HRNG ADELAIDE, 21 July 1993 #DATE 21:7:1993 Counsel for appellant: Mr B J Jennings QC with Ms J M Rusalen Solicitors for appellant: Director of Public

Prosecutions (SA) Counsel for respondent: Mr P A Cuthbertson Solicitors for respondent: Elston and Gilchrist

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.

JUDGE2 DUGGAN J The appeal should be allowed for the reasons given by the Chief Justice, and I agree with the orders which he proposes.