JUDGE1
KING CJ This is an application by the Director of Public Prosecutions for
leave to appeal
against a sentence imposed in the District Court for the crime
of possession of cannabis for sale. The sentence imposed was imprisonment
for
18 months with a non-parole period of nine months, but that sentence was
suspended.
2. The prosecution arose out of a police
raid upon the respondent's home on
16 January 1992. The police seized some garbage bags containing cannabis.
The total quantity
of cannabis involved was 1.52 kg, and the total value, on
the evidence, was in the region of $15,000. Amongst the garbage bags seized,
there were garbage bags which contained fragments of cannabis suggesting that
there had been a greater quantity of cannabis in those
bags which had been
disposed of in some way. There was a set of scales on the premises. There
was also evidence of a considerable
amount of gambling on the part of the
respondent. Those facts tended to indicate that the respondent was engaged in
some commercial
activity with respect to cannabis. That was confirmed by the
concession which was made during the sentencing submissions when the
Crown
asked, and the defence counsel agreed, that sentence should be imposed
"against the background that the respondent was substantially
involved in the
trading of cannabis."
3. The respondent, of course, fell to be sentenced, not for anything he had
done in the past,
but for the particular offence with which he was charged.
Nevertheless, that offence takes its colour from, and its character is
affected by, the context in which it was committed. The concession which was
made, and which is supported by the material to which
I have referred,
indicates that the court was dealing here, not with an isolated offence, but
with an offence committed as an incident
in the course of a continuing
commercial dealing in the drug.
4. The respondent is aged 36 years. He is a married man with a family
and is
well spoken of as a family man. He pleaded guilty. Although the plea of
guilty was somewhat belated, he is entitled to some
credit for it. His only
prior convictions are of a relatively minor nature, being for false
representations to obtain monies for
which he was fined $100 and other counts
of the same kind on which he was convicted without a penalty. In November
1991 he was convicted
of possessing a firearm without a licence.
5. Nevertheless, the respondent cannot be looked upon as a man of unblemished
character
who comes before the court having offended for the first time. The
basis upon which the plea was entered and accepted and upon which
sentence is
to be passed indicates that he has been engaged in criminal activity in
relation to cannabis prior to the particular
offence with which he is charged.
The crime must be regarded by the court as a serious crime, not only in itself
but also by reason
of the context in which it was committed.
6. Parliament has prescribed severe penalties for commercial activity in
relation to cannabis
and the maximum sentence for the present offence is
imprisonment for two years. There is no doubt that the legislature expects
the courts to impose
penalties which might operate to deter people from
engaging in commercial activity with respect to this prohibited drug.
7. The
learned judge in suspending the sentence said:
"There has been a lot put to me of your circumstances,
the family circumstances
and your debt problems and they are all
relevant. But in the end, it is because you have been in custody
for this time,
rather than those circumstances, although those
circumstances are certainly relevant, that I suspend the
sentence."
8. That
passage, to my mind, does not disclose an adequate ground for the
suspension of a sentence for a crime of this kind. It is true,
of course, as
counsel put to us, that imprisonment would have an adverse effect on this man
and his family and it would undoubtedly,
as it does with almost everybody,
adversely affect their financial position. That does not appear to me to be a
sufficient ground
for the suspension of a sentence on a man who has engaged in
commercial drug activity and who is a mature person and is not entitled
to the
leniency which might be claimed for youth.
9. The circumstance that he had spent seven weeks in prison, I think in the
context
of this case, is really irrelevant. There are cases in which there
are strong considerations in favour of suspending a sentence
and also
considerations to the contrary and in which the fact that a person,
particularly a young person, has had a taste of prison
might be a decisive
factor in the decision as to whether to suspend a sentence. This is not that
sort of case.
10. I must say that
it seems to me that suspension is a quite inappropriate
order to make in a case of possession of cannabis for sale committed against
a
background of substantial involvement in cannabis trading. If I had been the
sentencing judge I would certainly have declined
to suspend the sentence.
Moreover, it seems to me that the expressed ground for the suspension of the
sentence are so inadequate
that it must be said that the sentencing discretion
has miscarried.
11. My only cause for hesitation in the present case is the
fact that it is
an appeal by the prosecution and on the well-known principles affecting
prosecution appeals this court has to look
very carefully at the matter before
reversing a decision of a sentencing judge in a way which would increase the
penalty upon the
offender. That is particularly so where there has been a
suspension of the sentence and the offender has been told by the court
that he
will not have to serve the sentence if he obeys the bond.
12. Nevertheless, considerations of public interest have to prevail
in the
end over considerations of that kind. I think that the suspension of this
sentence was wrong and that the public interest
would not be served by
allowing the suspension to stand. I think that to allow the suspension to
stand would tend to erode the standards
of punishment that are necessary to
operate as a deterrent to persons who are inclined to engage in commercial
activity with respect
to cannabis. To allow this suspension to stand would
send an entirely wrong signal to people who are tempted to engage in cannabis
trading and could only tend to weaken the defences which the community expects
to be erected and maintained against the drug trade.
In my opinion therefore
there is no real alternative but to grant leave to appeal and to allow this
appeal and to reverse the order
suspending the sentence.
13. The respondent spent seven weeks in prison. Perhaps in strict logic that
should not affect the sentence
that was suspended, because the judge was aware
of that when he fixed the length of the sentence and the non-parole period.
Nevertheless,
having regard to the fact that we are reversing a suspension of
a sentence I think that we ought to adjust the sentence and the non-parole
period to reflect the fact he has spent that seven weeks in prison without the
benefit of remissions.
14. The court declined to admit, following objection by
counsel for the
appellant, an affidavit tendered by counsel for the respondent as to matters
which have arisen since sentence was
passed. The task of the Court of
Criminal Appeal is to determine whether the sentencing judge was wrong on the
materials before
him. Only in the most exceptional circumstances will the
court admit evidence of events occurring since the passing of the sentence.
The Court of Criminal Appeal exercises a sentencing discretion afresh, it
nevertheless sentences on the material that was before
the sentencing judge.
An appellant court does not engage, in ordinary circumstances, in a fresh
sentencing exercise in the sense
of hearing further submissions and further
evidence on the question of sentence.
15. In my opinion therefore, the head sentence
should be reduced by what is a
somewhat generous margin in favour of the respondent to imprisonment for 15
months with a non-parole
period of six months commencing at the present date.