Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Appeal by convicted persons - Applications to reduce sentence - When refused - Particular offences - Other offences - Drug offences - Trafficking - Whether circumstances warrant appellate interference.

Criminal Law - Particular offences - Drug offences - Penalties - Trafficking, trading, selling, supplying or distribution - Other substances - Trafficking in methylamphetamine - Whether sentence manifestly excessive.

Judgment Number: [2006] TASSC 41

1 The appellant appealed against a sentence of imprisonment on the ground that it was manifestly excessive. He had pleaded guilty to two counts of trafficking in a controlled substance, contrary to the Misuse of Drugs Act 2001, s12(1), and on 23 November 2005, he was sentenced to three years' imprisonment. It was ordered that he not be eligible for parole until he had served two years of that sentence. To take into account the fact that he had spent time in custody prior to the imposition of the sentence, it was ordered that the imprisonment commence on 24 April 2005.

2 The first count charged him with trafficking in methylamphetamine between 1 October and 19 November 2004. The second count charged him with trafficking in methylamphetamine between 6 March and 3 June 2005. The material facts were the following.

3 On 18 November 2004 he rented a Mitsubishi Magna sedan for three days paying $370 in cash for the rent. Shortly after 1am the following day, he was spoken to by police officers in the course of a random traffic check and was requested to follow the officers to the Bridgewater Police Station for questioning in relation to an unrelated matter. On the way to the police station he stopped, locked the car and ran away across a paddock. He was soon apprehended and taken to the police station. He claimed to have lost the keys to the car. As a result of a search of it, police seized bundles of cash totalling $16,617.85 in various places in the car, zip-lock bags containing methylamphetamine along with a bag containing glucodin, which it could be inferred was an inert substance for diluting or cutting methylamphetamine prior to sale. Also seized were empty zip-lock bags, digital scales, two mobile telephones and documents containing references to the sale of drugs, a large number of telephone numbers and names, numbers and figures and a printout of an Internet download relating to clandestine laboratories and methylamphetamine. A further $1,050 cash was found on his person and seized, making a total of $17,667.85 in cash in his possession.

4 The State's case, which was accepted by the learned sentencing judge, was that between 1 October and 19 November 2004, the appellant was selling methylamphetamine to a customer base that he had developed and which he had recorded in the form of a huge number of contact telephone numbers. The cash was plainly the product of trafficking, for he had no form of legitimate income. At the sentencing hearing he claimed that the cash came from a legitimate source, but following evidence, the learned judge rejected his account, regarding it as "a tissue of exculpatory lies from start to finish".

5 The appellant declined to make any comment when police sought to interview him. He was charged with trafficking and retained in custody from 19 November until 17 December, when he was freed on bail. His custodial experience did not deter him from trafficking again.

6 The second count of trafficking arose out of five searches.

7 On 6 March 2005, police attended a disturbance between the appellant and another man at a residence. Parked in the street was a Peugeot sedan that the appellant had purchased for $2,400 about four weeks earlier. He denied being the owner. As a result of a search of it, police seized $225 in cash, sachets containing methylamphetamine, empty sachets, scales, three mobile telephones and a large number of documents containing (inter alia) the telephone numbers of many persons and numbers and figures that appeared to be references to the sale of drugs. He was charged with an offence and freed on bail. However, he was taken back into custody from 22 April until 4 May 2005.

8 On 24 May 2005, his bedroom at his residence was searched. Seized were $170 in cash, sachets containing methylamphetamine, empty sachets, scales, a coffee grinder containing traces of methylamphetamine, a mobile telephone and a laptop computer on which was an Internet download dealing with methylamphetamine.

9 Only two days later, on 26 May 2005, he was intercepted by police when driving a Corolla station sedan owned by him. He was seen to be doing something with his hands and on going up to the vehicle, police officers saw a syringe on the driver's floor. As a result of a search of the vehicle, police seized $12,400 in cash, a plunger and barrel of a syringe that contained traces of methylamphetamine, sachets containing methylamphetamine, empty sachets, two sets of scales, two mobile telephones and documents containing lists of telephone numbers.

10 Four days later, on 30 May 2005, police went to the appellant's address because he had failed to comply with a bail condition that required him to report to a police station. He was arrested for breach of bail and the premises were searched. Property seized included $4,280 in cash (from his person), glass jars and sachets containing methylamphetamine, scales, a needle pack and a mobile telephone.

11 Four days later again, on 3 June 2005, police attended a woman's residence in answer to a report of a burglary in progress. A condition of the appellant's bail was that he not approach the woman. He was discovered coming out of the residence with a VCR and a DVD player. He was arrested for breach of bail. As a result of a search of his Corolla station wagon, which was parked outside the residence, police seized $1,700 in cash, a sachet containing methylamphetamine, an empty sachet and a mobile telephone. He was arrested and remained in custody until he was sentenced.

12 The State's case in respect of count 2 was that for the period 6 March to 3 June 2005 the appellant had continued to actively engage in selling methylamphetamine. Reliance for that assertion was based on a total of $19,315 being found in his possession at a time when he had no legitimate source of income along with methylamphetamine and paraphernalia of drug dealing.

13 In relation to both counts on the indictment, a total of $36,982.85 in cash was seized from him and also a considerable amount of methylamphetamine with a street value of between $85,000 and $190,000. His sales were primarily in street value lots. On each of the six occasions he either declined to be interviewed or refused to make any comment and he was charged with an offence.

14 There was absolutely no sign of remorse on the part of the appellant. He pleaded not guilty to the charges and his trial commenced on 14 November 2005 with the empanelment of a jury. He applied to have the counts severed and it was only when he learned that the application had failed that he pleaded guilty to both. On the information presented to the learned sentencing judge, we conclude that he was merely bowing to the inevitability of conviction.

15 At the time of the offences, he was aged 32 or 33 years. He had no record of offending that was material to the sentencing process. He was educated to Year 12 level at a private boarding school. For much of his working life he worked for family businesses, particularly as a hotelier and as a farmhand. He then operated a successful fishing business. A 1998 marriage ended in divorce in 2002 and a bitter custody and property dispute followed. At about that time he started drinking excessively and in 2003 he commenced to use methylamphetamine, according to his counsel, and with increasing use he became addicted to that drug.

16 It was put to the learned judge that at the time of the offences the appellant was hopelessly addicted to methylamphetamine and that he sold the drug, and had it in his possession for sale, in order to fund his addiction. In his comments on passing sentence the learned judge rejected that as the only reason, considering that the fact that the appellant had such large sums of cash with him belied the claim, along with the length of the lists of names and telephone numbers and the size of his telephone bill.

17 The learned judge was told that while in prison for a period of over five months, the appellant had not used amphetamines and he regarded himself as clean, no longer addicted and no longer in need of the drug.

18 In his comments on passing sentence, the learned judge said (inter alia):

"I find that your illicit and pernicious trade was pursued for financial gain and resulted in this drug of addiction being spread far and wide in the community. You agreed in your evidence that you knew that methylamphetamine can cause depression and even suicide, but this knowledge did nothing to deter you from your poisonous trade. You pursued your criminal conduct in the face of several arrests for trafficking and even after being detained in custody for periods of time. This is a very serious aggravating factor. There is no sign of remorse, for your plea was only entered after the jury had been sworn and there had been an unsuccessful attempt to sever the counts on the indictment. You have no prior convictions although you have two subsequent convictions for relatively minor offences relating to cannabis."

19 The sole ground of appeal is that the sentence was manifestly excessive. However, in support of it, the appellant raised a number of issues that, strictly speaking, may not have been encompassed by the ground. No objection was taken by counsel for the State.

20 The appellant submitted that the learned judge failed to give sufficient weight to the fact that he was addicted to methylamphetamine and that the sentence should have been partly suspended on condition that he undergo treatment for drug dependency. The Court does not accept that such an order should have been made by the learned judge, and particularly not in the context of the submission on the appellant's behalf by his counsel, that he was clean and no longer addicted. It was also submitted by the appellant that his addiction blurred all concept of what was right or wrong. No such claim was made to the sentencing judge and no regard should be had to it in any event. It should also be observed that drug dependency is not an excuse for offending.

21 It was submitted further that the learned judge failed to take into account the appellant's apparent good character and his lack of material prior convictions. They are matters this Court should take into account when considering whether the sentence was manifestly excessive, and there is no reason to conclude that the sentencing judge failed to have regard to them. Indeed, in his comments on passing sentence, his Honour noted that the appellant had no prior convictions. The appellant also complains that he did not have the opportunity to provide testimonials as to his character to the learned judge. The Court does not accept that assertion. He had ample time to arrange for testimonials over the months prior to his eventual pleas of guilty and that is particularly so having regard to his counsel's statement that he had a supportive family who, no doubt, could have assisted him. In any event, his failure to produce testimonials is not a basis for attacking the sentence and he has not demonstrated that whatever such testimonials may have said would have resulted in a less severe sentence.

22 The appellant submitted that the learned judge failed to treat as a mitigating factor his pleas of guilty, relying on the dicta of Wright J in this Court in R v O'Brien 43/1987 that "it may be assumed that the respondent's decision to plead guilty enabled a saving in public expense and provided confirmation of his genuine regret for what he had done". That statement may have been appropriate for O'Brien's circumstances, but it has little application here. No remorse has been shown by the appellant for his offences and his pleas of guilty did not indicate the contrary. He maintained his pleas of not guilty until after a jury had been empanelled and he had unsuccessfully applied to sever the counts in the indictment. No doubt by the time he pleaded guilty, the State had fully prepared its case and marshalled its witnesses in readiness. As was said earlier, the Court's conclusion is that his pleas of guilty were made merely because he recognised that his conviction was inevitable.

23 This Court accepted in Inkson v R [1996] TASSC 13; (1996) 6 Tas R 1 the principles stated in R v Shannon (1979) 21 SASR 442 at 459 - 460 concerning the mitigatory value of pleas of guilty. All five members of the South Australian court were of the view that if an accused pleads guilty simply because he or she realises that a conviction is inevitable, there is no entitlement to have the sentence reduced. However, that is not to say that credit should not be given in a case where there is no remorse. In Siganto v R [1998] HCA 74; (1998) 194 CLR 656 at 663-4 the majority of the High Court accepted that a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, which is not the case here, and second, on the pragmatic ground that the community is spared the expense of a contested trial. However, subsequently, the majority of the High Court in Cameron v R (2002) 209 CLR 339 at 343 said that the second basis should be expressed as a willingness to facilitate the course of justice and not on the basis that the plea saved the community the expense of a contested hearing.

24 Each case depends on its own circumstances and even if a plea is made without remorse and is mere bowing to the inevitability of conviction, if it saves a trial and inconvenience and distress to witnesses it will usually be accorded with some lessening of the severity of the sentence. In this case, however, having regard to the lateness and the circumstances in which they were made, the pleas had little if any mitigatory value.

25 It was also submitted by the appellant that the learned judge failed to take into account that there was a delay between his apprehension and the imposition of the sentence which was not attributable to any fault on his part. The Court does not accept that there was any material delay in this case, nor that it was the fault of either side of the case. However, the simple answer to the submission is that mere delay is not a mitigatory factor and there is no other factor in this case, such as stress, anxiety, a change in position or intervening rehabilitation.

26 Before the learned judge and this Court reference was made to sentences imposed by single judges on John Leslie Whittaker (20 September 2005) and David Wayne Morcom (9 August 2005) and comparisons were made between the facts in those cases, along with the sentences, with the facts and sentence in this case. Two points should be made about such a comparison. The first is that this Court is not bound by the sentences of single judges. When appeals are made to it, this Court sets the standard. The second is that although in the course of achieving consistency in sentencing, courts will commonly look to see if previous sentences have established a "tariff" or a range of sentences for similar offences, two such sentences are incapable of creating an established and acceptable range for the guidance of courts in the future. Far more sentences than that are required. The circumstances of this case are relatively unique in this State, for it is extremely difficult to find an earlier sentence for a comparable level of trafficking and criminality. For these reasons, the Court is not required to have regard to the sentences imposed on Whittaker and Morcom.

27 Ultimately, the question for the Court is whether the sentence was manifestly excessive. In that regard it is a firmly established principle that the sentencing discretion is an extremely wide one and an appellate court may not intervene merely because it would have imposed a less severe sentence. The sentence must be allowed to stand unless the Court is persuaded that it was so excessive as to be unreasonable or plainly unjust. A substantial wrong must be shown. House v R [1936] HCA 40; (1936) 55 CLR 499 at 504; Cranssen v R [1936] HCA 42; (1936) 55 CLR 509 at 519.

28 The Court is satisfied that the sentence was not manifestly excessive. Based on the experience of the members of the Court, this was a bad case of trafficking. The appellant was not a small time dealer or simply seeking to fund his own habit. He was a major supplier of an addictive drug to a great number of people. The potential for harm to them was considerable. As was said by the learned sentencing judge, the appellant's "illicit and pernicious trade was pursued for financial gain and resulted in this drug of addiction being spread far and wide in the community. You agreed in your evidence that you knew that methylamphetamine can cause depression and even suicide, but this knowledge did nothing to deter you from your poisonous trade." Despite detection on five occasions, he continued with his trafficking until eventually, and at long last, he was retained in custody following the sixth detection. His persistence with such a serious offence was a particularly aggravating factor. A sentence of three years' imprisonment, with a non-parole period of two years, was not excessive, and certainly not manifestly so, having regard to the criminality demonstrated by the offender. For these reasons, the appeal will be dismissed.