Supreme Court of SA|1996-11-19|Before: Doyle CJ, Nyland JJ

R v ANTONIO DI MARIA, STEVEN PETER HUDSON AND STEVE PEHLIVANIDES Nos. SCCRM 95/622, SCCRM 96/46, SCCRM 95/623 Judgment No. 5882 Number of pages - 14 Criminal law (1996) 67 SASR 466 [1996] SASC 5882 (19 November 1996)

COURT IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA DOYLE CJ, PRIOR AND NYLAND JJ

CWDS Criminal law - particular offences - drug offences - penalties - statutes - interpretation - operation and effect - three appeals against sentence - each appellant convicted of manufacturing prohibited substances - statutory interpretation - Controlled Substances Act 1984 - s32(5)B(b)(ii) - Controlled Substances (Declared Drugs of Dependence) - Regulations - no amount prescribed in relation to relevant drug - no penalty fixed by Act - legislative oversight - literal construction produces irrational result - Parliament intended to punish manufacture of drugs of dependence and prohibited substances - purposive approach gives effect to the Act when read as a whole - lower penalty applicable "in any other case". Controlled Substances Act 1984s32(1)(a), 32(3),(4),(5)and(6), 32(5)B(a), 32(5)A(2)(b)(i); Controlled Substances (Declared Drugs of Dependence) Regulations; s22, referred to. Mathieson v Burton ; ; Corporate Affairs Commission v Yuill ; ; Cooper Brookes (Wollongong) Pty Ltd v F.C.T. ; ; Wentworth Securities Ltd v Jones , applied. R v Mangelsdorf ; ; R v Pearce ; Mills v Meeking ; ; Bermingham v Corrective Services Commission ; Tokyo Mart Pty Ltd v Campbell ; R v Hietanen ; , considered.

Criminal law - jurisdiction, practice and procedure - judgment and punishment - sentence - disparity between sentence of leader and those of accomplices - not such that a Court should interfere - Court not obliged to take sentence of leader as starting point - individual circumstances - s18ACriminal Law (Sentencing) Act 1988 - sentence not excessive. Criminal Law (Sentencing) Act 1988s18A, referred to. R v MacGowan (1986) 42 SASR 580, applied.

Counsel for appellant Hudson: Mr M F Gray QC

Counsel for appellant Pehlivanides: Mr M L Abbott QC with Mr J D Edwardson

Solicitors for appellant Pehlivanides: Condello and Co

Counsel for respondent R: Mr P R Brebner with Mr D R Whittle

JUDGE1 Doyle CJ

Three appeals by leave against sentence have been heard together.

The Offences 2. Each appellant was convicted, upon the verdict of a jury, of one count of manufacturing amphetamine, a drug of dependence, contrary to s32(1)(a) of the Controlled Substances Act 1984 ("the Act"),and one count of manufacturing 3, 4- Methylenedioxyamphetamine ("MDA"), a prohibited substance, also contrary to s32(1)(a) of the Act.

Di Maria was also convicted upon the verdict of the jury of possessing amphetamine for sale, contrary to s32(1)(e) of the Act.

The maximum penalty for each offence was said to be (this is one of the issues argued on appeal) a penalty not exceeding $200,000 or imprisonment for twenty five years or both.

One Bull had previously pleaded guilty to one count of each of the above three offences, and to one count of manufacturing heroin.

Bull gave evidence for the prosecution of the trial of the appellants. They were sentenced on the basis that they were recruited by Bull into an undertaking organised and overseen by him. The undertaking was the manufacture of amphetamine and MDA. The method used was described by the sentencing judge as "complicated and sophisticated". The undertaking was a commercial one. Each appellant, according to the judge, was to receive an equal share of the proceeds. The undertaking was, if not interrupted by the police, likely to have produced a significant quantity of amphetamine and MDA. The judge found that it had already generated proceeds which were "not insignificant". When the appellants were detected none of the finished product was found at the site of manufacture. They were, therefore, sentenced on the basis that no specified amount of amphetamine or MDA had been manufactured by them.

The Sentences 7. The judge referred to the decision of this court in R v Mangelsdorf [1995] SASC 5328; (1995) 66 SASR 60 and in R v Pearce (1980) 91 LSJS 443.

He then referred to the sentence imposed upon Bull by another judge of the District Court. There were obvious mitigating factors in his case - his plea and his co-operation, but he had a bad record which included convictions for selling amphetamine in 1975, possessing cannabis for sale in 1984 and manufacturing heroin in 1988. For the last offence he received a suspended sentence, described by the judge who sentenced him as "a substantial head sentence".

The judge who sentenced Bull said that but for the mitigating factors he would have imposed the following sentences: manufacturing amphetamine, three years� imprisonment; manufacturing MDA, three years� imprisonment; possessing amphetamine for sale, two years� imprisonment; manufacturing heroin, one year imprisonment; a total of nine years, in relation to which he would have fixed a non-parole period of six years.

As it was, he imposed a single sentence of seven years imprisonment and fixed a non-parole period of four years.

That sentence attracted remissions, being imposed before remissions were abolished.

The judge who sentenced the appellants said that he did not accept that the three year sentences which would have been imposed upon Bull for manufacturing amphetamine and MDA, but for the mitigating factors "were within the appropriate range of sentences applicable to this case". He therefore did not regard Bull�s sentence as providing any guide to the sentences to be imposed upon the appellants.

He noted that none of the appellants had expressed any contrition.

Di Maria was thirty five years of age, and had no convictions until 1992. Prior to 1992 he was, the judge said, "a responsible, useful, dedicated hardworking and law-abiding member of the community". About then he got into financial difficulty and experienced some marital disharmony. He took to drugs and became addicted. By the time he became involved in the offences, he was severely addicted. The convictions recorded after 1992 were not for serious matters.

Pehlivanides was 34 years of age. He had no relevant previous convictions. The judge accepted, on the basis of character evidence tendered to him, that Pehlivanides was well liked and well regarded, highly qualified as a chemist, and dedicated to his work as a chemist. At the time of his conviction he was involved in four different businesses. The judge rejected his claims about his role in the matter. He found him to have been involved with Bull for about twelve months, and described him as "the brains behind the manufacturing process".

Hudson was forty years of age. He had a number of convictions, not all of which could be called minor. He had two minor drug convictions. He had a good work record until he suffered serious injuries in a motor car accident in 1976. Thereafter, his ability to work was significantly restricted. Apparently he took to drinking alcohol to excess, and became involved in the offence after some family tragedies which led to a period of heavy drinking. The judge found that although he was the labourer in the scheme, he took "an active and a significant part in the manufacturing process".

After considering the differences in antecedents and circumstances, the judge decided that taking all things into account, he should not differentiate between the three appellants.

He sentenced each to imprisonment for a single term of seven years, and fixed a non-parole period of five years.

Validity of Sentence - The Statutory Provisions 19. The first ground argued was that the sentence imposed was not authorised under the Act. Some explanation is required. The prohibition which gives rise to the offence of manufacturing a drug of dependence (amphetamine) and a prohibited substance (MDA) is found in s32(1). That subsection deals with manufacture, production, sale, supply and possession for sale and supply.

Section 32(3) provides as follows: "(3) For the purposes of this section, a person who knowingly has in his possession more than a prescribed amount of a drug of dependence or a prohibited substance, being an amount that is prescribed for the purposes of this subsection, shall, in the absence of proof to the contrary, be deemed to have that drug or substance in his possession for the purpose of the sale or supply of that drug or substance to another person."

Section 32(4) expands the meaning of taking part in manufacture, production and other prohibited activities.

The offence itself is created by s32(5), which provision also deals with penalties. It provides: "(5) A person who contravenes this section shall be guilty of an offence and shall, subject to subsection (6), be liable to a penalty as follows:"

Part A of the subsection then follows. It provides penalties for, speaking generally, offences in which the relevant drug or substance is provided to a child or possessed within a school zone. Part B of the subsection then follows. It is the "catch all" provision. It provides: "For any other offence under this section:"

It deals first, in sub-paragraph (a), with cannabis and cannabis resin. Sub- paragraph (b) is the relevant provision. It provides: "where the substance the subject of the offence is a drug of dependence or a prohibited substance (not being cannabis or cannabis resin)- (i) if the quantity of the substance involved in the commission of the offence equals or exceeds the amount prescribed in respect of that substance for the purposes of this subsection - a penalty of both a fine not exceeding $500 000 and imprisonment for life or such lesser term as the court thinks fit; or (ii) if the quality of the substance involved in the commission of the offence is less than the amount prescribed for the purposes of this subsection - a penalty not exceeding $200 000 or imprisonment for 25 years, or both."

Regulations have been made under the Act. The Controlled Substances (Declared Drugs of Dependence) Regulations ("the DDD Regulations") came into operation just before the offences were committed, but replaced earlier regulations of the same title. By Regulation 5 Amphetamine is declared to be a drug of dependence. By Regulation 6 amounts are prescribed, for the purposes of s32(3), in relation to a long list of drugs of dependence. Amphetamine is one of them. By Regulation 7 amounts in relation to drugs of dependence specified in a schedule are prescribed for the purpose of s32(5)A(2)(b)(i). Note, the reference here is to Part A, not to Part B of s32(5). The relevant schedule to the DDD Regulations refers to s32(5)(b)(i) of the Act - an error, there being no such provision, and an inconsistency as well with Regulation 7. Amounts are prescribed in relation to eight drugs of dependence. Amphetamine is not one of them.

The Controlled Substance (Declared Prohibited Substances) Regulations ("the DPS Regulations") were made in 1985. The scheme is similar. By Regulation 4 MDA is declared a prohibited substance. By Regulation 5 amounts are prescribed for the purposes of s32(3), in relation to a long list of prohibited substances. MDA is one of them. By Regulation 6 amounts are prescribed in relation to prohibited substances specified in a schedule for the purposes of s32(5) of the Act. Such amounts are prescribed in relation to 11 prohibited substances. MDA is not one of them.

Validity of Sentence - The Arguments 27. The difficulty now appears. No amount is prescribed for the purposes of s32(5)B(b) in relation to amphetamine or MDA. As to amphetamine, the reason is that it is not named in the relevant schedule, and in addition it is unclear whether the amounts which are prescribed are prescribed in relation to s32(5)A or s32(5)B. As to MDA, the reason is that MDA is not named in the schedule.

The argument which was advanced by the appellants was quite clear. The first argument was that no penalty was able to be imposed because, no amount having been prescribed in relation to the relevant drug, it could not be said that the quantity of the drug equalled, exceeded or was less than the amount prescribed and so no penalty was fixed by the Act. It was further argued that the amount of the drug was, having regard to the terms of s32(5) of the Act, an essential element of the offence, and the information was defective because it charged no amount of the relevant drug.

The argument for the DPP was equally clear. In essence it was as follows. Amphetamine is a drug of dependence and MDA is a prohibited substance. By s32(5) Parliament had made the manufacture of each of them an offence. Amounts have been prescribed for the purposes of s32(5)B(b) in relation to a small number of drugs of dependence and prohibited substances, but not for most of the drugs of dependence and prohibited substances. If no amount is prescribed in relation to a given drug or substance, Parliament must have intended that the lower penalty range apply. Parliament could not have intended that there be a penalty for possession of a drug of dependence or prohibited substance (as subsections (1) and (2) of s31 provide) but no penalty for the more serious offences of possession for sale, manufacture and like offences.

Validity of Sentence - Conclusion 30. It seems, as pointed out by the appellants, that Parliament did not intend or envisage that an amount would be prescribed for the purpose of s32(5)B(b) in relation to all drugs of dependence and all prohibited substances. The regulation making power is found in s63 of the Act. Section 63(3) provides:"(3) No regulation shall be made prescribing an amount relating to a drug of dependence or prohibited substance for the purposes of section 32 or section 45A except upon the recommendation of the Advisory Council."

That provision suggests that Parliament envisaged that an amount would be prescribed, thus attracting the higher penalty, in relation to some drugs and substances only.

It also seems likely, to me, that the problem in this case results from inadvertence by the drafter of amendments to the Act. As originally enacted in 1984, the relevant provision (s32(5)(b)) provided for a higher penalty range if the quantity equalled or exceeded the prescribed amount, and a lower penalty range "in any other case". A series of amendments instituted and then removed a three tier approach to penalty, apparently overlooking the reason for providing for "any other case". Indeed, as it currently stands s32(5)A still uses the technique of a higher penalty range for amounts equalling or exceeding a prescribed amount, and a lower penalty range "in any other case".The difficulty which arises under s32(5)B(b) (and under s32(5)B(a), although that provision is not in issue here) does not arise when that technique is used. It does not arise because the expression "in any other case" is apt to cover situations in which there is a prescribed amount - it then operates in cases when the amount is less than the prescribed amount or when no amount is involved; and is also apt to cover situations in which no amount is prescribed - it then governs all cases.

To the extent that the earlier form of the provision throws light on its current form, the better view is that it is permissible to have regard to that earlier form: Mathieson v Burton [1971] HCA 4; (1971) 124 CLR 1 at 26 Gibbs J.

In the context of a statutory scheme which treats manufacture and production as a more serious offence than possession, and taking account of the current form of s32(5) and of the legislative history of s32(5)B(b), one is led to the conclusion that Parliament could not have intended to punish activities such as manufacture and production of a drug of dependence or prohibited substance only if an amount is prescribed for that drug or substance for the purposes of s32(5)B(b). It is not consistent with the scheme of s32 to treat it as leaving it to the Executive to decide, by prescribing an amount if the recommendation of the Advisory Council can be obtained, that these activities will be punished. If no penalty is able to be imposed in the present case, then that is the result of an oversight, not of an expressed intent.

That being said, the problem remains. Is the form of the subsection such that no penalty can be imposed if no amount is prescribed?

The function of the court is to give effect to the words which Parliament has used, applying rules of interpretation which the courts themselves have developed: Corporate Affairs Commission v Yuill [1991] HCA 28; (1991) 172 CLR 319 at 322, Brennan J. As lawyers know, that statement, while axiomatic, is the beginning point of the rules of interpretation, not the end.

In the past courts tended to take a literal approach to interpretation, declining to look beyond the precise words used, and stressing, quite properly, that it is not for a court to convert what Parliament has said to mean what the court considers it should have said, or would have said if it had foreseen the situation before the court. To do that would be to usurp the role of Parliament.

However, in more recent times the so called purposive approach to interpretation has predominated. Under this approach, the purpose of the legislation, as understood by the court, may influence the process of construction. But it could do so only if the literal approach resulted in an ambiguity or inconsistency. These approaches, and the use of the purposive approach, are discussed in Pearce and Geddes, Statutory Interpretation In Australia (4th ed) 1996 Ch 2. The use of the purposive approach has, in my opinion, been assisted by rather than been dependent upon statutory provisions requiring courts to adopt a purposive approach. In my opinion, the purposive approach should be adopted by this court and has, generally, been adopted.

That view is reinforced by s22 of the Acts Interpretation Act 1915 (SA) which provides: "(1) Subject to subsection (2), where a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object."

However, it must be noted that in South Australia there must first be more than one construction "reasonably open". Under such a provision it is open to argument whether the purpose of the legislation may be taken into account in deciding whether more than one construction is open: cf Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214 at 234-235, Dawson J. Having heard no submissions on this point, or indeed on the relevant principles of interpretation at all, I put that issue to one side, it not being appropriate to decide it now.

With these points in mind, I return to s32(5)B(b) of the Act. The first issue is whether the provision is reasonably open to more than one construction. That is to be decided according to common law principles of construction. If the meaning of the provision is clear, I must give effect to it, even if it does not promote the purposes of s32(5).

One construction, that contended for by the appellants, is that the provision imposes a penalty for the manufacture of a substance only if an amount has been prescribed in respect of the relevant substance. That construction is reasonably open.

Counsel for the DPP did not identify an alternative construction, but rather a preferred result. I have already summarised his approach. How, as a matter of construction, is that result reached?

The question which arises is whether the words of s32(5)B(b)(ii) are reasonably open to the construction that they mean "in any other case", or whether it is reasonably open to the court to read those words into the provision, either at the beginning of sub-clause (ii) or immediately before the penalty is specified.

In my opinion it is. It is only rarely that a court is at liberty to do so. But in Cooper Brookes (Wollongong) Pty Ltd v F.C.T. [1981] HCA 26; (1981) 147 CLR 297 the High Court corrected a drafting oversight in a provision of the Income Tax Assessment Act, and did so before the enactment of the purposive approach by s15AA of the Acts Interpretation Act (Commonwealth). The High Court applied accepted common law principles of construction. Gibbs CJ was prepared to do so because (at 304): "� the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the canons of construction are not so rigid as to prevent a realistic solution in such a case �."

Stephen J was influenced by the fact that the draftsman�s error could be identified, and that the literal interpretation led to the result that the intention of the legislature entirely failed (at 311). He said (at 310): "However, a close examination of that subsection against the background of its legislative history and that of its neighbouring sections has satisfied me that the intent of its framers, which it reflected when it was originally enacted, has been stultified by

amendments to other provisions which, for some reason have passed by s80C(3). That subsection now stands as an anachronism �."

The similarities to the present case can be seen easily.

Mason and Wilson JJ rejected the literal interpretation because it produced a result which was "capricious and irrational" (at 321). A little earlier they made the point that the effect of a suggested meaning or operation of a statute could not be ignored (at 320). They then said: "For the reason already given in the discussion of the literal rule, departure from the ordinary grammatical sense cannot be restricted to cases of absurdity and inconsistency.In some cases in the past these rules of construction have been applied too rigidly. The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction."

They then went on to say (at 321): "Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more

convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended."

The New South Wales Court of Appeal was prepared to make good a legislative omission in Bermingham v Corrective Services Commission (1988) 15 NSWLR 292 and to remedy legislation inadvertence in regulations in Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275. No reference is made to s33 of the Interpretation Act 1987 (NSW), although it may be that the approach taken was influenced by that provision which requires a purposive approach.

In any event, founding myself upon the approach taken in Cooper Brookes [1981] HCA 26; (1981) 147 CLR 297 it is my opinion that the necessary words can here be supplied.

The legislative history reveals to my satisfaction an unintended departure from the original scheme, which used "in any other case" to govern situations in which an amount was prescribed, and the penalty referred to then became the lower penalty, and situations in which no amount was prescribed and the penalty referred to was then the only penalty. There is, I consider, no other rational explanation for the departure other than that it was intended to provide a penalty "in any other case", although those words were not used. Giving the provision its literal interpretation will cause the legislative intent to fail, because it will leave unpunished (other than by conviction) what is clearly regarded by Parliament as a serious offence - the manufacture of a drug of dependence and of a prohibited substance (and also sale and possession for sale). In the words of Mason and Wilson JJ in Cooper Brookes (supra at 321), the construction contended for by the appellants will produce a result which is "capricious and irrational". To borrow the approach of Lord Diplock in Wentworth Securities Ltd v Jones (1980) AC 74 at 105-106, first of all I am satisfied that Parliament intended to punish manufacture of the relevant substances in all cases, and to enable the Executive to do no more than by regulation identify substances which would attract a higher penalty if more than a specified quantity was involved. I am satisfied that Parliament did not intend to penalise manufacture only if the Executive prescribed an amount in respect of a given drug of dependence or prohibited substance. Secondly, I am satisfied that when Parliament amended the provision it overlooked the significance of removing the words "in any case". Thirdly, it is possible to specify the words that would have been inserted if the omission had been identified. The words are to be found elsewhere in s32, they were previously used in s32(5)B itself. They are, "in any other case".

In so concluding I have used the purpose of the legislation to test the consequences of the possible meanings of the provision. I have not, to effect the legislative purpose, made provision for a situation to which Parliament did not direct its mind, relying upon purpose as identified by me to remedy the oversight. I have added the words which, I consider, Parliament did intend to add to cover a situation to which it had adverted. Its error was mere oversight, the omission of the intended words: cf Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275 at 283 Mahoney JA.

For those reasons, I consider that the legislative omission can be remedied, making the lesser maximum penalty the relevant maximum in this case. In other words, such a construction is reasonably open.

Of the two approaches which are open, I unhesitatingly prefer the latter construction, on the grounds that it would promote the object of the section, while that advanced by the appellants would not.

It follows that the sentence was validly imposed.

It likewise follows that the appellants� alternative submission fails. No amount having been prescribed in relation to either substance, and the amount involved not being capable of attracting a higher maximum by operation of the Act, the rule of practice requiring a circumstance of aggravation to be pleaded does not apply: cf R v Hietanen [1989] SASC 1909; (1989) 51 SASR 510.

It follows also that it is unnecessary to consider whether, if no penalty were provided, a breach of s32 of the Act is to prosecuted as if it were an indictable common law misdemeanour, notwithstanding the abolition of the classification of offences as felonies and misdemeanours by s5D of the Criminal Law Consolidation Act: see Ex Parte Gerard and Co Pty Ltd; Re Craig [1944] NSWStRp 30; (1944) 44 SR (NSW) 370 at 375 Jordan CJ; Clyne v DPP [1984] HCA 56; (1984) 154 CLR 640 at 645 Gibbs CJ, at 650 Mason and Brennan JJ. In that event, the penalty would be at large: R v Hokin, Burton and Peisley [1922] NSWStRp 19; (1922) 22 SR (NSW) 280 at 291, Clyne v DPP (supra) at 660 Dawson J.

Whether Sentences Excessive - Disparity Argument 59. I begin by saying that I do not accept the submission that there is such a disparity between the sentences imposed upon the appellants and that imposed upon Bull that the court should intervene.

I agree with what the sentencing Judge said about the views expressed by the judge who sentenced Bull. The sentences which he would have imposed on Bull, but for his plea and co-operation, were plainly inadequate.

The substances being manufactured in this case are in the mid-range of seriousness. I consider that a sentence of three years� imprisonment for the manufacture of such substances is now and was (before remissions were abolished) well below what was required, particularly taking into account Bull�s leading role and his past record. In my opinion Bull was entitled to a much greater discount than the judge allowed him, but the discount was taken from a single sentence which was much lower than it should have been. In that respect also the judge who sentenced Bull started from an unduly low sentence.

In my opinion the judge who sentenced the appellants rightly set out to impose what he regarded as an appropriate penalty. As this court said in R v MacGowan (1986) 42 SASR 580 at 581, referring to a situation such as the present one: "If, however, the earlier sentence is, in the opinion of the judge imposing the subsequent sentence, outside the range of sentences properly applicable to the case, he may legitimately impose what he regards as the appropriate sentence, leaving any correction of disparity to the Court of Criminal Appeal."

In my opinion, in dealing with the appellants, the actual sentence imposed upon Bull does not set a benchmark against which the appellant�s sentences are to be measured, theirs being lesser sentences because of their lesser complicity and better records. Bull was entitled to a substantial discount for his plea and his co-operation. That makes any comparison difficult, and I am not prepared to say that, when allowance is made for that discount, the sentence imposed upon the appellants had to be less than the sentence of seven years imposed upon Bull. Nor is the starting point of nine years a proper benchmark. A proper sentence for him, before any discount, would have been quite a lot more than nine years.

I reject the submission that there was such a disparity between these sentences and that imposed upon Bull that this court should interfere.

I also reject the submission that the starting point indicated by the judge who sentenced Bull was a proper starting point.

Whether Sentence Excessive - Individual Circumstances 66. In sentencing the appellants, the judge said: "Whilst each of you played different roles and each of you has a different background and differences in antecedents, after balancing all those differences, and bearing in mind that the head sentence must reflect not only the gravity of the offences, but must also be such as to deter others who might be like-minded, I can see no reason why, in passing one sentence pursuant to s18A of the Criminal Law Sentencing Act in respect of all of the offences of which you�ve been found guilty, I should differentiate between you either as to sentence or as to the non-parole period."

Was that approach erroneous? 67. At the outset it must be observed that, on the judge�s findings, each appellant played his part in what was a joint effort at production of the substances. Bull was the leader, but each of the appellants played a part. It is not easy to say that the judge was obliged to draw relatively fine distinctions.

Counsel for Di Maria emphasised the fact that Bull and Hudson did most of the "hands on" work. But that matters little. On the findings, Di Maria was an equal partner in the proceeds of the overall project. He referred to Di Maria�s addiction, the tragic effect of that upon him and his family, and to the prospect of him rehabilitating himself in a supportive family environment.

As to those matters, the court has said repeatedly that addiction to drugs does not offer much if anything by way of mitigation. This was an enterprise which aimed to produce amphetamine and MDA in significant quantities, with a view to supplying others for profit. Addiction merely explains how the offence came to be committed, and is in no way an unusual feature of such cases. It does not mitigate the seriousness of the offence. The impact on Di Maria�s family does not help him. Sadly, imprisonment will always have an adverse effect on the family of the prisoner. And while his prospects of rehabilitation do seem reasonably good, the seriousness of his offences must also be considered. Finally, the fact that he suffers from Hepatitis C is of no significance for the purpose of the sentence. I do not see any reason why treatment cannot be given while he is imprisoned.

All in all, I do not consider that the sentence was excessive, taking account of Di Maria�s individual circumstances.

Counsel for Hudson pointed to certain aspects of the facts said to entitle him to more lenient treatment than he got. They were his lesser role as a "labourer" rather than the "brains", and the fact that he came into the scheme later than others. I do not consider that any of those matters are significant enough to make the sentence excessive. The fact that Hudson was an alcoholic no more assists him than does Di Maria�s addiction to drugs.

Nor, as for Pehlivanides, are there any circumstances which render the sentence excessive. He was involved from an early stage, and provided important expertise. He also is a man with considerable potential, and who hopefully will still put his skills to good use, but I cannot say that his circumstances rendered the penalty excessive.

Nor, in my opinion, did the judge err in imposing the same sentence upon each of the appellants.

There were differences between them in degree of involvement, in nature of involvement, in personal circumstances, in prospects of rehabilitation, in prior record. Some judges might have attempted a differentiation in sentence, but I suspect that any such attempt would have involved fine tuning and differentiation based very much on matters of impression. In my opinion the judge did not err in taking the course which he did.

In the end, these were heavy sentences imposed for what were serious offences. The production of drugs of dependence and prohibited substances, as part of a commercial operation, is at the heart of the drug trade, along with importation. When mature men or women combine in such an enterprise, they must expect that the courts will impose heavy sentences in which deterrence is a significant factor. Personal circumstances must be given less weight in such cases than they might in other cases. This was a project involving grave criminality, and the sentences imposed were not excessive.

In my opinion, all appeals should be dismissed.

It goes without saying that the DDD Regulations and the DPS Regulations should be reviewed, as should the penalty provisions of the Act, to ensure that they do not contain the seeds of other problems.

JUDGE2 PRIOR J 78. I agree with the reasons published by the Chief Justice. All three appeals should be dismissed.

JUDGE3 NYLAND J 79. I agree that the appeals against sentence should be dismissed for the reasons expressed by the Chief Justice. I have nothing to add.

Acts Interpretation Act 1915(SA)

Controlled Substances Act 1984

Interpretation Act 1915

Law (Sentencing) Act 1988

Criminal Law (Sentencing) Act 1988

Acts Interpretation Act 1915(SA)

Law (Sentencing) Act 1988

Controlled Substances Act 1984

Interpretation Act 1915

Criminal Law (Sentencing) Act 1988

R v ANTONIO DI MARIA, STEVEN PETER HUDSON AND STEVE PEHLIVANIDES Nos. SCCRM 95/622, SCCRM 96/46, SCCRM 95/623 Judgment No. 5882 Number of pages - 14 Criminal law

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Judgment (89 paragraphs)

R v ANTONIO DI MARIA, STEVEN PETER HUDSON AND STEVE PEHLIVANIDES Nos. SCCRM 95/622, SCCRM 96/46, SCCRM 95/623 Judgment No. 5882 Number of pages - 14 Criminal law (1996) 67 SASR 466 [1996] SASC 5882 (19 November 1996)

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Legislation Cited (10)

Cases Cited (15)