficking business. There is to that extent an overlapping of the criminal conduct and dissection of the single sentence imposed is not appropriate on this appeal in my view.
2. As to the delay pending the appellant's trial I note the observations of the learned sentencing judge and I can detect no error in the approach his Honour took.

1. I am not persuaded, in accordance with the traditional formula set out in House v The King (1935) 55 CLR 499, that the appellant has established that by reason of its severity, the sentence imposed on him was "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 do not regard the single sentence of four years' imprisonment imposed on the appellant for the seven crimes of which he was convicted, manifestly excessive. I note that the maximum provision for parole made by the learned sentencing judge. In all of the circumstances I am satisfied that the sentence was appropriate.
3. I also note, once again, that any incremental change in sentencing practices can be justified by changes in community attitude. This can result in sentences reflecting and responding to developments in the understanding of the impact of particular offences. This was acknowledged by the High Court in R v Kilic [2016] HCA 48, 259 CLR 256 at [21].
4. 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 also again adopt with respect what was said by Porter J who was the sentencing judge in Stebbins (above), albeit his Honour's remarks were in relation to amphetamine:

"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. I agree with the reasons for judgment of Estcourt J.