SLICER J Leo Antonio Michieletto has pleaded guilty to the crime of conspiracy to traffic in the prohibited substance cannabis. A further forty-six offences contrary to the Poisons Act 1971, ss52(1) and 55(1)(c) are before the Court for determination by virtue of the Criminal Code, s385A. Those charges effectively constitute the crime of conspiracy and all matters will be dealt with as a single crime.

2. Michieletto was responsible for the setting up and maintenance of twenty-three hemp plantations in remote areas of North East Tasmania. The operation was commercial and highly organised involving more than 100 persons. The harvested crop, with an estimated value of $8,000,000, was destined for the interstate market.

3. The organisation was triple tiered. The apex consisted of financial investors who controlled the operation and arranged for the distribution of the marihuana when harvested. The investors relied on a network of organisers who purchased materials and equipment, made arrangements with the cultivators and collected the harvested crops for dispatch to the wholesale network. The base of the operation consisted of the growers who were responsible for the planting, cultivation and harvesting of the crop. They in turn engaged persons to provide security against poachers and to care and maintain the crops during the final six weeks of growth. Those persons, some armed with rifles or shotguns, lived on site.

4. Payment was dependent upon the success of the harvest. The rewards were considerable. Some growers stood to receive in excess of $25,000 and the "minders" were to be paid $1,000 per week. The role of Michieletto was to organise the cultivation and to give effect to the requirements of the "investors". He describes his role in the following terms:

"My job was to go into the bush and locate underground water

tables so wells could be dug down to them for the irrigation

of each crop site. My next job would be to guide a crew of

men in carrying the materials needed for the site and help

them prepare the sites ready for cultivation. It was my job

to see that no one got lost on this operation and watch for

the safety of the men as some of the areas were a long way

in and very remote.

Also through the growing season I was to go around the crop

sites checking on each group of men on each crop and report

on progress and problems to middlemen who then report to

owners.

My part in the conspiracy to traffic would have been to tell

the middlemen when the growers had each crop harvested and

ready to be picked up.

The middle men would then pick up what was ready and take it

back to the owners ready for them to sell."

5. Michieletto had been chosen for his role because of knowledge of bushcraft and agriculture. He stood to receive between $50,000 and $60,000 for his endeavours.

6. The offender was apprehended on 19 February 1995 in the course of checking on the state of six plantations near Pipers Brook which had been the subject of police surveillance. The plantations contained some 1,700 plants in good condition and nearing maturity. Michieletto was arrested and detained.

7. Between 28 February and 2 March 1995 police seized a further 3,100 hemp plants from seventeen plantations. Michieletto assisted in that seizure. He has at all times refused to supply the names of any other person connected with the operation. But, realising that the locations of the plantations were known, he made enquiries as to whether any persons guarding the crops had remained in the area. Doubtless this was of benefit to the network. But in turn it prevented any potentially hazardous confrontation between police officers and armed members of the organisation. Subsequent to those enquiries, Michieletto accompanied police to the various sites to ensure that, if any persons had remained, no violent confrontations would occur. Inspector Hickey, the officer-in-charge of the investigation, acknowledges that the offender was genuinely concerned about risk of injury and that his assistance facilitated a quick and safe seizure of the plants.

8. The authorities concede that, but for his co-operation, Michieletto could not be shown to have been involved in the seventeen plantations.

9. The offender does not seek to avoid responsibility for his involvement in a sophisticated commercial drug operation. He is aged 34, single and has previously been convicted of offences contrary to the Poisons Act, ss47(3)(a) and 49. Those convictions are not significant to the determination of penalty.

10. The plea, ably presented by his counsel, advanced a number of factors which are said to warrant the imposition of a more lenient penalty than the objective nature of the crime would ordinarily attract. Those matters are:

- the early plea of guilty, especially given the

unlikelihood (but for his co-operation) of conviction with

respect to seventeen of the plantations;

and

- the fact of the real assistance given to the authorities.

11. Plea of Guilty: The offender has pleaded guilty at the earliest stage of proceedings. There is greater import in the fact that but for his co-operation he would not have been linked to the operation of the seventeen plantations.

12. In recent years courts in Australia have accepted that a plea which obviates the expense to the State of a lengthy and complex trial warrants mitigation of penalty. Historically a plea of guilty was regarded as a matter signifying remorse. In cases of a sexual nature, a plea of guilty was regarded as evidence of contrition in that it avoided further trauma to the victim by obviating the need for testimony (McDonald v R 47/1980 at 4).

13. But there was logical inconsistency in that approach. It was said in Harris v R (1967) SASR 316 at 328:

"... the idea should be energetically repudiated that any

prisoner has anything to gain by saving the Court trouble or

Crown witnesses embarrassment."

14. To accept that a plea of guilty can be regarded as a factor ameliorating penalty necessarily involves the converse proposition that the approach penalises those who plead not guilty. The contradiction was recognised by the court in Harris (supra) at 328:

"... there is a difference, perhaps more apparent in logic

than in practical application, between adding something to

what would otherwise have been a normal sentence for the

particular crime and refraining from deducting something

from what would otherwise have been such a sentence"

and Cox J in his minority opinion delivered in R v Shannon (1979) 21 SASR 442 when discussing hypothetical indistinguishable jointly charged defendants who had entered different pleas, observed, at 458-459:

"However, he is convicted by the jury, and in accordance

with the submission he will get a longer sentence than his

colleague for no other reason than that his colleague

pleaded guilty. He will need a very subtle mind, unusually

sympathetic to the ways of the law, if he is to understand

that he is going to prison for a longer term, not because he

pleaded not guilty, but because he failed to plead guilty."

15. The majority view was expressed by Wells J in Shannon (supra) at 455 in the following terms:

"A plea of guilty traditionally is taken into account and

prima facie should incline a judge to look for grounds for

leniency. But the weight that that plea has upon a

consideration of possible leniency will vary enormously from

case to case. At one end of the scale, it may take its

place with other material that justifies substantial

leniency. At the other end, it may represent a reluctant

acknowledgment that no other course is open, wrung from a

prisoner who is defiant of all authority and who is a

confirmed misanthrope with a dangerous proclivity towards

violence, cruelty, or the misappropriation of the property

of others. In particular, the effect of a plea of guilty

may be reduced virtually to nothing where the facts are so

outrageous that the unmistakable duty of the trial judge is

to make an example of the prisoner by imposing a strongly

deterrent sentence."

That approach was approved by Wright J in R v Dowie [1989] TASSC 44; (1989) Tas R 167 at 184, who added:

"To my mind, it is distasteful and contrary to generally

held notions of fairness and balance to contend that genuine

contrition and remorse can and should be taken into account

in mitigation, but at the same time to claim that the bare

fact of a guilty plea is of neutral effect.

Wright J believed that "actions speak louder than words" and that:

"... such subjective attitudes of mind (contrition and

remorse) are more readily inferred from a plea of guilty

than from protestations from the dock or the bar table."

16. The court in Shannon (supra) set out the following propositions governing the mitigating effect of a plea of guilty at 452-453, namely:

" ... this Court should now lay down the following

propositions:

(1) A plea of guilty may be taken into account in mitigation

of sentence where

(a) it results from genuine remorse, repentance or

contrition, or

(b) it results from a willingness to co-operate in the

administration of justice by saving the expense and

inconvenience of a trial, or the necessity of witnesses

giving evidence, or results from some other consideration

which is in the public interest; notwithstanding that the

motive, or one of the motives, for such co-operation may be

a desire to earn leniency,

and where to allow the plea a mitigatory effect would be

conductive to the public purposes which the sentencing judge

is seeking to achieve.

(2) A plea of guilty is not of itself a matter of mitigation

where it does not result from any of the above motives, but

only from a recognition of the inevitable, or is entered as

the means of inducing the prosecution not to proceed with a

more serious charge.

(3) In cases falling within (1), the judge is not bound to

make a reduction, but should consider the plea with all the

other relevant factors in arriving at a proper sentence.

(4) In assessing the weight to be attached to a plea of

guilty as a factor making for leniency, it is proper for the

judge to bear in mind that it is important to the

administration of justice that guilty persons should not

cause expense to the public and delay to other cases by

putting forward false stories and on the basis of such false

stories contesting the charges against them.

(5) The above propositions are not to be taken as weakening

in any way the principle that there must be no increase in

the sentence which is appropriate to the crime because the

offender has contested the charge."

17. Whilst philosophically I prefer the minority view as expressed in Shannon, the majority view has become accepted in most jurisdictions in Australia and I should give effect to it. See:

New South Wales

R v Ellis (1986) 6 NSWLR 603, R v Cartwright (1989) 17 NSWLR

243, R v Bond (1990) 48 A Crim R 1, Pereira v R (1991) 57 A

Crim R 46.

Queensland

In Queensland the principle has been given statutory effect

by virtue of the Penalties and Sentences Act 1992, s13.

R v Harman (1989) 1 Qd R 414, Marshall (1992) 62 A Crim R

162, Corrigan (1993) 70 A Crim R 53.

South Australia

R v Harris and Simmonds [1992] SASC 3624; (1992) 59 SASR 300.

Victoria

Edwards v R (1993) 67 A Crim R 539.

Western Australia

Doyle v R (1994) 71 A Crim R 360.

18. The principle does not require the application of a reduction of sentence in all circumstances (see Pereira v R (supra), Corrigan (supra), Marshall (supra)) but its general adoption requires me to take into account the plea of guilty simpliciter. The sentence is reflective of the plea.

19. Co-operation With Authorities: The same approach is taken with respect to the assistance provided to the investigating police. See R v Cartwright (1989) 17 NSWLR 243. His failure to name others involved in the operation ought not be regarded as a matter of aggravation. His assistance in the recovery of the plants and, more importantly, his taking steps to lessen the possibility of violent confrontation is acknowledged by the authorities and will be regarded as a substantial mitigating factor.

20. Determination of Penalty: Tasmanian courts have not been required to deal with a large number of cases involving drug related commercial enterprises of the scale and magnitude as the one under consideration. Thus it is difficult to fix an appropriate penalty by reference to the range of penalties applied in other cases. The Poisons Act 1971, s47(6) originally prescribed a maximum penalty of $4,000 and imprisonment for a period of ten years, but that section was repealed in 1984 and the general provisions of the Criminal Code apply. Nevertheless, the legislative scheme provides some guidance on the issue. Warner, Sentencing in Tasmania, 409 refers to two penalties imposed before the 1984 amendment in which sentences of imprisonment of three years (Burton 9 May 1978, 16 pounds of cannabis) and four years (Whatley and Whatley 21 August 1980) were imposed. The scale of the operation in this case far exceeds those giving rise to those prosecutions. In Young v Lowe 7/1985 the Full Court dismissed an appeal against a sentence of imprisonment of twelve months imposed on an offender who had leased land on which some 65,000 hemp plants had been grown and for which the appellant expected to receive $20,000. Another person more directly involved in the operation had been sentenced to a term of imprisonment for fifteen months. More recently a sentence of imprisonment of three years and six months was imposed on an offender (with no relevant prior convictions) with respect to trafficking in some 45 kilograms of cannabis with an estimated value of $300,000 to $350,000 (Newman 27 February 1992). Those cases are of limited assistance since either the scale of operation or the role of the offender differed.

21. During the course of the presentation of the Crown case it was suggested that regard ought be had to the range of penalties imposed in other jurisdictions. However, it is difficult to discern from the penalties imposed in other jurisdictions a consistency of approach. As is observed in Drug Offences in Australia, Sentencing, vol 1, Rinaldi, 208:

"It seems that the judicial attitude towards cultivation of

cannabis in Victoria is significantly milder than in New

South Wales, with a pragmatic penalty ceiling of

imprisonment for five years even for principals of

large-scale enterprises."

The relevant Victorian maximum penalty for cultivation as proscribed by the Drugs Poisons and Controlled Substances Act 1981, s72 is imprisonment for fifteen years. In Queensland a principal involved in the cultivation of some 20,000 plants was sentenced to a term of imprisonment for ten years (R v Middleton (1980) 2 A Crim R 162). Comparable cases have attracted terms of imprisonment of six years (Macri and Ors v R (1979) 1 A Crim R 299 (Vic)), five years (Giorgi and Romeo v R (1982) 7 A Crim R 305 at 307 (SA)), six years (Taouk and Hanna v R (1982) 8 A Crim R 349 (NSW)) and seven years (Cotic v R (1984) 12 A Crim R 208 (WA)).

22. It is difficult to discern an applicable comparable range of penalties which are commensurate with the general range of penalties imposed by Tasmanian Courts with respect to crimes generally. The differing approaches taken in different jurisdictions might be explained by reference to the differing range of penalties provided by the legislature. In part the explanation might lie in a lack of consistency within jurisdictions. As Wright J observed in Dunford v R A10/1995 (unreported, available on SCALE) at 1:

"Trafficking in drugs is always serious but a consideration

of the range of sentences imposed for this and other

offences under the Poisons Act in recent years suggests

that there have been significant unexplained variations in

sentences actually imposed by individual members of the

Court. The nature of the drug, its value or quantity, and

the apparent status of the offender in the distribution

chain, are all matters which should be taken into account

and are thus capable of accounting for some of these

differences, but even allowing for such factors it is

difficult to detect an overall pattern in the sentences

which have been imposed."

If that be correct then reference to sentences imposed by courts outside Tasmania will compound the problem. Regard is had to the penalty proscribed by Parliament in 1971 (despite the 1984 amendment) as a guide to the upper limit of the appropriate penalty. In the circumstances of this case the salient features which affect the determination of penalty within that range are:

- the scale of the operation and its commercial nature;

- the number of persons involved;

- the role of the offender as the organiser and prime agent

for the "investors" and middle men; and

- the existence of security operations and the presence of

weapons, both being matters known to the offender.

23. In Tasmania the range of penalties appropriate in a case involving large scale commercial operations would be more in accord with the lower range of penalties applied by other jurisdictions. To the extent that it is possible to make comparisons, the appropriate penalties would be more in accord with Victoria than New South Wales. The role of the offender, in the absence of mitigating factors, warrants the imposition of penalty towards the upper range of the scale of penalty.

24. Statement of Discount: It was contended that the Court should state the amount of reduction of sentence afforded the plea of guilty and the assistance given by the offender. In the circumstances of this case I do not believe that it is appropriate to so do. That differing approaches to this question have been taken is evident from the judgments of McGarvie and Crockett JJ in R v Nagy [1992] VicRp 45; (1992) 1 VR 637 but in Tasmania there is no authoritative decision endorsing the practice. There is logic in the course of stating the amount of discount in that an opportunity is afforded for an analysis of whether sufficient or adequate weight was given to the mitigating matters. Further support might be gained by the knowledge of offenders of what might be expected. However, an appropriate reduction of sentence in one case might not be reasonable in another. Yet its articulation might lead to an expectation which, if not fulfilled, could cause another offender to feel unfairly treated. I express no concluded view on the issue but will not attempt to quantify and state the reduction of penalty given in response to the mitigating factors. However, significant effect is afforded those matters.

25. Penalty: The offender is a single man aged 34. He comes from a close family and has been in employment for a number of years. He has been a user of cannabis but in no way can it be suggested that his involvement in this enterprise arose because of drug dependence. He has prior convictions involving the use of drugs. He is aware of his responsibility with respect to these charges. The appropriate penalty, given the mitigating factors, is a sentence of imprisonment of three years, such sentence to commence as and from 16 June 1995.

1 That Leo Antonio Michieletto be sentenced to a term of

imprisonment for a period of three years, such sentence to

commence as and from 16 June 1995.

2 That pursuant to the provisions of the Victims of Crime

Compensation Act 1994, ss5 and 6 Leo Antonio Michieletto be

ordered to pay a compensation levy of $500 to the Clerk of

Petty Sessions, Launceston within six months of the date of

release from prison.