DPP v Sullivan [2000] VSCA 99

Court of Appeal (Vic)|2000-05-30|Before: WINNEKE, P., BATT and BUCHANAN, JJ.A.

Criminal law - Sentence - Crown appeal - Trafficking and possession of drug of dependence - Sentence of a community based order for trafficking manifestly inadequate - Sentence of 30 months' imprisonment 21 months of which suspended imposed.

I will ask Mr Justice Buchanan to deliver the first judgment in this appeal.

On 21 June 1999 the respondent was arraigned in the County Court and pleaded guilty to a count of trafficking in a drug of dependence, Cannabis L, and a count of possession of a drug of dependence, being amphetamine. A plea was commenced and adjourned. On 17 September 1999 the respondent pleaded guilty to four summary offences: using a drug of dependence (Cannabis L), using a drug of dependence (amphetamine), and two charges of possession of a prescribed weapon. The weapons were a stun-gun and a knuckle duster.

The penalty for the charge of trafficking was a maximum of 15 years' imprisonment or 1000 penalty units or both. The maximum penalty for possession and use of amphetamine was one year imprisonment or 30 penalty units or both. The maximum penalty for using cannabis was five penalty units. The maximum penalty for possession of a prohibited weapon was six months' imprisonment or 60 penalty units.

On 23 September 1999 the respondent was sentenced on count 1 to serve a community-based order over a two-year period and to perform 100 hours of unpaid community work. The respondent was convicted of all the remaining charges, but they were adjourned for two years upon the respondent entering into a good behaviour bond. The sentencing judge forfeited cash and property purchased with the proceeds of the trafficking. He also imposed a pecuniary penalty order in the sum of $18,900 pursuant to the provisions of the Confiscation Act 1997 representing the value of the profits of the trafficking enterprise.

The Director of Public Prosecutions has appealed to this Court pursuant to the provisions of s.567A against the sentences imposed on the charges of trafficking in cannabis and possession of amphetamine on the ground that the sentences were manifestly inadequate in that the sentencing judge failed to accurately reflect the gravity of the offences, failed to have sufficient regard to general deterrence and gave too much weight to factors going to mitigation.

The offences came to light when police armed with a search warrant entered the respondent's house and found a number of packages of cannabis prepared for sale, amounting to some 767 grams, and 2.5 grams of amphetamine. The respondent freely admitted all the offences with which he was charged in a record of interview, and expressed contrition. He said that he had used cannabis "on and off for about twenty years" and that he currently smoked about 10 to 15 bongs a day. He stated that due to unemployment and financial pressures he resorted to selling cannabis from his house and he had done so for between 12 to 18 months. He stated that he would purchase about two pounds of cannabis a month at a price of $8,000 and would break that down to small quantities, then sell about 8 ounces a week. He stated that after a slow start he built up the business. He was currently receiving between $2000 and $4000 a month and estimated that he made a profit of around $500 a week. Those figures were accepted by the sentencing judge.

The respondent admitted that the $6,000 in cash located by the police in his bedroom was the proceeds of selling cannabis. He also admitted that other property, such as certain sports memorabilia, a stereo and electrical equipment, was obtained from the proceeds of trafficking.

The respondent admitted to being in possession of three foils of amphetamine for his personal use and stated that he exchanged them for one quarter of an ounce of cannabis, which was worth $100. He said that he used amphetamine about six times a year by injecting it intravenously, and the last time was a fortnight earlier.

The respondent admitted to being in possession of a prescribed weapon, being the stun-gun, which he had had for six months for "protection". He said that he did not know where the knuckle duster had come from.

The respondent is now 35 years old. His only prior convictions were for possession and use of cannabis, for which he received small fines. The respondent left school at the end of Year 9 and worked variously as a motor-cycle salesman, a machinist, a welder, a laboratory assistant, a storeman, a gardener, in a factory manufacturing cricket bats and, finally, producing statues. Before he was sentenced, he was last employed in May 1997.

The respondent was married to a woman by whom he had three children. The marriage ended in 1994. One of the children suffered brain damage soon after birth. The respondent's former wife in a letter to the Court spoke of the respondent's devotion to his children and the fact that he met their educational and medical expenses as well as paying maintenance.

The respondent commenced to trade in the drug in order to meet debts and family commitments after he became unemployed.

After his arrest on these charges, the respondent was released on bail. He registered with two employment agencies and obtained casual work. He was also treated by Taskforce Community Agency Inc., a drug and alcohol counselling and prevention service. A counsellor employed by the Agency reported to the Court that the respondent had significantly reduced his use of cannabis. The sentencing judge made it a specific condition of the good behaviour bond that the respondent continue to attend the Agency.

Trafficking in cannabis is a serious offence. Its gravity is reflected in the maximum penalty which Parliament has assigned to it. As the Full Court said in R. v. Pastras[1]:

"Those who have experience in the administration of the criminal justice system know that the prolonged use of marijuana can cause great harm, particularly to psychologically vulnerable individuals."

Leniency is not to be shown to a trafficker in marijuana on the basis that the drug is harmless. The legislation is predicated upon it being harmful.

The trade in which the respondent engaged was substantial and it was carried on over a considerable period of time. It does not appear to have been a trade limited to a closed circle. Rather, the respondent carried on a general retail business supplying all comers.

The principle of general deterrence is of special importance in relation to the crime of trafficking in drugs. Generally trafficking on the scale of that found here requires the imposition of an immediate custodial sentence, which will usually only be avoided by exceptional countervailing factors.

In the present case I do not consider that the factors pointing towards leniency were sufficient to neutralize the offence itself. The absence of significant prior convictions is of limited relevance to a trafficking offence, and the cooperation of the respondent with the police is to be considered in the light of the incriminating circumstances in which he was apprehended.

In my opinion the sentence imposed on the respondent does manifest such inadequacy as to constitute error in principle.[2]

I am speaking of the sentence imposed on the charge of trafficking. I do not regard the sentence imposed for possession of a small quantity of amphetamine as outside the range available to the sentencing judge.

In re-sentencing the respondent, I am mindful of the element of double jeopardy involved in twice standing for sentence, and the fact that the respondent has been at liberty since he was first sentenced. Accordingly, I propose a sentence which is less than that which I consider should have been imposed at first instance.

I would propose re-sentencing the respondent to a term of two-and-a-half years' imprisonment. Having regard to the length of time that has elapsed since he was first sentenced, his conduct since then in completing the community-based order, and his efforts to obtain employment, I consider it appropriate to suspend the bulk of the sentence.

Accordingly, I would propose that 21 months of the sentence be suspended for a period of two-and-a-half years.

The formal orders of the court will be as follows.

The sentences imposed by the judge below on counts 1 and 2 are quashed. In lieu thereof the following sentences will be imposed.

On Count 1, the respondent is sentenced to a term of imprisonment of 30 months.

On Count 2, the order made by the judge below adjourning conviction for that offence for two years remains, but without the special conditions which the judge attached. The total effective sentence will be, therefore, one of 30 months' imprisonment.

The court orders that 21 months of the sentence is to be suspended pursuant to s.27(1) of the Sentencing Act for a period of 30 months from today's date.

I indicate to the respondent that the Court proposes to suspend 21 months of the 30 months term of imprisonment which it has imposed, the purpose of that suspension to give effect to the matters of mitigation which were placed before the sentencing judge and to mitigate the penalty accordingly.

You will have to understand, Sullivan, that that means that you will serve nine months of the sentence of imprisonment which this Court has imposed. Thereafter, the remainder of the sentence will be suspended for 30 months from today's date.

If at any time within that period you commit an offence which is punishable by imprisonment, you will be liable to be brought back before the Court and punished, not only for the offence which has been committed, but also for the breach of this suspension order which the Court is making. Do you understand that?

We declare pursuant to s.18(1) of the Sentencing Act that the eight days spent in custody count as time served pursuant to the sentence we have imposed and we direct that that declaration and its terms be noted in the records of the Court.

Thank you, Your Honour. The other matter is to make application for a certificate under the Appeals Costs Fund Act.

[2] See Beckett v. R. 181 C.L.R. 300, per Brennan, Deane, Dawson and Gaudron, JJ.; R. v. Clarke [1996] VICSC 30; [1996] 2 V.R. 520 at 522, per Charles, J.A.

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