JUDGE1
KING C.J. The court has before it appeals against sentence by two appellants
who were jointly charged with the possession
of heroin for sale. The appellant
Simmonds pleaded guilty to the charge; the appellant Harris was found guilty
by verdict of a jury.
Harris was sentenced to imprisonment for six years and
six months with a non-parole period of four years and six months. Simmonds
was sentenced to four and a half years imprisonment with a non-parole period
of three years.
2. The facts, very briefly, are that
the appellants were in a car which was
owned and driven by Harris. They were stopped by the police after the police
had made some
earlier observations. They were found to be in possession of
13.6 grams of material containing 3.06 grams of pure heroin.
3. The
appellant Simmonds gave evidence at the trial of Harris. There was a
clear conflict between them as to the facts surrounding the
matter. The
learned judge in his sentencing remarks stated, addressing the appellant
Harris, "that you, Mr Harris, had arranged
the purchase and that you played
the major role in paying for and collecting it".
4. That indicated that the learned judge had accepted
the version of events
given by Simmonds. That was confirmed in his Honour's report to this court.
5. The facts, therefore, upon
which his Honour sentenced were that Harris
played the leading role in the transaction. He organised it. He provided the
sum of
$4,000 for the purchase of the heroin and he intended to play the
leading role in the sale of it and to collect the money.
6. The
role of Simmonds was considerably less. He played some part in the
arrangements which led to the transaction. He went to the supplier's
house
and injected himself with the heroin in order to test its quality, and he
hoped to obtain heroin to feed his own drug addiction
out of the transaction
and, I suppose out of the proceeds of sale.
7. The appellant Harris has some prior convictions, although
none of them are
drug-related. He produced a substantial body of evidence of character.
Nevertheless, the crime of possessing heroin
for sale is a serious crime.
8. I should say that counsel unintentionally misinformed the judge as to the
maximum penalty to be
applied. Counsel were under the impression that the
amending act, which had increased the penalties, was in force at the relevant
time. As it turns out, that is not so, and the old act with the lower maximum
penalty really applied. I am unable to think, however,
that that is a
significant factor in this case. The sentence of six years and six months
imprisonment is quite a moderate sentence, by the standards which applied
under the old
act, and especially since the operation of s.12 of the Criminal
Law Sentencing Act, which requires the court to take into account the
remissions which are available for good conduct in prison.
9. It seems to me
that the sentence imposed on Harris was a moderate sentence
for the crime of which he was convicted and that there are no grounds
upon
which this court could interfere to reduce it. In my opinion, therefore,
Harris' appeal against sentence should be dismissed.
10. Simmonds' part in the crime, on the learned judge's finding, was
significantly less than that of Harris. He played a relatively
subsidiary
role. He was, therefore, entitled, on that ground, to a sentence
significantly less than that of Harris. On the other
hand, his record of
prior convictions is more serious than that of Harris and, moreover, this
offence was committed while he was
on a bond for a Commonwealth crime of
imposition. Nonetheless, even taking that into account, one would have
expected Simmonds to
have received a substantially lower sentence than that of
the appellant, on the facts of the case.
11. There are three other important
factors affecting Simmonds' case. One is
that he pleaded guilty. His plea of guilty, it is true, came at a relatively
late stage,
but nonetheless, it was there, and he is entitled to some credit
for that.
12. More important than that, I think, in the present
case, is the fact that
he gave evidence for the prosecution on the trial of Harris. The court cannot
be blind to the potential consequences
to offenders who give evidence against
co-offenders and thereby may incur the displeasure of fellow prisoners when
they are called
upon to serve their sentence. This sometimes may mean that
they have to be kept in isolation and away from other prisoners. Sometimes
it
may mean that they have to be sent to a country prison. In the present case,
it appears that Simmonds is serving his sentence
at the Port Lincoln prison,
far removed from his de facto wife and child, who reside in Adelaide. It
follows from that that the
time which he spends in prison will be more
burdensome to him than would be the case if he had not co-operated with the
authorities
by giving evidence.
13. In addition to that, there was material placed before us in a sealed
letter, to which I do not intend to
refer further, except to say that it is
unquestionably material which, in the public interest, ought to result in a
significant reduction
in the sentence which would otherwise be imposed. I
hasten to say that that material is totally unrelated to the facts of the
present
case and is not in any way detrimental to the appellant Harris.
14. All those factors have to be taken into account in the case
of Simmonds.
Mr Millsteed has submitted that although another judge might have made a
greater allowance for those matters, it cannot
be said that the present
sentence is beyond the sentencing discretion. I've reached the conclusion,
however, that the sentence imposed
does not reflect sufficiently the matters
for which credit needs to be given to Simmonds. It is very important as a
matter of public
policy that substantial allowance be made to an offender who
co-operates with the authorities, and in particular where he gives evidence
and thereby incurs the odium of fellow prisoners and the dangers and hardships
which flow from that course.
15. It is very important,
I think also, that the extent of the discount which
is given on this account should be made clear by the sentencing judge. This
Court of Criminal Appeal has said on earlier occasions in relation to the
discount for a plea of guilty, that it not only ought to
be given, but that
the judge should indicate so far as possible, and wherever possible, the
extent of the discount which he is making
for the plea of guilty. If the
discount given for a plea of guilty is to operate as a real incentive for
guilty persons to plea
guilty, it is necessary that they, and their advisers,
have a clear idea of the sort of discount which will be made on that account.
16. The same considerations apply to co-operation with the authorities by way
of giving evidence against co-offenders. Unless it is clear to offenders
that
they will receive a significant benefit, and the general extent of the benefit
which they are likely to receive, then it is
not to be expected that the
authorities will receive the co-operation which they so often need in order to
enforce the law and bring
other offenders to justice. I would therefore
exhort judges wherever it is practical to do so in this type of case, not only
to
make a significant and appropriate allowance for the co-operation with the
authorities, but to indicate to the prisoner the extent
of the allowance which
has been made.
17. As I say, I have reached the conclusion in the present case, that the
sentencing discretion
has miscarried, because the learned sentencing judge has
not made the allowance which the matters to which I have referred called
for.
I would allow Simmonds' appeal, and would reduce his sentence to three years
and six calendar months, with a non-parole period
of two years. In my
opinion, therefore, the Harris appeal should be dismissed, Simmonds' appeal
should be allowed, and the order
which I propose should be made. The order of
the court therefore is that Harris' appeal against sentence dismissed,
Simmonds' appeal
against sentence allowed. Sentence reduced to three years and
six calendar months, with non-parole period of two years, both commencing
on
18 March 1992.