CITATION: Director of Public Prosecutions v Williamson [2013] TASCCA 6

Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Drug trafficking charges - Seizure of drugs worth $105,000 and $412,000 cash profits - Whether sentence of two years' imprisonment with parole eligibility after one year manifestly inadequate.

Judgment Number: [2013] TASCCA 6

2 Sentence of 2 years' imprisonment with eligibility for parole after 12 months quashed.

3 Respondent sentenced to 4½ years' imprisonment with effect from 23 July 2012.

4 Respondent not eligible for parole until he has served half of that sentence.

(Parts of this judgment, namely paragraphs 6, 9 and 10, have been published only to the parties and their legal representatives.)

1 This is a sentencing appeal. The respondent pleaded guilty to 11 drug related charges. Porter J convicted him, imposed a global sentence of 2 years' imprisonment, and ordered that he not be eligible for parole until he had served 12 months of that sentence. The Director of Public Prosecutions has appealed. He contends that that sentence was manifestly inadequate.

2 The respondent pleaded guilty to eight charges on an indictment, and to three summary charges, which the learned sentencing judge dealt with pursuant to s385A of the Criminal Code. The charges on the indictment were as follows:

• Count 1 - trafficking in a controlled substance, namely methylamphetamine, at or near Devonport on 25 November 2010.
• Count 2 - trafficking in a controlled substance, namely N,N-dimethyltryptamine (otherwise known as DMT), katamine, thebaine, cocaine and 1,4-butanediol, at or near Devonport on 25 November 2010.
• Count 3 - trafficking in a controlled substance, namely 3,4 methylenedioxymethcathinone, in the greater Hobart area on or about 25 November 2010.
• Count 4 - trafficking in a controlled substance, namely N,N-dimethyltryptamine (otherwise known as DMT) in the greater Hobart area on or about 25 November 2010.
• Count 5 - trafficking in a controlled substance, namely N,N-dimethyltryptamine and lysergide, in the greater Hobart area on or about 25 November 2010.
• Count 6 - dealing with property suspected of being proceeds of crime, contrary to s66B of the Crime (Confiscation of Profits) Act 1993, by possessing $13,700 in cash at Devonport on or about 25 November 2010.
• Count 7 - dealing with property suspected of being proceeds of crime, contrary to the same section, by possessing $203,400 in cash in the greater Hobart area on or about 25 November 2010.
• Count 8 - dealing with property suspected of being proceeds of crime, contrary to the same section, by possessing $195,100 in the greater Hobart area on or about 2 April 2011.

• Count 2 on complaint 12967/10 - possessing a controlled drug, namely 3,4 methylenedioxymethcathinone, diazepam and MDMA, at Devonport on 25 November 2010.
• Count 4 on complaint 12967/10 - possessing a thing used for administration of a controlled drug, namely pipes, grinders and smoking kits designed to be used in connection with the inhalation and smoking of cocaine and amphetamine, at Devonport on 25 November 2010.
• Complaint 90347/11 - Unlawfully selling a restricted substance, namely sildenafil (41377) [ie Viagra], by possessing it for sale to another person at Lenah Valley on 25 November 2010.

4 No point was taken at first instance or on the hearing of the appeal about the fact that some counts related to more than one controlled substance or controlled drug.

5 The facts relating to these crimes and offences, as summarised by the learned sentencing judge, were as follows:

"These matters arose from a search of the defendant's vehicle after he disembarked from the Spirit of Tasmania in 2010 and was intercepted. A search of the vehicle revealed the following:

• Four snap lock bags with a combined total of 58.8 grams of methylamphetamine.
• Three bags containing a combined total of 8.5 grams of ketamine.
• One bag containing .4 grams of dimethyltryptamine (known as DMT), together with ketamine and cocaine.
• Nine bags containing a total of 4.2 grams of DMT.
• A drink flask containing 700 millilitres of butanediol - sometimes referred to as liquid ecstasy.
• A foil containing eight perforated patterned tickets containing LSD.
• 1.5 tablets of ecstasy.
• Three capsules of 3,4 methylenedioxymethcathinone, one of which also contained caffeine.
• A quantity of prescription tablets including 30 of diazepam and one of Viagra.

Police also found a cash tin containing $13,700 in cash, digital scales, unused snap lock bags, cocaine preparation kit, smoking devices, in one of which DMT was detected, with methylamphetamine being detected in the other, tick sheets, travel documents showing regular travelling to Melbourne between June 2010 and November 2010, and two mobile phones, both containing drug-related text messages.

A search was conducted of the defendant's home at Lenah Valley. The following items were located in various parts of the house:

• One capsule containing 3,4 methylenedioxymethcathinone.
• An Ajax safe which was then locked, but opened by police a few weeks later.
• A smoking device.
• A set of scales.
• Multiple packets of unused snap lock bags.

Whilst the search of the defendant's home was underway, police made enquiries next door, as a result of which that house was searched pursuant to a search warrant. Items were seized from underneath the house. There was one box containing 2,248 capsules containing 3,4 methylenedioxymethcathinone and caffeine. There were 11 bags each containing one gram of caffeine and cocaine, and one bag containing 4.5 grams of caffeine and cocaine. Again numerous items referable to the preparation, mixing, weighing, packaging and sale of drugs were found, including sets of digital scales, snap lock bags, caffeine powder and a supplement powder, together with a number of mobile phone SIM packs. When the safe was opened, it was found to contain two brown paper bags containing a total of $199,900. A metal briefcase was also located. This contained:

• Seven packages of DMT totalling 35.4 grams.
• Two sheets of 130 LSD tickets.
• A pencil case containing 62 Viagra tablets.
• $3,500 cash in $100 notes.

Investigations led the police to a further address in Lenah Valley at which, in a filing cabinet, police found a plastic shopping bag containing three bundles of cash totalling $195,100. This bag was traced to the defendant.

The five counts of trafficking on the indictment represent various categories of controlled substances found in the defendant's vehicle and in the various properties. The three counts of dealing with property suspected of being proceeds of crime relate to the $13,700 in cash found in the vehicle, the $203,400 found in the safe and the $195,000 [sic] found at the other Lenah Valley address. The Crown has put the total value of all of the controlled substances in the accused's possession, but basing sales of the methylamphetamine on ounces or grams, at $105,000, with the Viagra contributing an additional $2,000. As far as the controlled substances are concerned, they are sometimes misleadingly referred to as party drugs, perhaps in order to distinguish them from the far more harmful and sinister types of controlled substances which exist. However that should not serve to deny the fact that these drugs can be addictive and pose very serious health risks, up to and including death, particularly if combined with the use of other substances such as other illicit substances or alcohol."

7 The respondent was 44 years old when he was sentenced. In December 2009 he pleaded guilty to a series of summary drug offences committed in May and June of that year, including two selling charges and two supplying charges. He was fined $1,000 and ordered to continue attending certain programs. The charges, or perhaps some of them, were adjourned for 12 months, with an order that the respondent was to be of good behaviour during the period of the adjournment and commit no offence under the Misuse of Drugs Act 2001 or the Poisons Act 1971. The crimes and offences to which this appeal relates all involved contraventions of that order. The respondent was also convicted and punished for driving a motor vehicle with a prescribed illicit drug in his blood in June 2009. Otherwise he has no significant prior convictions.

8 The relevant mitigating factors, and my comments in relation to them, can be summarised as follows:

• The respondent had not previously been to prison.
• He had led an industrious life, serving in the Naval Reserve, working in retail jobs, operating a corner store, assisting his father in a bakery business, obtaining a commerce degree, working in advertising in Western Australia, completing a carpentry apprenticeship, and working on a home that he was buying.
• He had begun using drugs as a result of difficulties in his life. Initially he started using cannabis at or about a time when his father was hospitalised with cancer. However he moved to Western Australia in about 2003 and ceased using cannabis. He started experimenting with a variety of drugs a few years before the sentencing proceedings at a stage when he had gone through a bad break-up of a personal relationship. He started selling drugs in order to fund his own consumption of them, which was costing about $2,000 per week. I do not regard any of this information as carrying any significant weight as to mitigation of penalty. The respondent's profits from the trafficking operation were out of all proportion to the cost of drugs for his personal use. There was no suggestion that, when he started trafficking, he was addicted to any drugs in the sense that he was unable to stop using them.
• His arrest came as a shock and a "significant wake-up call" to him. He sought medical assistance. He commenced treatment for depression. His counsel provided the learned sentencing judge with the results of some drug screening tests that the respondent undertook and submitted that he "was able to maintain a drug-free lifestyle for a period of time". However the test results showed that the respondent tested positive for benzodiazepine on 31 March 2011, tested positive for amphetamine-type substances and benzodiazepine on 7 April 2011, and tested positive for amphetamine-type substances on 15 April 2011. Ten subsequent tests over the period from 21 April 2011 to 15 July 2011 indicated that the respondent was drug-free. No information was provided as to the period between 15 July 2011 and the sentencing proceedings on 23 July 2012.
• The respondent deeply regretted the fact that he had been charged, and the impact of the proceedings upon his family. The learned sentencing judge was told that the respondent regretted "his involvement in what he has done". However nothing specific was put in mitigation as to the respondent regretting having caused any harm to the consumers of the drugs in which he had trafficked.
• He pleaded guilty. He did so on 23 May 2012, some 18 months after his arrest and 7 weeks after the filing of the indictment. Part of the delay resulted from lawyers instructed by the respondent having to cease to act for him. Three times he instructed lawyers who, after accepting his instructions, for one reason or another had to cease acting for him. It was his fourth lawyer who represented him in the sentencing proceedings. However the State had fully prepared the case for trial before it was learned that it could be disposed of on the basis of pleas of guilty. There had even been preliminary proceedings in the Court of Petty Sessions. Pleading guilty saved the State the cost and inconvenience of a trial. However the case against the respondent was very strong.
• He had indicated a willingness to co-operate with the authorities.

11 In assessing the extent of the respondent's willingness to facilitate the administration of justice, it is relevant to take into account his attitude at the time of his arrest. He was interviewed by the police in Devonport. He falsely asserted that the drugs found in his vehicle had been purchased by him for his personal use; that he knew nothing about the tick sheets found by the police; and that he had gone to Melbourne with $25,000 to purchase a kitchen. When further information emerged as to his criminal activities, he declined to be re-interviewed. Of course a desire not to facilitate the administration of justice is not an aggravating factor. The significant point is that, in assessing the weight to be attached to his expressed desire to facilitate the administration of justice, treating it as a mitigating factor, the absence of any such desire in the early stages of his dealings with the police is significant.

12 In addition to making the usual orders as to victims of crime compensation levies and the forfeiture of drug-related items, his Honour ordered the forfeiture to the Crown of seized cash totalling $412,000, and ordered the respondent to pay $18,360 in respect of analysis costs. The making of confiscation and forfeiture orders may be taken into account in mitigation of penalty: Stocks v R [2000] TASSC 106; (2000) 9 Tas R 210. However, in the circumstances of this case, I think that the orders as to forfeiture and analysis costs should be given virtually no significance in the sentencing process. As Underwood J (as he then was) said in Stocks at [36], "Deprivation of profits from heinous criminal activity does not go in reduction of an appropriate penalty for the commission of that criminal activity." Similarly, there is no reason to give any significant weight to the order requiring the payment of analysis costs since it was reasonable for the analyses to be undertaken in order to determine the appropriate charges and prepare the case for trial.

13 By Tasmanian standards, this was an extremely serious case of drug trafficking. Trafficking on such a scale is so rare in this State that it cannot be said that there is a sentencing tariff for such cases. Because the facts of every case are different, the consideration of sentences imposed in other specific cases is of limited value. However I think it is worthwhile surveying some of the heavier sentences that have been imposed in drug cases in Tasmania.

14 To the best of my knowledge, no sentences of longer than 5 years have been imposed in Tasmanian drug cases. Sentences of that length appear only ever to have been imposed on two co-offenders named Stocks and Thorley. Stocks received at least $220,000 as his share of the proceeds of a cannabis trafficking operation that was carried on over some two years. An appeal to the Court of Criminal Appeal was unsuccessful: Stocks v R (above). Thorley was also involved for over two years, providing capital, equipment and expertise, and receiving profits in excess of $200,000: R v Thorley [1999] TASSC 73.

15 In Tasmania v Maynard (unreported, 29 June 2011), Evans J sentenced a trafficker to 4½ years' imprisonment, with a non-parole period of 3½ years. That man was a persistent drug trafficker who was found in possession of methylamphetamine with a market value of about $32,500, a total of $48,200 in cash, a revolver and a pistol.

16 Sentences of 4 years' imprisonment have been imposed in several cases. In Vergos v R A89/1996, [1996] TASSC 154, the appellant had cultivated, transported and sold large quantities of cannabis over some two years. He had received almost $90,000 when apprehended, and had harvested a crop that was expected to return over $300,000. He pleaded guilty, and had taken significant steps towards rehabilitation. The Court of Criminal Appeal held that his sentence was not manifestly excessive.

17 In R v Delaney (unreported, 10 April 1997), Cox CJ sentenced an offender to 4 years' imprisonment, following a late plea of guilty, for trafficking in amphetamine and heroin over a period of 11 months. Police officers had seized drugs with a street value of at least $270,000 at the end of that period.

18 In Tasmania v Billinghurst (unreported, 24 August 2007), Crawford J (as he then was) imposed sentences of 4 years' imprisonment on two major suppliers of methylamphetamine. They had been trafficking in the drug for about three months, importing it into Tasmania, with a weekly turnover of about $20,000. Billinghurst had a worse record than his co-offender Jones. His Honour therefore fixed parole ineligibility periods of 3 years for Billinghurst and 2 years 3 months for Jones.

19 In Wisniewski v Tasmania [2007] TASSC 25, the appellant had been sentenced to 4 years' imprisonment, with a non-parole period of 3 years, for trafficking in MDMA or ecstasy over a period of some 11 months. He sold $150,000 worth of the drug over that period. The Court of Criminal Appeal held that the head sentence of 4 years' imprisonment was not manifestly excessive, but resentenced, him, imposing a non-parole period of 2 years instead of 3 years.

20 In R v Newman (unreported, 27 February 1992), Crawford J imposed a sentence of 3 years 6 months' imprisonment on a man for trafficking in cannabis on the basis that he was found with over $300,000 worth of the drug and was dividing it into small quantities for sale.

21 In Tasmania v Leicester (unreported, 13 May 2009), I imposed a sentence of 3 years 4 months' imprisonment, with 12 months thereof suspended and a non-parole period of 14 months, on a man who, over a period of some 4 years 10 months, had imported and sold hundreds of thousands of dollars worth of methylamphetamine. I suspended part of the sentence and imposed the shortest possible non-parole period because the defendant had been trafficking to fund the use of substantial quantities of the drug by his partner and himself without becoming wealthy, and had been making good progress towards rehabilitation since his arrest.

22 In Tasmania v Stevens (unreported, 10 December 2010), Evans J sentenced a man to 3 years' imprisonment, with a non-parole period of 18 months, in respect of a sophisticated hydroponic cannabis cultivation and sale operation that endured for over two years. The offender had previously been to prison for trafficking.

23 In R v Michieletto A45/1995, [1995] TASSC 87, Slicer J sentenced a man to 3 years' imprisonment for conspiring to traffic in cannabis, as well as 46 summary drug offences. He was involved in a commercial operation for which he was to receive at least $50,000. A significant mitigating factor in that case was that the offender co-operated with the police to the extent of revealing involvement in the cultivation of cannabis at 17 plantations, and preventing confrontations between police officers and armed members of his organisation.

24 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.

25 In my view the head sentence of 2 years' imprisonment that was imposed in this case does not adequately reflect the degree of criminality of the respondent's conduct, particularly having regard to the likely duration of his offending, the quantity and value of the drugs imported into Tasmania, sold and seized, and the extent of the profits generated by his trafficking. The sentence is not one that is likely to operate as a general deterrent, but general deterrence is an important factor in cases like this. Having regard to all the circumstances of the offences and the offender, I consider that the sentence was manifestly inadequate.

26 At the hearing of this appeal, counsel for the respondent made submissions as to matters that might be relevant to his re-sentencing, as follows:

• She told the Court that the respondent had been assaulted on occasions in the prison; that one tooth had been loosened as a result of one assault; and that the respondent had been transferred into "Protection" for his own safety, which resulted in him being incarcerated with sex offenders, associated with sex offenders in the eyes of other prisoners, and therefore at risk of further assaults.
• She told us that he owned his home; that there was a mortgage debt of over $200,000; that the property was let; that the rent was not enough to cover the mortgage payments; that there was a risk that the respondent would lose his home; and that the longer he spent in custody, the greater that risk would be.
• She told us that he had been working in a tailor's shop in the prison; and that he had been attending a rehabilitation course to help him avoid criminal conduct.
• Not surprisingly, she told us that he was finding his time in prison unpleasant, never having been there before, and that imprisonment was operating as a significant personal deterrent.

27 In my view adequate weight can be given to the submissions relating to the respondent's experiences in prison when determining how long he should remain ineligible for parole. The prospect of him not being able to afford to keep his house carries no significant weight. One of the consequences of committing serious crimes is that a substantial term of imprisonment might result in an offender needing to dispose of assets.

28 In my view the mitigating factors in this case, whilst not insignificant, should not entitle the respondent to particularly lenient treatment. He committed very serious crimes. He was engaged in large-scale commercial criminal activity. He made huge profits. It must have taken him months, at least, to accumulate those profits. The drugs that passed through his hands were likely to cause a lot of misery to a lot of people. Because of that, the need for general deterrence was particularly important in this case. Taking all relevant matters into account, I think it would be appropriate for the respondent to be sentenced to 4½ years' imprisonment.

29 The shortest parole ineligibility period that may be imposed is one half of the head sentence: Sentencing Act 1997, s17(3). Because the respondent has not been to prison before, and because of his experiences there, I think an order should be made permitting parole after he has served half his sentence.

30 For these reasons, I would allow the appeal, set aside the head sentence of 2 years' imprisonment and the parole ineligibility order made by the learned sentencing judge, substitute a sentence of 4½ years' imprisonment with effect from 23 July 2012, and order that the respondent not be eligible for parole until he has served half of that sentence.

31 I have had the benefit of reading in draft form the reasons of the Chief Justice. I agree with those reasons and the outcome he proposes.

32 I agree with the reasons of the Chief Justice, and with the orders proposed by his Honour.